POOLING AND SERVICING AGREEMENT
RELATING TO
AMERICREDIT AUTOMOBILE RECEIVABLES TRUST 1995-B
among
AMERICREDIT FINANCIAL SERVICES, INC.
as Seller and Servicer,
AMERICREDIT RECEIVABLES CORP.,
as Initial Class B Certificateholder
and
LASALLE NATIONAL BANK
as Trustee, Backup Servicer and Collateral Agent
______________________
Dated as of November 20, 1995
______________________
TABLE OF CONTENTS
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ARTICLE I DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.1. Definitions. . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.2. Usage of Terms . . . . . . . . . . . . . . . . . . . . . . 17
Section 1.3. Calculations . . . . . . . . . . . . . . . . . . . . . . . 18
Section 1.4. Section References . . . . . . . . . . . . . . . . . . . . 18
Section 1.5. Action by or Consent of Certificateholders . . . . . . . . 18
Section 1.6. No Recourse. . . . . . . . . . . . . . . . . . . . . . . . 18
Section 1.7. Material Adverse Effect. . . . . . . . . . . . . . . . . . 18
ARTICLE II CREATION OF TRUST . . . . . . . . . . . . . . . . . . . . . 19
Section 2.1. Creation of Trust . . . . . . . . . . . . . . . . . . . . 19
ARTICLE III CONVEYANCE OF RECEIVABLES; ACCEPTANCE BY TRUSTEE; ORIGINAL
ISSUANCE OF CERTIFICATES . . . . . . . . . . . . . . . . . 19
Section 3.1. Conveyance of Receivables. . . . . . . . . . . . . . . . . 19
Section 3.2. Custody of Receivable Files. . . . . . . . . . . . . . . . 20
Section 3.3. Conditions to Issuance by Trust. . . . . . . . . . . . . . 21
Section 3.4. Representations and Warranties of Seller . . . . . . . . . 21
Section 3.5. Repurchase of Receivables Upon Breach of Warranty. . . . . 23
Section 3.6. [Reserved] . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 3.7. Collecting Lien Certificates Not Delivered on the
Closing Date . . . . . . . . . . . . . . . . . . . . . . 23
Section 3.8. Trustee's Assignment of Administrative Receivables and
Warranty Receivables . . . . . . . . . . . . . . . . . . 24
ARTICLE IV ADMINISTRATION AND SERVICING OF RECEIVABLES . . . . . . . . 24
Section 4.1. Duties of the Servicer. . . . . . . . . . . . . . . . . . 24
Section 4.2. Collection of Receivable Payments; Modifications of
Receivables; Lockbox Agreements . . . . . . . . . . . . 25
Section 4.3. Realization Upon Receivables . . . . . . . . . . . . . . . 28
Section 4.4. Insurance. . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 4.5. Maintenance of Security Interests in Vehicles. . . . . . . 31
Section 4.6. Covenants, Representations, and Warranties of Servicer . . 32
Section 4.7. Purchase of Receivables Upon Breach of Covenant. . . . . . 34
Section 4.8. Total Servicing Fee; Payment of Certain Expenses by
Servicer . . . . . . . . . . . . . . . . . . . . . . . . 35
Section 4.9. Servicer's Certificate . . . . . . . . . . . . . . . . . . 35
Section 4.10. Annual Statement as to Compliance, Notice of Servicer
Termination Event. . . . . . . . . . . . . . . . . . . . 36
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Section 4.11. Annual Independent Accountants' Report . . . . . . . . . . 36
Section 4.12. Access to Certain Documentation and Information
Regarding Receivables. . . . . . . . . . . . . . . . . . 37
Section 4.13. Monthly Tape . . . . . . . . . . . . . . . . . . . . . . . 37
Section 4.14. Retention and Termination of Servicer. . . . . . . . . . . 38
Section 4.15. Fidelity Bond and Errors and Omissions Policy. . . . . . . 38
ARTICLE V DISTRIBUTIONS; STATEMENTS TO CERTIFICATE HOLDERS. . . . . . 38
Section 5.1. Accounts . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 5.2. Collections. . . . . . . . . . . . . . . . . . . . . . . . 39
Section 5.3. Application of Collections . . . . . . . . . . . . . . . . 40
Section 5.4. Additional Deposits. . . . . . . . . . . . . . . . . . . . 41
Section 5.5. Distributions. . . . . . . . . . . . . . . . . . . . . . . 41
Section 5.6. Net Deposits . . . . . . . . . . . . . . . . . . . . . . . 42
Section 5.7. Statements to Certificateholders . . . . . . . . . . . . . 43
Section 5.8. Optional Deposits by the Security Insurer. . . . . . . . . 44
ARTICLE VI THE SPREAD ACCOUNT AND THE POLICY; COVENANTS OF THE
INITIAL CLASS B CERTIFICATEHOLDER . . . . . . . . . . . . 45
Section 6.1. Initial Purchase; Spread Account . . . . . . . . . . . . . 45
Section 6.2. Policy . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Section 6.3. Withdrawals from Spread Account. . . . . . . . . . . . . . 45
Section 6.4. Claims Under Policy. . . . . . . . . . . . . . . . . . . . 45
Section 6.5. Preference Claims; Direction of Proceedings. . . . . . . . 47
Section 6.6. Surrender of Policy. . . . . . . . . . . . . . . . . . . . 47
Section 6.7. Special Purpose Entity . . . . . . . . . . . . . . . . . . 48
Section 6.8. Restrictions on Liens. . . . . . . . . . . . . . . . . . . 49
Section 6.9. Creation of Indebtedness; Guarantees . . . . . . . . . . . 49
Section 6.10. Other Activities . . . . . . . . . . . . . . . . . . . . . 49
ARTICLE VII THE CERTIFICATES. . . . . . . . . . . . . . . . . . . . . . 50
Section 7.1. The Certificates . . . . . . . . . . . . . . . . . . . . . 50
Section 7.2. Authentication of Certificates . . . . . . . . . . . . . . 50
Section 7.3. Registration of Transfer and Exchange of Certificates. . . 50
Section 7.4. Mutilated, Destroyed, Lost or Stolen Certificates. . . . . 53
Section 7.5. Persons Deemed Owners. . . . . . . . . . . . . . . . . . . 53
Section 7.6. Access to List of Certificateholders' Names and Addresses. 53
Section 7.7. Maintenance of Office or Agency. . . . . . . . . . . . . . 54
Section 7.8. Affiliated Group May Own Certificates. . . . . . . . . . . 54
ARTICLE VIII THE SELLER. . . . . . . . . . . . . . . . . . . . . . . . . 54
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Section 8.1. Liability of Seller . . . . . . . . . . . . . . . . . . . 54
Section 8.2. Merger or Consolidation of, or Assumption of the
Obligations of Seller; Amendment of Certificate of
Incorporation . . . . . . . . . . . . . . . . . . . . . 55
Section 8.3. Limitation on Liability of Seller and Others . . . . . . 55
ARTICLE IX THE SERVICER . . . . . . . . . . . . . . . . . . . . . . . 56
Section 9.1. Liability of Servicer; Indemnities. . . . . . . . . . . . 56
Section 9.2. Merger or Consolidation of, or Assumption of the
Obligations of the Servicer or Backup Servicer. . . . . 57
Section 9.3. Limitation on Liability of Servicer, Backup Servicer and
Others. . . . . . . . . . . . . . . . . . . . . . . . . 58
Section 9.4. Delegation of Duties . . . . . . . . . . . . . . . . . . 58
Section 9.5. Servicer and Backup Servicer Not to Resign. . . . . . . . 59
ARTICLE X SERVICER TERMINATION EVENTS. . . . . . . . . . . . . . . . 59
Section 10.1. Servicer Termination Event. . . . . . . . . . . . . . . . 59
Section 10.2. Consequences of a Servicer Termination Event. . . . . . . 61
Section 10.3. Appointment of Successor. . . . . . . . . . . . . . . . . 62
Section 10.4. Notification to Certificateholders. . . . . . . . . . . . 63
Section 10.5. Waiver of Past Defaults . . . . . . . . . . . . . . . . . 63
ARTICLE XI THE TRUSTEE. . . . . . . . . . . . . . . . . . . . . . . . 64
Section 11.1. Duties of Trustee . . . . . . . . . . . . . . . . . . . . 64
Section 11.2. Trustee's Assignment of Administrative Receivables and
Warranty Receivables. . . . . . . . . . . . . . . . . . 65
Section 11.3. Certain Matters Affecting the Trustee . . . . . . . . . . 66
Section 11.4. Trustee Not Liable for Certificates or Receivables. . . . 67
Section 11.5. Trustee May Own Certificates. . . . . . . . . . . . . . . 68
Section 11.6. Trustee's Fees and Expenses; Indemnification. . . . . . . 68
Section 11.7. Eligibility Requirements for Trustee. . . . . . . . . . . 69
Section 11.8. Resignation or Removal of Trustee . . . . . . . . . . . . 69
Section 11.9. Successor Trustee . . . . . . . . . . . . . . . . . . . . 70
Section 11.10. Merger or Consolidation of Trustee. . . . . . . . . . . . 71
Section 11.11. Appointment of Co-Trustee or Separate Trustee . . . . . . 71
Section 11.12. Representations and Warranties of Trustee . . . . . . . . 72
Section 11.13. Tax Returns . . . . . . . . . . . . . . . . . . . . . . . 73
Section 11.14. Trustee May Enforce Claims Without Possession of
Certificates. . . . . . . . . . . . . . . . . . . . . . 73
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Section 11.15. Suit for Enforcement. . . . . . . . . . . . . . . . . . . 73
Section 11.16. Rights to Direct Trustee. . . . . . . . . . . . . . . . . 74
ARTICLE XII TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . 74
Section 12.1. Termination of the Trust. . . . . . . . . . . . . . . . . 74
Section 12.2. Optional Purchase of All Receivables. . . . . . . . . . . 75
ARTICLE XIII MISCELLANEOUS PROVISIONS. . . . . . . . . . . . . . . . . . 76
Section 13.1. Amendment . . . . . . . . . . . . . . . . . . . . . . . . 76
Section 13.2. Protection of Title to Trust. . . . . . . . . . . . . . . 77
Section 13.3. Limitation on Rights of Certificateholders. . . . . . . . 79
Section 13.4. Governing Law . . . . . . . . . . . . . . . . . . . . . . 80
Section 13.5. Severability of Provisions. . . . . . . . . . . . . . . . 80
Section 13.6. Assignment. . . . . . . . . . . . . . . . . . . . . . . . 80
Section 13.7. Certificates Nonassessable and Fully Paid . . . . . . . . 80
Section 13.8. Third-Party Beneficiaries . . . . . . . . . . . . . . . . 81
Section 13.9. Financial Security as Controlling Party . . . . . . . . . 81
Section 13.10. Counterparts. . . . . . . . . . . . . . . . . . . . . . . 81
Section 13.11. Notices . . . . . . . . . . . . . . . . . . . . . . . . . 81
Section 13.12. Successors and Assigns. . . . . . . . . . . . . . . . . . 82
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SCHEDULES
Schedule A -- Schedule of Receivables
Schedule B -- Representations and Warranties of Americredit
Schedule C -- Servicing Policies and Procedures
EXHIBITS
Exhibit A -- Form of Class A Certificate
Exhibit B -- Form of Class B Certificate
Exhibit C -- Form of Servicer's Certificate
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THIS POOLING AND SERVICING AGREEMENT ("this Agreement"),
dated as of November 20, 1995, is made with respect to the formation of the
AmeriCredit Automobile Receivables Trust 1995-B (the "Trust"), among
AmeriCredit Financial Services, Inc., a Delaware corporation, ("AmeriCredit")
(in its capacity as Servicer, the "Servicer" and in its capacity as Seller,
the "Seller"), AmeriCredit Receivables Corp. ("ARC") as the Initial Class B
Certificateholder and LaSalle National Bank, a national banking association,
as Trustee (in such capacity, the "Trustee"), as Backup Servicer (in such
capacity, the "Backup Servicer") and as Collateral Agent (in such capacity,
the "Collateral Agent").
WHEREAS, the Seller wishes to establish a trust and provide
for the allocation and sale of the beneficial interests therein and the
maintenance and distribution of the trust estate;
WHEREAS, the Servicer has agreed to service the Receivables,
which constitute the principal assets of the trust estate;
WHEREAS, all things necessary to make the Certificates, when
executed and authenticated by the Trustee, valid instruments, and to make
this Agreement a valid agreement, in accordance with their and its terms,
have been done; and
WHEREAS, LaSalle National Bank is willing to serve in the
capacity of Trustee and Backup Servicer hereunder.
NOW, THEREFORE, in consideration of the premises and the
mutual agreements herein contained, the Seller, the Servicer, ARC, the
Trustee and the Backup Servicer hereby agree as follows:
I
DEFINITIONS
I.1. DEFINITIONS. All terms defined in the Spread Account
Agreement (as defined below) shall have the same meaning in this Agreement.
Whenever capitalized and used in this Agreement, the following words and
phrases, unless the context otherwise requires, shall have the following
meanings:
ACCOUNTANTS' REPORT: The report of a firm of nationally
recognized independent accountants described in Section 4.11.
ACCOUNTING DATE: With respect to a Distribution Date, the
last day of the Collection Period immediately preceding such Distribution
Date.
ADMINISTRATIVE RECEIVABLE: With respect to any Collection
Period, a Receivable which the Servicer is required to purchase pursuant to
Section 4.7 or which the Servicer has elected to purchase pursuant to
Section 4.4(c) on the Deposit Date with respect to such Collection Period.
AFFILIATE: With respect to any Person, any other Person
directly or indirectly controlling, controlled by, or under direct or
indirect common control with such specified Person. For the purposes of this
definition, "control" when used with respect to any specified Person, means
the power to direct the management and voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
AGGREGATE PRINCIPAL BALANCE: With respect to any
Determination Date, the sum of the Principal Balances (computed as of the
related Accounting Date) for all Receivables (other than (i) any Receivable
that became a Liquidated Receivable during the related Collection Period and
(ii) any Receivable that became a Purchased Receivable on the immediately
preceding Deposit Date).
AGREEMENT: shall have the meaning set forth in the first
paragraph of this Agreement.
AMERICREDIT: shall have the meaning set forth in the first
paragraph of this Agreement.
AMOUNT AVAILABLE: With respect to any Distribution Date, the
sum of (i) the Available Funds for the immediately preceding Determination
Date, plus (ii) the Deficiency Claim Amount, if any, received by the Trustee
with respect to such Distribution Date, plus (iii) the Policy Claim Amount,
if any, received by the Trustee with respect to such Distribution Date.
AMOUNT FINANCED: With respect to a Receivable, the aggregate
amount advanced under such Receivable toward the purchase price of the
Financed Vehicle and related costs, including amounts advanced in respect of
accessories, insurance premiums, service and warranty contracts, other items
customarily financed as part of retail automobile installment sale contracts
or promissory notes, and related costs.
ANNUAL PERCENTAGE RATE OR APR: With respect to a Receivable,
the rate per annum of finance charges stated in such Receivable as the
"annual percentage rate" (within the meaning of the Federal Truth-in-Lending
Act). If after the Closing Date, the rate per annum with respect to a
Receivable as of the Closing Date is reduced as a result of (i) an insolvency
proceeding involving the Obligor or (ii) pursuant to the Soldiers' and
Sailors' Civil Relief Act of 1940, Annual Percentage Rate or APR shall refer
to such reduced rate.
2
ANNUAL TRUSTEE'S FEE: Shall have the meaning set forth in
Section 11.6.
ARC: AmeriCredit Receivables Corp., a Delaware corporation.
AVAILABLE FUNDS: With respect to any Determination Date, the
sum of (i) the Collected Funds for such Determination Date, (ii) all Purchase
Amounts deposited in the Collection Account on the related Deposit Date and
(iii) all income from investments of funds in the Collection Account during
the prior Collection Period.
BACKUP SERVICER: LaSalle National Bank, or its successor in
interest pursuant to Section 10.2, or such Person as shall have been
appointed as Backup Servicer or successor Servicer pursuant to Section 10.3.
BASIC SERVICING FEE: With respect to any Collection Period,
the fee payable to the Servicer for services rendered during such Collection
Period, which shall be equal to one-twelfth of the Basic Servicing Fee Rate
multiplied by the Aggregate Principal Balance as of the first day of the
Collection Period.
BASIC SERVICING FEE RATE: 2.50% per annum, payable monthly
at one-twelfth of the annual rate.
BUSINESS DAY: Any day other than a Saturday, Sunday, legal
holiday or other day on which commercial banking institutions or trust
companies in Texas, New York, Illinois or any other location of any successor
Servicer, successor Trustee or successor Collateral Agent are authorized or
obligated by law, executive order or governmental decree to be closed.
CALENDAR QUARTER: The three-month period ending on the last
day of March, June, September or December.
CERTIFICATE: Any one of the Class A Certificates or Class B
Certificates executed by the Trustee on behalf of the Trust in substantially
the form set forth in Exhibit A or B, respectively.
CERTIFICATE MAJORITY: Holders of Class A Certificates and
Class B Certificates representing a majority of the sum of the Class A
Certificate Balance and the Class B Certificate Balance, or if there are no
Class A Certificates outstanding, holders of Class B Certificates
representing a majority of the Class B Certificate Balance, provided, that
for so long as the Class B Certificate is held by any Affiliate of
AmeriCredit or by AmeriCredit, it shall be disregarded for purposes of this
definition.
CERTIFICATEHOLDER OR HOLDER: The Person in whose name a
Certificate is registered in the Certificate Register.
3
CERTIFICATE REGISTER AND CERTIFICATE REGISTRAR: The register
maintained and the registrar appointed pursuant to Section 7.3.
CLASS: A class of Certificates.
CLASS A CERTIFICATE: Any one of the Certificates executed by
the Trust and authenticated by the Trustee in substantially the form set
forth in Exhibit A hereto.
CLASS A CERTIFICATE BALANCE: Initially, the Class A
Percentage of the Cut-off Date Principal Balance and, thereafter, the initial
Class A Certificate Balance reduced by all amounts distributed to the Class A
Certificateholders and allocable to principal.
CLASS A CERTIFICATE FACTOR: As of any Distribution Date, a
seven-digit decimal figure equal to the Class A Certificate Balance as of the
close of business on such Distribution Date divided by the initial Class A
Certificate Balance as of the Cut-off Date.
CLASS A DISTRIBUTABLE AMOUNT: On any Distribution Date, the
sum of the Class A Principal Distributable Amount and the Class A Interest
Distributable Amount.
CLASS A INTEREST CARRYOVER SHORTFALL: As of the close of
business on any Distribution Date, the excess of the Class A Interest
Distributable Amount for such Distribution Date plus any outstanding Class A
Interest Carryover Shortfall from the preceding Distribution Date plus
interest on such outstanding Class A Interest Carryover Shortfall, to the
extent permitted by law, at the Class A Pass-Through Rate from such preceding
Distribution Date through the current Distribution Date, over the amount of
interest that the holders of the Class A Certificates actually received on
such current Distribution Date.
CLASS A INTEREST DISTRIBUTABLE AMOUNT: With respect to any
Distribution Date, the sum of (i) for the initial Distribution Date forty-one
(41) days of interest and for any Distribution Date thereafter, thirty (30)
days of interest, in any case calculated on the basis of a 360-day year
consisting of twelve 30-day months, at the Class A Pass-Through Rate on the
Class A Certificate Balance as of the close of business on the last day of
the preceding Collection Period and (ii) any outstanding Class A Interest
Carryover Shortfall with respect to the immediately preceding Distribution
Date.
CLASS A PASS-THROUGH RATE: 6.10% per annum, calculated on
the basis of a 360-day year consisting of twelve 30-day months.
CLASS A PERCENTAGE: 92%.
4
CLASS A PRINCIPAL CARRYOVER SHORTFALL: As of the close of
business on any Distribution Date, the excess of the Class A Principal
Distributable Amount plus any outstanding Class A Principal Carryover
Shortfall from the preceding Distribution Date over the amount of principal
that the holders of the Class A Certificates actually received on such
current Distribution Date.
CLASS A PRINCIPAL DISTRIBUTABLE AMOUNT: With respect to any
Distribution Date, other than the Final Scheduled Maturity Date, without
duplication, the sum of (x) the Class A Percentage of the sum of (i) the
principal portion of all Collected Funds received during or with respect to
the immediately preceding Collection Period (other than Liquidated
Receivables and Purchased Receivables) including the principal portion of all
prepayments, (ii) the Principal Balance of all Receivables that became
Liquidated Receivables during the related Collection Period (other than
Purchased Receivables), (iii) the principal portion of the Purchase Amount of
all Receivables that became Purchased Receivables as of the immediately
preceding Accounting Date, plus, in the sole discretion of the Security
Insurer, provided no Insurer Default shall have occurred and be continuing,
all or any lesser portion (as the Security Issuer may determine) of the
Principal Balance as of the immediately preceding Accounting Date of all the
Receivables that were required to be purchased pursuant to Sections 3.5 or
4.7 as of the immediately preceding Accounting Date but were not so purchased
and (iv) the aggregate amount of Cram Down Losses that shall have occurred
during the related Collection Period, and (y) Class A Principal Carryover
Shortfall. On the Final Scheduled Distribution Date the Class A Principal
Distributable Amount shall be the Outstanding Class A Certificate Balance.
CLASS B CERTIFICATE: Any one of the Certificates executed by
the Trust and authenticated by the Trustee in substantially the form set
forth in Exhibit B hereto.
CLASS B CERTIFICATE BALANCE: Initially, the Class B
Percentage of the Cut-off Date Principal Balance and, thereafter, the initial
Class B Certificate Balance, reduced by (x) all amounts distributed (pursuant
to the provision set forth in Section 5.5(b) hereof) to Class B
Certificateholders and allocable to principal and (y) on any Distribution
Date on which (i) the sum of the Class A Certificate Balance and the Class B
Certificate Balance as of such Distribution Date and after taking into
account all distributions to be made on such Distribution Date exceeds (ii)
the Pool Balance with respect to the immediately preceding Collection Period,
the amount of such excess.
CLASS B CERTIFICATE FACTOR: As of any Distribution Date, a
seven-digit decimal figure equal to the Class B Certificate Balance as of the
close of business on such Distribution Date divided by the initial Class B
Certificate Balance as of the Cut-Off Date.
CLASS B COUPON INTEREST CARRYOVER SHORTFALL: As of the close
of business on any Distribution Date, the excess of the Class B Coupon
Interest Amount for such Distribution Date plus any outstanding Class B
Coupon Interest Carryover Shortfall from
5
the preceding Distribution Date, over the amount of interest that the holders
of the Class B Certificates actually received on such current Distribution
Date.
CLASS B COUPON INTEREST AMOUNT: With respect to any
Distribution Date, the sum of (i) for the initial Distribution Date forty-one
(41) days of interest and for any Distribution Date thereafter, thirty (30)
days of interest, in any case calculated on the basis of a 360-day year
consisting of twelve 30-day months, at the rate of 6.10% per annum in the
Class B Certificate Balance as of the close of business on the last day of
the preceding Collection Period and (ii) any outstanding Class B Coupon
Interest Carryover Shortfall with respect to the immediately preceding
Distribution Date.
CLASS B EXCESS INTEREST AMOUNT: With respect to any
Distribution Date, an amount equal to the portion of Available Funds, if any,
remaining after the distribution of amounts required to be distributed on
such Distribution Date pursuant to clauses (i) through (vii) of Section
5.5(a).
CLASS B PERCENTAGE: 8%.
CLASS B PRINCIPAL CARRYOVER SHORTFALL: As of the close of
business on any Distribution Date, the excess of the Class B Principal
Distributable Amount plus any outstanding Class B Principal Carryover
Shortfall from the preceding Distribution Date over the amount of principal
that the holders of the Class B Certificates actually received on such
current Distribution Date.
CLASS B PRINCIPAL DISTRIBUTABLE AMOUNT: With respect to any
Distribution Date, without duplication, the Class B Percentage of the sum of:
(i) the principal portion of all Collected Funds received during or with
respect to the immediately preceding Collection Period (other than Liquidated
Receivables and Purchased Receivables) including the principal portion of all
prepayments, (ii) the Principal Balance of all Receivables that became
Liquidated Receivables during the related Collection Period (other than
Purchased Receivables), (iii) the principal portion of the Purchase Amount of
all Receivables that became Purchased Receivables as of the immediately
preceding Accounting Date, and (iv) the aggregate amount of Cram Down Losses
that shall have occurred during the related Collection Period.
CLOSING DATE: December 19, 1995.
COLLATERAL AGENT: The Collateral Agent named in the Spread
Account Agreement, and any successor thereto pursuant to the terms of the
Spread Account Agreement.
COLLATERAL INSURANCE: Shall have the meaning set forth in
Section 4.4(a).
6
COLLECTED FUNDS: With respect to any Determination Date, the
amount of funds in the Collection Account representing collections on the
Receivables during or with respect to the related Collection Period,
including all Liquidation Proceeds collected during the related Collection
Period (but excluding any Purchase Amounts).
COLLECTION ACCOUNT: The account designated as the Collection
Account in, and which is established and maintained pursuant to, Section 5.1.
COLLECTION PERIOD: With respect to the first Distribution
Date, the period beginning on the close of business on November 20, 1995 and
ending on the close of business on December 31, 1995. With respect to each
subsequent Distribution Date, the preceding calendar month. Any amount
stated "as of the close of business of the last day of a Collection Period"
shall give effect to the following calculations as determined as of the end
of the day on such last day: (i) all applications of collections, and (ii)
all distributions.
COLLECTION RECORDS: All manually prepared or computer
generated records relating to collection efforts or payment histories with
respect to the Receivables.
COMPUTER TAPE OR LISTING: The computer tape or listing
generated on behalf of the Seller which provides information relating to the
Receivables and which was used by the Seller in selecting the Receivables
conveyed to the Trust hereunder.
CONFIDENTIAL OFFERING CIRCULAR: The Offering Circular, dated
December 7, 1995, relating to the Class A Certificates.
CONTROLLING PARTY: The Security Insurer, so long as no
Insurer Default shall have occurred and be continuing and the Trustee for the
benefit of the Certificateholders, for so long as the Insurer Default shall
have occurred and be continuing.
CORPORATE TRUST OFFICE: The principal office of the Trustee
at which at any particular time its corporate trust business shall be
administered, which office at the Closing Date is located at LaSalle National
Bank, 000 X. XxXxxxx Xxxxxx , Xxxxx 000, Xxxxxxx, Xxxxxxxx 00000, Attention:
Asset Backed Securities Trust Administration. The telecopy number for the
Corporate Trust Office on the Closing Date is (000) 000-0000.
CRAM DOWN LOSS: With respect to a Receivable, if a court of
appropriate jurisdiction in an insolvency proceeding shall have issued an
order reducing the amount owed on a Receivable or otherwise modifying or
restructuring the scheduled payments to be made on a Receivable, an amount
equal to the excess of the principal balance of such Receivable immediately
prior to such order over the principal balance of such Receivable as so
reduced or the net present value (using as the discount rate the higher of
the APR on such Receivable or the rate of interest, if any, specified by the
court in such order) of the
7
scheduled payments as so modified or restructured. A "Cram Down Loss" shall
be deemed to have occurred on the date of issuance of such order.
CUSTODIAN: AmeriCredit and any other Person named from time
to time as custodian in any Custodian Agreement acting as agent for the
Trustee, which Person must be acceptable to the Controlling Party (the
Custodian as of the Closing Date is acceptable to the Security Insurer as of
the Closing Date).
CUSTODIAN AGREEMENT: Any Custodian Agreement from time to
time in effect between the Custodian named therein and the Trustee, as the
same may be amended, supplemented or otherwise modified from time to time in
accordance with the terms thereof, which Custodian Agreement and any
amendments, supplements or modifications thereto shall be acceptable to the
Controlling Party (the Custodian Agreement which is effective on the Closing
Date is acceptable to the Controlling Party).
CUT-OFF DATE: November 20, 1995.
CUT-OFF DATE PRINCIPAL BALANCE: $70,633,054.08
DEALER: A seller of new or used automobiles or light trucks
that originated one or more of the Receivables and sold the respective
Receivable, directly or indirectly, to AmeriCredit.
DEALER AGREEMENT: An agreement by and among AmeriCredit and
a Dealer relating to the sale of retail installment sale contracts and
installment notes to AmeriCredit and all documents and instruments relating
thereto.
DEALER ASSIGNMENT: With respect to a Receivable, the
executed assignment executed by a Dealer conveying such Receivable to
AmeriCredit.
DEALER UNDERWRITING GUIDE: means the underwriting manual used
by AmeriCredit in the purchase of Receivables as amended from time to time.
DEFICIENCY CLAIM AMOUNT: Shall have the meaning set forth in
Section 6.3(a).
DEFICIENCY CLAIM DATE: With respect to any Distribution
Date, the fourth Business Day immediately preceding such Distribution Date.
DEFICIENCY NOTICE: Shall have the meaning set forth in
Section 6.3(a).
DEPOSIT DATE: With respect to any Collection Period, the
Business Day immediately preceding the related Determination Date.
8
DETERMINATION DATE: With respect to a Collection Period, the
earlier of (i) the fourth Business Day preceding the Distribution Date in the
next calendar month, and (ii) the 5th day of the next calendar month, or if
such 5th day is not a Business Day, the next succeeding Business Day.
DISTRIBUTION AMOUNT: With respect to a Distribution Date,
the sum of (i) the Available Funds for such Distribution Date, plus (ii) the
Deficiency Claim Amount, if any, received by the Trustee with respect to such
Distribution Date.
DISTRIBUTION DATE: The 12th day of each calendar month, or
if such 12th day is not a Business Day, the next succeeding Business Day,
commencing January 12, 1996 and including the Final Scheduled Distribution
Date.
DRAW DATE: With respect to any Distribution Date, the third
Business Day immediately preceding such Distribution Date.
ELECTRONIC LEDGER: The electronic master record of the
retail installment sales contracts or installment loans of the Servicer.
ELIGIBLE ACCOUNT: (i) A segregated trust account that is
maintained with a depository institution acceptable to the Security Insurer
(so long as an Insurer Default shall not have occurred and be continuing), or
(ii) a demand deposit account maintained with a depository institution or
trust company organized under the laws of the United States of America, or
any of the States thereof, or the District of Columbia, having a certificate
of deposit, short term deposit or commercial paper rating of at least A-1+ by
Standard & Poor's and P-1 by Moody's and (so long as an Insurer Default shall
not have occurred and be continuing) acceptable to the Security Insurer. In
either case, such depository institution or trust company shall have been
approved by the Controlling Party (as defined in the Spread Account
Agreement), acting in its discretion, by written notice to the Collateral
Agent.
ELIGIBLE INVESTMENTS: Any one or more of the following types
of investments:
(i)(A) direct interest-bearing obligations of, and
interest-bearing obligations guaranteed as to timely payment of
principal and interest by, the United States or any agency or
instrumentality of the United States the obligations of which are
backed by the full faith and credit of the United States; and (B)
direct interest-bearing obligations of, and interest-bearing
obligations guaranteed as to timely payment of principal and interest
by, the Federal National Mortgage Association or the Federal Home
Loan Mortgage Corporation, but only if, at the time of
9
investment, such obligations are rated AAA by Standard & Poor's and
Aaa by Moody's;
(ii) demand or time deposits in, certificates of
deposit of, or bankers' acceptances issued by any depository
institution or trust company organized under the laws of the United
States or any State and subject to supervision and examination by
federal and/or State banking authorities (including, if applicable,
the Trustee or any agent of the Trustee acting in their respective
commercial capacities); provided that the short-term unsecured debt
obligations of such depository institution or trust company at the
time of such investment, or contractual commitment providing for such
investment, are rated A1+ by Standard & Poor's and P-1 by Moody's;
(iii) repurchase obligations pursuant to a written
agreement (A) with respect to any obligation described in clause (i)
above, where the Trustee has taken actual or constructive delivery of
such obligation in accordance with Section 5.1, and (B) entered into
with a depository institution or trust company organized under the
laws of the United States or any State thereof, the deposits of which
are insured by the Federal Deposit Insurance Corporation and the
short-term unsecured debt obligations of which are rated "A-1+" by
Standard & Poor's and "P-1" by Moody's (including, if applicable, the
Trustee or any agent of the Trustee acting in their respective
commercial capacities);
(iv) securities bearing interest or sold at a
discount issued by any corporation incorporated under the laws of the
United States or any State whose long-term unsecured debt obligations
are rated AAA by Standard & Poor's and Aaa by Moody's at the time of
such investment or contractual commitment providing for such
investment; PROVIDED HOWEVER, that securities issued by any
particular corporation will not be Eligible Investments to the extent
that an investment therein will cause the then outstanding principal
amount of securities issued by such corporation and held as part of
the Collection Account to exceed 10% of the Eligible Investments held
in the Collection Account (with Eligible Investments held in the
Collection Account valued at par);
(v) commercial paper that (1) is payable in United
States dollars and (2) is rated A1+ by Standard & Poor's and P-1 by
Moody's;
(vi) money market mutual funds registered under the
Investment Company Act of 1940, as amended, having a rating, at the
time of such investment, from each of the Rating Agencies in the
highest investment category granted thereby (in the case of Standard
& Poor's AAAm-G or AAAm); and
10
(vii) any other demand or time deposit, obligation,
security or investment as may be acceptable to the Rating Agencies
and the Security Insurer, as evidenced by the prior written consent
of the Rating Agencies and the Security Insurer, as may from time to
time be confirmed in writing to the Trustee by the Security Insurer.
