EXHIBIT 4.3
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SALE AND SERVICING
AGREEMENT
among
AMERICREDIT AUTOMOBILE RECEIVABLES TRUST 1998-D,
Issuer,
AFS FUNDING CORP.,
Seller,
AMERICREDIT FINANCIAL SERVICES, INC.,
Servicer
and
BANK ONE, N.A.,
Backup Servicer and Trust Collateral Agent
Dated as of November 1, 1998
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TABLE OF CONTENTS
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ARTICLE I DEFINITIONS 1
SECTION 1.1. Definitions........................................................................................ 1
SECTION 1.2. Other Definitional Provisions...................................................................... 22
ARTICLE II CONVEYANCE OF RECEIVABLES 22
SECTION 2.1. Conveyance of Initial Receivables.................................................................. 22
SECTION 2.2. Conveyance of Subsequent Receivables............................................................... 23
SECTION 2.3. Further Encumbrance of Trust Property.............................................................. 26
ARTICLE III THE RECEIVABLES 27
SECTION 3.1. Representations and Warranties of Seller........................................................... 27