ELIGIBLE SERVICER: AmeriCredit, the Backup Servicer or
another Person which at the time of its appointment as Servicer, (i) is
servicing a portfolio of motor vehicle retail installment sales contracts
and/or motor vehicle installment loans, (ii) is legally qualified and has the
capacity to service the Receivables, (iii) has demonstrated the ability
professionally and competently to service a portfolio of motor vehicle retail
installment sales contracts and/or motor vehicle installment loans similar to
the Receivables with reasonable skill and care, (iv) is qualified and
entitled to use, pursuant to a license or other written agreement, and agrees
to maintain the confidentiality of, the software which the Servicer uses in
connection with performing its duties and responsibilities under this
Agreement or otherwise has available software which is adequate to perform
its duties and responsibilities under this Agreement and (v) has a minimum
net worth of $50,000,000.
FINAL SCHEDULED DISTRIBUTION DATE: May 12, 2001.
FINANCED VEHICLE: A new or used automobile or light truck,
van or mini-van together with all accessories thereto, securing or purporting
to secure an Obligor's indebtedness under a Receivable.
FORCE-PLACED INSURANCE: The meaning set forth in Section
4.4(b).
FRACTIONAL UNDIVIDED INTEREST: The fractional undivided
interest in the Trust that is evidenced by a Certificate.
INDEPENDENT ACCOUNTANTS: Shall have the meaning set forth in
Section 4.11(a).
INSURANCE ADD-ON AMOUNT: The premium charged to the Obligor
in the event that the Servicer obtains Force-Placed Insurance pursuant to
Section 4.4.
INSURANCE AGREEMENT: The Insurance and Indemnity Agreement
between the Security Insurer and AmeriCredit.
INSURANCE AGREEMENT EVENT OF DEFAULT: An "Event of Default"
as defined in the Insurance Agreement.
INSURANCE POLICY: With respect to a Receivable, any
insurance policy benefiting the holder of the Receivable providing loss or
physical damage, credit life, credit
11
disability, theft, mechanical breakdown or similar coverage with respect to
the Financed Vehicle or the Obligor.
INSURER DEFAULT: The occurrence and continuance of any of
the following events:
(A) the Security Insurer shall have failed to make
a payment required under the Policy in accordance with its
terms;
(B) The Security Insurer shall have (i) filed a
petition or commenced any case or proceeding under any
provision or chapter of the United States Bankruptcy Code or
any other similar federal or state law relating to
insolvency, bankruptcy, rehabilitation, liquidation or
reorganization, (ii) made a general assignment for the
benefit of its creditors, or (iii) had an order for relief
entered against it under the United States Bankruptcy Code or
any other similar federal or state law relating to
insolvency, bankruptcy, rehabilitation, liquidation or
reorganization which is final and nonappealable; or
(C) a court of competent jurisdiction, the New York
Department of Insurance or other competent regulatory
authority shall have entered a final and nonappealable order,
judgment or decree (i) appointing a custodian, trustee, agent
or receiver for the Security Insurer or for all or any
material portion of its property or (ii) authorizing the
taking of possession by a custodian, trustee, agent or
receiver of the Security Insurer (or the taking of possession
of all or any material portion of the property of the
Security Insurer).
LIEN: Any security interest, lien, charge, pledge,
preference, equity or encumbrance of any kind, including tax liens,
mechanics' liens and any liens that attach by operation of law.
LIEN CERTIFICATE: With respect to a Financed Vehicle, an
original certificate of title, certificate of lien or other notification
issued by the Registrar of Titles of the applicable state to a secured party
which indicates that the lien of the secured party on the Financed Vehicle is
recorded on the original certificate of title. In any jurisdiction in which
the original certificate of title is required to be given to the Obligor, the
term "Lien Certificate" shall mean only a certificate or notification issued
to a secured party.
LIQUIDATED RECEIVABLE: With respect to any Collection
Period, a Receivable as to which (i) 90 days have elapsed since the Servicer
repossessed the Financed Vehicle, (ii) the Servicer has determined in good
faith that all amounts it expects to recover have
12
been received or (iii) 5% or more of a Scheduled Payment shall have become
120 or more days delinquent, except in the case of repossessed Financed
Vehicles.
LIQUIDATION PROCEEDS: With respect to a Liquidated
Receivable, all amounts realized with respect to such Receivable (other than
amounts withdrawn from the Spread Account and drawings under the Policy) net
of (i) reasonable expenses incurred by the Servicer in connection with the
collection of such Receivable and the repossession and disposition of the
Financed Vehicle and (ii) amounts that are required to be refunded to the
Obligor on such Receivable; PROVIDED HOWEVER, that the Liquidation Proceeds
with respect to any Receivable shall in no event be less than zero.
LOCKBOX ACCOUNT: An account maintained on behalf of the
Trustee by the Lockbox Bank pursuant to Section 4.2(d).
LOCKBOX AGREEMENT: The Tri-Party Remittance Processing
Agreement, dated as of November 20, 1995, by and among AmeriCredit, First
Interstate Bank of Texas, N.A., and the Trustee, as such agreement may be
amended or supplemented from time to time, unless the Trustee hereunder shall
cease to be a party thereunder, or such agreement shall be terminated in
accordance with its terms, in which event "Lockbox Agreement" shall mean such
other agreement, in form and substance acceptable to the Controlling Party,
among the Servicer, the Trustee and the Lockbox Bank.
LOCKBOX BANK: A depository institution named by the Servicer
and acceptable to the Controlling Party.
MONTHLY RECORDS: All records and data maintained by the
Servicer with respect to the Receivables, including the following with
respect to each Receivable: the account number; the originating Dealer;
Obligor name; Obligor address; Obligor home phone number; Obligor business
phone number; original Principal Balance; original term; Annual Percentage
Rate; current Principal Balance; current remaining term; origination date;
first payment date; final scheduled payment date; next payment due date; date
of most recent payment; new/used classification; collateral description; days
currently delinquent; number of contract extensions (months) to date; amount
of Scheduled Payment; current Insurance Policy expiration date; and past due
late charges.
MOODY'S: Xxxxx'x Investors Service, Inc., or any successor
thereto.
NOTICE OF DEFICIENCY: A written or telecopied notice from
the Trustee to the Security Insurer, substantially in the form of Exhibit A
to the Policy.
OBLIGOR: The purchaser or the co-purchasers of the Financed
Vehicle and any other Person or Persons who are primarily or secondarily
obligated to make payments under a Receivable.
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OFFICER'S CERTIFICATE: A certificate signed by the chairman
of the board, the vice chairman, the president, the chief financial officer
or any vice president.
OPINION OF COUNSEL: A written opinion of counsel reasonably
acceptable to the Security Insurer, which opinion is acceptable in form and
substance to the Trustee and, if such opinion or a copy thereof is required
by the provisions of this Agreement to be delivered to the Security Insurer,
to the Security Insurer.
OTHER CONVEYED PROPERTY: All property conveyed by the Seller
to the Trust pursuant to this Agreement other than the Receivables.
PERSON: Any legal person, including any individual,
corporation, partnership, joint venture, estate, association, joint stock
company, trust, unincorporated organization or government or any agency or
political subdivision thereof, or any other entity.
POLICY: The financial guaranty insurance policy number
______-N issued by the Security Insurer to the Trustee for the benefit of the
Class A Certificateholders, including any endorsements thereto.
POLICY CLAIM AMOUNT: Shall have the meaning set forth in
Section 6.4(a).
POLICY PAYMENTS ACCOUNT: The account designated as the
Policy Payments Account in, and which is established and maintained pursuant
to, Section 5.1.
POOL BALANCE: As of the close of business on the last day of
a Collection Period, the aggregate Principal Balance of the Receivables
(excluding Purchased Receivables and Liquidated Receivables).
POOL FACTOR: With respect to any Distribution Date, a seven
digit decimal figure equal to, as applicable, the Class A Certificate Balance
as of such Distribution Date (after giving effect to distributions on such
date) divided by the Class A Certificate Balance as of the Closing Date, or,
the Class B Certificate Balance as of such Distribution Date (after giving
effect to distributions on such date) divided by the Class B Certificate
Balance as of the Closing Date.
PREFERENCE CLAIM: Shall have the meaning set forth in
Section 6.5(b).
PRINCIPAL BALANCE: With respect to any Receivable, as of any
date, the Amount Financed minus (i) that portion of all amounts received on
or prior to such date and allocable to principal in accordance with the terms
of the Receivable, and (ii) any Cram Down Loss in respect of such Receivable.
14
PURCHASE AMOUNT: With respect to a Receivable, the Principal
Balance and all accrued and unpaid interest on the Receivable as of the date
of purchase.
PURCHASED RECEIVABLE: As of any Accounting Date, any
Receivable that became a Warranty Receivable or Administrative Receivable as
of such Accounting Date (or which the Seller or the Servicer has elected to
purchase as of an earlier Accounting Date, as permitted hereunder) and as to
which the Purchase Amount has been deposited in the Collection Account by the
Seller or the Servicer, as applicable, on or before the related Deposit Date.
RATING AGENCY: Each of Moody's and Standard & Poor's, so
long as such Persons maintain a rating on the Certificates; and if either
Moody's or Standard & Poor's no longer maintains a rating on the
Certificates, such other nationally recognized statistical rating
organization selected by the Certificate Majority, AmeriCredit and (so long
as an Insurer Default shall not have occurred and be continuing) acceptable
to the Security Insurer.
RECEIVABLE: A retail installment sale contract or promissory
note (and related security agreement) for a new or used automobile or light
truck, vans or mini-vans (and all accessories thereto) that is included in
the Schedule of Receivables, and all rights and obligations under such a
contract, but not including (i) any Liquidated Receivable (other than for
purposes of calculating, as applicable, the Class A Principal Distributable
Amount and the Class B Principal Distributable Amount hereunder), or (ii) any
Purchased Receivable on or after the Accounting Date immediately preceding
the Deposit Date on which payment of the Purchase Amount is made in
connection therewith pursuant to Section 5.4.
RECEIVABLE FILE: The documents, electronic entries,
instruments and writings listed in Section 3.2 pertaining to a particular
Receivable.
REGISTRAR OF TITLES: With respect to any state, the
governmental agency or body responsible for the registration of, and the
issuance of certificates of title relating to, motor vehicles and liens
thereon.
RELATED DOCUMENTS: The Certificates, the Indemnification
Agreement, the Spread Account Agreement, the Insurance Agreement, the Lockbox
Agreement, and the Initial Purchaser Agreement dated December 7, 1995 between
the Seller and the initial purchaser of the Certificates. The Related
Documents to be executed by any party are referred to herein as "such party's
Related Documents," "its Related Documents" or by a similar expression.
15
REPURCHASE EVENTS: The occurrence of a breach of any of the Seller's or
the Servicer's representations and warranties in this Agreement which requires
the repurchase of a Receivable by the Seller or the Servicer pursuant hereto.
REQUIRED DEPOSIT RATING: A rating on short-term unsecured debt
obligations of "P-1" by Moody's and at least "A-1+" by Standard & Poor's (or
such other rating as may be acceptable to the Rating Agencies and, so long as
an Insurer Default shall not have occurred and be continuing, the Security
Insurer) so as to not affect the rating on the Certificates.
RESPONSIBLE OFFICER: When used with respect to the Trustee, any officer
of the Trustee assigned by the Trustee to administer its corporate trust
affairs relating to the Trust. When used with respect to any other Person
that is not an individual, the President, any Vice-President or Assistant
Vice-President or the Controller of such Person, or any other officer or
employee having similar functions.
SCHEDULE OF RECEIVABLES: The schedule of all retail installment sales
contracts and promissory notes originally held as part of the Trust which is
attached as Schedule A.
SCHEDULE OF REPRESENTATIONS: The Schedule of Representations and
Warranties attached hereto as Schedule B.
SCHEDULED PAYMENT: With respect to any Collection Period for any
Receivable, the amount set forth in such Receivable as required to be paid by
the Obligor in such Collection Period. If after the Closing Date, the
Obligor's obligation under a Receivable with respect to a Collection Period
has been modified so as to differ from the amount specified in such
Receivable as a result of (i) the order of a court in an insolvency
proceeding involving the Obligor, (ii) pursuant to the Soldiers' and Sailors'
Civil Relief Act of 1940 or (iii) modifications or extensions of the
Receivable permitted by Section 4.2(b), the Scheduled Payment with respect to
such Collection Period shall refer to the Obligor's payment obligation with
respect to such Collection Period as so modified.
SECURITY INSURER: Financial Security Assurance Inc., a monoline
insurance company incorporated under the laws of the State of New York, or
any successor thereto, as issuer of the Policy.
SELLER: shall have the meaning set forth in the first paragraph of this
Agreement.
SERIES: The Certificates issued pursuant to this Agreement.
16
SERVICER: AmeriCredit Financial Services, Inc., a Delaware corporation,
its successor in interest pursuant to Section 9.2 or, after any termination
of the Servicer upon a Servicer Termination Event, the Backup Servicer or any
other successor Servicer.
SERVICER EXTENSION NOTICE: The notice delivered pursuant to Section 4.14.
SERVICER TERMINATION EVENT: An event described in Section 10.1.
SERVICER'S CERTIFICATE: With respect to each Determination Date, a
certificate, completed by and executed on behalf of the Servicer, in
accordance with Section 4.9, substantially in the form attached hereto as
Exhibit C.
SIMPLE INTEREST METHOD: The method of allocating a fixed level payment
on an obligation between principal and interest, pursuant to which the
portion of such payment that is allocated to interest is equal to the product
of the fixed rate of interest on such obligation multiplied by the period of
time (expressed as a fraction of a year, based on the actual number of days
in the calendar month and 365 days in the calendar year) elapsed since the
preceding payment under the obligation was made.
SIMPLE INTEREST RECEIVABLE: A Receivable under which the portion of the
payment allocable to interest and the portion allocable to principal is
determined in accordance with the Simple Interest Method.
SPREAD ACCOUNT: The Series 1995-B Spread Account established and
maintained pursuant to the Spread Account Agreement. The Spread Account
shall in no event be deemed part of the Trust Property.
SPREAD ACCOUNT AGREEMENT: The Spread Account Agreement among ARC, the
Security Insurer, the Collateral Agent and the Trustee as the same may be
amended, supplemented or otherwise modified in accordance with the terms
thereof.
STANDARD & POOR'S: Standard & Poor's Ratings Service, or any successor
thereto.
SUBCOLLECTION ACCOUNT: The account designated as the Subcollection
Account in, and which is established and maintained pursuant to Section 5.2(a).
SUPPLEMENTAL SERVICING FEE: With respect to any Collection Period all
administrative fees, expenses and charges paid by or on behalf of Obligors,
including late fees, prepayment fees and liquidation fees collected on the
Receivables during such Collection Period.
17
TOTAL SERVICING FEE: The sum of the Basic Servicing Fee and the
Supplemental Servicing Fee.
TRIGGER EVENT: shall have the meaning set forth in the Spread Account
Agreement.
TRUST: shall have the meaning set forth in Section 2.1.
TRUST PROPERTY: The property and proceeds conveyed pursuant to Section
3.1, together with certain monies paid on or after the Cut-off Date, the
Policy, the Collection Account (including all Eligible Investments therein
and all proceeds therefrom), the Lockbox Account, the Subcollection Account
and certain other rights under this Agreement. Although the Seller has
pledged the Spread Account to the Trustee and the Security Insurer pursuant
to the Spread Account Agreement, the Spread Account shall not under any
circumstances be deemed to be a part of or otherwise includable in the Trust
or the Trust Property.
TRUSTEE: The Person acting as Trustee under this Agreement, its
successors in interest and any successor Trustee under this Agreement.
UCC: The Uniform Commercial Code as in effect in the relevant
jurisdiction.
WARRANTY RECEIVABLE: With respect to any Collection Period, a
Receivable which the Seller has become obligated to repurchase pursuant to
Section 3.5.
1.2. USAGE OF TERMS. With respect to all terms used in this Agreement,
the singular includes the plural and the plural the singular; words importing
any gender include the other genders; references to "writing" include
printing, typing, lithography, and other means of reproducing words in a
visible form; references to agreements and other contractual instruments
include all subsequent amendments thereto or changes therein entered into in
accordance with their respective terms and not prohibited by this Agreement;
references to Persons include their permitted successors and assigns; and the
terms "include" or "including" mean "include without limitation" or
"including without limitation."
1.3. CALCULATIONS. All calculations of the amount of interest accrued
on the Certificates and all calculations of the amount of the Basic Servicing
Fee shall be made on the basis of a 360-day year consisting of twelve 30-day
months. All references to the Principal Balance of a Receivable as of a
Accounting Date shall refer to the close of business on such day.
18
1.4. SECTION REFERENCES. All references to Articles, Sections,
paragraphs, subsections, exhibits and schedules shall be to such portions of
this Agreement unless otherwise specified.
1.5. ACTION BY OR CONSENT OF CERTIFICATEHOLDERS. Whenever any
provision of this Agreement refers to action to be taken, or consented to, by
Certificateholders, such provision shall be deemed to refer to
Certificateholders of record as of the Accounting Date immediately preceding
the date on which such action is to be taken, or consent given, by
Certificateholders. Solely for the purposes of any action to be taken, or
consented to, by Certifi-cateholders, any Certificate registered in the name
of AmeriCredit or any Affiliate thereof shall be deemed not to be outstanding
and the Fractional Undivided Interest evidenced thereby shall not be taken
into account in determining whether the requisite Fractional Undivided
Interest necessary to effect any such action or consent has been obtained;
PROVIDED HOWEVER, that, solely for the purpose of determining whether the
Trustee is entitled to rely upon any such action or consent, only
Certificates which the Trustee knows to be so owned shall be so disregarded.
1.6. NO RECOURSE. No recourse may be taken, directly or indirectly,
under this Agreement or any certificate or other writing delivered in
connection herewith or therewith, against any stockholder, officer, or
director, as such, of the Seller, AmeriCredit, the Servicer or the Trustee or
of any predecessor or successor of the Seller, AmeriCredit, the Servicer or
the Trustee.
1.7. MATERIAL ADVERSE EFFECT. Whenever a determination is to be made
under this Agreement as to whether a given event, action, course of conduct
or set of facts or circumstances could or would have a material adverse
effect on the Trust or the Certificateholders (or any similar or analogous
determination), such determination shall be made without taking into account
the insurance provided by the Policy.
II
CREATION OF TRUST
II.1 CREATION OF TRUST. The Seller does hereby create and establish,
pursuant to the laws of the State of New York and this Agreement a trust (the
"Trust"), which for convenience shall be known as "AmeriCredit Automobile
Receivables Trust 1995-B."
19
III
CONVEYANCE OF RECEIVABLES; ACCEPTANCE BY TRUSTEE;
ORIGINAL ISSUANCE OF CERTIFICATES
III.1. CONVEYANCE OF RECEIVABLES. Subject to the terms and conditions
of this Agreement, the Seller, pursuant to the mutually agreed upon terms
contained herein, hereby sells, transfers, assigns, and otherwise conveys to
the Trust, without recourse (but without limitation of its obligations in
this Agreement), all of the right, title and interest of the Seller in and to
the Receivables, all monies payable thereon or in respect thereof after the
Cutoff Date, the security interests of the Seller in the related Financed
Vehicles, the Insurance Policies and any proceeds from any Insurance Policies
relating to the Receivables, the Obligors or the related Financed Vehicles,
including rebates of premiums, all Collateral Insurance and any Force-Placed
Insurance relating to the Receivables, rights of the Seller against Dealers
with respect to the Receivables under the Dealer Agreements and the Dealer
Assignments, all items contained in the related Receivable Files, any and all
other documents that the Seller or the Servicer keeps on file in accordance
with its customary procedures relating to the Receivables, the Obligors or
the related Financed Vehicles, property (including the right to receive
future Liquidation Proceeds) that secures a Receivable and that has been
acquired by or on behalf of the Seller or the Trust pursuant to liquidation
of such Receivable, all funds on deposit from time to time in the Collection
Account (including all income thereon and all amounts deposited in respect of
Administrative Receivables and Warranty Receivables) and all investments
therein and proceeds thereof, all proceeds and investments of any of the
foregoing, all present and future claims, demands, causes and choses in
action in respect of any or all of the foregoing and all payments on or under
and all proceeds of every kind and nature whatsoever in respect of any or in
lieu of the foregoing, including all proceeds of the conversion, voluntary or
involuntary, into cash or other liquid property, all cash proceeds, accounts,
accounts receivable, notes, drafts, acceptances, chattel paper, checks,
deposit accounts, insurance proceeds, condemnation awards, rights to payment
of any and every kind and other forms of obligations and receivables,
instruments and other property which at any time constitute all or part of or
are included in the proceeds of any of the foregoing. It is the intention of
the Seller that the transfer and assignment contemplated by this Agreement
shall constitute a sale of the Receivables and Other Conveyed Property from
the Seller to the Trust and the beneficial interest in and title to the
Receivables and the Other Conveyed Property shall not be part of the Seller's
estate in the event of the filing of a bankruptcy petition by or against the
Seller under any bankruptcy law. In the event that, notwithstanding the
intent of the Seller, the transfer and assignment contemplated hereby is held
not to be a sale, this Agreement shall constitute a grant of a first priority
security interest to the Trust in the property referred to in this Section
3.1 for the benefit of the Certificateholders.
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III.2. CUSTODY OF RECEIVABLE FILES.
(a) In connection with the sale, transfer and assignment of the
Receivables and the Other Conveyed Property to the Trust pursuant to this
Agreement and simultaneously with the execution and delivery of this
Agreement, the Trustee shall enter into the Custodian Agreement with the
Custodian, dated as of November 20, 1995, pursuant to which the Trustee shall
revocably appoint the Custodian, and the Custodian shall accept such
appointment, to act as the agent of the Trustee as custodian of the following
documents or instruments in its possession which shall be delivered to the
Custodian as agent of the Trustee on or before the Closing Date (with respect
to each Receivable):
(i) The fully executed original of the Receivable (together with
any agreements modifying the Receivable, including without limitation any
extension agreements);
(ii) The original credit application, or a copy thereof, of each
Obligor, fully executed by each such Obligor on AmeriCredit's customary
form, or on a form approved by AmeriCredit, for such application, and
(iii) The original certificate of title (when received) and otherwise
such documents, if any, that AmeriCredit keeps on file in accordance with
its customary procedures indicating that the Financed Vehicle is owned by
the Obligor and subject to the interest of AmeriCredit as first lienholder
or secured party (including any Lien Certificate received by AmeriCredit),
or, if such original certificate of title has not yet been received, a copy
of the application therefor, showing AmeriCredit as secured party.
The Trustee may act as the Custodian, in which case the Trustee shall be
deemed to have assumed the obligations of the Custodian specified in the
Custodian Agreement.
(b) Upon payment in full of any Receivable, the Servicer will notify
the Custodian pursuant to a certificate of an officer of the Servicer (which
certificate shall include a statement to the effect that all amounts received
in connection with such payments which are required to be deposited in the
Collection Account pursuant to Section 4.1 have been so deposited) and shall
request delivery of the Receivable and Receivable File to the Servicer. From
time to time as appropriate for servicing and enforcing any Receivable, the
Custodian shall, upon written request of an officer of the Servicer and
delivery to the Custodian of a receipt signed by such officer, cause the
original Receivable and the related Receivable File to be released to the
Servicer. The Servicer's receipt of a Receivable and/or Receivable File
shall obligate the Servicer to return the original Receivable and the related
Receivable File to the Custodian when its need by the Servicer has ceased
unless the Receivable is repurchased as described in Section 3.5 or 4.7.
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III.3 CONDITIONS TO ISSUANCE BY TRUST. As conditions to the Trustee's
execution and delivery of the Certificates on the Closing Date, the Trustee
shall have received the following on or before the Closing Date:
(a) The Schedule of Receivables certified by the President,
Controller or Treasurer of the Seller;
(b) The acknowledgement of the Custodian that it holds the
Receivable File relating to each Receivable;
(c) Copies of resolutions of the Board of Directors of the Seller
approving the execution, delivery and performance of this Agreement, the
Related Documents and the transactions contemplated hereby and thereby,
certified by a Secretary or an Assistant Secretary of the Seller;
(d) Copies of resolutions of the Board of Directors of
AmeriCredit approving the execution, delivery and performance of this
Agreement, the Related Documents and the transactions contemplated hereby
and thereby, certified by a Secretary or an Assistant Secretary of
AmeriCredit;
(e) Evidence that all filings (including, without limitation,
UCC filings) required to be made by any Person and actions required to be
taken or performed by any Person in any jurisdiction to give the Trustee a
first priority perfected lien on, or ownership interest in, the Receivables
and the Other Conveyed Property have been made, taken or performed; and
(f) An executed copy of the Policy and Spread Account Agreement.
III .4. REPRESENTATIONS AND WARRANTIES OF SELLER. By its execution of
this Agreement, the Seller makes the following representations and warranties
on which the Trust relies in accepting the Receivables and the Other Conveyed
Property and in issuing the Certificates and upon which the Security Insurer
relies in issuing the Policy. Unless otherwise specified, such representations
and warranties speak as of the Closing Date, but shall survive the sale,
transfer, and assignment of the Receivables to the Trust.
(a) SCHEDULE OF REPRESENTATIONS. The representations and warranties
set forth on the Schedule of Representations attached hereto as Schedule B
are true and correct.
(b) ORGANIZATION AND GOOD STANDING. The Seller has been duly organized
and is validly existing as a corporation in good standing under the laws of
the State of Delaware, with power and authority to own its properties and to
conduct its business as such properties are currently owned and such business
is currently conducted, and had at all relevant times,
22
and now has, power, authority and legal right to acquire, own and sell the
Receivables and the Other Conveyed Property transferred to the Trust.
(c) DUE QUALIFICATION. The Seller is duly qualified to do business as
a foreign corporation in good standing and has obtained all necessary
licenses and approvals in all jurisdictions where the failure to do so would
materially and adversely affect Seller's ability to transfer the Receivables
and the Other Conveyed Property to the Trust pursuant to this Agreement, or
the validity or enforceability of the Receivables and the Other Conveyed
Property or to perform Seller's obligations hereunder and under the Seller's
Related Documents.
(d) POWER AND AUTHORITY. The Seller has the power and authority to
execute and deliver this Agreement and its Related Documents and to carry out
its terms and their terms, respectively; the Seller has full power and
authority to sell and assign the Receivables and the Other Conveyed Property
to be sold and assigned to and deposited with the Trust by it and has duly
authorized such sale and assignment to the Trust by all necessary corporate
action; and the execution, delivery and performance of this Agreement and the
Seller's Related Documents have been duly authorized by the Seller by all
necessary corporate action.
(e) VALID SALE, BINDING OBLIGATIONS. This Agreement effects a valid
sale, transfer and assignment of the Receivables and the Other Conveyed
Property, enforceable against the Seller and creditors of and purchasers from
the Seller; and this Agreement and the Seller's Related Documents, when duly
executed and delivered, shall constitute legal, valid and binding obligations
of the Seller enforceable in accordance with their respective terms, except
as enforceability may be limited by bankruptcy, insolvency, reorganization or
other similar laws affecting the enforcement of creditors' rights generally
and by equitable limitations on the availability of specific remedies,
regardless of whether such enforceability is considered in a proceeding in
equity or at law.
(f) NO VIOLATION. The consummation of the transactions contemplated by
this Agreement and the Related Documents and the fulfillment of the terms of
this Agreement and the Related Documents shall not conflict with, result in
any breach of any of the terms and provisions of or constitute (with or
without notice, lapse of time or both) a default under the certificate of
incorporation or by-laws of the Seller, or any indenture, agreement,
mortgage, deed of trust or other instrument to which the Seller is a party or
by which it is bound, or result in the creation or imposition of any Lien
upon any of its properties pursuant to the terms of any such indenture,
agreement, mortgage, deed of trust or other instrument, other than this
Agreement, or violate any law, order, rule or regulation applicable to the
Seller of any court or of any federal or state regulatory body,
administrative agency or other governmental instrumentality having
jurisdiction over the Seller or any of its properties.
23
(g) NO PROCEEDINGS. There are no proceedings or investigations
pending or, to the Seller's knowledge, threatened against the Seller, before
any court, regulatory body, administrative agency or other tribunal or
governmental instrumentality having jurisdiction over the Seller or its
properties (A) asserting the invalidity of this Agreement or any of the
Related Documents, (B) seeking to prevent the issuance of the Certificates or
the consummation of any of the transactions contemplated by this Agreement or
any of the Related Documents, (C) seeking any determination or ruling that
might materially and adversely affect the performance by the Seller of its
obligations under, or the validity or enforceability of, this Agreement or
any of the Related Documents, or (D) seeking to adversely affect the federal
income tax or other federal, state or local tax attributes of the
Certificates.
(h) CHIEF EXECUTIVE OFFICE. The chief executive office of the Seller
is at 000 Xxxxxx Xxxxxx, Xxxx Xxxxx, Xxxxx 00000-0000.
III.5 REPURCHASE OF RECEIVABLES UPON BREACH OF WARRANTY. Upon
discovery by any of the Seller, the Servicer, the Security Insurer or the
Trustee of a breach of any of the representations and warranties of the
Seller contained in Section 3.4, the party discovering such breach shall give
prompt written notice to the others; PROVIDED, HOWEVER, that the failure to
give any such notice shall not affect any obligation of the Seller. As of
the second Accounting Date (or, at the Seller's election, the first
Accounting Date) following its discovery or its receipt of notice of any
breach of the representations and warranties set forth on the Schedule of
Representations which materially and adversely affects the interests of the
Certificateholders, the Security Insurer or the Trust in any Receivable
(including any Liquidated Receivable) the Seller shall, unless such breach
shall have been cured in all material respects, purchase such Receivable from
the Trust and, on or before the related Deposit Date, the Seller shall pay
the Purchase Amount to the Trust pursuant to Section 5.4. It is understood
and agreed that, except as set forth in this Section 3.5, the obligation of
the Seller to repurchase any Receivable as to which a breach has occurred and
is continuing shall, if such obligation is fulfilled, constitute the sole
remedy against the Seller for such breach available to the Security Insurer,
the Trustee on behalf of the Certificateholders or the Trust.
In addition to the foregoing and notwithstanding whether the related
Receivable shall have been purchased by the Seller, the Seller shall
indemnify the Trust, the Trustee, the Backup Servicer, the Collateral Agent,
the Security Insurer, the Trust and the Certificateholders against all costs,
expenses, losses, damages, claims and liabilities, including reasonable fees
and expenses of counsel, which may be asserted against or incurred by any of
them as a result of third party claims arising out of the events or facts
giving rise to such breach.
III.6 [Reserved].
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III.7. COLLECTING LIEN CERTIFICATES NOT DELIVERED ON THE CLOSING DATE.
In the case of any Receivable in respect of which written evidence from the
Dealer selling the related Financed Vehicle that the Lien Certificate for
such Financed Vehicle showing AmeriCredit as first lienholder has been
applied for from the Registrar of Titles was delivered to the Custodian on
the Closing Date in lieu of a Lien Certificate, the Servicer shall use its
best efforts to collect such Lien Certificate from the Registrar of Titles as
promptly as practicable. If such Lien Certificate showing AmeriCredit as
first lienholder is not received by the Custodian within 180 days after the
Closing Date then the representation and warranty in paragraph 5 of the
Schedule of Representations in respect of such Receivable shall be deemed to
have been incorrect in a manner that materially and adversely affects the
Certificateholders, the Security Insurer and the Trust.
III.8. TRUSTEE'S ASSIGNMENT OF ADMINISTRATIVE RECEIVABLES AND WARRANTY
RECEIVABLES. With respect to all Administrative Receivables and all Warranty
Receivables purchased by the Servicer or the Seller, the Trustee shall take
any and all actions reasonably requested by the Seller or the Servicer, at
the expense of the requesting party, to assign, without recourse,
representation or warranty, to the Seller, or the Servicer, as applicable,
all the Trust's right, title and interest in and to such Purchased
Receivable, all monies due thereon, the security interests in the related
Financed Vehicles, proceeds from any Insurance Policies, proceeds from
recourse against Dealers on such Receivables and the interests of the Trust
in certain rebates of premiums and other amounts relating to the Insurance
Policies and any documents relating thereto, such assignment being an
assignment outright and not for security; and the Seller or the Servicer, as
applicable, shall thereupon own such Receivable, and all such security and
documents, free of any further obligation to the Trust, the Trustee, the
Security Insurer, the Certificateholders or the Trust with respect thereto.
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IV
ADMINISTRATION AND SERVICING OF RECEIVABLES
26
IV.1. DUTIES OF THE SERVICER. The Servicer is hereby authorized to
act as agent for the Trust and in such capacity shall manage, service,
administer and make collections on the Receivables, and perform the other
actions required by the Servicer under this Agreement. The Servicer agrees
that its servicing of the Receivables shall be carried out in accordance with
customary and usual procedures of institutions which service motor vehicle
retail installment sales contracts and, to the extent more exacting, the
degree of skill and attention that the Servicer exercises from time to time
with respect to all comparable motor vehicle receivables that it services for
itself or others. In performing such duties, so long as AmeriCredit is the
Servicer, it shall comply with the policies and procedures attached hereto as
Schedule C. The Servicer's duties shall include, without limitation,
collection and posting of all payments, responding to inquiries of Obligors
on the Receivables, investigating delinquencies, sending payment coupons to
Obligors, reporting any required tax information to Obligors, monitoring the
collateral, complying with the terms of the Lockbox Agreement, accounting for
collections and furnishing monthly and annual statements to the Trustee and
the Security Insurer with respect to distributions, monitoring the status of
Insurance Policies with respect to the Financed Vehicles and performing the
other duties specified herein. The Servicer shall also administer and
enforce all rights and responsibilities of the holder of the Receivables
provided for in the Dealer Agreements (and shall maintain possession of the
Dealer Agreements, to the extent it is necessary to do so), the Dealer
Assignments and the Insurance Policies, to the extent that such Dealer
Agreements, Dealer Assignments and Insurance Policies relate to the
Receivables, the Financed Vehicles or the Obligors. To the extent consistent
with the standards, policies and procedures otherwise required hereby, the
Servicer shall follow its customary standards, policies, and procedures and
shall have full power and authority, acting alone, to do any and all things
in connection with such managing, servicing, administration and collection
that it may deem necessary or desirable. Without limiting the generality of
the foregoing, the Servicer is hereby authorized and empowered by the Trust
to execute and deliver, on behalf of the Trust, any and all instruments of
satisfaction or cancellation, or of partial or full release or discharge, and
all other comparable instruments, with respect to the Receivables and with
respect to the Financed Vehicles; PROVIDED, HOWEVER, that notwithstanding the
foregoing, the Servicer shall not, except pursuant to an order from a court
of competent jurisdiction, release an Obligor from payment of any unpaid
amount under any Receivable or waive the right to collect the unpaid balance
of any Receivable from the Obligor. The Servicer is hereby authorized to
commence, in its own name or in the name of the Trust (provided the Servicer
has obtained the Trustee's consent, which consent shall not be unreasonably
withheld), a legal proceeding to enforce a Receivable pursuant to Section 4.3
or to commence or participate in any other legal proceeding (including,
without limitation, a bankruptcy proceeding) relating to or involving a
Receivable, an Obligor or a Financed Vehicle. If the Servicer commences or
participates in such a legal proceeding in its own name, the Trust shall
thereupon be deemed to have automatically assigned such Receivable to the
Servicer solely for purposes of commencing or participating in any such
proceeding as a party or claimant, and the Servicer is authorized and
empowered by the Trust to execute and deliver in the Servicer's name any
notices,
27
demands, claims, complaints, responses, affidavits or other documents or
instruments in connection with any such proceeding. The Trustee shall
furnish the Servicer with any powers of attorney and other documents which
the Servicer may reasonably request and which the Servicer deems necessary or
appropriate and take any other steps which the Servicer may deem necessary or
appropriate to enable the Servicer to carry out its servicing and
administrative duties under this Agreement.
IV.2. COLLECTION OF RECEIVABLE PAYMENTS; MODIFICATIONS OF RECEIVABLES;
LOCKBOX AGREEMENTS.
(a) Consistent with the standards, policies and procedures required
by this Agreement, the Servicer shall make reasonable efforts to collect all
payments called for under the terms and provisions of the Receivables as and
when the same shall become due, and shall follow such collection procedures
as it follows with respect to all comparable automobile receivables that it
services for itself or others and otherwise act with respect to the
Receivables, the Dealer Agreements, the Dealer Assignments, the Insurance
Policies and the Other Conveyed Property in such manner as will, in the
reasonable judgment of the Servicer, maximize the amount to be received by
the Trust with respect thereto. The Servicer is authorized in its discretion
to waive any prepayment charge, late payment charge or any other similar fees
that may be collected in the ordinary course of servicing any Receivable.
(b) The Servicer may at any time agree to a modification or
amendment of a Receivable in order to (i) change the Obligor's regular due
date to a date within the Collection Period in which such due date occurs or
(ii) re-amortize the scheduled payments on the Receivable following a partial
prepayment of principal.
(c) The Servicer may grant payment extensions on, or other
modifications or amendments to, a Receivable (in addition to those
modifications permitted by Section 4.2(b)) in accordance with its customary
procedures if the Servicer believes in good faith that such extension,
modification or amendment is necessary to avoid a default on such Receivable,
will maximize the amount to be received by the Trust with respect to such
Receivable, and is otherwise in the best interests of the Trust; PROVIDED,
HOWEVER, that:
(i) The aggregate period of all extensions on a Receivable shall
not exceed six months;
(ii) In no event may a Receivable be extended beyond the
Collection Period immediately preceding the Final Scheduled Distribution
Date;
(iii) So long as an Insurer Default shall not have occurred and be
continuing, the Servicer shall not amend or modify a Receivable (except as
provided in Section 4.2(b) and this Section 4.2(c)) without the consent
of the Security Insurer
28
or a Certificate Majority (if an Insurer Default shall have occurred and
be continuing);
(iv) The aggregate Principal Balance of Receivables which may be
extended during any Calendar Quarter shall not exceed 6.0% of the aggregate
Principal Balance of Receivables as of the Accounting Date immediately
prior to the first day of such Calendar Quarter; and
(v) No such extension, modification or amendment shall be granted
more than 90 days after the Closing Date if such action would have the
effect of causing such Receivable to be deemed to have been exchanged for
another Receivable within the meaning of Section 1001 of the Internal
Revenue Code of 1986, as amended, or any proposed, temporary or final
Treasury Regulations issued thereunder.
(d) The Servicer shall use its best efforts to cause Obligors to make
all payments on the Receivables, whether by check or by direct debit of the
Obligor's bank account, to be made directly to one or more Lockbox Banks,
acting as agent for the Trust pursuant to a Lockbox Agreement. The Servicer
shall use its best efforts to cause any Lockbox Bank to deposit all payments
on the Receivables in the Lockbox Account no later than the Business Day
after receipt, and to cause all amounts credited to the Lockbox Account on
account of such payments to be transferred to the Collection Account no later
than the second Business Day after receipt of such payments. The Lockbox
Account shall be a demand deposit account held by the Lockbox Bank, or at the
request of the Controlling Party, an Eligible Account.
Prior to the Closing Date, the Servicer shall have notified each Obligor
that makes its payments on the Receivables by check to make such payments
thereafter directly to the Lockbox Bank (except in the case of Obligors that
have already been making such payments to the Lockbox Bank), and shall have
provided each such Obligor with remittance invoices in order to enable such
Obligors to make such payments directly to the Lockbox Bank for deposit into
the Lockbox Account, and the Servicer will continue, not less often than
every three months, to so notify those Obligors who have failed to make
payments to the Lockbox Bank. If and to the extent requested by the
Controlling Party, the Servicer shall request each Obligor that makes payment
on the Receivables by direct debit of such Obligor's bank account, to execute
a new authorization for automatic payment which in the judgment of the
Controlling Party is sufficient to authorize direct debit by the Lockbox Bank
on behalf of the Trust. If at any time, the Lockbox Bank is unable to
directly debit an Obligor's bank account that makes payment on the
Receivables by direct debit and if such inability is not cured within 15 days
or cannot be cured by execution by the Obligor of a new authorization for
automatic payment, the Servicer shall notify such Obligor that it cannot make
payment by direct debit and must thereafter make payment by check.
29
Notwithstanding any Lockbox Agreement, or any of the provisions of this
Agreement relating to the Lockbox Agreement, the Servicer shall remain
obligated and liable to the Trust, Trustee and Certificateholders for
servicing and administering the Receivables and the Other Conveyed Property
in accordance with the provisions of this Agreement without diminution of
such obligation or liability by virtue thereof, PROVIDED, HOWEVER, that the
foregoing shall not apply to any Backup Servicer for so long as a Lockbox
Bank is performing its obligations pursuant to the terms of a Lockbox
Agreement.
In the event of a termination of the Servicer, the successor Servicer
shall assume all of the rights and obligations of the outgoing Servicer under
the Lockbox Agreement. In such event, the successor Servicer shall be deemed
to have assumed all of the outgoing Servicer's interest therein and to have
replaced the outgoing Servicer as a party to each such Lockbox Agreement to
the same extent as if such Lockbox Agreement had been assigned to the
successor Servicer, except that the outgoing Servicer shall not thereby be
relieved of any liability or obligations on the part of the outgoing Servicer
to the Lockbox Bank under such Lockbox Agreement. The outgoing Servicer
shall, upon request of the Trustee, but at the expense of the outgoing
Servicer, deliver to the successor Servicer all documents and records
relating to each such Lockbox Agreement and an accounting of amounts
collected and held by the Lockbox Bank and otherwise use its best efforts to
effect the orderly and efficient transfer of any Lockbox Agreement to the
successor Servicer. In the event that the Security Insurer (so long as an
Insurer Default shall not have occurred and be continuing) or a Certificate
Majority (if an Insurer Default shall have occurred and be continuing) elects
to change the identity of the Lockbox Bank, the outgoing Servicer, at its
expense, shall cause the Lockbox Bank to deliver, at the direction of the
Security Insurer (so long as an Insurer Default shall not have occurred and
be continuing) or a Certificate Majority (if an Insurer Default shall have
occurred and be continuing) to the Trustee or a successor Lockbox Bank, all
documents and records relating to the Receivables and all amounts held (or
thereafter received) by the Lockbox Bank (together with an accounting of such
amounts) and shall otherwise use its best efforts to effect the orderly and
efficient transfer of the lockbox arrangements and the Servicer shall notify
the Obligors to make payments to the Lockbox established by the successor.
(e) The Servicer shall remit all payments by or on behalf of the
Obligors received directly by the Servicer to the Subcollection Account or to
the Lockbox Bank for deposit into the Collection Account, in either case,
without deposit into any intervening account and as soon as practicable, but
in no event later than the Business Day after receipt thereof.
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IV.3. REALIZATION UPON RECEIVABLES.
(a) Consistent with the standards, policies and procedures
required by this Agreement, the Servicer shall use its best efforts to
repossess (or otherwise comparably convert the ownership of) and liquidate
any Financed Vehicle securing a Receivable with respect to which the Servicer
has determined that payments thereunder are not likely to be resumed, as soon
as is practicable after default on such Receivable but in no event later than
the date on which all or any portion of a Scheduled Payment has become 91
days delinquent; provided, however, that the Servicer may elect not to
repossess a Financed Vehicle within such time period if in its good faith
judgment it determines that the proceeds ultimately recoverable with respect
to such Receivable would be increased by forbearance. The Servicer is
authorized to follow such customary practices and procedures as it shall deem
necessary or advisable, consistent with the standard of care required by
Section 4.1, which practices and procedures may include reasonable efforts to
realize upon any recourse to Dealers, the sale of the related Financed
Vehicle at public or private sale, the submission of claims under an
Insurance Policy and other actions by the Servicer in order to realize upon
such a Receivable. The foregoing is subject to the provision that, in any
case in which the Financed Vehicle shall have suffered damage, the Servicer
shall not expend funds in connection with any repair or towards the
repossession of such Financed Vehicle unless it shall determine in its
discretion that such repair and/or repossession shall increase the proceeds
of liquidation of the related Receivable by an amount greater than the amount
of such expenses. All amounts received upon liquidation of a Financed
Vehicle shall be remitted directly by the Servicer to the Subcollection
Account without deposit into any intervening account as soon as practicable,
but in no event later than the Business Day after receipt thereof. The
Servicer shall be entitled to recover all reasonable expenses incurred by it
in the course of repossessing and liquidating a Financed Vehicle into cash
proceeds, but only out of the cash proceeds of such Financed Vehicle, any
deficiency obtained from the Obligor or any amounts received from the related
Dealer, which amounts in reimbursement may be retained by the Servicer (and
shall not be required to be deposited as provided in Section 4.2(e)) to the
extent of such expenses. The Servicer shall pay on behalf of the Trust any
personal property taxes assessed on repossessed Financed Vehicles. The
Servicer shall be entitled to reimbursement of any such tax from Liquidation
Proceeds with respect to such Receivable.
(b) If the Servicer elects to commence a legal proceeding to
enforce a Dealer Agreement or Dealer Assignment, the act of commencement
shall be deemed to be an automatic assignment from the Trust to the Servicer
of the rights under such Dealer Agreement and Dealer Assignment for purposes
of collection only. If, however, in any enforcement suit or legal proceeding
it is held that the Servicer may not enforce a Dealer Agreement or Dealer
Assignment on the grounds that it is not a real party in interest or a Person
entitled to enforce the Dealer Agreement or Dealer Assignment, the Trustee,
at the Servicer's expense, or the Seller, at the Seller's expense, shall take
such steps as the Servicer
31
deems necessary to enforce the Dealer Agreement or Dealer Assignment, including
bringing suit in its name or the name of the Seller or of the Trust and the
Trustee for the benefit of the Certificateholders. All amounts recovered shall
be remitted directly by the Servicer as provided in Section 4.2(e).
IV.4. INSURANCE.
(a) The Servicer shall require, in accordance with its customary
servicing policies and procedures, that each Financed Vehicle be insured by
the related Obligor under the Insurance Policies referred to in Paragraph 24
of the Schedule of Representations and Warranties and shall monitor the
status of such physical loss and damage insurance coverage thereafter, in
accordance with its customary servicing procedures. Each Receivable requires
the Obligor to maintain such physical loss and damage insurance, naming
AmeriCredit and its successors and assigns as additional insureds, and
permits the holder of such Receivable to obtain physical loss and damage
insurance at the expense of the Obligor if the Obligor fails to maintain such
insurance. If the Servicer shall determine that an Obligor has failed to
obtain or maintain a physical loss and damage Insurance Policy covering the
related Financed Vehicle which satisfies the conditions set forth in clause
(i)(a) of such Paragraph 24 (including, without limitation, during the
repossession of such Financed Vehicle) the Servicer may enforce the rights of
the holder of the Receivable under the Receivable to require the Obligor to
obtain such physical loss and damage insurance in accordance with its
customary servicing policies and procedures. The Servicer may maintain a
vendor's single interest or other collateral protection insurance policy with
respect to all Financed Vehicles ("Collateral Insurance") which policy shall
by its terms insure against physical loss and damage in the event any Obligor
fails to maintain physical loss and damage insurance with respect to the
related Financed Vehicle. All policies of Collateral Insurance shall be
endorsed with clauses providing for loss payable to the Servicer. Costs
incurred by the Servicer in maintaining such Collateral Insurance shall be
paid by the Servicer.
(b) The Servicer may, if an Obligor fails to obtain or maintain a
physical loss and damage Insurance Policy, obtain insurance with respect to
the related Financed Vehicle and advance on behalf of such Obligor, as
required under the terms of the insurance policy, the premiums for such
insurance (such insurance being referred to herein as "Force-Placed
Insurance"). All policies of Force-Placed Insurance shall be endorsed with
clauses providing for loss payable to the Servicer. Any cost incurred by the
Servicer in maintaining such Force-Placed Insurance shall only be recoverable
out of premiums paid by the Obligors or Liquidation Proceeds with respect to
the Receivable, as provided in Section 4.4(c).
(c) In connection with any Force-Placed Insurance obtained
hereunder, the Servicer may, in the manner and to the extent permitted by
applicable law, require the Obligors to repay the entire premium to the
Servicer. In no event shall the Servicer include
32
the amount of the premium in the Amount Financed under the Receivable. For
all purposes of this Agreement, the Insurance Add-On Amount with respect to
any Receivable having Force-Placed Insurance will be treated as a separate
obligation of the Obligor and will not be added to the Principal Balance of
such Receivable, and amounts allocable thereto will not be available for
distribution on the Certificates. The Servicer shall retain and separately
administer the right to receive payments from Obligors with respect to
Insurance Add-On Amounts or rebates of Forced-Placed Insurance premiums. If
an Obligor makes a payment with respect to a Receivable having Force-Placed
Insurance, but the Servicer is unable to determine whether the payment is
allocable to the Receivable or to the Insurance Add-On Amount, the payment
shall be applied first to any unpaid Scheduled Payments and then to the
Insurance Add-On Amount. Liquidation Proceeds on any Receivable will be used
first to pay the Principal Balance and accrued interest on such Receivable
and then to pay the related Insurance Add-On Amount. If an Obligor under a
Receivable with respect to which the Servicer has placed Force-Placed
Insurance fails to make scheduled payments of such Insurance Add-On Amount as
due, and the Servicer has determined that eventual payment of the Insurance
Add-On Amount is unlikely, the Servicer may, but shall not be required to,
purchase such Receivable from the Trust for the Purchase Amount on any
subsequent Deposit Date. Any such Receivable, and any Receivable with
respect to which the Servicer has placed Force-Placed Insurance which has
been paid in full (excluding any Insurance Add-On Amounts) will be assigned
to the Servicer.
(d) The Servicer may xxx to enforce or collect upon the Insurance
Policies, in its own name, if possible, or as agent of the Trust. If the
Servicer elects to commence a legal proceeding to enforce an Insurance Policy,
the act of commencement shall be deemed to be an automatic assignment of the
rights of the Trust under such Insurance Policy to the Servicer for purposes of
collection only. If, however, in any enforcement suit or legal proceeding it is
held that the Servicer may not enforce an Insurance Policy on the grounds that
it is not a real party in interest or a holder entitled to enforce the Insurance
Policy, the Trustee, at the Servicer's expense, or the Seller, at the Seller's
expense, shall take such steps as the Servicer deems necessary to enforce such
Insurance Policy, including bringing suit in its name or the name of the Trust
and the Trustee for the benefit of the Certificateholders.
(e) The Servicer will cause itself and may cause the Trustee to
be named as named insured under all policies of Collateral Insurance.
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IV.5. MAINTENANCE OF SECURITY INTERESTS IN VEHICLES.
(a) Consistent with the policies and procedures required by this
Agreement, the Servicer shall take such steps on behalf of the Trust as are
necessary to maintain perfection of the security interest created by each
Receivable in the related Financed Vehicle, including but not limited to
obtaining the execution by the Obligors and the recording, registering, filing,
re-recording, re-filing, and re-registering of all security agreements,
financing statements and continuation statements as are necessary to maintain
the security interest granted by the Obligors under the respective Receivables.
The Trustee hereby authorizes the Servicer, and the Servicer agrees, to take any
and all steps necessary to re-perfect such security interest on behalf of the
Trust as necessary because of the relocation of a Financed Vehicle or for any
other reason. In the event that the assignment of a Receivable to the Trust is
insufficient, without a notation on the related Financed Vehicle's certificate
of title, or without fulfilling any additional administrative requirements under
the laws of the state in which the Financed Vehicle is located, to perfect a
security interest in the related Financed Vehicle in favor of the Trustee, the
Servicer hereby agrees that AmeriCredit's designation as the secured party on
the certificate of title is in its capacity as agent of the Trustee.
(b) Upon the occurrence of an Insurance Agreement Event of
Default, the Security Insurer may (so long as an Insurer Default shall not
have occurred and be continuing) instruct the Trustee and the Servicer to
take or cause to be taken, or, if an Insurer Default shall have occurred,
upon the occurrence of a Servicer Termination Event, the Trustee and the
Servicer shall take or cause to be taken such action as may, in the opinion
of counsel to the Controlling Party, be necessary to perfect or re-perfect
the security interests in the Financed Vehicles securing the Receivables in
the name of the Trustee by amending the title documents of such Financed
Vehicles or by such other reasonable means as may, in the opinion of counsel
to the Controlling Party, be necessary or prudent. AmeriCredit hereby agrees
to pay all expenses related to such perfection or reperfection and to take
all action necessary therefor. In addition, prior to the occurrence of an
Insurance Agreement Event of Default, the Controlling Party may instruct the
Trustee and the Servicer to take or cause to be taken such action as may, in
the opinion of counsel to the Controlling Party, be necessary to perfect or
re-perfect the security interest in the Financed Vehicles underlying the
Receivables in the name of the Trustee, including by amending the title
documents of such Financed Vehicles or by such other reasonable means as may,
in the opinion of counsel to the Controlling Party, be necessary or prudent;
PROVIDED, HOWEVER, that if the Controlling Party requests that the title
documents be amended prior to the occurrence of an Insurance Agreement Event
of Default, the out-of-pocket expenses of the Servicer or the Trustee in
connection with such action shall be reimbursed to the Servicer or the
Trustee, as applicable, by the Controlling Party. AmeriCredit hereby
appoints the Trustee as its attorney-in-fact to take any and all steps
required to be performed by AmeriCredit pursuant to this Section 4.5(b),
including execution of certificates of title or
34
any other documents in the name and stead of AmeriCredit, and the Trustee
hereby accepts such appointment.
IV.6. COVENANTS, REPRESENTATIONS, AND WARRANTIES OF SERVICER. By its
execution and delivery of this Agreement, the Servicer makes the following
representations, warranties and covenants on which the Trustee relies in
accepting the Receivables and issuing the Certificates, on which the Trustee
relies in authenticating the Certificates and on which the Security Insurer
relies in issuing the Policy.
(a) The Servicer covenants as follows:
(i) LIENS IN FORCE. The Financed Vehicle securing each
Receivable shall not be released in whole or in part from the
security interest granted by the Receivable, except upon payment in
full of the Receivable or as otherwise contemplated herein;
(ii) NO IMPAIRMENT. The Servicer shall do nothing to
impair the rights of the Trust or the Certificateholders in the
Receivables, the Dealer Agreements, the Dealer Assignments, the
Insurance Policies or the Other Conveyed Property;
(iii) NO AMENDMENTS. The Servicer shall not extend or
otherwise amend the terms of any Receivable, except in accordance
with Section 4.2; and
(iv) RESTRICTIONS ON LIENS. The Servicer shall not (i)
create, incur or suffer to exist, or agree to create, incur or suffer
to exist, or consent to cause or permit in the future (upon the
happening of a contingency or otherwise) the creation, incurrence or
existence of any Lien or restriction on transferability of the
Receivables except for the Lien in favor of the Trustee for the
benefit of the Certificateholders and Security Insurer, the Lien
imposed by the Spread Account Agreement in favor of the Trustee for
the benefit of the Trustee and Security Insurer, and the restrictions
on transferability imposed by this Agreement or (ii) sign or file
under the Uniform Commercial Code of any jurisdiction any financing
statement which names AmeriCredit or the Servicer as a debtor, or
sign any security agreement authorizing any secured party thereunder
to file such financing statement, with respect to the Receivables,
except in each case any such instrument solely securing the rights
and preserving the Lien of the Trustee, for the benefit of the
Certificateholders and the Security Insurer.
(b) The Servicer represents, warrants and covenants as of the
Closing Date as to itself:
(i) REPRESENTATIONS AND WARRANTIES. The
representations and warranties set forth on the Schedule of
Representations attached hereto as Schedule B are true
35
and correct, provided that such representations and warranties
contained therein and herein shall not apply to any entity other than
AmeriCredit;
(ii) ORGANIZATION AND GOOD STANDING. The Servicer has
been duly organized and is validly existing and in good standing
under the laws of its jurisdiction of organization, with power,
authority and legal right to own its properties and to conduct its
business as such properties are currently owned and such business is
currently conducted, and had at all relevant times, and now has,
power, authority and legal right to enter into and perform its
obligations under this Agreement;
(iii) DUE QUALIFICATION. The Servicer is duly qualified
to do business as a foreign corporation in good standing and has
obtained all necessary licenses and approvals, in all jurisdictions
in which the ownership or lease of property or the conduct of its
business (including the servicing of the Receivables as required by
this Agreement) requires or shall require such qualification;
(iv) POWER AND AUTHORITY. The Servicer has the power and
authority to execute and deliver this Agreement and its Related
Documents and to carry out its terms and their terms, respectively,
and the execution, delivery and performance of this Agreement and the
Servicer's Related Documents have been duly authorized by the
Servicer by all necessary corporate action;
(v) BINDING OBLIGATION. This Agreement and the
Servicer's Related Documents shall constitute legal, valid and
binding obligations of the Servicer enforceable in accordance with
their respective terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization, or other similar laws
affecting the enforcement of creditors' rights generally and by
equitable limitations on the availability of specific remedies,
regardless of whether such enforceability is considered in a
proceeding in equity or at law;
(vi) NO VIOLATION. The consummation of the transactions
contemplated by this Agreement and the Servicer's Related Documents,
and the fulfillment of the terms of this Agreement and the Servicer's
Related Documents, shall not conflict with, result in any breach of
any of the terms and provisions of, or constitute (with or without
notice or lapse of time) a default under, the articles of
incorporation or bylaws of the Servicer, or any indenture, agreement,
mortgage, deed of trust or other instrument to which the Servicer is
a party or by which it is bound, or result in the creation or
imposition of any Lien upon any of its properties pursuant to the
terms of any such indenture, agreement, mortgage, deed of trust or
other instrument, other than this Agreement, or violate any law,
order, rule or regulation applicable to the Servicer of any court or
of any federal or state regulatory body, administrative
36
agency or other governmental instrumentality having jurisdiction over
the Servicer or any of its properties;
(vii) NO PROCEEDINGS. There are no proceedings or
investigations pending or, to the Servicer's knowledge, threatened
against the Servicer, before any court, regulatory body,
administrative agency or other tribunal or governmental
instrumentality having jurisdiction over the Servicer or its
properties (A) asserting the invalidity of this Agreement or any of
the Related Documents, (B) seeking to prevent the issuance of the
Certificates or the consummation of any of the transactions
contemplated by this Agreement or any of the Related Documents, or
(C) seeking any determination or ruling that might materially and
adversely affect the performance by the Servicer of its obligations
under, or the validity or enforceability of, this Agreement or any of
the Related Documents or (D) seeking to adversely affect the federal
income tax or other federal, state or local tax attributes of the
Certificates;
(viii) NO CONSENTS. The Servicer is not required to obtain
the consent of any other party or any consent, license, approval or
authorization, or registration or declaration with, any governmental
authority, bureau or agency in connection with the execution,
delivery, performance, validity or enforceability of this Agreement
which has not already been obtained.
IV.7. PURCHASE OF RECEIVABLES UPON BREACH OF COVENANT. Upon
discovery by any of the Servicer, the Security Insurer or the Trustee of a
breach of any of the covenants set forth in Sections 4.5(a) or 4.6(a), the
party discovering such breach shall give prompt written notice to the others;
PROVIDED, HOWEVER, that the failure to give any such notice shall not affect
any obligation of AmeriCredit as Servicer under this Section 4.7. As of the
second Accounting Date following its discovery or receipt of notice of any
breach of any covenant set forth in Sections 4.5(a) or 4.6(a) which
materially and adversely affects the interests of the Certificateholders or
the Security Insurer in any Receivable (including any Liquidated Receivable)
(or, at AmeriCredit's election, the first Accounting Date so following),
AmeriCredit shall, unless such breach shall have been cured in all material
respects, purchase from the Trust the Receivable affected by such breach and,
on the related Deposit Date, AmeriCredit shall pay the related Purchase
Amount. It is understood and agreed that the obligation of AmeriCredit to
purchase any Receivable (including any Liquidated Receivable) with respect to
which such a breach has occurred and is continuing shall, if such obligation
is fulfilled, constitute the sole remedy against AmeriCredit for such breach
available to the Security Insurer, the Certificateholders or the Trustee on
behalf of Certificateholders; PROVIDED, HOWEVER, that AmeriCredit shall
indemnify the Trust, the Backup Servicer, the Collateral Agent, the Security
Insurer, the Trustee and the Certificateholders against all costs, expenses,
losses, damages, claims and liabilities, including reasonable fees and
expenses of counsel, which may be asserted against or
37
incurred by any of them as a result of third party claims arising out of the
events or facts giving rise to such breach.
IV.8. TOTAL SERVICING FEE; PAYMENT OF CERTAIN EXPENSES BY
SERVICER. On each Distribution Date, the Servicer shall be entitled to
receive out of the Collection Account the Basic Servicing Fee and any
Supplemental Servicing Fee for the related Collection Period pursuant to
Section 5.5. The Servicer shall be required to pay all expenses incurred by
it in connection with its activities under this Agreement (including taxes
imposed on the Servicer, expenses incurred in connection with distributions
and reports made by the Servicer to Certificateholders or the Security
Insurer and all other fees and expenses of the Trustee, except taxes levied
or assessed against the Trust, and claims against the Trust in respect of
indemnification, which taxes and claims in respect of indemnification against
the Trust are expressly stated to be for the account of AmeriCredit). The
Servicer shall be liable for the fees and expenses of the Trustee, the
Custodian, the Backup Servicer, the Collateral Agent, the Lockbox Bank (and
any fees under the Lockbox Agreement) and the Independent Accountants.
Notwithstanding the foregoing if the Servicer shall not be AmeriCredit, a
successor to AmeriCredit as Servicer permitted by Section 9.2 shall not be
liable for taxes levied or assessed against the Trust or claims against the
Trust in respect of indemnification.
IV.9. SERVICER'S CERTIFICATE. No later than 10:00 am. New York
City time on each Determination Date, the Servicer shall deliver to the
Trustee, the Backup Servicer, the Security Insurer, the Collateral Agent and
each Rating Agency a Servicer's Certificate executed by a Responsible Officer
of the Servicer containing among other things, (i) all information necessary
to enable the Trustee to make any withdrawal and deposit required by Section
6.3, to give any notice required by Section 6.3(b) and to make the
distributions required by Sections 5.5, (ii) all information necessary to
enable the Trustee to send the statements to Certificateholders and the
Security Insurer required by Section 5.7, (iii) a listing of all Warranty
Receivables and Administrative Receivables purchased as of the related
Deposit Date, identifying the Receivables so purchased and (iv) all
information necessary to enable the Trustee to reconcile all deposits to, and
withdrawals from, the Collection Account for the related Collection Period
and Distribution Date, including the accounting required by Section 5.7.
Receivables purchased by the Servicer or by the Seller on the related Deposit
Date and each Receivable which became a Liquidated Receivable or which was
paid in full during the related Collection Period shall be identified by
account number (as set forth in the Schedule of Receivables). A copy of such
certificate may be obtained by any Certificateholder by a request in writing
to the Trustee addressed to the Corporate Trust Office. In addition to the
information set forth in the preceding sentence, the Servicer's Certificate
delivered to the Security Insurer, the Collateral Agent and the Trustee on
the Determination Date shall also contain the following information: (a) the
Delinquency Ratio, Average Delinquency Ratio, Default Ratio, Average Default
Ratio, Net Loss Ratio and Average Net Loss Ratio for such Determination Date;
(b) whether any Trigger Event has occurred as of such Determination Date; (c)
whether any Trigger Event
38
that may have occurred as of a prior Determination Date is Deemed Cured as of
such Determination Date; and (d) whether to the knowledge of the Servicer an
Insurance Agreement Event of Default has occurred.
IV.10. ANNUAL STATEMENT AS TO COMPLIANCE, NOTICE OF SERVICER
TERMINATION EVENT.
(a) The Servicer shall deliver to the Trustee, the Backup
Servicer, the Security Insurer, the Certificateholders and each Rating
Agency, on or before October 31 (or 120 days after the end of the Servicer's
fiscal year, if other than June 30) of each year, beginning on October 31,
1996, an officer's certificate signed by any Responsible Officer of the
Servicer, dated as of June 30 (or other applicable date) of such year,
stating that (i) a review of the activities of the Servicer during the
preceding 12-month period (or such other period as shall have elapsed from
the Closing Date to the date of the first such certificate) and of its
performance under this Agreement has been made under such officer's
supervision, and (ii) to such officer's knowledge, based on such review, the
Servicer has fulfilled all its obligations under this Agreement throughout
such period, or, if there has been a default in the fulfillment of any such
obligation, specifying each such default known to such officer and the nature
and status thereof.
(b) The Servicer shall deliver to the Trustee, the Backup
Servicer, the Security Insurer, the Certificateholders, the Collateral Agent,
and each Rating Agency, promptly after having obtained knowledge thereof, but
in no event later than two (2) Business Days thereafter, written notice in an
officer's certificate of any event which with the giving of notice or lapse
of time, or both, would become a Servicer Termination Event under Section
10.1(a). The Seller or the Servicer shall deliver to the Trustee, the Backup
Servicer, the Security Insurer, the Collateral Agent, the Servicer or the
Seller (as applicable) and each Rating Agency promptly after having obtained
knowledge thereof, but in no event later than two (2) Business Days
thereafter, written notice in an officer's certificate of any event which
with the giving of notice or lapse of time, or both, would become a Servicer
Termination Event under any other clause of Section 10.1.
39
IV.11. ANNUAL INDEPENDENT ACCOUNTANTS' REPORT.
(a) The Servicer shall cause a firm of nationally recognized
independent certified public accountants (the "Independent Accountants"), who
may also render other services to the Servicer or to the Seller, to deliver
to the Trustee, the Backup Servicer, the Security Insurer and each Rating
Agency, on or before October 31 (or 120 days after the end of the Servicer's
fiscal year, if other than June 30) of each year, beginning on October 31,
1996, with respect to the twelve months ended the immediately preceding June
30 (or other applicable date) (or such other period as shall have elapsed
from the Closing Date to the date of such certificate), a statement (the
"Accountants' Report") addressed to the Board of Directors of the Servicer,
to the Trustee, the Backup Servicer and to the Security Insurer, to the
effect that such firm has audited the books and records of AmeriCredit Corp.,
in which the Servicer is included as a consolidated subsidiary, and issued
its report thereon in connection with the audit report on the consolidated
financial statements of AmeriCredit Corp. and that (1) such audit was made in
accordance with generally accepted auditing standards, and accordingly
included such tests of the accounting records and such other auditing
procedures as such firm considered necessary in the circumstances; (2) the
firm is independent of the Seller and the Servicer within the meaning of the
Code of Professional Ethics of the American Institute of Certified Public
Accountants, and (3) includes a report on the application of agreed upon
procedures to three randomly selected Servicer's Certificates including the
delinquency, default and loss statistics required to be specified therein
noting whether any exceptions or errors in the Servicer's Certificates were
found.
(b) A copy of the Accountants' Report may be obtained by any
Certificateholder by a request in writing to the Trustee addressed to the
Corporate Trust Office.
IV.12. ACCESS TO CERTAIN DOCUMENTATION AND INFORMATION REGARDING
RECEIVABLES. The Servicer shall provide to representatives of the Trustee,
the Backup Servicer, the Certificateholders and the Security Insurer
reasonable access to the documentation regarding the Receivables. In each
case, such access shall be afforded without charge but only upon reasonable
request and during normal business hours. Nothing in this Section shall
derogate from the obligation of the Servicer to observe any applicable law
prohibiting disclosure of information regarding the Obligors, and the failure
of the Servicer to provide access as provided in this Section as a result of
such obligation shall not constitute a breach of this Section.
IV.13. MONTHLY TAPE. On or before the fifth Business Day, but in
no event later than the seventh calendar day, of each month, the Servicer
will deliver to the Trustee and the Backup Servicer a computer tape and a
diskette (or any other electronic transmission acceptable to the Trustee and
the Backup Servicer) in a format acceptable to the Trustee and the Backup
Servicer containing the information with respect to the Receivables as of the
preceding Accounting Date necessary for preparation of the Servicer's
Certificate relating to
40
the immediately succeeding Determination Date and necessary to determine the
application of collections as provided in Section 5.3. The Backup Servicer
shall use such tape or diskette (or other electronic transmission acceptable
to the Trustee and the Backup Servicer) to verify the Servicer's Certificate
delivered by the Servicer, and the Backup Servicer shall certify to the
Controlling Party that it has verified the Servicer's Certificate in
accordance with this Section 4.13 and shall notify the Servicer and the
Controlling Party of any discrepancies, in each case, on or before the second
Business Day following the Determination Date. In the event that the Backup
Servicer reports any discrepancies, the Servicer and the Backup Servicer
shall attempt to reconcile such discrepancies prior to the related
Distribution Date, but in the absence of a reconciliation, the Servicer's
Certificate shall control for the purpose of calculations and distributions
with respect to the related Distribution Date. In the event that the Backup
Servicer and the Servicer are unable to reconcile discrepancies with respect
to a Servicer's Certificate by the related Distribution Date, the Servicer
shall cause the Independent Accountants, at the Servicer's expense, to audit
the Servicer's Certificate and, prior to the third Business Day, but in no
event later than the fifth calendar day, of the following month, reconcile
the discrepancies. The effect, if any, of such reconciliation shall be
reflected in the Servicer's Certificate for such next succeeding
Determination Date. In addition, upon the occurrence of a Servicer
Termination Event the Servicer shall, if so requested by the Controlling
Party deliver to the Backup Servicer its Collection Records and its Monthly
Records within 15 days after demand therefor and a computer tape containing
as of the close of business on the date of demand all of the data maintained
by the Servicer in computer format in connection with servicing the
Receivables. Other than the duties specifically set forth in this Agreement,
the Backup Servicer shall have no obligations hereunder, including, without
limitation, to supervise, verify, monitor or administer the performance of
the Servicer. The Backup Servicer shall have no liability for any actions
taken or omitted by the Servicer.
IV.14. RETENTION AND TERMINATION OF SERVICER. The Servicer hereby
covenants and agrees to act as such under this Agreement for an initial term,
commencing on the Closing Date and ending on March 31, 1996, which term shall
be extendible by the Controlling Party for successive quarterly terms ending
on each successive June 30, September 30 and December 31 (or, pursuant to
revocable written standing instructions from time to time to the Servicer and
the Trustee for any specified number of terms greater than one), until the
Certificates are paid in full. Each such notice (including each notice
pursuant to standing instructions, which shall be deemed delivered at the end
of successive quarterly terms for so long as such instructions are in effect)
(a "Servicer Extension Notice") shall be delivered by the Security Insurer to
the Trustee and the Servicer. The Servicer hereby agrees that, as of the
date hereof and upon its receipt of any such Servicer Extension Notice, the
Servicer shall become bound, for the initial term beginning on the Closing
Date and for the duration of the term covered by such Servicer Extension
Notice, to continue as the Servicer subject to and in accordance with the
other provisions of this Agreement. Until such time as an Insurer Default
shall have occurred and be continuing the Trustee agrees that if as of the
fifteenth day prior to the last day of any term of the Servicer the Trustee
shall not have
41
received any Servicer Extension Notice from the Security Insurer, the Trustee
will, within five days thereafter, give written notice of such non-receipt to
the Security Insurer and the Servicer.
IV.15. FIDELITY BOND AND ERRORS AND OMISSIONS POLICY. The Servicer
has obtained, and shall continue to maintain in full force and effect, a
Fidelity Bond and Errors and Omissions Policy of a type and in such amount as
is customary for servicers engaged in the business of servicing automobile
receivables.
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V
DISTRIBUTIONS; STATEMENTS TO CERTIFICATEHOLDERS
43
V.1. ACCOUNTS. The Servicer shall establish the Collection Account in
the name of the Trustee for the benefit of the Certificateholders. The Servicer
shall also establish the Policy Payments Account in the name of the Trustee for
the benefit of the Class A Certificateholders. Each of the Collection Account
and the Policy Payments Account shall be an Eligible Account and initially shall
be a segregated trust account established with the Trustee and maintained with
the Trustee. All amounts held in the Collection Account shall, to the extent
permitted by applicable laws, rules and regulations, be invested by the Trustee,
as directed in writing by the Servicer, in Eligible Investments that mature not
later than one Business Day prior to the Distribution Date for the Collection
Period to which such amounts relate. Any such written direction shall certify
that any such investment is authorized by this Section 5.1. Investments in
Eligible Investments shall be made in the name of the Trustee on behalf of the
Certificateholders, and such investments shall not be sold or disposed of prior
to their maturity. The Trustee may trade with itself or an Affiliate in the
purchase or sale of Eligible Investments. Any investment of funds in the
Collection Account shall be made in Eligible Investments held by a financial
institution with respect to which (a) such institution has noted the Trustee's
interest therein by book entry or otherwise and (b) a confirmation of the
Trustee's interest has been sent to the Trustee by such institution, provided
that such Eligible Investments are (i) specific certificated securities (as such
term is used in the Texas UCC, and (ii) either (A) in the possession of such
institution or (B) in the possession of a clearing corporation as such term is
used in the New York UCC and the Texas UCC, registered in the name of such
clearing corporation, not endorsed for collection or surrender or any other
purpose not involving transfer, not containing any evidence of a right or
interest inconsistent with the Trustee's security interest therein, and held by
such clearing corporation in an account of such institution. Subject to the
other provisions hereof, the Trustee shall have sole control over each such
investment and the income thereon, and any certificate or other instrument
evidencing any such investment, if any, shall be delivered directly to the
Trustee or its agent, together with each document of transfer, if any, necessary
to transfer title to such investment to the Trustee in a manner which complies
with this Section 5.1. All interest, dividends, gains upon sale and other
income from, or earnings on, investments of funds in the Collection Account
shall be deposited in the Collection Account, and, in the case of the Collection
Account, distributed on the next Distribution Date pursuant to Section 5.5. The
Seller shall deposit in the Collection Account an amount equal to any net loss
on such investments immediately as realized. Amounts in Policy Payments Account
shall not be invested. On the Closing Date, the Servicer shall deposit in the
Collection Account (i) all Scheduled Payments and prepayments of Receivables
received by the Lockbox Bank after the Cut-off Date and prior to the Closing
Date or received by the Lockbox Bank after the Cut-off Date and at least two
Business Days prior to the Closing Date and (ii) all Liquidation Proceeds and
proceeds of Insurance Policies realized in respect of a Financed Vehicle and
applied by the Servicer after the Cut-off Date.
V.2. COLLECTIONS. (a) The Servicer shall establish the Subcollection
Account in the name of the Trustee for the benefit of the Certificateholders.
The
44
Subcollection Account shall be an Eligible Account satisfying clause (i) of
the definition of "Eligible Account," and shall initially be established with
First Interstate Bank, N.A. The Servicer shall remit directly to the
Subcollection Account without deposit into any intervening account all payments
by or on behalf of the Obligors on the Receivables and all Liquidation Proceeds
received by the Servicer, in each case, as soon as practicable, but in no event
later than the Business Day after receipt thereof. Within two days of deposit
of payments into the Subcollection Account, the Servicer shall cause all amounts
credited to the Subcollection Account to be transferred to the Collection
Account. Amounts in the Subcollection Account shall not be invested.
(a) Notwithstanding the provisions of subsection (a) hereof, the
Servicer will be entitled to be reimbursed from amounts on deposit in the
Collection Account with respect to a Collection Period for amounts previously
deposited in the Collection Account but later determined by the Servicer or the
Lockbox Bank to have resulted from mistaken deposits or postings or checks
returned for insufficient funds. The amount to be reimbursed hereunder shall be
paid to the Servicer on the related Distribution Date pursuant to Section
5.5(a)(i) upon certification by the Servicer of such amounts and the provision
of such information to the Trustee and the Security Insurer as may be necessary
in the opinion of the Trustee and the Security Insurer to verify the accuracy of
such certification. In the event that the Security Insurer has not received
evidence satisfactory to it of the Servicer's entitlement to reimbursement
pursuant to this Section, the Security Insurer shall (unless an Insurer Default
shall have occurred and be continuing) give the Trustee notice to such effect,
following receipt of which the Trustee shall not make a distribution to the
Servicer in respect of such amount pursuant to Section 5.5, or if the Servicer
prior thereto has been reimbursed pursuant to Section 5.5 or Section 5.6, the
Trustee shall withhold such amounts from amounts otherwise distributable to the
Servicer on the next succeeding Distribution Date.
V.3. APPLICATION OF COLLECTIONS. For the purposes of this Agreement,
all collections for a Collection Period shall be applied by the Servicer as
follows:
(a) With respect to each Receivable (other than a Purchased
Receivable), payments by or on behalf of the Obligor (other than of
Supplemental Servicing Fees with respect to such Receivable, to the extent
collected) shall be applied to interest and principal in accordance with
the Simple Interest Method. With respect to each Liquidated Receivable,
Liquidation Proceeds shall be applied to interest and principal with
respect to such Receivable in accordance with the Simple Interest Method.
Any prepayment of principal during each Collection Period shall be
immediately applied to reduce the principal balance of the Receivable
during such Collection Period.
(b) With respect to each Receivable that has become a Purchased
Receivable on any Deposit Date, the Purchase Amount shall be applied, for
45
purposes of this Agreement only, to interest and principal on the
Receivable in accordance with the terms of the Receivable as if the
Purchase Amount had been paid by the Obligor on the Accounting Date. The
Servicer shall not be entitled to any Supplemental Servicing Fees with
respect to such a Receivable. Nothing contained herein shall relieve any
Obligor of any obligation relating to any Receivable.
(c) All amounts collected that are payable to the Servicer as
Supplemental Servicing Fees hereunder shall be deposited in the Collection
Account and paid to the Servicer in accordance with Section 5.5(a)(i).
(d) All payments by or on behalf of an Obligor received with respect
to any Purchased Receivable after the Accounting Date immediately
preceding the Deposit Date on which the Purchase Amount was paid by the
Seller or the Servicer shall be paid to the Seller or the Servicer,
respectively, and shall not be included in the Available Funds.
V.4. ADDITIONAL DEPOSITS. On or before each Deposit Date, the
Servicer or the Seller shall deposit into the Collection Account the aggregate
Purchase Amounts with respect to Administrative Receivables and Warranty
Receivables, respectively. All such deposits of Purchase Amounts shall be made
in immediately available funds. On or before each Draw Date, the Trustee shall
remit to the Collection Account any amounts delivered to the Trustee by the
Collateral Agent.
V.5. DISTRIBUTIONS. (a) On each Distribution Date, the Trustee shall
(x) distribute all amounts deposited by the Security Insurer under Section 5.8
as directed by the Security Insurer, and (y) (based solely on the information
contained in the Servicer's Certificate delivered with respect to the related
Determination Date) distribute the following amounts and in the following order
of priority:
(i) first, from the Distribution Amount, to the Servicer, the
Basic Servicing Fee for the related Collection Period, any Supplemental
Servicing Fees for the related Collection Period, and any amounts
specified in Section 5.2(b), to the extent the Servicer has not reimbursed
itself in respect of such amounts pursuant to Section 5.6;
(ii) second, from the Distribution Amount, to any Lockbox Bank,
Trustee, Backup Servicer or Collateral Agent (including the Trustee if
acting in any such additional capacity), any accrued and unpaid fees and,
in the case of the Lockbox Bank, amounts related to insufficient funds
checks (in each case, to the extent such Person has not previously
received such amount from the Servicer or AmeriCredit);
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(iii) third, from the Amount Available to the Class A
Certificateholders, the Class A Interest Distributable Amount for such
Distribution Date;
(iv) fourth, from the Amount Available to the Class A
Certificateholders, the Class A Principal Distributable Amount
for such Distribution Date;
(v) fifth, from the Distribution Amount to the Security Insurer,
to the extent of any amounts owing to the Security Insurer under the
Insurance Agreement and not paid, whether or not AmeriCredit is also
obligated to pay such amounts;
(vi) sixth, from Available Funds, to the Class B Certificateholders,
the Class B Coupon Interest Distributable Amount for such Distribution
Date;
(vii) seventh, from Available Funds, to the Class B
Certificateholders, the Class B Principal Distributable Amount
for such Distribution Date; and
(viii) eighth, from Available Funds, to the Class B
Certificateholders, the Class B Excess Interest Amount for such
Distribution Date;
PROVIDED, HOWEVER, that ARC as the Class B Certificateholder hereby irrevocably
pledges the Class B Certificates to the Collateral Agent pursuant to the Spread
Account Agreement and hereby irrevocably agrees that amounts otherwise
distributable to the Class B Certificateholder pursuant to the foregoing shall
instead be delivered by the Trustee to the Collateral Agent for the deposit in
the Spread Account, and the Trustee hereby agrees to deliver such amounts to the
Collateral Agent pursuant to the Spread Account Agreement.
(b) Subject to Section 12.1 respecting the final payment upon
retirement of each Certificate, and provided that the Trustee has received the
applicable Servicer's Certificate, on each Distribution Date the Trustee shall
distribute to each Certificateholder of record on the preceding Accounting Date
either (i) by wire transfer, in immediately available funds to the account of
such holder at a bank or other entity having appropriate facilities therefor, if
such Certificateholder holds Certificates representing at least $5 million in
Class A Certificate Balance or Class B Certificate Balance as of the Cut-off
Date, and if such Certificateholder shall have provided to the Trustee
appropriate instructions not later than 15 days prior to such Distribution Date,
or (ii) by check mailed to such Certificateholder at the address of such Holder
appearing in the Certificate Register, such Holder's Fractional Undivided
Interest of either the Class A Distributable Amount or the Class B Distributable
Amount, as applicable, to the extent funds therefore are distributed under
Section 5.5(a).
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V.6. NET DEPOSITS. The Servicer may make the remittances to be made
by it pursuant to Sections 5.2 and 5.4 net of amounts (which amounts may be
netted prior to any such remittance for a Collection Period) to be distributed
to it pursuant to Sections 4.8 and 5.2(b) and (subject to payment by the
Servicer of amounts otherwise payable pursuant to Sections 4.8, 5.2, 5.5(a)(i)
and 5.5(a)(ii), for so long as no Servicer Termination Event has occurred and is
continuing; PROVIDED HOWEVER, that the Servicer shall account for all of such
amounts in the related Servicer's Certificate as if such amounts were deposited
and distributed separately; and, PROVIDED, FURTHER, that if an error is made by
the Servicer in calculating the amount to be deposited or retained by it, with
the result that an amount less than required is deposited in the Collection
Account, the Servicer shall make a payment of the deficiency to the Collection
Account, immediately upon becoming aware, or receiving notice from the Trustee,
of such error.
V.7. STATEMENTS TO CERTIFICATEHOLDERS. (a) On each Distribution
Date, the Trustee shall include with each distribution to each Certificate-
holder, a statement (which statement shall also be provided to the Security
Insurer and to each Rating Agency) based on information in the Servicer's
Certificate delivered on the related Determination Date pursuant to Section 4.9,
setting forth for the Collection Period relating to such Distribution Date the
following information:
(i) in the case of the Class A and Class B Certificateholders,
the amount of such distribution allocable to principal;
(ii) in the case of the Class A and Class B Certificateholders,
the amount of such distribution allocable to interest;
(iii) the amount of such distribution payable out of amounts
withdrawn from the Spread Account or pursuant to a claim on the Policy;
(iv) the Class A Certificate Balance and the Class B Certificate
Balance, as applicable, (after giving effect to distributions made on such
Distribution Date);
(v) the amount of fees paid by the Trust with respect to such
Collection Period;
(vi) the amount of the Class A Interest Carryover Shortfall,
Class A Principal Carryover Shortfall, Class B Interest Carryover
Shortfall and Class B Principal Carryover Shortfall, if any, on such
Distribution Date and the change in such amounts from those of the prior
Distribution Date;
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(vii) the Class A Certificate Factor and the Class B Certificate
Factor as of such Distribution Date;
(viii) the Delinquency Ratio, Average Delinquency Ratio, Default
Ratio, Average Default Ratio, Net Loss Ratio and Average Net Loss Ratio
for such Determination Date;
(ix) whether any Trigger Event has occurred as of such
Determination Date;
(x) whether any Trigger Event that may have occurred as of a
prior Determination Date is Deemed Cured (as defined in the Spread Account
Agreement), as of such Determination Date;
(xi) whether an Insurance Agreement Event of Default has
occurred; and
(xii) the Pool Factor (after giving effect to distributions made
on such Distribution Date).
Each amount set forth pursuant to subclauses (i) (such amounts broken down by
Class of Certificate), (ii) (such amounts broken down by Class of Certificate),
(iv) and (vi) above shall be expressed as a dollar amount per $1,000 of original
principal balance of a Certificate of the related Class.
(b) Within the prescribed period of time for tax reporting purposes
after the end of each calendar year during the term of this Agreement, the
Trustee shall mail, to each Person who at any time during such calendar year
shall have been a Holder of a Certificate, a statement containing the sum of the
amounts set forth in clauses (i), (ii), and (v) (separately indicating amounts
in respect of the Class A Certificates and the Class B Certificates in the case
of (i) and (ii)) and such other information, requested in writing by the
Servicer, if any, as the Servicer determines is necessary to permit the
Certificateholder to ascertain its share of the gross income and deductions of
the Trust (exclusive of the Supplemental Servicing Fee), for such calendar year
or, in the event such Person shall have been a Holder of a Certificate during a
portion of such calendar year, for the applicable portion of such year, for the
purposes of such Certificateholder's preparation of federal income tax returns.
V.8. OPTIONAL DEPOSITS BY THE SECURITY INSURER. The Security Insurer
shall at any time, and from time to time have the option (but shall not be
required, except as provided in Section 6.4 and in accordance with the terms of
the Policy) to deliver amounts to the Trustee for deposit into the Collection
Account for any of the following purposes: (i) to provide funds in respect of
the payment of fees or expenses of any provider of services to
49
the Trust with respect to such Distribution Date, (ii) to distribute as a
component of the Class A Principal Distributable Amount to the extent that
the Class A Certificate Balance as of the Determination Date preceding such
Distribution Date exceeds the Class A Percentage of the Aggregate Principal
Balance as of such Determination Date, or (iii) to include such amount as
part of the Class A Distributable Amount for such Distribution Date to the
extent that without such amount a draw would be required to be made on the
Policy.
VI
THE SPREAD ACCOUNT AND THE POLICY; COVENANTS
OF THE INITIAL CLASS B CERTIFICATEHOLDER
VI.1. INITIAL PURCHASE; SPREAD ACCOUNT. (a) The Seller hereby agrees
to make a capital contribution to ARC on the Closing Date to enable ARC to
purchase the Class B Certificates and make the initial Spread Account deposit.
(a) ARC, as the initial Class B Certificateholder agrees,
simultaneously with the execution and delivery of this Agreement, to execute and
deliver the Spread Account Agreement and, pursuant to the terms thereof, to
deposit $706,330.54 in the Spread Account.
VI.2. POLICY. The Servicer and the Seller agree, simultaneously with
the execution and delivery of this Agreement, to cause the Security Insurer to
issue the Policy for the benefit of the Trust in accordance with the terms
thereof.
VI.3. WITHDRAWALS FROM SPREAD ACCOUNT. (a) In the event that the
Servicer's Certificate with respect to any Determination Date shall state that
the amount of the Available Funds with respect to such Determination Date is
less than the sum of the amounts payable on the related Distribution Date
pursuant to clauses (i) through (v) of Subsection 5.5(a) (such deficiency being
a "Deficiency Claim Amount") then on the Deficiency Claim Date immediately
preceding such Distribution Date, the Trustee shall deliver to the Collateral
Agent, the Security Insurer, and the Servicer, by hand delivery, telex or
facsimile transmission, a written notice (a "Deficiency Notice") specifying the
Deficiency Claim Amount for such Distribution Date. Such Deficiency Notice
shall direct the Collateral Agent to remit such Deficiency Claim Amount (to the
extent of the funds available to be distributed pursuant to the Spread Account
Agreement) to the Trustee for deposit in the Collection Account.
(a) Any Deficiency Notice shall be delivered by 10:00 a.m., New York
City time, on the fourth Business Day preceding such Distribution Date. The
amounts distributed by the Collateral Agent to the Trustee pursuant to a
Deficiency Notice shall be deposited by the Trustee into the Collection Account
pursuant to Section 5.4.
50
VI.4. CLAIMS UNDER POLICY. (a) In the event that the Trustee has
delivered a Deficiency Notice with respect to any Determination Date, the
Trustee shall determine on the related Draw Date whether the sum of (i) the
amount of Available Funds with respect to such Determination Date (as stated in
the Servicer's Certificate with respect to such Determination Date) plus
(ii) the amount of the Deficiency Claim Amount, if any, to be delivered by the
Collateral Agent to the Trustee pursuant to a Deficiency Notice delivered with
respect to such Distribution Date (as stated in the certificate delivered on the
immediately preceding Deficiency Claim Date by the Collateral Agent pursuant to
Section 3.03(a) of the Spread Account Agreement) would be insufficient, after
giving effect to the distributions required by Section 5.5(a)(i)-(ii), to pay
the sum of the Class A Interest Distributable Amount and the Class A Principal
Distributable Amount for the related Distribution Date, then in such event the
Trustee shall furnish to the Security Insurer no later than 12:00 noon New York
City time on the related Draw Date a completed Notice of Claim in the amount of
the shortfall in amounts so available to pay the Class A Interest Distributable
Amount and the Class A Principal Distributable Amount with respect to such
Distribution Date (the amount of any such shortfall being hereinafter referred
to as the "Policy Claim Amount"). Amounts paid by the Security Insurer under
the Policy shall be deposited by the Trustee into the Policy Payments Account
and thereafter into the Collection Account for payment to Class A Certificate-
holders on the related Distribution Date (or promptly following payment on a
later date as set forth in the Policy).
(a) Any notice delivered by the Trustee to the Security Insurer
pursuant to subsection 6.4(a) shall specify the Policy Claim Amount claimed
under the Policy and shall constitute a "Notice of Claim" under the Policy. In
accordance with the provisions of the Policy, the Security Insurer is required
to pay to the Trustee the Policy Claim Amount properly claimed thereunder by
12:00 noon, New York City time, on the later of (i) the third Business Day
following receipt on a Business Day of the Notice of Claim, and (ii) the
applicable Distribution Date. Any payment made by the Security Insurer under
the Policy shall be applied solely to the payment of the Class A Certificates,
and for no other purpose.
(b) The Trustee shall (i) receive as attorney-in-fact of each Certi-
ficateholder any Policy Claim Amount from the Security Insurer and (ii) deposit
the same in the Collection Account for disbursement to the Class A Certificate-
holders as set forth in clauses (iii) and (iv) of subsection 5.5(a). Any and
all Policy Claim Amounts disbursed by the Trustee from claims made under the
Policy shall not be considered payment by the Trust or from the Spread Account
with respect to such Class A Certificates, and shall not discharge the
obligations of the Trust with respect thereto. The Security Insurer shall, to
the extent it makes any payment with respect to the Class A Certificates, become
subrogated to the rights of the recipients of such payments to the extent of
such payments. Subject to and conditioned upon any payment with respect to the
Class A Certificates by or on behalf of the Security Insurer, the Trustee shall
assign to the Security Insurer all rights to the payment of interest or
principal with respect to the Class A Certificates which are then due for
payment to the extent of all payments made by the Security Insurer and the
Security Insurer
51
may exercise any option, vote, right, power or the like with respect to the
Class A Certificates to the extent that it has made payment pursuant to the
Policy. To evidence such subrogation, the Certificate Registrar shall note
the Security Insurer's rights as subrogee upon the register of Class A
Certificateholders upon receipt from the Security Insurer of proof of payment
by the Security Insurer of any Class A Interest Distributable Amount or Class
A Principal Distributable Amount.
(c) The Trustee shall be entitled to enforce on behalf of the
Class A Certificateholders the obligations of the Security Insurer under the
Policy. Notwithstanding any other provision of this Agreement, the Class A
Certificateholders are not entitled to institute proceedings directly
against the Security Insurer.
VI.5. PREFERENCE CLAIMS; DIRECTION OF PROCEEDINGS. (a) In the event
that the Trustee has received a certified copy of an order of the appropriate
court that any Class A Interest Distributable Amount or Class A Principal
Distributable Amount paid on a Class A Certificate has been avoided in whole or
in part as a preference payment under applicable bankruptcy law, the Trustee
shall so notify the Security Insurer, shall comply with the provisions of the
Policy to obtain payment by the Security Insurer of such avoided payment, and
shall, at the time it provides notice to the Security Insurer, notify Holders of
the Class A Certificates by mail that, in the event that any Class A Certifi-
cateholder's payment is so recoverable, such Class A Certificateholder will be
entitled to payment pursuant to the terms of the Policy. Pursuant to the terms
of the Policy, the Security Insurer will make such payment on behalf of the
Class A Certificateholder to the receiver, conservator, debtor-in-possession or
trustee in bankruptcy named in the Order (as defined in the Policy) and not to
the Trustee or any Class A Certificateholder directly (unless a Class A Certifi-
cateholder has previously paid such payment to the receiver, conservator,
debtor-in-possession or trustee in bankruptcy, in which case the Security
Insurer will make such payment to the Trustee for distribution to such Class A
Certificateholder upon proof of such payment reasonably satisfactory to the
Security Insurer).
(a) The Trustee shall promptly notify the Security Insurer of any
proceeding or the institution of any action (of which the Trustee has actual
knowledge) seeking the avoidance as a preferential transfer under applicable
bankruptcy, insolvency, receivership, rehabilitation or similar law (a
"Preference Claim") of any distribution made with respect to the Class A
Certificates. Each Holder, by its purchase of Class A Certificates, and the
Trustee hereby agrees that so long as an Insurer Default shall not have occurred
and be continuing, the Security Insurer may at any time during the continuation
of any proceeding relating to a Preference Claim direct all matters relating to
such Preference Claim including, without limitation, (i) the direction of any
appeal of any order relating to any Preference Claim and (ii) the posting of any
surety, supersedeas or performance bond pending any such appeal at the expense
of the Security Insurer, but subject to reimbursement as provided in the
Insurance Agreement. In addition, and without limitation of the foregoing, as
set forth in Section 6.4(c), the Security Insurer shall be subrogated to, and
each Class A Certificate-
52
holder and the Trustee hereby delegate and assign, to the fullest extent
permitted by law, the rights of the Trustee and each Class A
Certificateholder in the conduct of any proceeding with respect to a
Preference Claim, including, without limitation, all rights of any party to
an adversary proceeding action with respect to any court order issued in
connection with any such Preference Claim.
VI.6. SURRENDER OF POLICY. The Trustee shall surrender the Policy to
the Security Insurer for cancellation upon its expiration in accordance with the
terms thereof.
VI.7. SPECIAL PURPOSE ENTITY.
(a) ARC shall conduct its business solely in its own name through
its duly authorized officers or agents so as not to mislead others as to the
identity of the entity with which those others are concerned, and
particularly will use its best efforts to avoid the appearance of conducting
business on behalf of any affiliate thereof or that the assets of the ARC are
available to pay the creditors of AmeriCredit or AmeriCredit Corp. or any
affiliate thereof. Without limiting the generality of the foregoing, all
oral and written communications, including, without limitation, letters,
invoices, purchase orders, contracts, statements and loan applications, will
be made solely in the name of ARC.
(b) ARC shall maintain corporate records and books of account
separate from those of AmeriCredit and AmeriCredit Corp., and the affiliates
thereof.
(c) ARC shall obtain proper authorization from its Board of
Directors of all corporate action requiring such authorization, meetings of
the Board of Directors of ARC shall be held not less frequently than one time
per annum.
(d) ARC shall obtain proper authorization from its shareholders
of all corporate action requiring shareholder approval, meetings of the
shareholders of ARC shall be held not less frequently than one time per annum.
(e) Although the organizational expenses of ARC have been paid by
AmeriCredit, the Seller shall pay its own operating expenses and liabilities
from its own funds.
(f) The annual financial statements of ARC shall disclose the
effects of ARC's transactions in accordance with generally accepted
accounting principles and shall disclose that the assets of ARC are not
available to pay creditors of AmeriCredit Corp., AmeriCredit or any affiliate
thereof.
(g) The resolutions, agreements and other instruments of ARC
underlying the transactions described in the Insurance Agreement and in the
other Transaction Documents shall be continuously maintained by ARC as
official records of ARC, separately identified
53
and held apart from the records of AmeriCredit Corp. and AmeriCredit and each
affiliate thereof.
(h) ARC shall maintain an arm's-length relationship with AmeriCredit
Corp. and AmeriCredit and the affiliates thereof, and will not hold itself
out as being liable for the debts of AmeriCredit Corp. or AmeriCredit or any
affiliate thereof.
(i) ARC shall keep its assets and liabilities wholly separate from
those of all other entities, including, but not limited to AmeriCredit Corp.,
AmeriCredit and the affiliates thereof.
(j) The books and records of ARC will be maintained at the address
designated herein for receipt of notices, unless ARC shall otherwise advise the
parties hereto in writing.
VI.8. RESTRICTIONS ON LIENS. ARC shall not (i) create, incur or
suffer to exist, or agree to create, incur or suffer to exist, or consent to
cause or permit in the future (upon the happening of a contingency or
otherwise) the creation, incurrence or existence of any Lien or restriction
on transferability of the Receivables except for the Lien in favor of the
Trustee for the benefit of the Certificateholders and the Security Insurer,
the Lien imposed by the Spread Account Agreement in favor of the Trustee for
the benefit of the Certificateholders and the Security Insurer, and the
restrictions on transferability imposed by this Agreement or (ii) sign or
file under the Uniform Commercial Code of any jurisdiction any financing
statement which names AmeriCredit or ARC as a debtor, or sign any security
agreement authorizing any secured party thereunder to file such financing
statement, with respect to the Receivables, except in each case any such
instrument solely securing the rights and preserving the Lien of the Trustee
for the benefit of the Certificateholders and the Security Insurer.
VI.9. CREATION OF INDEBTEDNESS; GUARANTEES. ARC shall not create,
incur, assume or suffer to exist any indebtedness other than indebtedness
guaranteed or approved in writing by the Security Insurer other than the
Transaction Documents. Without the prior written consent in writing of the
Security Insurer, ARC shall not assume guarantee, endorse or otherwise be or
become directly or contingently liable for the obligations of any Person by,
among other things, agreeing to purchase any obligation of another Person,
agreeing to advance funds to such Person or causing or assisting such Person
to maintain any amount of capital.
VI.10. OTHER ACTIVITIES. ARC shall not:
(a) sell, transfer, exchange or otherwise dispose of any of its
assets except as permitted under the Transaction Documents; or
54
(b) engage in any business or activity other than in connection
with this Agreement, the Spread Account Agreement and as permitted by its
certificate of incorporation.
(c) (i) take any action prohibited by Article XVI of its certificate
of incorporation or (ii) without the prior written consent of the Trustee and
the Controlling Party and without giving prior written notice to the Rating
Agencies, amend Article III, Article IX, Article XIV or Article XVI of its
certificate of incorporation.
VII
THE CERTIFICATES
VII.1. THE CERTIFICATES. (a) The Class A Certificates and the
Class B Certificates shall be issued in denominations of $1,000 initial
principal amount and integral multiples thereof, except that one Class A
Certificate and one Class B Certificate shall be issued in a denomination
that includes any residual amount. The Certificates shall be executed on
behalf of the Trustee by manual or facsimile signature of any Responsible
Officer of the Trustee having such authority under the Trustee's seal
imprinted or otherwise affixed thereon and attested on behalf of the Trustee
by the manual or facsimile signature of any other Responsible Officer of the
Trustee. Certificates bearing the manual or facsimile signatures of
individuals who were, at the time when such signatures were affixed,
authorized to sign on behalf of the Trustee shall be valid and binding
obligations of the Trust, notwithstanding that such individuals or any of
them have ceased to be so authorized prior to the execution and delivery of
such Certificates. All Certificates shall be dated the date of their
execution.
VII.2. AUTHENTICATION OF CERTIFICATES. The Trustee shall cause the
Certificates to be executed on behalf of the Trust, authenticated, and delivered
to or upon the order of the Seller (or in the case of the Class B Certificates,
the Seller hereby authorizes the Trustee to execute such Certificates on behalf
of the Trust), signed by its chairman of the board, its vice chairman, its chief
financial officer, its president, any vice president, its treasurer, or any
assistant treasurer, its secretary or any assistant secretary, without further
corporate action by the Seller, in exchange for the Receivables and the other
Trust Property, simultaneously with the sale, assignment and transfer to the
Trustee of the Receivables, and the delivery to the Trustee of the Receivable
Files and the other Trust Property. Such Certificates shall be duly executed by
the Trustee, in authorized denominations equaling in the aggregate the Cut-off
Date Principal Balance and evidencing the entire ownership of the Trust. No
Certificate shall entitle its holder to any benefit under the Agreement, or
shall be valid for any purpose, unless there shall appear on such Certificate a
certificate of authentication substantially in the form set forth in Exhibit A
or Exhibit B hereto executed by the Trustee by manual signature of an authorized
signatory; such authentication shall constitute conclusive evidence that such
Certificate shall have been duly authenticated and
55
delivered hereunder. All Certificates shall be dated the date of their
authentication and shall be numbered in the manner determined by the Trustee.
VII.3. REGISTRATION OF TRANSFER AND EXCHANGE OF CERTIFICATES.
(a) The Certificate Registrar shall keep or cause to be kept, at the office
or agency maintained pursuant to Section 7.7, a Certificate Register in
which, subject to such reasonable regulations as it may prescribe, the
Trustee shall provide for the registration of Certificates and of transfers
and exchanges of Certificates as herein provided. The Trustee shall be the
initial Certificate Registrar. In the event that, subsequent to the Cut-off
Date, the Trustee notifies the Servicer that it is unable to act as
Certificate Registrar, the Servicer shall appoint another bank or trust
company, agreeing to act in accordance with the provisions of this Agreement
applicable to it, and otherwise acceptable to the Trustee, to act as
successor Certificate Registrar under this Agreement.
The Certificates have not been registered under the Securities Act or
any state securities law. The Certificate Registrar shall not register the
transfer of any Class A Certificate or Class B Certificate unless such resale or
transfer is pursuant to an effective registration statement under the Securities
Act or is to the Seller or unless it shall have received (i) a representation
letter substantially in the form of Exhibit B to the Confidential Offering
Circular or (ii) such other representations (or an Opinion of Counsel)
satisfactory to the Seller or CS First Boston Corporation to the effect that
such resale or transfer is made (A) in a transaction exempt from the
registration requirements of the Securities Act and applicable state securities
laws, or (B) to a person who the transferor of the Certificate reasonably
believes is a qualified institutional buyer (within the meaning of Rule 144A
under the Securities Act) that is aware that such resale or other transfer is
being made in reliance upon Rule 144A. Until the earlier of (i) such time as
the Certificates shall be registered pursuant to a registration statement filed
under the Securities Act and (ii) the date three years from the later of the
date of the original authentication and delivery of the Certificates and the
date any Certificate was acquired from the Seller or any affiliate of the
Seller, the Certificates shall bear a legend as follows:
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), OR THE SECURITIES LAWS OF ANY STATE IN RELIANCE
UPON EXEMPTIONS PROVIDED BY THE SECURITIES ACT AND SUCH
STATE SECURITIES LAWS. NO RESALE OR OTHER TRANSFER OF
THIS CERTIFICATE MAY BE MADE UNLESS SUCH RESALE OR
TRANSFER (A) IS MADE IN ACCORDANCE WITH SECTION 7.3 OF
THE POOLING AND SERVICING AGREEMENT AND (B) IS MADE (i)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT, (ii) IN A TRANSACTION EXEMPT FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND
APPLICABLE STATE SECURITIES LAWS, (iii) TO THE SELLER OR
(iv) TO A PERSON WHO THE TRANSFEROR
56
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER
WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT
THAT IS AWARE THAT THE RESALE OR OTHER TRANSFER IS BEING
MADE IN RELIANCE ON RULE 144A AND (C) UPON THE
SATISFACTION OF CERTAIN OTHER REQUIREMENTS SPECIFIED IN
THE AGREEMENT. NEITHER THE SELLER, THE SERVICER NOR THE
TRUSTEE IS OBLIGATED TO REGISTER THE CERTIFICATES UNDER
THE SECURITIES ACT OR ANY APPLICABLE STATE SECURITIES
LAWS.
The Certificate Registrar shall not register the initial transfer of the
Class A Certificates unless it shall have received a Purchaser Representation
Letter in the form of Exhibit A to the Confidential Offering Circular.
Neither the Seller, the Servicer nor the Trustee is obligated to register the
Certificates of any Class under the Securities Act or to take any other
action not otherwise required under the Agreement to permit the transfer of
Certificates without registration.
Notwithstanding anything to the contrary herein, the Certificate
Registrar shall not register the transfer of any Class A Certificate unless
it shall have received (i) a representation letter substantially in the form
of Exhibit B to the Confidential Offering Circular or (ii) any Class B
Certificate unless it shall have received a representation letter relating to
Class B Certificates which is substantially in the form of Exhibit B to the
Confidential Offering Circular.
(a) Upon surrender for registration of transfer of any Certificate
at the Corporate Trust Office, the Trustee shall, subject to Section 7.3(a),
execute, authenticate, and deliver, in the name of the designated transferee
or transferees, one or more new Certificates in authorized denominations of a
like aggregate amount dated the date of authentication by the Trustee. At
the option of a Holder, Certificates may be exchanged for other Certificates
of authorized denominations of a like aggregate amount upon surrender of the
Certificates to be exchanged at the Corporate Trust Office.
(b) Every Certificate presented or surrendered for registration of
transfer or exchange shall be accompanied by a written instrument of transfer
in form satisfactory to the Trustee and the Certificate Registrar duly
executed by the holder or his attorney duly authorized in writing. Each
Certificate surrendered for registration of transfer or exchange shall be
cancelled and subsequently disposed of by the Trustee.
(c) No service charge shall be made for any registration of
transfer or exchange of Certificates, but the Trustee may require payment of
a sum sufficient to cover any tax or governmental charge that may be imposed
in connection with any transfer or exchange of Certificates.
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(d) The Certificates and this Agreement may be amended or
supplemented from time to time without the consent of any of the
Certificateholders to modify restrictions on and procedures for resale and
other transfers of the Certificates of any Class to reflect any change in
applicable law or regulations (or the interpretation thereof) or practices
relating to the resale or transfer of restricted securities generally.
(e) No Certificate shall be registered or transferred to
AmeriCredit or any Affiliate thereof other than ARC without the prior consent
of the Security Insurer. Notice of any such transfer shall be given to each
Rating Agency.
(f) The Class B Certificates shall initially be retained by
ARC. No sale, assignment, pledge, encumbrance or transfer of any interest in
any Class B Certificate shall be made or permitted without the prior written
consent of the Certificate Insurer and prior notice to the Rating Agencies
until the Class A Certificate Balance is reduced to zero, all payments in
respect of interest on the Class A Certificates have been made in full and
the Final Termination Date (as defined in the Spread Account Agreement) with
respect to the Series 1995-B Certificates (as defined in the Series 1995-B
Supplement) shall have occurred. The Class B Certificates shall be subject to
the same restrictions on transfer that the Class A Certificates are subject
to in Section 7.3 hereof. For purposes of the restrictions on transfer of
Class B Certificates, ARC shall be treated as the initial purchaser. No
transfer of a Class B Certificate or any interest therein shall be made
unless prior to such transfer the Holder of such Class B Certificates
delivers to ARC, the Certificate Insurer and the Trustee either a ruling of
the Internal Revenue Service or an Opinion of Counsel, which shall be
independent outside counsel, satisfactory to the Certificate Insurer, the
Trustee and the Rating Agencies in either case, to the effect that the
proposed transfer (x) will not result in the arrangement contemplated by this
Agreement being treated as an association taxable as a corporation under
either (I) the Code, as from time to time in force or (II) the tax laws of
the State of Texas and (y) will not have any adverse effect on the Federal
income taxation of the Trust or the Certificateholders.
VII.4. MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES.
If (a) any mutilated Certificate is surrendered to the Certificate Registrar,
or the Certificate Registrar receives evidence to its satisfaction of the
destruction, loss or theft of any Certificate, and (b) there is delivered to
the Certificate Registrar, the Trustee and (unless an Insurer Default shall
have occurred and be continuing) the Security Insurer such security or
indemnity as may be required by them to save each of them harmless, then, in
the absence of notice to the Certificate Registrar or the Trustee that such
Certificate has been acquired by a bona fide purchaser, the Trustee on behalf
of the Trust shall execute and deliver, in exchange for or in lieu of any
such mutilated, destroyed, lost or stolen Certificate, a new Certificate of
like tenor and Fractional Undivided Interest. In connection with the
issuance of any new Certificate under this Section 7.4, the Trustee may
require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee and the Certificate
58
Registrar) connected therewith. Any duplicate Certificate issued pursuant to
this Section 7.4 shall constitute complete and indefeasible evidence of
ownership in the Trust, as if originally issued, whether or not the lost,
stolen or destroyed Certificate shall be found at any time.
VII.5. PERSONS DEEMED OWNERS. Prior to due presentation of
a Certificate for registration of transfer, the Trustee, the Certificate
Registrar and any agent of the Trustee or the Certificate Registrar may treat
the person in whose name any Certificate is registered as the owner of such
Certificate for the purpose of receiving distributions pursuant to Section
5.5 and for all other purposes whatsoever, and neither the Trustee, the
Certificate Registrar, the Security Insurer nor any agent of the Trustee, the
Certificate Registrar or the Security Insurer shall be affected by any notice
to the contrary.
VII.6. ACCESS TO LIST OF CERTIFICATEHOLDERS' NAMES AND
ADDRESSES. The Trustee shall furnish or cause to be furnished to the
Servicer or (unless an Insurer Default shall have occurred and be continuing)
the Security Insurer, within 10 days after receipt by the Trustee of a
written request therefor from such party, a list, in such form as such party
may reasonably require, of the names and addresses of the Certificateholders
as of the most recent Accounting Date for payment of distributions to
Certificateholders. If three or more Certificateholders, or one or more
Certificateholders evidencing not less than 25% of the Class A Certificate
Balance and the Class B Certificate Balance (disregarding any Class B
Certificate held by AmeriCredit or any Affiliate thereof) (hereinafter
referred to as "Applicants"), apply in writing to the Trustee, and such
application states that the Applicants desire to communicate with other
Certificateholders of such Class with respect to their rights under this
Agreement or under the Certificates and is accompanied by a copy of the
communication that such Applicants propose to transmit, then the Trustee
shall, within five Business Days after the receipt of such application,
afford such Applicants access, during normal business hours, to the current
list of Certificateholders. Every Certificateholder, by receiving and
holding a Certificate, agrees with the Servicer and the Trustee that neither
the Servicer nor the Trustee shall be held accountable by reason of the
disclosure of any such information as to the names and addresses of the
Certificateholders under this Agreement, regardless of the source from which
such information was derived.
VII.7. MAINTENANCE OF OFFICE OR AGENCY. The Trustee shall
maintain in Chicago, Illinois, an office or offices or agency or agencies
where Certificates may be surrendered for registration of transfer or
exchange and an office in Chicago, Illinois where notices and demands to or
upon the Trustee in respect of the Certificates and this Agreement may be
served. The Trustee initially designates the Corporate Trust Office as
specified in this Agreement as its office for such purposes. The Trustee
shall give prompt written notice to the Servicer and to Certificateholders of
any change in the location of the Certificate Register or any such office or
agency.
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VII.8. AFFILIATED GROUP MAY OWN CERTIFICATES. To the extent
that the Seller or any Affiliate of the Seller becomes the owner or pledgee
of any Certificate pursuant to Section 7.3(f) hereof, during the time such
Certificate is owned by it, such Certificate shall be without voting rights
for any purpose set forth in this Agreement or any Related Document. The
Seller shall notify the Trustee and the Security Insurer promptly after it or
any of its Affiliates become the owner or pledgee of a Certificate.
VIII
THE SELLER
VIII.1. LIABILITY OF SELLER.
(a) The Seller shall be liable hereunder only to the extent of
the obligations in this Agreement specifically undertaken by the Seller and
the representations made by the Seller.
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VIII.2. MERGER OR CONSOLIDATION OF, OR ASSUMPTION OF THE OBLIGATIONS
OF SELLER; AMENDMENT OF CERTIFICATE OF INCORPORATION.
(i) The Seller shall not merge or consolidate with any other
Person or permit any other Person to become the successor to the Seller's
business without the prior written consent of the Controlling Party. Any
such successor corporation shall execute an agreement of assumption of every
obligation of the Seller under this Agreement and each Related Document and,
whether or not such assumption agreement is executed, shall be the successor
to the Seller under this Agreement without the execution or filing of any
document or any further act on the part of any of the parties to this
Agreement. The Seller shall provide prompt notice of any merger,
consolidation or succession pursuant to this Section 8.2 to the Trustee, the
Security Insurer, the Certificateholders and the Rating Agencies.
Notwithstanding the foregoing, the Seller shall not merge or consolidate with
any other Person or permit any other Person to become a successor to the
Seller's business, unless (x) immediately after giving effect to such
transaction, no representation or warranty made pursuant to Section 3.4 shall
have been breached (for purposes hereof, such representations and warranties
shall speak as of the date of the consummation of such transaction) and no
event that, after notice or lapse of time, or both, would become a Servicer
Termination Event shall have occurred and be continuing, (y) the Seller shall
have delivered to the Trustee, the Rating Agencies and the Security Insurer
an officer's certificate and an Opinion of Counsel each stating that such
consolidation, merger or succession and such agreement of assumption comply
with this Section 8.2 and that all conditions precedent, if any, provided for
in this Agreement relating to such transaction have been complied with, and
(z) the Seller shall have delivered to the Trustee, the Rating Agencies and
the Security Insurer an Opinion of Counsel, stating, in the opinion of such
counsel, either (A) all financing statements and continuation statements and
amendments thereto have been executed and filed that are necessary to
preserve and protect the interest of the Trust in the Receivables and the
Other Conveyed Property and reciting the details of the filings or (B) no
such action shall be necessary to preserve and protect such interest.
VIII.3. LIMITATION ON LIABILITY OF SELLER AND OTHERS. The Seller
and any director or officer or employee or agent of the Seller may rely in
good faith on the advice of counsel or on any document of any kind prima
facie properly executed and submitted by any Person respecting any matters
arising under this Agreement. The Seller shall not be under any obligation
to appear in, prosecute or defend any legal action that is not incidental to
its obligations as Seller of the Receivables under this Agreement and that in
its opinion may involve it in any expense or liability.
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IX
THE SERVICER
IX.1. LIABILITY OF SERVICER; INDEMNITIES.
(a) The Servicer (in its capacity as such) shall be liable
hereunder only to the extent of the obligations in this Agreement
specifically undertaken by the Servicer and the representations made by the
Servicer.
(b) The Servicer shall defend, indemnify and hold harmless the
Trust, the Trustee, the Backup Servicer, the Security Insurer, their
respective officers, directors, agents and employees, and the
Certificateholders from and against any and all costs, expenses, losses,
damages, claims and liabilities, including reasonable fees and expenses of
counsel and expenses of litigation arising out of or resulting from the use,
ownership or operation by the Servicer or any Affiliate thereof of any
Financed Vehicle;
(c) The Servicer shall indemnify, defend and hold harmless the
Trust, the Trustee, the Backup Servicer, the Security Insurer, their
respective officers, directors, agents and employees and the
Certificateholders from and against any taxes that may at any time be
asserted against any of such parties with respect to the transactions
contemplated in this Agreement, including, without limitation, any sales,
gross receipts, tangible or intangible personal property, privilege or
license taxes (but not including any federal or other income taxes, including
franchise taxes asserted with respect to, and as of the date of, the sale of
the Receivables and the Other Conveyed Property to the Trust or the issuance
and original sale of the Certificates) and costs and expenses in defending
against the same; and
(d) The Servicer shall indemnify, defend and hold harmless the
Trust, the Trustee, the Backup Servicer, the Security Insurer, their
respective officers, directors, agents and employees and the
Certificateholders from and against any and all costs, expenses, losses,
claims, damages, and liabilities to the extent that such cost, expense, loss,
claim, damage, or liability arose out of, or was imposed upon the Trust, the
Trustee, the Backup Servicer, the Security Insurer or the Certificateholders
by reason of the breach of this Agreement by the Servicer, the negligence,
misfeasance, or bad faith of the Servicer in the performance of its duties
under this Agreement or by reason of reckless disregard of its obligations
and duties under this Agreement.
(e) Indemnification under this Article shall include, without
limitation, reasonable fees and expenses of counsel and expenses of
litigation. If the Servicer has made any indemnity payments pursuant to this
Article and the recipient thereafter collects any of such amounts from
others, the recipient shall promptly repay such amounts collected to the
Servicer, without interest.
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IX.2. MERGER OR CONSOLIDATION OF, OR ASSUMPTION OF THE
OBLIGATIONS OF THE SERVICER OR BACKUP SERVICER.
(a) AmeriCredit shall not merge or consolidate with any other
person, convey, transfer or lease substantially all its assets as an entirety
to another Person, or permit any other Person to become the successor to
AmeriCredit's business unless, after the merger, consolidation, conveyance,
transfer, lease or succession, the successor or surviving entity shall be
capable of fulfilling the duties of AmeriCredit contained in this Agreement
and shall be acceptable to the Controlling Party, and, if an Insurer Default
shall have occurred and be continuing, shall be an Eligible Servicer. Any
corporation (i) into which AmeriCredit may be merged or consolidated, (ii)
resulting from any merger or consolidation to which AmeriCredit shall be a
party, (iii) which acquires by conveyance, transfer, or lease substantially
all of the assets of AmeriCredit, or (iv) succeeding to the business of
AmeriCredit, in any of the foregoing cases shall execute an agreement of
assumption to perform every obligation of AmeriCredit under this Agreement
and, whether or not such assumption agreement is executed, shall be the
successor to AmeriCredit under this Agreement without the execution or filing
of any paper or any further act on the part of any of the parties to this
Agreement, anything in this Agreement to the contrary notwithstanding;
PROVIDED, HOWEVER, that nothing contained herein shall be deemed to release
AmeriCredit from any obligation. AmeriCredit shall provide notice of any
merger, consolidation or succession pursuant to this Section 9.2(a) to the
Trustee, the Certificateholders, the Security Insurer and each Rating Agency.
Notwithstanding the foregoing, AmeriCredit shall not merge or consolidate
with any other Person or permit any other Person to become a successor to
AmeriCredit's business, unless (x) immediately after giving effect to such
transaction, no representation or warranty made pursuant to Section 4.6 shall
have been breached (for purposes hereof, such representations and warranties
shall speak as of the date of the consummation of such transaction) and no
event that, after notice or lapse of time, or both, would become an Insurance
Agreement Event of Default shall have occurred and be continuing, (y)
AmeriCredit shall have delivered to the Trustee, the Rating Agencies and the
Security Insurer an Officer's Certificate and an Opinion of Counsel each
stating that such consolidation, merger or succession and such agreement of
assumption comply with this Section 9.2(a) and that all conditions precedent,
if any, provided for in this Agreement relating to such transaction have been
complied with, and (z) AmeriCredit shall have delivered to the Trustee, the
Rating Agencies and the Security Insurer an Opinion of Counsel, stating in
the opinion of such counsel, either (A) all financing statements and
continuation statements and amendments thereto have been executed and filed
that are necessary to preserve and protect the interest of the Trust in the
Receivables and the Other Conveyed Property and reciting the details of the
filings or (B) no such action shall be necessary to preserve and protect such
interest.
(b) Any corporation (i) into which the Backup Servicer may be
merged or consolidated, (ii) resulting from any merger or consolidation to
which the Backup Servicer
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shall be a party, (iii) which acquires by conveyance, transfer or lease
substantially all of the assets of the Backup Servicer, or (iv) succeeding to
the business of the Backup Servicer, in any of the foregoing cases shall
execute an agreement of assumption to perform every obligation of the Backup
Servicer under this Agreement and, whether or not such assumption agreement
is executed, shall be the successor to the Backup Servicer under this
Agreement without the execution or filing of any paper or any further act on
the part of any of the parties to this Agreement, anything in this Agreement
to the contrary notwithstanding; PROVIDED, HOWEVER, that nothing contained
herein shall be deemed to release the Backup Servicer from any obligation.
IX.3. LIMITATION ON LIABILITY OF SERVICER, BACKUP SERVICER AND OTHERS.
(a) Neither AmeriCredit, the Backup Servicer nor any of the
directors or officers or employees or agents of AmeriCredit or Backup
Servicer shall be under any liability to the Trust or the Certificateholders,
except as provided in this Agreement, for any action taken or for refraining
from the taking of any action pursuant to this Agreement; PROVIDED, HOWEVER,
that this provision shall not protect AmeriCredit, the Backup Servicer or any
such person against any liability that would otherwise be imposed by reason
of a breach of this Agreement or willful misfeasance, bad faith or negligence
(excluding errors in judgment) in the performance of duties; PROVIDED FURTHER
that this provision shall not affect any liability to indemnify the Trustee
for costs, taxes, expenses, claims, liabilities, losses or damages paid by
the Trustee, in its individual capacity. AmeriCredit, the Backup Servicer
and any director, officer, employee or agent of AmeriCredit or Backup
Servicer may rely in good faith on the written advice of counsel or on any
document of any kind prima facie properly executed and submitted by any
Person respecting any matters arising under this Agreement.
(b) The Backup Servicer shall not be liable for any obligation of
the Servicer contained in this Agreement, and the Trustee, the Seller, the
Security Insurer and the Certificateholders shall look only to the Servicer
to perform such obligations.
(c) The parties expressly acknowledge and consent to LaSalle
National Bank acting in the possible dual capacity of Backup Servicer or
successor Servicer and in the capacity as Trustee. LaSalle National Bank
may, in such dual capacity, discharge its separate functions fully, without
hinderance or regard to conflict of interest principles, duty of loyalty
principles or other breach of fiduciary duties to the extent that any such
conflict or breach arises from the performance by LaSalle of express duties
set forth in the this Agreement in any of such capacities, all of which
defenses, claims or assertions are hereby expressly waived by the other
parties hereto except in the case of gross negligence and willful misconduct
by LaSalle National Bank.
IX.4. DELEGATION OF DUTIES. The Servicer may delegate duties under
this Agreement to an Affiliate of AmeriCredit with the prior written consent
of the Security
64
Insurer (unless an Insurer Default shall have occurred and be continuing),
the Trustee and the Backup Servicer. The Servicer also may at any time
perform through sub-contractors the specific duties of (i) repossession of
Financed Vehicles, (ii) tracking Financed Vehicles' insurance and (iii)
pursuing the collection of deficiency balances on certain Defaulted
Receivables, in each case, without the consent of the Security Insurer and
may perform other specific duties through such sub-contractors in accordance
with Servicer's customary servicing policies and procedures, with the prior
consent of the Security Insurer; PROVIDED, HOWEVER, that no such delegation
or sub-contracting duties by the Servicer shall relieve the Servicer of its
responsibility with respect to such duties. So long as no Insurer Default
shall have occurred and be continuing neither AmeriCredit or any party acting
as Servicer hereunder shall appoint any subservicer hereunder without the
prior written consent of the Security Insurer, the Trustee and the Backup
Servicer.
IX.5. SERVICER AND BACKUP SERVICER NOT TO RESIGN. Subject to the
provisions of Section 9.2, neither the Servicer nor the Backup Servicer shall
resign from the obligations and duties imposed on it by this Agreement as
Servicer or Backup Servicer except upon a determination that by reason of a
change in legal requirements the performance of its duties under this
Agreement would cause it to be in violation of such legal requirements in a
manner which would have a material adverse effect on the Servicer or the
Backup Servicer, as the case may be, and the Security Insurer (so long as an
Insurer Default shall not have occurred and be continuing) or a Certificate
Majority (if an Insurer Default shall have occurred and be continuing) does
not elect to waive the obligations of the Servicer or the Backup Servicer, as
the case may be, to perform the duties which render it legally unable to act
or to delegate those duties to another Person. Any such determination
permitting the resignation of the Servicer or Backup Servicer shall be
evidenced by an Opinion of Counsel to such effect delivered and acceptable to
the Trustee and the Security Insurer (unless an Insurer Default shall have
occurred and be continuing). No resignation of the Servicer shall become
effective until, so long as no Insurer Default shall have occurred and be
continuing the Backup Servicer or an entity acceptable to the Security
Insurer shall have assumed the responsibilities and obligations of the
Servicer or, if an Insurer Default shall have occurred and be continuing, the
Backup Servicer or a successor Servicer that is an Eligible Servicer shall
have assumed the responsibilities and obligations of the Servicer. No
resignation of the Backup Servicer shall become effective until, so long as
no Insurer Default shall have occurred and be continuing, an entity
acceptable to the Security Insurer shall have assumed the responsibilities
and obligations of the Backup Servicer or, if an Insurer Default shall have
occurred and be continuing a Person that is an Eligible Servicer shall have
assumed the responsibilities and obligations of the Backup Servicer;
PROVIDED, HOWEVER, that in the event a successor Backup Servicer is not
appointed within 60 days after the Backup Servicer has given notice of its
resignation and has provided the Opinion of Counsel required by this Section
9.5, the Backup Servicer may petition a court for its removal.
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X
SERVICER TERMINATION EVENTS
X.1. SERVICER TERMINATION EVENT. For purposes of this
Agreement, each of the following shall constitute a "Servicer Termination
Event":
(a) Any failure by the Servicer to deliver to the Trustee for
distribution to Certificateholders any proceeds or payment required to be so
delivered under the terms of this Agreement that continues unremedied for a
period of two Business Days (one Business Day with respect to payment of
Purchase Amounts) after written notice is received by the Servicer from the
Trustee or (unless an Insurer Default shall have occurred and be continuing)
the Security Insurer or after discovery of such failure by a Responsible
Officer of the Servicer;
(b) Failure by the Servicer to deliver to the Trustee and (so
long as an Insurer Default shall not have occurred and be continuing) the
Security Insurer the Servicer's Certificate by the fourth Business Day prior
to the Distribution Date, or failure on the part of the Servicer to observe
its covenants and agreements set forth in Section 9.2(a);
(c) Failure on the part of the Servicer duly to observe or
perform any other covenants or agreements of the Servicer set forth in this
Agreement, which failure (i) materially and adversely affects the rights of
Certificateholders (determined without regard to the availability of funds
under the Policy), or of the Security Insurer (unless an Insurer Default
shall have occurred and be continuing), and (ii) continues unremedied for a
period of 30 days after knowledge thereof by the Servicer or after the date
on which written notice of such failure, requiring the same to be remedied,
shall have been given to the Servicer by the Trustee or the Security Insurer
(or, if an Insurer Default shall have occurred and be continuing any
Certificateholder);
(d) The entry of a decree or order for relief by a court or
regulatory authority having jurisdiction in respect of the Servicer in an
involuntary case under the federal bankruptcy laws, as now or hereafter in
effect, or another present or future, federal bankruptcy, insolvency or
similar law, or appointing a receiver, liquidator, assignee, trustee,
custodian, sequestrator or other similar official of the Servicer or of any
substantial part of its property or ordering the winding up or liquidation of
the affairs of the Servicer and the continuance of any such decree or order
unstayed and in effect for a period of 60 consecutive days or the
commencement of an involuntary case under the federal bankruptcy laws, as now
or hereinafter in effect, or another present or future federal or state
bankruptcy, insolvency or similar law and such case is not dismissed within
60 days; or
(e) The commencement by the Servicer of a voluntary case under
the federal bankruptcy laws, as now or hereafter in effect, or any other
present or future, federal or
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state, bankruptcy, insolvency or similar law, or the consent by the Servicer
to the appointment of or taking possession by a receiver, liquidator,
assignee, trustee, custodian, sequestrator or other similar official of the
Servicer or of any substantial part of its property or the making by the
Servicer of an assignment for the benefit of creditors or the failure by the
Servicer generally to pay its debts as such debts become due or the taking of
corporate action by the Servicer in furtherance of any of the foregoing; or
(f) Any representation, warranty or statement of the Servicer
made in this Agreement or any certificate, report or other writing delivered
pursuant hereto shall prove to be incorrect in any material respect as of the
time when the same shall have been made (excluding, however, any
representation or warranty set forth in Section 3.4(a)), and the
incorrectness of such representation, warranty or statement has a material
adverse effect on the Trust or the Certificateholders and, within 30 days
after knowledge thereof by the Servicer or after written notice thereof shall
have been given to the Servicer by the Trustee or the Security Insurer (or,
if an Insurer Default shall have occurred and be continuing, a
Certificateholder), the circumstances or condition in respect of which such
representation, warranty or statement was incorrect shall not have been
eliminated or otherwise cured; or
(g) So long as an Insurer Default shall not have occurred and be
continuing, the Security Insurer shall not have delivered a Servicer
Extension Notice pursuant to Section 4.14; or
(h) So long as an Insurer Default shall not have occurred and be
continuing, an Insurance Agreement Event of Default or under any other
Insurance and Indemnity Agreement relating to any Series an Event of Default
thereunder shall have occurred; or
(i) A claim is made under the Policy.
X.2. CONSEQUENCES OF A SERVICER TERMINATION EVENT. If a Servicer
Termination Event shall occur and be continuing, the Security Insurer (or, if
an Insurer Default shall have occurred and be continuing either the Trustee,
(to the extent it has knowledge thereof) a Certificate Majority), by notice
given in writing to the Servicer (and to the Trustee if given by the Security
Insurer or the Certificateholders) or by non-extension of the term of the
Servicer as referred to in Section 4.14 may terminate all of the rights and
obligations of the Servicer under this Agreement. On or after the receipt by
the Servicer of such written notice or upon termination of the term of the
Servicer, all authority, power, obligations and responsibilities of the
Servicer under this Agreement, whether with respect to the Certificates or
the Other Conveyed Property or otherwise, automatically shall pass to, be
vested in and become obligations and responsibilities of the Backup Servicer
(or such other successor Servicer appointed by the Controlling Party);
PROVIDED, HOWEVER, that the successor Servicer shall have no liability with
respect to any obligation which was required to be performed by the
terminated Servicer prior to the date that the successor Servicer becomes the
Servicer or any claim of a third party based on any alleged action or
inaction of
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the terminated Servicer. The successor Servicer is authorized and empowered
by this Agreement to execute and deliver, on behalf of the terminated
Servicer, as attorney-in-fact or otherwise, any and all documents and other
instruments and to do or accomplish all other acts or things necessary or
appropriate to effect the purposes of such notice of termination, whether to
complete the transfer and endorsement of the Receivables and the Other
Conveyed Property and related documents to show the Trust as lienholder or
secured party on the related Lien Certificates, or otherwise. The terminated
Servicer agrees to cooperate with the successor Servicer in effecting the
termination of the responsibilities and rights of the terminated Servicer
under this Agreement, including, without limitation, the transfer to the
successor Servicer for administration by it of all cash amounts that shall at
the time be held by the terminated Servicer for deposit, or have been
deposited by the terminated Servicer, in the Collection Account or thereafter
received with respect to the Receivables and the delivery to the successor
Servicer of all Receivable Files, Monthly Records and Collection Records and
a computer tape in readable form as of the most recent Business Day
containing all information necessary to enable the successor Servicer or a
successor Servicer to service the Receivables and the Other Conveyed
Property. If requested by the Controlling Party, the successor Servicer
shall terminate the Lockbox Agreement and direct the Obligors to make all
payments under the Receivables directly to the successor Servicer (in which
event the successor Servicer shall process such payments in accordance with
Section 4.2(e)), or to a lockbox established by the successor Servicer at the
direction of the Controlling Party, at the successor Servicer's expense. The
terminated Servicer shall grant the Trustee, the successor Servicer and the
Controlling Party reasonable access to the terminated Servicer's premises at
the terminated Servicer's expense.
X.3. APPOINTMENT OF SUCCESSOR.
(a) On and after the time the Servicer receives a notice of
termination pursuant to Section 10.2, upon non-extension of the servicing
term as referred to in Section 4.14, or upon the resignation of the Servicer
pursuant to Section 9.5, the Backup Servicer (unless the Security Insurer
shall have exercised its option pursuant to Section 10.3(b) to appoint an
alternate successor Servicer) shall be the successor in all respects to the
Servicer in its capacity as servicer under this Agreement and the
transactions set forth or provided for in this Agreement, and shall be
subject to all the rights, responsibilities, restrictions, duties,
liabilities and termination provisions relating thereto placed on the
Servicer by the terms and provisions of this Agreement except as otherwise
stated herein. The Trustee and such successor shall take such action,
consistent with this Agreement, as shall be necessary to effectuate any such
succession. If a successor Servicer is acting as Servicer hereunder, it
shall be subject to term-to-term servicing as referred to in Section 4.14 and
to termination under Section 10.2 upon the occurrence of any Servicer
Termination Event applicable to it as Servicer.
(b) The Controlling Party may exercise at any time its right to
appoint as Backup Servicer or as successor to the Servicer a Person other
than the Person serving as
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Backup Servicer at the time, and (without limiting its obligations under the
Policies) shall have no liability to the Trustee, AmeriCredit, the Seller,
the Person then serving as Backup Servicer, any Certificateholders or any
other Person if it does so. Notwithstanding the above, if the Backup
Servicer shall be legally unable or unwilling to act as Servicer, and an
Insurer Default shall have occurred and be continuing, the Backup Servicer,
the Trustee or a Certificate Majority may petition a court of competent
jurisdiction to appoint any Eligible Servicer as the successor to the
Servicer. Pending appointment pursuant to the preceding sentence, the Backup
Servicer shall act as successor Servicer unless it is legally unable to do
so, in which event the outgoing Servicer shall continue to act as Servicer
until a successor has been appointed and accepted such appointment. Subject
to Section 9.5, no provision of this Agreement shall be construed as
relieving the Backup Servicer of its obligation to succeed as successor
Servicer upon the termination of the Servicer pursuant to Section 10.2, the
resignation of the Servicer pursuant to Section 9.5 or the non-extension of
the servicing term of the Servicer, as referred to in Section 4.14. If upon
the termination of the Servicer pursuant to Section 10.2 or the resignation
of the Servicer pursuant to Section 9.5, the Controlling Party appoints a
successor Servicer other than the Backup Servicer, the Backup Servicer shall
not be relieved of its duties as Backup Servicer hereunder.
(c) Any successor Servicer shall be entitled to such compensation
(whether payable out of the Collection Account or otherwise) as the Servicer
would have been entitled to under this Agreement if the Servicer had not
resigned or been terminated hereunder. If any successor Servicer is
appointed as a result of the Backup Servicer's refusal (in breach of the
terms of this Agreement) to act as Servicer although it is legally able to do
so, the Security Insurer and such successor Servicer may agree on reasonable
additional compensation to be paid to such successor Servicer by the Backup
Servicer, which additional compensation shall be paid by such breaching
Backup Servicer in its individual capacity and solely out of its own funds.
If any successor Servicer is appointed for any reason other than the Backup
Servicer's refusal to act as Servicer although legally able to do so, the
Security Insurer and such successor Servicer may agree on additional
compensation to be paid to such successor Servicer, which additional
compensation shall be payable as provided in the Spread Account Agreement and
shall in no event exceed $150,000. In addition, any successor Servicer shall
be entitled, as provided in the Spread Account Agreement, to reasonable
transition expenses incurred in acting as successor Servicer.
X.4. NOTIFICATION TO CERTIFICATEHOLDERS. Upon any termination of,
or appointment of a successor to, the Servicer pursuant to this Article X,
the Trust shall give prompt written notice thereof to each Rating Agency to
the Certificateholders at their respective addresses appearing in the
Certificate Register.
X.5. WAIVER OF PAST DEFAULTS. The Security Insurer or (if an
Insurer Default shall have occurred and be continuing) a Certificate Majority
may, on behalf of all Holders of Certificates, waive any default by the
Servicer in the performance of its obligations
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hereunder and its consequences. Upon any such waiver of a past default, such
default shall cease to exist, and any Servicer Termination Event arising
therefrom shall be deemed to have been remedied for every purpose of this
Agreement. No such waiver shall extend to any subsequent or other default or
impair any right consequent thereon.
XI
THE TRUSTEE
XI.1. DUTIES OF TRUSTEE. (a) Subject to paragraph (c) of
this Section 11.1, the Trustee, both prior to and after the occurrence of a
Servicer Termination Event, undertakes to perform as Trustee such duties and
only such duties as are specifically set forth in this Agreement.
(a) The Trustee, upon receipt of any resolutions,
certificates, statements, opinions, reports, documents, orders or other
instruments furnished to the Trustee that are specifically required to be
furnished pursuant to any provisions of this Agreement, shall examine them to
determine whether they conform on their face to the requirements of this
Agreement.
(b) No provision of this Agreement shall be construed to
relieve the Trustee from liability for its own negligent action, its own
negligent failure to act (other than errors in judgment) or its own bad faith
or willful misfeasance; PROVIDED HOWEVER, that:
(i) the duties and obligations of the Trustee shall be
determined solely by the express provisions of this Agreement, the
Trustee shall not be liable except for the performance of such duties
and obligations as are specifically set forth in this Agreement, no
implied covenants or obligations shall be read into this Agreement
against the Trustee and, in the absence of bad faith on the part of
the Trustee, the Trustee may conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed therein,
upon any certificates or opinions furnished to the Trustee and
conforming to the requirements of this Agreement;
(ii) the Trustee shall not be liable for an error of judgment
made in good faith by a Responsible Officer of the Trustee, unless it
shall be proven that the Trustee was negligent in performing its
duties in accordance with the terms of this Agreement;
(iii) the Trustee shall not be liable for any action taken,
suffered or omitted to be taken by it in good faith and reasonably
believed by it to be authorized or within the discretion or rights or
powers conferred upon it by this Agreement; and
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(iv) the Trustee shall not be liable for any action it takes
or omits to take in good faith at the direction of the Security
Insurer (or, after an Insurer Default shall have occurred and be
continuing, a Certificate Majority).
(c) Notwithstanding any other provision of this Agreement,
the Trustee shall not be required to expend or risk its own funds or
otherwise incur financial liability in the performance of any of its duties
under this Agreement, or in the exercise of any of its rights or powers, if
there is reasonable ground for believing that the repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured
to it, and none of the provisions contained in this Agreement shall in any
event require the Trustee to perform, or be responsible for the manner of
performance of, any of the obligations of the Servicer under this Agreement
except during such time, if any, as the Backup Servicer shall be the
successor to, and be vested with the rights, duties, powers and privileges
of, the Servicer in accordance with the terms of this Agreement.
(d) The Trustee shall not be charged with knowledge of any
failure by the Servicer to comply with the obligations of the Servicer
referred to in this Agreement, or of any failure by the Seller to comply with
the obligations of the Seller referred to in this Agreement, unless a Trustee
officer obtains actual knowledge of such failure (it being understood that
knowledge of the Servicer is not attributable to the Trustee) or the Trustee
receives written notice of such failure from the Servicer or the Seller, as
the case may be, or the Security Insurer (or, if an Insurer Default shall
have occurred and be continuing) the Holders of Certificates evidencing not
less than 25% of the sum of the Class A Certificate Balance and the Class B
Certificate Balance, or, if there are no Class A Certificates then
outstanding, by Holders of Class B Certificates evidencing not less than 25%
of the Class B Certificate Balance;
(e) Except for actions expressly authorized by this
Agreement, the Trustee shall take no action reasonably likely to impair the
security interests created or existing under any Receivable or Financed
Vehicle or to impair the value of any Receivable or Financed Vehicle; and
(f) Without limiting the generality of this Section 11.1,
the Trustee, in its capacity as Trustee, shall have no duty (i) to see to any
recording, filing or depositing of this Pooling and Servicing Agreement or
any agreement referred to herein or any financing statement evidencing a
security interest in the Financed Vehicles, or to see to the maintenance of
any such recording or filing or depositing or to any recording, refiling or
redepositing of any thereof, (ii) to see to any insurance of the Financed
Vehicles or Obligors or to effect or maintain any such insurance, (iii) to
see to the payment or discharge of any tax, assessment or other governmental
charge or any Lien or encumbrance of any kind owing with respect to, assessed
or levied against any part of the Trust, (iv) to confirm or verify the
contents of any reports or certificates delivered to the Trustee pursuant to
this Pooling and Servicing Agreement believed by the Trustee to be genuine
and to have been
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signed or presented by the proper party or parties, or (v) to inspect the
Financed Vehicles at any time or ascertain or inquire as to the performance
or observance of any of the Seller's or the Servicer's representations,
warranties or covenants or the Servicer's duties and obligations as Servicer
and as custodian of the Receivable Files under the Custodian Agreement.
XI.2. TRUSTEE'S ASSIGNMENT OF ADMINISTRATIVE RECEIVABLES AND
WARRANTY RECEIVABLES. With respect to all Administrative Receivables and all
Warranty Receivables purchased by the Servicer or the Seller, the Trustee
shall take any and all actions reasonably requested by the Seller or the
Servicer, at the expense of the Person whose obligation was to repurchase the
Administrative Receivable or the Warranty Receivable, to assign, without
recourse, representation or warranty, to the Seller or the Servicer, as
applicable, including, without limitation, all the items conveyed to the
Trustee pursuant to Section 3.1(a) with respect to such Purchased Receivable,
all monies due thereon, the security interests in the related Financed
Vehicles, proceeds from any Insurance Policies, proceeds from recourse
against Dealers on such Receivables and the interests of the Trust in certain
rebates of premiums and other amounts relating to the Insurance Policies and
any documents relating thereto, such assignment being an assignment outright
and not for security; and the Seller or the Servicer, as applicable, shall
thereupon own such Receivable, and all such security and documents, free of
any further obligation to the Trustee or the Certificateholders with respect
thereto. Each of the Servicer, the Trustee and the Seller shall cooperate
with respect to the orderly transfer of the servicing to the party purchasing
the Administrative Receivable hereunder, and each of the Servicer, the
Trustee and the Seller shall cooperate with such party to ensure that the
purchasing party is subrogated to the rights of each such Person with respect
to such Receivable.
XI.3. CERTAIN MATTERS AFFECTING THE TRUSTEE. Except as
otherwise provided in Section 11.1(c):
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, Officer's Certificate,
certificate of auditors or any other certificate, statement,
instrument, opinion, report, notice, request, consent, order,
appraisal, bond or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or
parties;
(b) the Trustee may consult with counsel and any Opinion of
Counsel shall be full and complete authorization and protection in
respect of any action taken or suffered or omitted by it under this
Agreement in good faith and in accordance with such Opinion of
Counsel;
(c) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Agreement, or to
institute, conduct or defend any litigation under this Agreement or
in relation to this Agreement, at the request, order
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or direction of any of the Certificateholders or the Security
Insurer, pursuant to the provisions of this Agreement, unless such
Certificateholders or the Security Insurer shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses
and liabilities that may be incurred therein or thereby; PROVIDED
HOWEVER, that the Trustee shall, upon the occurrence of a Servicer
Termination Event (that has not been cured), exercise the rights and
powers vested in it by this Agreement with reasonable care and skill;
(d) the Trustee shall not be bound to make any investigation
into the facts of matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent,
order, approval, bond or other paper or document, unless requested in
writing to do so by the Security Insurer or by Holders of
Certificates evidencing not less than 25% of the sum of the Class A
Certificate Balance and the Class B Certificate Balance, or, if there
are no Class A Certificates then outstanding, by Holders of Class B
Certificates evidencing not less than 25% of the Class B Certificate
Balance; PROVIDED HOWEVER, that if the payment within a reasonable
time to the Trustee of the costs, expenses or liabilities likely to
be incurred by it in the making of such investigation is, in the
opinion of the Trustee, not reasonably assured to the Trustee by the
security afforded to it by the terms of this Agreement, the Trustee
may require reasonable indemnity against such cost, expense or
liability as a condition to so proceeding; the reasonable expense of
every such examination shall be paid by the Person making such
request or, if paid by the Trustee, shall be reimbursed by the Person
making such request upon demand;
(e) The Trustee may execute any of the trusts or powers
under this Agreement or perform any duties under this Agreement ether
directly or by or through agents or attorneys or custodians. The
Trustee shall not be responsible for any misconduct or negligence on
the part of any agent or attorney appointed with due care by the
Trustee. The Trustee shall not be responsible for any misconduct or
negligence attributable to the acts or omissions of the Servicer;
(f) The Trustee may rely, as to factual matters relating to
the Seller or the Servicer, on an Officer's Certificate of a
Responsible Officer of the Seller or Servicer, respectively; and
(g) The Trustee shall not be required to take any action or
refrain from taking any action under this Agreement, or any Related
Document referred to herein, nor shall any provision of this
Agreement, or any such Related Document be deemed to impose a duty on
the Trustee to take action, if the Trustee shall have been advised by
counsel that such action is contrary to the terms of this Agreement,
or any Related Document or is contrary to law.
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XI.4. TRUSTEE NOT LIABLE FOR CERTIFICATES OR RECEIVABLES. The
Trustee makes no representations as to the validity or sufficiency of this
Agreement or of the Certificates (other than the execution of the
Certificates) or of any Receivable or Related Document, except to the extent
otherwise expressly provided herein. The Trustee shall at no time (except
during such time, if any, as it is acting as successor Servicer) have any
responsibility or liability for or with respect to the legality, validity and
enforceability of any security interest in any Financed Vehicle or any
Receivable, or the perfection and priority of such a security interest or the
maintenance of any such perfection and priority, or for or with respect to
the efficiency of the Trust or its ability to generate the payments to be
distributed to Certificateholders under this Agreement, including, without
limitation, the existence, condition, location and ownership of any Financed
Vehicle; the existence and enforceability of any insurance thereon; the
existence of any Receivable or any computer or other record thereof (it being
understood that the Trustee has not reviewed and does not intend to review
such matters, the sole responsibility for such review being vested in the
Seller and the Servicer as applicable); the completeness of any Receivable;
the receipt by the Servicer of any Receivable; the performance or enforcement
of any Receivable; the compliance by the Seller and the Servicer with any
covenant or the breach by the Seller and the Servicer of any warranty or
representation made under this Agreement or in any Related Document and the
accuracy of any such warranty or representation prior to the Trustee's
receipt of notice or other discovery of any noncompliance therewith or any
breach thereof, any investment of monies by or at the direction of the
Servicer or any loss resulting therefrom (it being understood, however, that
the Trustee shall remain responsible for any Trust Property that it may hold
directly); the acts or omissions of the Seller, the Servicer or any Obligor;
any action of the Servicer taken in the name of the Trustee; the accuracy,
content or completeness of any offering documents used in connection with the
sale of the Certificates or any action by the Trustee taken at the
instruction of the Servicer, the Seller, the Security Insurer or the
Certificateholders holding the requisite percentage of Certificates; PROVIDED
HOWEVER, that the foregoing shall not relieve the Trustee of its obligation
to perform its duties under this Agreement, whether as Trustee or as Backup
Servicer. The Trustee shall not be accountable for the use or application by
the Seller of any of the Certificates or of the proceeds of such
Certificates, or for the use or application of any funds paid to the Servicer
in respect of the Receivables prior to the time such funds are deposited in
the Collection Account.
XI.5. TRUSTEE MAY OWN CERTIFICATES. The Trustee in its individual or
any other capacity may become the owner or pledgee of Certificates with the
same rights as it would have if it were not Trustee and may deal with the
Seller and the Servicer in banking transactions with the same rights as it
would have if it were not Trustee.
XI.6. TRUSTEE'S FEES AND EXPENSES; INDEMNIFICATION. The Servicer in a
separate agreement (the "Fee Letter") has covenanted and agreed to pay to the
Trustee, and the Trustee shall be entitled to, certain annual fees (the
"Annual Trustee's Fee") (which shall not be limited by any provision of law
in regard to the compensation of a trustee of an
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express trust) for all services, including services as Backup Servicer,
rendered by it in the execution of the trusts created by this Agreement and
in the exercise and performance of any of the powers and duties under this
Agreement of the Trustee. To the extent not covered by Article IX, the
Seller and the Servicer shall indemnify, defend, and hold harmless the
Trustee and the Backup Servicer from and against all costs, expenses, losses,
claims, damages and liabilities arising out of or incurred in connection with
the acceptance of the performance of the trusts and duties contained in this
Agreement, except to the extent that such cost, expense, loss, claim, damage
or liability is due to the bad faith or gross negligence (except for errors
in judgment) of the Trustee or the Backup Servicer, respectively. In
addition, the Servicer in Section 9.1 has agreed to indemnify the Trustee
with respect to certain matters, and the Certificateholders in their
individual capacity under Section 11.3(c) or (d) may agree to indemnify the
Trustee under certain circumstances. The provisions of this Section 11.6
shall (i) not be in limitation of the Fee Letter entered into in connection
with this Agreement between the Servicer and the Trustee (ii) shall not
terminate or be deemed released upon the resignation or termination of
AmeriCredit as the Servicer and (iii) shall survive any termination of this
Agreement.
XI.7. ELIGIBILITY REQUIREMENTS FOR TRUSTEE. The Trustee under this
Agreement shall at all times be a corporation duly organized and validly
existing under the laws of its jurisdiction of incorporation authorized under
such laws to exercise corporate trust powers, having a combined capital and
surplus of at least $50,000,000 and subject to supervision or examination by
federal or state authority, satisfactory to AmeriCredit and (so long as an
Insurer Default shall not have occurred and be continuing) satisfactory to
the Security Insurer, and (if Xxxxx'x then has a rating outstanding on the
Certificates) with a long-term debt rating from Xxxxx'x of "Baa3" or higher
or otherwise acceptable to Xxxxx'x. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purpose of this
Section 11.7, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. In case at any time the Trustee shall
cease to be eligible in accordance with the provisions of this Section 11.7,
the Trustee shall resign immediately in the manner and with the effect
specified in Section 11.8.
XI.8. RESIGNATION OR REMOVAL OF TRUSTEE. (a) Subject to the
provisions of subsection (c) of this Section 11.8, the Trustee may at any
time resign and be discharged from the trusts created by this Agreement by
giving written notice thereof to the Servicer. Upon receiving such notice of
resignation, the Servicer, with the consent of the Security Insurer (unless
an Insurer Default shall have occurred and be continuing), shall promptly
appoint a successor Trustee by written instrument, in duplicate, one copy of
which instrument shall be delivered to the resigning Trustee and one copy to
the successor Trustee. If no successor Trustee shall have been so appointed
and have accepted appointment within 30 days after the giving of such notice
of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
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(a) If at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section 11.8 and shall fail to resign after
written request therefor by the Servicer, or if at any time the Trustee shall
be legally unable to act, or shall be adjudged a bankrupt or insolvent or a
receiver of the Trustee or of its property shall be appointed or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, then
the Servicer or (so long as an Insurer Default shall not have occurred and be
continuing) the Security Insurer shall remove the Trustee. If the Trustee is
removed under the authority of the immediately preceding sentence, the
Servicer or the Security Insurer, as the case may be, shall promptly appoint
a successor Trustee by written instrument, in duplicate, one copy of which
instrument shall be delivered to the Trustee so removed and one copy to the
successor trustee. The Servicer shall also pay all fees due and owing to the
outgoing Trustee. Any successor trustee shall (so long as an Insurer Default
shall not have occurred and be continuing) be acceptable to the Security
Insurer.
(b) Any resignation or removal of the Trustee and appointment of a
successor Trustee pursuant to any of the provisions of this Section 11.8
shall not become effective until acceptance of appointment by the successor
Trustee as provided in Section 11.9.
(c) If the Trustee and the Backup Servicer shall be the same Person and
the rights and obligations of the Backup Servicer shall have been terminated
pursuant to Section 10.2, then the Security Insurer (or, if an Insurer
Default shall have occurred and be continuing, a Certificate Majority) shall
have the option, by 60 days' prior notice in writing to the Seller, the
Servicer and the Trustee, to remove the Trustee, and the Security Insurer
shall not have any liability to the Trustee, AmeriCredit, the Seller, the
Servicer or any Certificateholder in connection with such removal.
XI.9. SUCCESSOR TRUSTEE. (a) Any successor Trustee appointed as
provided in Section 11.8 shall execute, acknowledge and deliver to the
Servicer and the Security Insurer, and to its predecessor Trustee an
instrument accepting such appointment under this Agreement, and thereupon the
resignation or removal of the predecessor Trustee shall become effective and
such successor trustee, without any further act, deed or conveyance (except
as provided below), shall become fully vested with all the rights, powers,
duties and obligations of its predecessor under this Agreement, with like
effect as if originally named as Trustee; but, on request of the Servicer and
the Security Insurer, or the successor trustee, such predecessor Trustee
shall, upon payment of its charges then unpaid, execute and deliver an
instrument transferring to such successor trustee all of the rights, powers
and trusts of the Trustee so ceasing to act, and shall duly assign, transfer
and deliver to such successor trustee all property and money held by such
trustee so ceasing to act hereunder. Upon request of any such successor
trustee, the Seller, on behalf of the Trust, shall execute any and all
instruments for more fully and certainly vesting in and confirming to such
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successor trustee all such rights, powers and trusts. The predecessor
Trustee shall deliver to the successor Trustee all documents and statements
held by it under this Agreement or any Related Document; and the predecessor
Trustee and the other parties to the Related Documents shall amend any
Related Document to make the successor Trustee the successor to the
predecessor Trustee thereunder; and the Servicer and the predecessor Trustee
shall execute and deliver such instruments and do such other things as may
reasonably be required for fully and certainly vesting and confirming in the
successor Trustee all such rights, powers, duties and obligations. No
successor Trustee shall accept appointment as provided in this Section 11.9
unless at the time of such acceptance such successor Trustee shall be
eligible under the provisions of Section 11.7. Upon acceptance of
appointment by a successor Trustee as provided in this Section 11.9, the
Seller shall mail notice by first-class mail of the successor of such Trustee
and the address of the successor Trustee's corporate trust office under this
Agreement to each Rating Agency, the Security Insurer and all Holders of
Certificates at their addresses as shown in the Certificate Register. If the
Seller fails to mail such notice within 10 days after acceptance of
appointment by the successor Trustee, the successor Trustee shall cause such
notice to be mailed at the expense of the Seller.
XI.10. MERGER OR CONSOLIDATION OF TRUSTEE. Any corporation into which
the Trustee may be merged or with which it may be consolidated, or any
corporation resulting from any merger or consolidation to which the Trustee
shall be a party, or any corporation succeeding to the business of the
Trustee, shall be the successor of the Trustee under this Agreement, provided
such corporation shall be eligible under the provisions of Section 11.7,
without the execution or filing of any instrument or any further act on the
part of any of the parties to this Agreement, anything in this Agreement to
the contrary notwithstanding. The Trustee or its successor hereunder shall
provide the Servicer and the Security Insurer with prompt notice of any such
transaction.
XI.11. APPOINTMENT OF CO-TRUSTEE OR SEPARATE TRUSTEE. (a)
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any
part of the Trust Property or any Financed Vehicle may at the time be
located, the Trustee, with the consent of the Servicer and (so long as an
Insurer Default shall not have occurred and be continuing) the Security
Insurer, shall have the power and may execute and deliver all instruments to
appoint one or more Persons approved by the Trustee to act as co-trustee or
co-trustees, jointly with the Trustee, or separate trustee or separate
trustees, of all or any part of the Trust Property, and to vest in such
Person or Persons, in such capacity and for the benefit of the
Certificateholders, such title to the Trust Property, or any part thereof,
and, subject to the other provisions of this Section 11.11, such powers,
duties, obligations, rights and trusts as the Servicer, the Trustee and (so
long as an Insurer Default shall not have occurred and be continuing) the
Security Insurer may consider necessary or desirable. If the Servicer shall
not have consented to such appointment within 15 days after the receipt by it
of a request to do so, or if a Servicer Termination Event shall have occurred
and be continuing, the consent
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of the Servicer shall not be required. No co-Trustee or separate Trustee
under this Agreement shall be required to meet the terms of eligibility as a
successor trustee under Section 11.7 and no notice to Certificateholders of
the appointment of any co-trustee or separate trustee shall be required under
Section 11.9. Every separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions
and conditions:
(i) All rights, powers, duties and obligations conferred or
imposed upon the Trustee shall be conferred or imposed upon and exercised
or performed by the Trustee and such separate trustee or cotrustee jointly
(it being understood that such separate trustee or cotrustee is not
authorized to act separately without the Trustee joining in such act),
except to the extent that under any law of any jurisdiction in which any
particular act or acts are to be performed by the Trustee, the Trustee
shall be incompetent or unqualified to perform such act or acts, in which
event such rights, powers, duties and obligations (including the holding
of title to the Trust Property or any portion thereof in any such
jurisdiction) shall be exercised and performed singly by such separate
trustee or co-trustee, but solely at the direction of the Trustee;
(ii) No trustee under this Agreement shall be personally liable
by reason of any act or omission of any other trustee under this Agreement;
and
(iii) The Servicer, the Trustee and provided no Insurer Default
shall have occurred and be continuing, the Security Insurer acting jointly
may at any time accept the resignation of or remove any separate trustee
or co-trustee.
(b) Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement
and the conditions of this Article XI. Each separate trustee and co-trustee,
upon its acceptance of the trusts conferred, shall be vested with the estates
or property specified in its instrument of appointment, either jointly with
the Trustee or separately, as may be provided therein, subject to all the
provisions of this Agreement, specifically including every provision of this
Agreement relating to the conduct of, affecting the liability of, or
affording protection to, the Trustee. Every such instrument shall be filed
with the Trustee and a copy thereof given to the Servicer.
(c) Any separate trustee or co-trustee may at any time constitute the
Trustee, its agent or attorney-in-fact, with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of
this Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all
of its estates, properties, rights, remedies and trusts shall vest in and be
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exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
XI.12. REPRESENTATIONS AND WARRANTIES OF TRUSTEE. Each of the Trustee
and Backup Servicer represents and warrants as of the date of this Agreement
that:
(a) it is either (i) a banking corporation duly organized,
validly existing and in good standing under the laws of the state of its
incorporation or (ii) a national banking association duly organized,
validly existing and in good standing under the laws of the United
States of America;
(b) it has full power, authority and legal right to execute,
deliver and perform this Agreement, and has taken all necessary action to
authorize the execution, delivery and performance by it of this Agreement;
(c) the execution, delivery and performance by it of this
Agreement (a) do not violate any provision of any law or regulation
governing the banking and trust powers of it or any order, writ, judgment,
or decree of any court, arbitrator, or governmental authority applicable
to it or any of its assets, (b) do not violate any provision of its
corporate charter or by-laws, or (c) to the best of its knowledge do not
violate any provision of, or constitute, with or without notice or lapse
of time, a default under, or result in the creation or imposition of any
lien on any of the Trust Property pursuant to the provisions of any
mortgage, indenture, contract, agreement or other undertaking other than
this Agreement to which it is a party;
(d) the execution, delivery and performance by it of this
Agreement do not require the authorization, consent or approval of, the
giving of notice to, the filing or registration with, or the taking of
any other action in respect of, any governmental authority or agency
regulating its banking and corporate trust activities; and
(e) this Agreement has been duly executed and delivered by it
and constitutes the legal, valid and binding agreement of it, enforceable
in accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization or other similar laws affecting the
enforcement of creditors' rights generally and by equitable limitations on
the availability of specific remedies, regardless of whether such
enforceability is considered in a proceeding in equity or at law.
XI.13. TAX RETURNS. In the event the Trust shall be required to file
tax returns, the Servicer shall prepare or shall cause to be prepared any tax
returns required to be filed by the Trust and shall remit such returns to the
Trustee for signature at least five Business Days before such returns are due
to be filed. The Trustee, upon request, shall furnish the Servicer with all
such information known to the Trustee as may be reasonably
79
required in connection with the preparation of all tax returns of the Trust,
and shall execute such returns and cause such returns to be filed on or prior
to the date on which such returns are due; PROVIDED, that such returns have
been provided to the Trustee by the Servicer as described in the previous
sentence.
XI.14. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF CERTIFICATES.
All rights of action and claims under this Agreement or the Certificates may
be prosecuted and enforced by the Trustee without the possession of any of
the Certificates or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought
in its own name as trustee. Any recovery of judgment shall, after provision
for the payment of the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, be for the ratable benefit
of the Certificateholders in respect of which such judgment has been obtained.
XI.15. SUIT FOR ENFORCEMENT. If a Servicer Termination Event shall
occur and be continuing, the Trustee, in its discretion may (but shall have
no duty or obligation so to proceed), subject to the provisions of Section
11.1, proceed to protect and enforce its rights and the rights of the
Certificateholders under this Agreement by a suit, action or proceeding in
equity or at law or otherwise, whether for the specific performance of any
covenant or agreement contained in this Agreement or in aid of the execution
of any power granted in this Agreement or for the enforcement of any other
legal, equitable or other remedy as the Trustee, being advised by counsel,
shall deem most effectual to protect and enforce any of the rights of the
Trustee or the Certificateholders.
XI.16. RIGHTS TO DIRECT TRUSTEE. Subject to Section 11.3(c), the
Security Insurer (or, if an Insurer Default shall have occurred and be
continuing, a Certificate Majority) shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred on the Trustee; PROVIDED
HOWEVER, that subject to Section 11.1, the Trustee shall have the right to
decline to follow any such direction if the Trustee being advised by counsel
determines that the action so directed may not lawfully be taken, or if the
Trustee in good faith shall, by a Responsible Officer, determine that the
proceedings so directed would be in violation of this Agreement or any of the
Related Documents or would subject it to personal liability against which it
has not been provided reasonable indemnity or (in the case of directions
provided by a Certificate Majority) be unduly prejudicial to the rights of
Certificateholders not parties to such direction; and provided further that
nothing in this Agreement shall impair the right of the Trustee to take any
action deemed proper by the Trustee and which is not inconsistent with such
direction by the Security Insurer or the Certificateholders.
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XII
TERMINATION
XII.1. TERMINATION OF THE TRUST. (a) The respective obligations and
responsibilities of the Seller, the Servicer, the Security Insurer and the
Trustee created by this Agreement and the Trust created by this Agreement
shall terminate upon the latest of (i) the maturity or other liquidation of
the last Receivable (including the purchase as of any Accounting Date by the
Seller or the Servicer at its option of the corpus of the Trust as described
in Section 12.2) and the subsequent distribution to Certificateholders
pursuant to Section 5.5 of the amount required to be deposited pursuant to
Section 12.2 or (ii) the payment to Certificateholders of all amounts
required to be paid to them pursuant to this Agreement and the payment to the
Security Insurer of all amounts payable or reimbursable to it pursuant to
this Agreement and the Insurance Agreement. In either case, there shall be
delivered to the Trustee and the Security Insurer an Opinion of Counsel that
all applicable preference periods under federal, state and local bankruptcy
insolvency and similar laws have expired with respect to the payments
pursuant to clause (ii); PROVIDED HOWEVER, that in no event shall the trust
created by this Agreement continue beyond the expiration of 21 years from the
death of the last survivor of the descendants living on the date of this
Agreement of Xxxx Xxxxxxx of the Commonwealth of Massachusetts; and provided,
further, that the rights to indemnification under Sections 9.1 and 11.6 shall
survive the termination of the Trust. The Servicer shall promptly notify the
Trustee, the Rating Agencies and the Security Insurer of any prospective
termination pursuant to this Section 12.1.
(a) Notice of any final distribution, specifying the Distribution Date
upon which the Certificateholders may surrender their Certificates to the
Trustee for payment of the final distribution and retirement of the
Certificates, shall be given promptly by the Trustee by letter to
Certificateholders mailed not earlier than the 1st day and not later than the
10th day of the month of such final distribution specifying (i) the
Distribution Date upon which final payment of the Certificates shall be made
upon presentation and surrender of Certificates at the office of the Trustee
therein specified, (ii) the amount of any such final payment, and (iii) that
the Accounting Date otherwise applicable to such Distribution Date is not
applicable, payments being made only upon presentation and surrender of the
Certificates at the office of the Trustee therein specified. The Trustee
shall give such notice to the Certificate Registrar at the time such notice
is given to Certificateholders. In the event such notice is given, the
Servicer or the Trustee, as the case may be, shall make deposits into the
Collection Account in accordance with Section 5.4, or, in the case of an
optional purchase of Receivables pursuant to Section 12.2, shall deposit the
amount specified in Section 12.2. Upon presentation and surrender of the
Certificates, the Trustee shall cause to be distributed to Certificateholders
amounts distributable on such Distribution Date pursuant to Section 5.5.
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(b) In the event that all of the Certificateholders shall not surrender
their Certificates for retirement within six months after the date specified
in the above-mentioned written notice, the Trustee shall have a second
written notice to the remaining Certificateholders to surrender their
Certificates for retirement and receive the final distribution with respect
thereto. If within one year after the second notice all the Certificates
shall not have been surrendered for retirement, the Trustee may take
appropriate steps, or may appoint an agent to take appropriate steps, to
contact the remaining Certificateholders concerning surrender of their
Certificates, and the cost thereof shall be paid out of the funds and other
assets that remain subject to this Agreement. As soon as practicable after
the termination of the Trust, the Trustee shall surrender the Policy to the
Security Insurer for cancellation.
XII.2. OPTIONAL PURCHASE OF ALL RECEIVABLES. On each Determination
Date as of which the Class A Certificate Balance is less than 10% of the
Cut-Off Date Class A Certificate Balance, the Servicer and the Seller each
shall have the option to purchase the corpus of the Trust (with the consent
of the Security Insurer, if such purchase would result in a claim on the
Policy or would result in any amount owing to the Security Insurer remaining
unpaid). To exercise such option, the Servicer or the Seller, as the case
may be, shall pay the aggregate Purchase Amounts for the Receivables, plus
the appraised value of any other property (including the right to receive any
future recoveries) held as part of the Trust, such appraisal to be conducted
by an appraiser mutually agreed upon by the Servicer or the Seller, as the
case may be, and the Security Insurer (or the Trustee, if an Insurer Default
shall have accrued and be continuing), and shall succeed to all interests in
and to the Trust Property. The Servicer or Seller shall promptly notify the
Rating Agencies of any proposed exercise of such option. The fees and
expenses related to such appraisal shall be paid by the party exercising the
option to purchase.
XIII
MISCELLANEOUS PROVISIONS
XIII.1. AMENDMENT. (a) This Agreement may be amended by the Seller,
the Servicer and the Trustee, with the prior written consent of the Security
Insurer (so long as an Insurer Default shall not have occurred and be
continuing) but without the consent of any of the Certificateholders, (i) to
cure any ambiguity, or (ii) to correct or supplement any provisions in this
Agreement; PROVIDED HOWEVER, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interests of
the Certificateholders, provided, further, that if an Insurer Default has
occurred and is continuing, such action shall not amend, modify or limit the
Security Insurer's rights under (i) Section 5.5(a), (ii) any rights to
indemnification to which the Security Insurer is entitled hereunder or (iii)
any defined terms used in preceding clauses (i) or (ii).
(a) This Agreement may also be amended from time to time by the Seller,
the Servicer and the Trustee with the prior written consent of the Security
Insurer (so long
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as an Insurer Default shall not have occurred and be continuing) and with the
consent of a Certificate Majority (which consent of any Holder of a
Certificate given pursuant to this Section 13.1(b) or pursuant to any other
provision of this Agreement shall be conclusive and binding on such Holder
and on all future Holders of such Certificate and of any Certificate issued
upon the transfer thereof or in exchange thereof or in lieu thereof whether
or not notation of such consent is made upon the Certificate) for the purpose
of adding any provisions to or changing in any manner or eliminating any of
the provisions of this Agreement, or of modifying in any manner the rights of
the Holders of Certificates; PROVIDED HOWEVER, that no such amendment shall
(a) increase or reduce in any manner the amount of, or accelerate or delay
the timing of, collections of payments on Receivables or distributions that
shall be required to be made on any Certificate or the Class A Pass-Through
Rate or the Class B Pass-Through Rate or (b) reduce the aforesaid percentage
required to consent to any such amendment or any waiver hereunder, without
the consent of the Holders of all Certificates then outstanding, provided,
further, that if an Insurer Default has occurred and is continuing, such
action shall not amend, modify or limit the Security Insurer's rights under
(i) Section 5.5(a), (ii) any rights to indemnification to which the Security
Insurer is entitled hereunder or (iii) any defined terms used in preceding
clauses (i) or (ii).
(b) Prior to the execution of any such amendment or consent, the
Trustee shall furnish written notification of the substance of such amendment
or consent to each Rating Agency.
(c) Promptly after the execution of any such amendment or consent, the
Trustee shall furnish written notification of the substance of such amendment
or consent to each Certificateholder.
(d) It shall not be necessary for the consent of Certificateholders
pursuant to Section 13.1(b) to approve the particular form of any proposed
amendment or consent, but it shall be sufficient if such consent shall
approve the substance thereof. The manner of obtaining such consents (and any
other consents of Certificateholders provided for in this Agreement) and of
evidencing the authorization of the execution thereof by Certificateholders
shall be subject to such reasonable requirements as the Trustee may
prescribe, including the establishment of record dates.
(e) Prior to the execution of any amendment to this Agreement, the
Trustee shall be entitled to receive and rely upon an Opinion of Counsel
stating that the execution of such amendment is authorized or permitted by
this Agreement, in addition to the Opinion of Counsel referred to in Section
13.2(i). The Trustee may, but shall not be obligated to, enter into any such
amendment which affects the Trustee's own rights, duties or immunities under
this Agreement or otherwise.
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XIII.2. PROTECTION OF TITLE TO TRUST. (a) The Seller or the Servicer
or both shall execute and file such financing statements and cause to be
executed and filed such continuation and other statements, all in such manner
and in such places as may be required by law fully to preserve, maintain and
protect the interest of the Trust, the Trustee and the Security Insurer under
this Agreement in the Trust Property and in the proceeds thereof. The Seller
or the Servicer or both shall deliver (or cause to be delivered) to the
Trustee and the Security Insurer file-stamped copies of, or filing receipts
for, any document filed as provided above, as soon as available following
such filing.
(a) Neither the Seller nor the Servicer shall change its name, identity
or corporate structure in any manner that would, could or might make any
financing statement or continuation statement filed by the Seller in
accordance with paragraph (a) above seriously misleading within the meaning
of Section 9-402(7) of the UCC, unless it shall have given the Trustee and
the Security Insurer (so long as an Insurer Default shall not have occurred
and be continuing) at least 60 days prior written notice thereof, and shall
promptly file appropriate amendments to all previously filed financing
statements and continuation statements.
(b) Each of the Seller and the Servicer shall give the Trustee and the
Security Insurer at least 60 days prior written notice of any relocation of
its principal executive office if, as a result of such relocation, the
applicable provisions of the UCC would require the filing of any amendment of
any previously filed financing or continuation statement or of any new
financing statement. The Servicer shall at all times maintain each office
from which it services Receivables and its principal executive office within
the United States of America.
(c) The Servicer shall maintain accounts and records as to each
Receivable accurately and in sufficient detail to permit (i) the reader
thereof to know at any time the status of such Receivable, including payments
and recoveries made and payments owing (and the nature of each) and (ii)
reconciliation between payments or recoveries on (or with respect to) each
Receivable and the amounts from time to time deposited in the Collection
Account in respect of such Receivable.
(d) The Servicer shall maintain its computer systems so that, from and
after the time of sale under this Agreement of the Receivables to the
Trustee, the Servicer's master computer records (including any backup
archives) that refer to any Receivable indicate clearly (with reference to
the particular grantor trust) that the Receivable is owned by the Trust.
Indication of the Trust's ownership of a Receivable shall be deleted from or
modified on the Servicer's computer systems when, and only when, the
Receivable has been paid in full or repurchased by the Seller or the Servicer.
(e) If at any time the Seller or the Servicer proposes to sell, grant
a security interest in, or otherwise transfer any interest in automotive
receivables to any prospective
84
purchaser, lender or other transferee, the Servicer shall give to such
prospective purchaser, lender or other transferee computer tapes, records or
printouts (including any restored from backup archives) that, if they refer
in any manner whatsoever to any Receivable, indicate clearly that such
Receivable has been sold and is owned by the Trust unless such Receivable has
been paid in full or repurchased by the Seller or the Servicer.
(f) The Servicer shall permit the Trustee, the Backup Servicer, the
Security Insurer, the Seller and their respective agents, at any time to
inspect, audit and make copies of and abstracts from the Servicer's records
regarding any Receivables or any other portion of the Trust Property.
(g) The Servicer shall furnish to the Trustee, the Backup Servicer, the
Seller and the Security Insurer at any time upon request a list of all
Receivables then held as part of the Trust, together with a reconciliation of
such list to the Schedule of Receivables and to each of the Servicer's
Certificates furnished before such request indicating removal of Receivables
from the Trust. The Trustee shall hold any such list and Schedule of
Receivables for examination by interested parties during normal business
hours at the Corporate Trust Office upon reasonable notice by such Persons of
their desire to conduct an examination.
(h) The Seller and the Servicer shall deliver to the Trustee and the
Security Insurer simultaneously with the execution and delivery of this
Agreement and of each amendment thereto and upon the occurrence of the events
giving rise to an obligation to give notice pursuant to Section 13.2(b) or
(c), an Opinion of Counsel (a) stating that, in the opinion of such Counsel,
all financing statements and continuation statements have been executed and
filed that are necessary fully to preserve and protect the interest of the
Trustee in the Receivables and the other Trust Property, and reciting the
details of such filing or referring to prior Opinions of Counsel in which
such details are given, (b) stating that, in the opinion of such counsel, no
such action is necessary to preserve and protect such interest, or (c)
stating in the opinion of such counsel, any action which is necessary to
preserve and protect such interest during the following 12-month period.
(i) The Servicer shall deliver to the Trustee and the Security Insurer,
within 90 days after January 1, 1997, an Opinion of Counsel, either (a)
stating that, in the opinion of such counsel, all financing statements and
continuation statements have been executed and filed that are necessary fully
to preserve and protect the interest of the Trustee in the Receivables, and
reciting the details of such filings or referring to prior Opinions of
Counsel in which such details are given, or (b) stating that, in the opinion
of such counsel, no action shall be necessary to preserve and protect such
interest.
XIII.3. LIMITATION ON RIGHTS OF CERTIFICATEHOLDERS. (a) The death or
incapacity of any Certificateholder shall not operate to terminate this
Agreement or the Trust, nor entitle such Certificateholder's legal
representatives or heirs to claim an
85
accounting or to take any action or commence any proceeding in any court for
a partition or winding up of the Trust, nor otherwise affect the rights,
obligations and liabilities of the parties to this Agreement or any of them.
(a) No Certificateholder shall have any right to vote (except as
provided in this Section 13.3 or Sections 10.2, 10.5 or 13.1) or in any
manner otherwise control the operation and management of the Trust, or the
obligations of the parties to this Agreement, nor shall anything set forth in
this Agreement, or contained in the terms of the Certificates, be construed
so as to constitute the Certificateholders from time to time as partners or
members of an association; nor shall any Certificateholder be under any
liability to any third person by reason of any action taken by the parties to
this Agreement pursuant to any provision of this Agreement or any Related
Document.
(b) So long as no Insurer Default has occurred and is continuing,
except as otherwise specifically provided herein, whenever Class A
Certificateholder action, consent or approval is required under this
Agreement, such action, consent or approval shall be deemed to have been
taken or given on behalf of, and shall be binding upon, all Class A
Certificateholders if the Security Insurer agrees to take such action or give
such consent or approval. If an Insurer Default shall have occurred and is
continuing, no Certificateholder shall have any right by virtue or by
availing itself of any provisions of this Agreement to institute any suit,
action, or proceeding in equity or at law upon or under or with respect to
this Agreement, unless such Holder previously shall have given to the Trustee
a written notice of default and of the continuance thereof, as provided in
this Agreement and unless also the Holders of Certificates evidencing not
less than 25% of the sum of the Class A Certificate Balance and the Class B
Certificate Balance, or, if there are no Class A Certificates then
outstanding, by Holders of Class B Certificates evidencing not less than 25%
of the Class B Certificate Balance shall have made written request upon the
Trustee to institute such action, suit or proceeding in its own name as
Trustee under this Agreement and shall have offered to the Trustee such
reasonable indemnity as it may require against the costs, expenses and
liabilities to be incurred therein or thereby, and the Trustee, for 30 days
after its receipt of such notice, request, and offer of indemnity, shall have
neglected or refused to institute any such action, suit, or proceeding and
during such 30-day period, no request or waiver inconsistent with such
written request has been given to the Trustee pursuant to and in compliance
with this Section 13.3 or Section 10.5; it being understood and intended, and
being expressly covenanted by each Certificateholder with every other
Certificateholder and the Trustee, that no one or more Holders of
Certificates shall have any right in any manner whatever by virtue or by
availing itself or themselves of any provisions of this Agreement to affect,
disturb, or prejudice the rights of the Holders of any other of the
Certificates, or to obtain or seek to obtain priority over or preference to
any other such Holder, or to enforce any right under this Agreement, except
in the manner provided in this Agreement and for the equal, ratable, and
common benefit of all Certificateholders. For the protection and
enforcement of the provisions of this Section 13.3, each and every
Certificateholder and the Trustee shall be entitled to such relief as can be
given either at law or in
86
equity. Nothing in this Agreement shall be construed as giving the
Certificateholders any right to make a claim under the Policy.
XIII.4. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York without regard
to the principles of conflicts of laws thereof and the obligations, rights
and remedies of the parties under this Agreement shall be determined in
accordance with such laws.
XIII.5. SEVERABILITY OF PROVISIONS. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions
or terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity
or enforceability of the other provisions of this Agreement or of the
Certificates or the rights of the Holders thereof.
XIII.6. ASSIGNMENT. Notwithstanding anything to the contrary contained
in this Agreement, except as provided in Section 8.2 or Section 9.2 and as
provided in the provisions of the Agreement concerning the resignation of the
Servicer and the Backup Servicer, this Agreement may not be assigned by the
Seller or the Servicer without the prior written consent of the Trustee and
the Security Insurer (or, if an Insurer Default shall have occurred and be
continuing the Trustee and a Certificate Majority).
XIII.7. CERTIFICATES NONASSESSABLE AND FULLY PAID. Certificateholders
shall not be personally liable for obligations of the Trust, the Fractional
Undivided Interests represented by the Certificates shall be nonassessable
for any losses or expenses of the Trust or for any reason whatsoever, and
Certificates upon authentication thereof by the Trustee pursuant to Section
7.2 are and shall be deemed fully paid.
XIII.8. THIRD-PARTY BENEFICIARIES. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective
successors and permitted assigns. Except as otherwise provided in this
Article XIII, no other Person shall have any right or obligation hereunder.
The Security Insurer and its successors and assigns shall be a third-party
beneficiary to the provisions of this Agreement, and shall be entitled to
rely upon and directly enforce such provisions of this Agreement so long as
no Insurer Default shall have occurred and be continuing. Except as
expressly stated otherwise herein or in the Related Documents, any right of
the Security Insurer to direct, appoint, consent to, approve of, or take any
action under this Agreement, shall be a right exercised by the Security
Insurer in its sole and absolute discretion. The Security Insurer may
disclaim any of its rights and powers under this Agreement (but not its
duties and obligations under the Policy) upon delivery of a written notice to
the Trustee.
XIII.9. FINANCIAL SECURITY AS CONTROLLING PARTY. Each Certificateholder
by purchase of the Certificates held by it acknowledges that the Trustee on
behalf of the Trust,
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as partial consideration of the issuance of the Policy, has agreed that the
Security Insurer shall have certain rights hereunder for so long as no
Insurer Default shall have occurred and be continuing. So long as an Insurer
Default has occurred and is continuing, any provision giving the Security
Insurer the right to direct, appoint or consent to, approve of, or take any
action under this Agreement shall be inoperative during the period of such
Insurer Default and such right shall instead vest in the Trustee acting at
the direction of the Holders of Certificates. The Security Insurer may
disclaim any of its rights and powers under this Agreement (but not its
duties and obligations under the Policy) upon delivery of a written notice to
the Trustee. The Security Insurer may give or withhold any consent hereunder
in its sole and absolute discretion.
XIII.10. COUNTERPARTS. This Agreement may be executed simultaneously
in any number of counterparts, each of which counterparts shall be deemed to
be an original, and all of which counterparts shall constitute but one and
the same instrument.
XIII.11. NOTICES. All demands, notices and communications under this
Agreement shall be in writing, personally delivered or mailed by certified
mail-return receipt requested, and shall be deemed to have been duly given
upon receipt (a) in the case of the Seller and for so long as AmeriCredit is
the Servicer, the Servicer, at the following address: AmeriCredit Financial
Services, Inc., 000 Xxxxxx Xxxxxx, Xxxx Xxxxx, Xxxxx 00000-0000, Attention:
Chief Financial Officer, (b) in the case of the Trustee, and, for so long as
the Trustee is the Backup Servicer, the Trustee, at the Corporate Trust
Office, (c) in the case of each Rating Agency, 00 Xxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000 (for Xxxxx'x) and 00 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (for
Standard & Poor's), and (d) in the case of the Security Insurer, Financial
Security Assurance, Inc., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Surveillance Department, Re: AmeriCredit Automobile Receivables
Trust 1995-B, or at such other address as shall be designated by any such
party in a written notice to the other parties. Any notice required or
permitted to be mailed to a Certificateholder shall be given by first class
mail, postage prepaid, at the address of such Holder as shown in the
Certificate Register, and any notice so mailed within the time prescribed in
this Agreement shall be conclusively presumed to have been duly given,
whether or not the Certificateholder receives such notice.
XIII.12. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
the parties hereof and their respective successors and assigns, and shall
inure to the benefit of and be enforceable by the parties hereof and their
respective successors and assigns permitted hereunder. All covenants and
agreements contained herein shall be binding upon, and inure to the benefit
of, the Trustee and the Certificateholders and their respective permitted
successors and assigns, if any. Any request, notice, direction, consent,
waiver or other instrument or action by any Certificateholder shall bind its
successors and assigns.
88
IN WITNESS WHEREOF, the Seller, ARC, the Servicer and the Trustee have
caused this Pooling and Servicing Agreement to be duly executed by their
respective officers, effective as of the day and year first above written.
AMERICREDIT FINANCIAL SERVICES,
INC., as Seller and Servicer
By ------------------------------------
Name:
Title:
LASALLE NATIONAL BANK,
as Trustee and as Backup Servicer
By ------------------------------------
Name:
Title:
AMERICREDIT RECEIVABLES CORP.
By -------------------------------------
Name:
Title:
SCHEDULE A
SCHEDULE OF RECEIVABLES
SCHEDULE B
REPRESENTATIONS AND WARRANTIES OF AMERICREDIT
XIV CHARACTERISTICS OF RECEIVABLES. Each Receivable (A) was
originated by a Dealer for the retail sale of a Financed Vehicle in the
ordinary course of such Dealer's business in accordance with AmeriCredit's
credit policies and such Dealer had all necessary licenses and permits to
originate Receivables in the state where such Dealer was located, was fully
and properly executed by the parties thereto, was purchased by AmeriCredit
from such Dealer under an existing Dealer Agreement or pursuant to a Dealer
Assignment with AmeriCredit and was validly assigned by such Dealer to
AmeriCredit pursuant to a Dealer Assignment, (B) contains customary and
enforceable provisions such as to render the rights and remedies of the
holder thereof adequate for realization against the collateral security, (D)
is a Receivable which provides for level monthly payments (provided that the
period in the first Collection Period and the payment in the final Collection
Period of the Receivable may be minimally different from the normal period
and level payment) which, if made when due, shall fully amortize the Amount
Financed over the original term and (E) has not been amended or collections
with respect to which waived, other than as evidenced in the Receivable File
relating thereto.
XV NO FRAUD OR MISREPRESENTATION. Each Receivable was originated
by a Dealer and was sold by the Dealer to AmeriCredit without any fraud or
misrepresentation on the part of such Dealer in either case.
XVI COMPLIANCE WITH LAW. All requirements of applicable federal,
state and local laws, and regulations thereunder (including, without
limitation, usury laws, the Federal Truth-in-Lending Act, the Equal Credit
Opportunity Act, the Fair Credit Billing Act, the Fair Credit Reporting Act,
the Fair Debt Collection Practices Act, the Federal Trade Commission Act, the
Xxxx-Xxxxxxxx Warranty Act, the Federal Reserve Board's Regulations "B" and
"Z", the Soldiers' and Sailors' Civil Relief Act of 1940, each applicable
state Motor Vehicle Retail Installment Sales Act, and state adaptations of
the National Consumer Act and of the Uniform Consumer Credit Code and other
consumer credit laws and equal credit opportunity and disclosure laws) in
respect of the Receivables and the Financed Vehicles, have been complied with
in all material respects, and each Receivable and the sale of the Financed
Vehicle evidenced by each Receivable complied at the time it was originated
or made and now complies in all material respects with all applicable legal
requirements.
XVII ORIGINATION. Each Receivable was originated in the United
States.
XVIII BINDING OBLIGATION. Each Receivable represents the genuine,
legal, valid and binding payment obligation of the Obligor thereon,
enforceable by the holder thereof in accordance with its terms, except (A) as
enforceability may be limited by bankruptcy, insolvency, reorganization or
similar laws affecting the enforcement of creditors' rights generally and by
equitable limitations on the availability of specific remedies, regardless of
B-1
whether such enforceability is considered in a proceeding in equity or at law
and (B) as such Receivable may be modified by the application after the
Cutoff Date of the Soldiers' and Sailors' Civil Relief Act of 1940, as
amended; and all parties to each Receivable had full legal capacity to
execute and deliver such Receivable and all other documents related thereto
and to grant the security interest purported to be granted thereby.
XIX NO GOVERNMENT OBLIGOR. No Obligor is the United States of
America or any State or any agency, department, subdivision or
instrumentality thereof.
XX OBLIGOR BANKRUPTCY. At the Cutoff Date no Obligor had been
identified on the records of AmeriCredit as being the subject of a current
bankruptcy proceeding.
XXI SCHEDULE OF RECEIVABLES. The information set forth in the
Schedule of Receivables has been produced from the Electronic Ledger and was
true and correct in all material respects as of the close of business on the
Cutoff Date.
XXII MARKING RECORDS. By the Closing Date, AmeriCredit will have
caused the portions of the Electronic Ledger relating to the Receivables to
be clearly and unambiguously marked to show that the Receivables have been
sold to the Trust by AmeriCredit in accordance with the terms of the Pooling
and Servicing Agreement.
XXIII COMPUTER TAPE. The Computer Tape made available by
AmeriCredit to the Trust on the Closing Date was complete and accurate as of
the Cutoff Date and includes a description of the same Receivables that are
described in the Schedule of Receivables.
XXIV ADVERSE SELECTION. No selection procedures adverse to the
Certificateholders were utilized in selecting the Receivables from those
receivables owned by AmeriCredit which met the selection criteria contained
in the Pooling and Servicing Agreement.
XXV CHATTEL PAPER. The Receivables constitute chattel paper
within the meaning of the UCC as in effect in the States of Texas and New
York.
XXVI ONE ORIGINAL. There is only one original executed copy of
each Receivable.
XXVII RECEIVABLE FILES COMPLETE. There exists a Receivable File
pertaining to each Receivable and such Receivable File contains (a) a fully
executed original of the Receivable, (b) the original executed credit
application, or a copy thereof and (c) the original Lien Certificate or
application therefor. Each of such documents which is required to be signed
by the Obligor has been signed by the Obligor in the appropriate spaces. All
blanks on any form have been properly filled in and each form has otherwise
been correctly prepared. The complete Receivable File for each Receivable
currently is in the possession of the Custodian.
B-2
XXVIII RECEIVABLES IN FORCE. No Receivable has been satisfied,
subordinated or rescinded, and the Financed Vehicle securing each such
Receivable has not been released from the lien of the related Receivable in
whole or in part. No terms of any Receivable have been waived, altered or
modified in any respect since its origination, except by instruments or
documents identified in the Receivable File. No Receivable has been modified
as a result of application of the Soldiers' and Sailors' Civil Relief Act of
1940, as amended.
XXIX LAWFUL ASSIGNMENT. No Receivable was originated in, or is
subject to the laws of, any jurisdiction the laws of which would make
unlawful, void or voidable the sale, transfer and assignment of such
Receivable under this Agreement or pursuant to transfers of the Certificates.
XXX GOOD TITLE. Immediately prior to the conveyance of the
Receivables to the Trust pursuant to this Agreement, AmeriCredit was the sole
owner thereof and had good and indefeasible title thereto, free of any Lien
and, upon execution and delivery of this Agreement by AmeriCredit, the
Trustee shall have good and indefeasible title to and will be the sole owner
of such Receivables, free of any Lien. No Dealer has a participation in, or
other right to receive, proceeds of any Receivable. Americredit has not
taken any action to convey any right to any Person that would result in such
Person having a right to payments received under the related Insurance
Policies or the related Dealer Agreements or Dealer Assignments or to
payments due under such Receivables.
XXXI SECURITY INTEREST IN FINANCED VEHICLE. Each Receivable
created or shall create a valid, binding and enforceable first priority
security interest in favor of AmeriCredit in the Financed Vehicle. The Lien
Certificate and original certificate of title for each Financed Vehicle show,
or if a new or replacement Lien Certificate is being applied for with respect
to such Financed Vehicle the Lien Certificate will be received within 180
days of the Closing Date and will show AmeriCredit named as the original
secured party under each Receivable as the holder of a first priority
security interest in such Financed Vehicle. With respect to each Receivable
for which the Lien Certificate has not yet been returned from the Registrar
of Titles, AmeriCredit has received written evidence from the related Dealer
that such Lien Certificate showing AmeriCredit as first lienholder has been
applied for. AmeriCredit's security interest has been validly assigned by
AmeriCredit to the Trust pursuant to this Agreement. Immediately after the
sale, transfer and assignment thereof by AmeriCredit to the Trust, each
Receivable will be secured by an enforceable and perfected first priority
security interest in the Financed Vehicle in favor of the Trustee as secured
party, which security interest is prior to all other Liens upon and security
interests in such Financed Vehicle which now exist or may hereafter arise or
be created (except, as to priority, for any lien for taxes, labor or
materials affecting a Financed Vehicle). As of the Cutoff Date there were no
Liens or claims for taxes, work, labor or materials affecting a Financed
Vehicle which are or may be Liens prior or equal to the Liens of the related
Receivable.
B-3
XXXII ALL FILINGS MADE. All filings (including, without
limitation, UCC filings) required to be made by any Person and actions
required to be taken or performed by any Person in any jurisdiction to give
the Trustee a first priority perfected lien on, or ownership interest in, the
Receivables and the proceeds thereof and the Other Conveyed Property have
been made, taken or performed.
XXXIII NO IMPAIRMENT. AmeriCredit has not done anything to convey
any right to any Person that would result in such Person having a right to
payments due under the Receivable or otherwise to impair the rights of the
Trust, the Security Insurer, the Trustee and the Certificateholders in any
Receivable or the proceeds thereof.
XXXIV RECEIVABLE NOT ASSUMABLE. No Receivable is assumable by
another Person in a manner which would release the Obligor thereof from such
Obligor's obligations to AmeriCredit with respect to such Receivable.
XXXV NO DEFENSES. No Receivable is subject to any right of
rescission, setoff, counterclaim or defense and no such right has been
asserted or threatened with respect to any Receivable.
XXXVI NO DEFAULT. There has been no default, breach, violation or
event permitting acceleration under the terms of any Receivable (other than
payment delinquencies of not more than 30 days), and no condition exists or
event has occurred and is continuing that with notice, the lapse of time or
both would constitute a default, breach, violation or event permitting
acceleration under the terms of any Receivable, and there has been no waiver
of any of the foregoing. As of the Cutoff Date no Financed Vehicle had been
repossessed.
XXXVII INSURANCE. At the time of a purchase of a Receivable by
AmeriCredit from a Dealer, each Financed Vehicle is required to be covered by
a comprehensive and collision insurance policy (i) in an amount at least
equal to the lesser of (a) its maximum insurable value or (b) the principal
amount due from the Obligor under the related Receivable, (ii) naming
AmeriCredit as loss payee and (iii) insuring against loss and damage due to
fire, theft, transportation, collision and other risks generally covered by
comprehensive and collision coverage. Each Receivable requires the Obligor
to maintain physical loss and damage insurance, naming AmeriCredit and its
successors and assigns as additional insured parties, and each Receivable
permits the holder thereof to obtain physical loss and damage insurance at
the expense of the Obligor if the Obligor fails to do so. No Financed
Vehicle is insured under a policy of Force-Placed Insurance on the Cutoff
Date.
XXXVIII PAST DUE. At the Cutoff Date no Receivable was more than 30
days past due.
XXXIX REMAINING PRINCIPAL BALANCE. At the Cutoff Date each
Receivable had a remaining principal balance equal to or greater than $250.00
and the Principal
B-4
Balance of each Receivable set forth in the Schedule of Receivables is true
and accurate in all material respects.
XL FINAL SCHEDULED PAYMENT DATE. No Receivable has a final
scheduled payment date after April 12, 2001.
XLI CERTAIN CHARACTERISTICS. (A) Each Receivable had a remaining
maturity, as of the Cutoff Date, of not more than 59 months; (B) each
Receivable had an original maturity of not more than 60 months; (C) each
Receivable had a remaining Principal Balance as of the Cutoff Date of at
least $250.00 and not more than $28,000; (D) each Receivable has an Annual
Percentage Rate of at least 14.0% and not more than 33.0%; (E) no Receivable
was more than 30 days past due as of the Cutoff Date and (F) no funds have
been advanced by AmeriCredit, any Dealer, or anyone acting on behalf of any
of them in order to cause any Receivable to qualify under clause (E) above.
B-5
SCHEDULE C
SERVICING POLICIES AND PROCEDURES
NOTE: APPLICABLE TIME PERIODS WILL VARY BY STATE
COMPLIANCE WITH STATE COLLECTION LAWS IS REQUIRED OF ALL AMERICREDIT
COLLECTION PERSONNEL. ADDITIONALLY, AMERICREDIT HAS CHOSEN TO FOLLOW THE
GUIDELINES OF THE FEDERAL FAIR DEBT COLLECTION PRACTICES ACT (FDCPA).
THE COLLECTION PROCESS
Customer is issued a monthly billing statement 16 to 20 days before payment
is due.
XLII All accounts are issued to the Computer Assisted Collection System
(CACS) at 5 days delinquent or at such other dates of delinquency as
determined by historical payment patterns of the account.
XLIII Accounts are then segregated into two groups, those less than 30 days
delinquent and those over 30 days delinquent.
XLIV Accounts less than 30 days delinquent are further segregated into
accounts that have good residential and business phone numbers and
those that do not.
XLV For those that have good phone numbers, they are assigned to the
Melita Group.
XLVI For those without good phone numbers, they are assigned to the
front-end collector.
XLVII In both groups, all reasonable collection efforts are made to avoid
the account rolling over 30 days delinquent, including the use of
collection letters. Collection letters may be utilized between 15 and
25 days delinquent.
XLVIII At the time the account reaches 31 days delinquent, it is assigned to
a mid-range collector. At this time the collector identifies the
necessity of any default notification required by state law.
XLIX Once the account exceeds 60 days in delinquency, it is
assigned to a hard-core collector. The hard-core collector then
continues the collection effort. If the account cannot be resolved
through normal collection efforts, i.e. satisfactory payment
arrangements, then the account may be submitted for repossession
approval, either voluntary or by an approved outside contractor or
if necessary for sequestration approval. All repossessions and
sequestrations must be approved by the Director of Collections or an
Assistant Vice President.
C-1
L CACS allows the individual collector to accurately document and update
each account pertaining to telephone calls and correspondence created as
a result of contact with the customer.
REPOSSESSIONS
If repossession of the collateral occurs, whether voluntary or involuntary, the
following steps are taken:
LI Notification of repossession to proper authorities when necessary.
LII Inventory of all personal property is taken and a condition
report is done on the vehicle. Pictures are also taken of the
vehicle.
LIII Written notification, as required by state law, to customer(s)
concerning their rights of redemption or reinstatement along with
information on how to obtain any personal property that was in the
vehicle at the time of repossession.
LIV Written request to the originating dealer for all refunds due for
dealer adds.
LV Collateral disposition through public or private sale, (dictated by
state law), in a commercially reasonable manner, whenever possible
through a Manheim or Xxxxxx Auto Auction.
LVI After the collateral is liquidated, the debtor(s) is notified in writing
of the deficiency balance owed, if any.
USE OF DUE DATE CHANGES
Due dates may be changed subject to the following conditions:
LVII The account is contractually current or will be brought current with
the due date change.
LVIII Due date changes cannot exceed the total of 15 days over the life of
the contract.
LIX The first installment payment has been paid in full.
LX Only one date change in a twelve month period.
LXI Any exceptions to the above stated policy must be approved by the
Director of Collections or an Assistant Vice President.
C-2
USE OF PAYMENT DEFERMENTS
A payment deferral is offered to customers who have encountered temporary
financial difficulties.
LXII Minimum of six payments have been made on the account.
LXIII The account will be brought current with the deferment, but not paid
ahead.
LXIV A deferment fee is collected on all transactions.
LXV Only one deferment transaction can be performed in a twelve month
period.
LXVI No more than two payments may be deferred in a twelve month period,
and no more than eight total payments may be deferred over the life of
the loan.
LXVII Any exceptions to the above stated policy must be approved by the
Director of Collections or Assistant Vice President.
CHARGE-OFFS
LXVIII When a Post Repossession Notice is generated on an account, the account
may be partially charged-off on the date that the notice legally
expires. The partial charge-off calculation is based on the expected
residual value of the vehicle at time of sale. Adjustments to the
account are made once final liquidation of the vehicle occurs.
LXIX It is AmeriCredit's policy that any account that is not successfully
recovered by 180 days delinquent is submitted to the Director of
Collections for approval and charge-off.
LXX It is AmeriCredit's policy to carry all Chapter 13 bankruptcy accounts
until confirmation of the plan. Once the plan is approved, a partial
charge-off is taken for the unsecured portion of the account. On fully
reaffirmed Chapter 7 bankruptcy accounts, the accounts are deferred
current at the time of discharge.
DEFICIENCY COLLECTIONS
LXXI Contact is made with the customer in an attempt to establish acceptable
payment arrangements or settlements on the account.
LXXII If the customer is unwilling to do so, AmeriCredit may invoke any legal
collection remedy that the state allows, i.e., judgements, garnishments,
etc.
C-3
EXHIBIT A
FORM OF CLASS A CERTIFICATE
SEE ATTACHED PAGES FOR CERTAIN DEFINITIONS
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY
STATE IN RELIANCE UPON EXEMPTIONS PROVIDED BY THE SECURITIES ACT AND SUCH
STATE SECURITIES LAWS. NO RESALE OR OTHER TRANSFER OF THIS CERTIFICATE MAY
BE MADE UNLESS SUCH RESALE OR TRANSFER (A) IS MADE IN ACCORDANCE WITH SECTION
7.3 OF THE POOLING AND SERVICING AGREEMENT AND (B) IS MADE (i) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, (ii) IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT
AND APPLICABLE STATE SECURITIES LAWS, (iii) TO THE SELLER OR (iv) TO A PERSON
WHO THE TRANSFEROR REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER
WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT THAT IS AWARE THAT
THE RESALE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A AND (C)
UPON THE SATISFACTION OF CERTAIN OTHER REQUIREMENTS SPECIFIED IN THE
AGREEMENT. NEITHER THE SELLER, THE SERVICER NOR THE TRUSTEE IS OBLIGATED TO
REGISTER THE CERTIFICATES UNDER THE SECURITIES ACT OR ANY APPLICABLE STATE
SECURITIES LAWS.
NO RESALE OR OTHER TRANSFER OF THIS CERTIFICATE MAY BE MADE
UNLESS THE CERTIFICATE REGISTRAR SHALL HAVE RECEIVED A REPRESENTATION LETTER
IN SUBSTANTIALLY THE FORM REQUIRED BY THE AGREEMENT REFERRED TO BELOW FROM
THE TRANSFEREE OF THIS CERTIFICATE OR SUCH OTHER REPRESENTATIONS (OR AN
OPINION OF COUNSEL) AS MAY BE APPROVED BY THE SELLER OR CS FIRST BOSTON
CORPORATION, TO THE EFFECT THAT SUCH A TRANSFER MAY BE MADE PURSUANT TO AN
EXEMPTION FROM THE SECURITIES ACT, INCLUDING RULE 144A THEREUNDER, AND
APPLICABLE STATE SECURITIES LAWS AND (A) SUCH TRANSFEREE WILL NOT ACQUIRE
THIS CERTIFICATE WITH THE ASSETS OF ANY "EMPLOYEE BENEFIT PLAN" AS DEFINED IN
SECTION 3(3) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA") OR SECTION 4975(e)(1) OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED (THE "CODE"), (B) SPECIFIED CONDITIONS OF AN "UNDERWRITER
EXEMPTION" DESCRIBED IN SECTION V(H) OF PROHIBITED
A-1
TRANSACTION CLASS EXEMPTION 95-60 ARE SATISFIED WITH RESPECT TO SUCH
TRANSFEREE OR (C) IN THE CASE OF A TRANSFER TO AN INSURANCE COMPANY GENERAL
ACCOUNT, EITHER (A) ABOVE, (B) ABOVE OR, PURSUANT TO SECTION I OF PROHIBITED
TRANSACTION CLASS EXEMPTION 95-60 ("PTCE 95-60"), THE ACQUISITION AND HOLDING
OF THE CERTIFICATE AND, PURSUANT TO SECTION III OF PTCE 9560, THE SERVICING,
MANAGEMENT AND OPERATION OF THE TRUST ARE, WITH RESPECT TO SUCH TRANSFEREE,
EXEMPT FROM THE "PROHIBITED TRANSACTION" PROVISIONS OF ERISA AND THE CODE.
A-2
AMERICREDIT AUTOMOBILE RECEIVABLES TRUST 1995-B
6.10% ASSET BACKED CERTIFICATE, CLASS A
NUMBER
A-1 $____________
THIS CERTIFIES THAT ____________ is the registered owner of a
____________ dollars nonassessable, fully-paid, fractional undivided interest
in the AmeriCredit Automobile Receivables Trust 1995-B (the "Trust") formed
by AmeriCredit Financial Services, Inc., a Delaware corporation (the
"Seller"). The Trust was created pursuant to a Pooling and Servicing
Agreement dated as of November 20, 1995 (the "Agreement"), among AmeriCredit
Financial Services, Inc. ("AmeriCredit"), as seller and servicer (the
"Seller" or the "Servicer"), and LaSalle National Bank, as trustee (the
"Trustee"), a summary of certain of the pertinent provisions of which is set
forth below. Reference is made to the further provisions of this Class A
Certificate set forth in the attached pages 3 through 7, which further
provisions shall for all purposes have the same effect as if set forth at
this place. Unless the certificate of authentication hereon shall have been
executed by an authorized signatory of the Trustee, by manual signature, this
Class A Certificate shall not entitle the holder hereof to any benefit under
the Agreement or be valid for any purpose. All capitalized terms not
otherwise defined herein have the meanings assigned to them in the Agreement.
IN WITNESS WHEREOF, the Trustee on behalf of the Trust and
not in its individual capacity has caused this Class A Certificate to be duly
executed.
AMERICREDIT AUTOMOBILE
RECEIVABLES TRUST 1995-B
By: LASALLE NATIONAL BANK, as
Trustee
By: ---------------------------------
DATED: December 19, 1995
This is one of the Class A Certificates referred
to in the within-mentioned Agreement.
LaSalle National Bank, as Trustee
By: --------------------------------
Authorized Signatory
A-3
This Certificate evidences a fractional undivided interest in
the Trust, as defined above, the property of which includes a pool of retail
installment sale contracts secured by new and used automobiles and light
trucks and sold to the Trust by the Seller. This Certificate does not
represent an interest in or obligation of the Seller, in its individual
capacity or as the Servicer or any of their respective affiliates thereof,
except to the extent described below.
To the extent not otherwise defined herein, the capitalized
terms used herein have the meanings assigned to them in the Agreement. This
Certificate is one of the duly authorized Certificates designated as "6.10%
Asset Backed Certificates, Class A" (herein called the "Class A
Certificates"). Also issued under the Agreement are Certificates designated
as "6.10% Asset Backed Certificates, Class B" (the "Class B Certificates").
The Class B Certificates and the Class A Certificates are hereinafter
collectively called the "Certificates." The Class A Certificates represent
initially, or in the aggregate, 92% of the principal balance of all
Certificates. This Class A Certificate is issued under and is subject to the
terms, provisions, and conditions of the Agreement, to which Agreement the
holder of this Class A Certificate by virtue of the acceptance hereof assents
and by which such holder is bound. The property of the Trust includes (as
more fully described in the Agreement) a pool of retail installment sale
contracts for new and used automobiles and light duty trucks (the
"Receivables"), certain monies due thereunder on or after November 20, 1995,
security interests in the vehicles financed thereby, certain bank accounts
and the proceeds thereof, property securing the Receivables and held by the
Trustee, proceeds from claims on physical damage, credit life and disability
insurance policies covering vehicles financed thereby and the obligors
thereunder, all Collateral Insurance relating to the Receivables and the
financed vehicles, certain rights against Dealers and in contracts with
Dealers, all right, title and interest of the Seller in and to this Agreement
and any and all proceeds of the foregoing.
Under the Agreement, there will be distributed on the 12th
day of each month or, if such 12th day is not a Business Day, the next
Business Day (the "Distribution Date"), commencing on January 12, 1996, to
the person in whose name this Class A Certificate is registered at the close
of business on the last day of the prior calendar month (the "Accounting
Date"), to the extent available from the Amount Available, such Class A
Certificateholder's fractional undivided interest in the sum of the Class A
Interest Distributable Amount for such Distribution Date, any outstanding
Class A Interest Carryover Shortfall for such Distribution Date, the Class A
Principal Distributable Amount for such Distribution Date and any Class A
Principal Carryover Shortfall for such Distribution Date.
Except as otherwise provided in the Agreement, distributions
on this Class A Certificate will be made by the Trustee by wire transfer (as
provided in the Agreement), check or money order mailed to the Class A
Certificateholder of record in the Certificate Register without the
presentation or surrender of this Class A Certificate or the making of any
notation hereon. Except as otherwise provided in the Agreement and
notwithstanding the above, the final distribution on this Class A Certificate
will be made after due notice by
A-4
the Trustee of the pendency of such distribution and only upon presentation
and surrender of this Class A Certificate at the office or agency maintained
for that purpose by the Trustee in Chicago, Illinois. The Accounting Date
otherwise applicable to such distribution shall not be applicable.
The Certificates do not represent an obligation of, or an
interest in, the Seller, the Servicer, the Trustee or any affiliate of any of
them. The Certificates are limited in right of payment to certain
collections and recoveries respecting the Receivables, all as more
specifically set forth in the Agreement. A copy of the Agreement may be
examined during normal business hours at the principal office of the Seller,
and at such other places, if any, designated by the Seller, by any
Certificateholder upon request.
As provided in the Agreement, so long as no Insurer Default
has occurred and is continuing, with certain exceptions whenever Class A
Certificateholder action, consent or approval is required under the
Agreement, such action, consent or approval shall be deemed to have been
taken or given on behalf of, and shall be binding upon, all Class A
Certificateholders if the Security Insurer agrees to take such action or give
such consent or approval. If an Insurer Default shall have occurred and is
continuing, no Certificateholder shall have any right by virtue or by
availing itself of any provisions of the Agreement to institute any suit,
action, or proceeding in equity or at law upon or under or with respect to
the Agreement, unless such Holder previously shall have given to the Trustee
a written notice of default and of the continuance thereof, as provided in
the Agreement and unless also the Holders of Certificates evidencing not less
than 25% of the sum of the Class A Certificate Balance and the Class B
Certificate Balance, or, if there are no Class A Certificates then
outstanding, by Holders of Class B Certificates evidencing not less than 25%
of the Class B Certificate Balance shall have made written request upon the
Trustee to institute such action, suit or proceeding in its own name as
Trustee under the Agreement.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Seller and the rights of the Certificateholders under the
Agreement at any time by the Seller and the Trustee with the consent of the
Security Insurer and the Holders of Certificates, voting together as a Class,
evidencing not less than a Certificate Majority. Any such consent by the
Holder of this Certificate shall be conclusive and binding on such Holder and
on all future Holders of this Certificate and of any Certificate issued upon
the registration of transfer hereof or in exchange herefor or in lieu hereof
whether or not notation of such consent is made upon this Certificate. The
Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain
limitations set forth therein, the transfer of this Certificate is
registrable in the Certificate Registrar upon surrender of this Certificate
for registration of transfer at the offices or agencies maintained by the
Trustee in its capacity as Certificate Registrar, or by any successor
Certificate Registrar, in the City of Chicago, Illinois, accompanied by a
written instrument of transfer
A-5
in form satisfactory to the Trustee and the Certificate Registrar duly
executed by the holder hereof or such holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of authorized
denominations evidencing the same aggregate interest in the Trust will be
issued to the designated transferee.
The Class A Certificates and the Class B Certificates are
issuable only as registered Certificates without coupons in denominations of
$1,000 and integral multiples of $1,000 in excess thereof; however, one
Certificate of each such Class may be issued in a denomination representing
or including any remaining portion of the original Class A Certificate
Balance or the original Class B Certificate Balance, as the case may be. As
provided in the Agreement and subject to certain limitations therein set
forth, Certificates are exchangeable for new Certificates of authorized
denominations evidencing the same aggregate denomination, as requested by the
holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange, but the Trustee may require payment of
a sum sufficient to cover any tax or governmental charges payable in
connection therewith.
The Trustee, the Certificate Registrar, and any agent of the
Trustee or the Certificate Registrar may treat the person in whose name this
Class A Certificate is registered as the owner hereof for all purposes, and
neither the Trustee, the Certificate Registrar, nor any such agent shall be
affected by any notice to the contrary.
Each Certificateholder by purchase of the Certificates held
by it acknowledges that the Seller, as partial consideration of the issuance
of the Policy, has agreed that the Security Insurer shall have certain rights
hereunder for so long as no Insurer Default shall have occurred and be
continuing. So long as an Insurer Default has occurred and is continuing,
any provision giving the Security Insurer the right to direct, appoint or
consent to, approve of, or take any action under this Agreement shall be
inoperative during the period of such Insurer Default and such right shall
instead vest in the Trustee acting at the direction of the Holders of
Certificates. The Security Insurer may disclaim any of its rights and powers
under this Agreement (but not its duties and obligations under the Policy)
upon delivery of a written notice to the Trustee. The Security Insurer may
give or withhold any consent hereunder in its sole and absolute discretion.
The obligations and responsibilities created by the Agreement
and the Trust created thereby shall terminate upon the payment to
Certificateholders of all amounts required to be paid to them pursuant to the
Agreement and the disposition of all property held as part of the Trust. The
Servicer of the Receivables may at its option purchase the corpus of the
Trust at a price specified in the Agreement, and such purchase of the
Receivables and other property of the Trust will effect early retirement of
the Certificates; however, such right of purchase is exercisable only as of
the last day of any Collection Period as of which the Class A Certificate
Balance is less than 10% of the Cut-Off Date Class A Certificate Balance.
A-6
The recitals contained herein (other than the certificate of
authentication herein) shall be taken as the statements of the Seller or the
Servicer, as the case may be, and the Trustee assumes no responsibility for
the correctness thereof. The Trustee makes no representations as to the
validity or sufficiency of this Certificate (other than the certificate of
authentication herein), or of any Receivable or related document.
A-7
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and
transfers unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
_______________________________
(Please print or typewrite name and address, including postal zip code, of
assignee)
_______________________________
the within Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
________________________ Attorney to transfer said Certificate on the books
of the Certificate Registrar, with full power of substitution in the premises.
Dated:
_____________________________*
Signature Guaranteed:
_____________________________*
* NOTICE: The signature to this assignment must correspond with the name as
it appears upon the face of the within Certificate in every particular,
without alteration, enlargement or any change whatever. Such signature must
be guaranteed by a member firm of the New York Stock Exchange or a commercial
bank or trust company.
A-8
EXHIBIT B
FORM OF CLASS B CERTIFICATE
SEE ATTACHED PAGES FOR CERTAIN DEFINITIONS
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF CERTAIN PAYMENTS
TO THE CLASS A CERTIFICATES AS DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
IN ADDITION, ALL DISTRIBUTIONS HEREON ARE SUBJECT TO THE PRIOR CLAIMS OF
CERTAIN PARTIES TO RECEIVE AMOUNTS ON DEPOSIT IN THE SPREAD ACCOUNT.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY
STATE IN RELIANCE UPON EXEMPTIONS PROVIDED BY THE SECURITIES ACT AND SUCH
STATE SECURITIES LAWS. NO RESALE OR OTHER TRANSFER OF THIS CERTIFICATE MAY
BE MADE UNLESS SUCH RESALE OR TRANSFER (A) IS MADE IN ACCORDANCE WITH SECTION
7.3 OF THE POOLING AND SERVICING AGREEMENT AND (B) IS MADE (i) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, (ii) IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT
AND APPLICABLE STATE SECURITIES LAWS, (iii) TO THE SELLER OR (iv) TO A PERSON
WHO THE TRANSFEROR REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER
WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT THAT IS AWARE THAT
THE RESALE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A AND (C)
UPON THE SATISFACTION OF CERTAIN OTHER REQUIREMENTS SPECIFIED IN THE
AGREEMENT. NEITHER THE SELLER, THE SERVICER, THE TRUST NOR THE TRUSTEE IS
OBLIGATED TO REGISTER THE CERTIFICATES UNDER THE SECURITIES ACT OR ANY
APPLICABLE STATE SECURITIES LAWS.
NO RESALE OR OTHER TRANSFER OF THIS CERTIFICATE MAY BE MADE
UNLESS THE CERTIFICATE REGISTRAR SHALL HAVE RECEIVED A REPRESENTATION LETTER
IN SUBSTANTIALLY THE FORM REQUIRED BY THE AGREEMENT REFERRED TO BELOW FROM
THE TRANSFEREE OF THIS CERTIFICATE OR SUCH OTHER REPRESENTATIONS (OR AN
OPINION OF COUNSEL) AS MAY BE APPROVED BY THE SELLER OR CS FIRST BOSTON
CORPORATION, TO THE EFFECT THAT SUCH A TRANSFER MAY BE MADE PURSUANT TO AN
EXEMPTION FROM THE SECURITIES ACT, INCLUDING RULE 144A THEREUNDER, AND
APPLICABLE STATE SECURITIES LAWS AND (A) SUCH TRANSFEREE WILL NOT ACQUIRE
THIS CERTIFICATE WITH THE
B-1
ASSETS OF ANY "EMPLOYEE BENEFIT PLAN" AS DEFINED IN SECTION 3(3) OF THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA") OR
SECTION 4975(e)(1) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE"), (B) IN THE CASE OF A TRANSFER TO AN INSURANCE COMPANY GENERAL
ACCOUNT, EITHER (A) ABOVE OR, PURSUANT TO SECTION I OF PROHIBITED TRANSACTION
CLASS EXEMPTION 95-60 ("PTCE 9560"), THE ACQUISITION AND HOLDING OF THE
CERTIFICATE AND, PURSUANT TO SECTION III OF PTCE 95-60, THE SERVICING,
MANAGEMENT AND OPERATION OF THE TRUST ARE, WITH RESPECT TO SUCH TRANSFEREE,
EXEMPT FROM THE "PROHIBITED TRANSACTION" PROVISIONS OF ERISA AND THE CODE.
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AMERICREDIT AUTOMOBILE RECEIVABLES TRUST 1995-B
ASSET BACKED CERTIFICATE, CLASS B
NUMBER
RB $____________
THIS CERTIFIES THAT ____________ is the registered owner of a
$_______ dollars nonassessable, fully-paid, fractional undivided interest in
the AmeriCredit Automobile Receivables Trust 1995-B (the "Trust") formed by
AmeriCredit Financial Services, Inc., a Delaware corporation (the "Seller").
The Trust was created pursuant to a Pooling and Servicing Agreement dated as
of November 20, 1995 (the "Agreement"), among AmeriCredit Financial Services,
Inc. ("AmeriCredit"), as seller and servicer (the "Seller" or the "Servicer"),
and LaSalle National Bank, as Trustee (the "Trustee"), a summary of certain
of the pertinent provisions of which is set forth below.
Reference is made to the further provisions of this Class B
Certificate set forth in the attached pages 3 through 7, which further
provisions shall for all purposes have the same effect as if set forth at
this place. Unless the certificate of authentication hereon shall have been
executed by an authorized signatory of the Trustee, by manual signature, this
Class B Certificate shall not entitle the holder hereof to any benefit under
the Agreement or be valid for any purpose. All capitalized terms not
otherwise defined herein have the meanings assigned to them in the Agreement.
IN WITNESS WHEREOF, the Trustee on behalf of the Trust and
not in its individual capacity has caused this Class B Certificate to be duly
executed.
AMERICREDIT AUTOMOBILE
RECEIVABLES TRUST 1995-B
By: LaSalle National Bank, as Trustee
By: ----------------------------------
DATED: December , 1995
This is one of the Class B Certificates referred
to in the within-mentioned Agreement.
LaSalle National Bank, as Trustee
By: ----------------------------------
Authorized Signatory
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This Certificate evidences a fractional undivided interest in
the Trust, as defined below, the property of which includes a pool of retail
installment sale contracts secured by new and used automobiles and light duty
trucks and sold to the Trust by the Seller. This Certificate does not
represent an interest in or obligation of the Seller, in its individual
capacity or as the Servicer or any of their respective affiliates thereof,
except to the extent described below.
To the extent not otherwise defined herein, the capitalized
terms used herein have the meanings assigned to them in the Agreement. This
Certificate is one of the duly authorized Certificates designated as "Asset
Backed Certificates, Class B" (herein called the "Class B Certificates").
Also issued under the Agreement are Certificates designated as "6.10% Asset
Backed Certificates, Class A" (the "Class A Certificates"). The Class B
Certificates and the Class A Certificates are hereinafter collectively called
the "Certificates." This Class B Certificate is issued under and is subject
to the terms, provisions, and conditions of the Agreement, to which Agreement
the holder of this Class B Certificate by virtue of the acceptance hereof
assents and by which such holder is bound. The property of the Trust includes
(as more fully described in the Agreement) a pool of retail installment sale
contracts for new and used automobiles and light duty trucks (the
"Receivables"), certain monies due thereunder on or after November 20, 1995,
security interests in the vehicles financed thereby, certain bank accounts
and the proceeds thereof, property securing the Receivables and held by the
Trustee, proceeds from claims on physical damage, credit life and disability
insurance policies covering vehicles financed thereby and the obligors
thereunder, all Collateral Insurance relating to the Receivables and the
financed vehicles, certain rights against Dealers and in contracts with
Dealers, all right, title and interest of the Seller in and to this Agreement
and any and all proceeds of the foregoing. The rights of the holders of the
Class B Certificates to receive certain payments are subordinated to the
rights of the holders of the Class A Certificates, as set forth in the
Agreement. In addition, all distributions hereon are subject to the prior
claims of certain parties to receive amounts on deposit in the Spread Account.
Under the Agreement, on the 12th day of each month or, if
such 12th day is not a Business Day, the next Business Day (the "Distribution
Date"), commencing on January 12, 1996, the Class B Distributable Amount (as
defined in the Agreement) will be applied as follows:
_ (A) to the Security Insurer, to the extent of any
amounts owing to the Security Insurer under the Insurance Agreement
and not paid, whether or not AmeriCredit is also obligated to pay
such amounts; and
_ (B) to the Collateral Agent for deposit in the
Spread Account the remaining Available Funds; and
Amounts will only be distributed to the Holder of the
Class B Certificate as such amounts are released from the Spread
Account. However, for all purposes of the
B-4
Agreement and for federal income tax purposes the full amount of the Class B
Distributable Amount will be deemed distributed to the Class B
Certificateholders on each Distribution Date, notwithstanding that all of
such amount shall be turned over to the Security Insurer or deposited to the
Spread Account on such Distribution Date.
Amounts released from the Spread Account on such Distribution
Date shall be paid to the person in whose name this Class B Certificate is
registered at the close of business on the last day of the prior calendar
month (the "Accounting Date").
Except as otherwise provided in the Agreement, distributions
on this Class B Certificate will be made by the Trustee by wire transfer (as
provided in the Agreement), check or money order mailed to the Class B
Certificateholder of record in the Certificate Register without the
presentation or surrender of this Class B Certificate or the making of any
notation hereon. Except as otherwise provided in the Agreement and
notwithstanding the above, the final distribution on this Class B Certificate
will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Class B
Certificate at the office or agency maintained for that purpose by the
Trustee in Chicago, Illinois.
The Certificates do not represent an obligation of, or an
interest in, the Seller, the Servicer, the Trustee or any affiliate of any of
them. The Certificates are limited in right of payment to certain
collections and recoveries respecting the Receivables, all as more
specifically set forth in the Agreement. A copy of the Agreement may be
examined during normal business hours at the principal office of the Seller,
and at such other places, if any, designated by the Seller, by any
Certificateholder upon request.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Seller and the rights of the Certificateholders under the
Agreement at any time by the Seller and the Trustee with the consent of the
Security Insurer and the Holders of Certificates, voting together as a Class,
evidencing not less than a Certificate Majority. Any such consent by the
Holder of this Certificate shall be conclusive and binding on such Holder and
on all future Holders of this Certificate and of any Certificate issued upon
the registration of transfer hereof or in exchange herefor or in lieu hereof
whether or not notation of such consent is made upon this Certificate. The
Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the Holders of any of the Certificates.
Notwithstanding the foregoing, however, no consent of any Class A
Certificateholder or Class B Certificateholder shall be required in
connection with any amendment in order for the Seller to sell, assign,
transfer or otherwise dispose of the excess interest.
As provided in the Agreement and subject to certain
limitations set forth therein, the transfer of this Certificate is
registrable in the Certificate Registrar upon surrender of this Certificate
for registration of transfer at the offices or agencies maintained by the
Trustee in its capacity as Certificate Registrar, or by any successor
Certificate
B-5
Registrar, in Chicago, Illinois, accompanied by a written instrument of
transfer in form satisfactory to the Trustee and the Certificate Registrar
duly executed by the holder hereof or such holder's attorney duly authorized
in writing, and thereupon one or more new Certificates of authorized
denominations evidencing the same aggregate interest in the Trust will be
issued to the designated transferee.
The Class A Certificates and Class B Certificates are
issuable only as registered Certificates without coupons in denominations of
$1,000,000 and integral multiples of $1,000 in excess thereof; however, one
Certificate of each such Class may be issued in a denomination representing
or including any remaining portion of the original Class A Certificate
Balance or the original Class B Certificate Balance, as the case may be. As
provided in the Agreement and subject to certain limitations therein set
forth, Certificates are exchangeable for new Certificates of authorized
denominations evidencing the same aggregate denomination, as requested by the
holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange, but the Trustee may require payment of
a sum sufficient to cover any tax or governmental charges payable in
connection therewith.
Each Certificateholder by purchase of the Certificates held
by it acknowledges that the Trustee, as partial consideration of the issuance
of the Policy, has agreed that the Security Insurer shall have certain rights
hereunder for so long as no Insurer Default shall have occurred and be
continuing. So long as an Insurer Default has occurred and is continuing,
any provision giving the Security Insurer the right to direct, appoint or
consent to, approve of, or take any action under this Agreement shall be
inoperative during the period of such Insurer Default and such right shall
instead vest in the Trustee acting at the direction of the Holders of
Certificates. The Security Insurer may disclaim any of its rights and powers
under this Agreement (but not its duties and obligations under the Policy)
upon delivery of a written notice to the Trustee. The Security Insurer may
give or withhold any consent hereunder in its sole and absolute discretion.
The Trustee, the Certificate Registrar, and any agent of the
Trustee or the Certificate Registrar may treat the person in whose name this
Class B Certificate is registered as the owner hereof for all purposes, and
neither the Trustee, the Certificate Registrar, nor any such agent shall be
affected by any notice to the contrary.
The obligations and responsibilities created by the Agreement
and the Trust created thereby shall terminate upon the payment to
Certificateholders of all amounts required to be paid to them pursuant to the
Agreement and the disposition of all property held as part of the Trust. The
Servicer of the Receivables may at its option purchase the corpus of the
Trust at a price specified in the Agreement, and such purchase of the
Receivables and other property of the Trust will effect early retirement of
the Certificates; however, such right of purchase is exercisable only as of
the last day of any Collection Period as of which the Class A Certificate
Balance is less than 10% of the Cut-Off Date Class A Certificate Balance.
B-6
The recitals contained herein (other than the certificate of
authentication herein) shall be taken as the statements of the Seller or the
Servicer, as the case may be, and the Trustee assumes no responsibility for
the correctness thereof. The Trustee makes no representations as to the
validity or sufficiency of this Certificate (other than the certificate of
authentication herein), or of any Receivable or related document.
B-7
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and
transfers unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
_______________________________
(Please print or typewrite name and address, including postal zip code, of
assignee)
_______________________________
the within Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
________________________ Attorney to transfer said Certificate on the books
of the Certificate Registrar, with full power of substitution in the premises.
Dated:
---------------------------*
Signature Guaranteed:
---------------------------*
* NOTICE: The signature to this assignment must correspond with the name as
it appears upon the face of the within Certificate in every particular,
without alteration, enlargement or any change whatever. Such signature must
be guaranteed by a member firm of the New York Stock Exchange or a commercial
bank or trust company.
B-8
EXHIBIT C
FORM OF SERVICER'S CERTIFICATE
C-1
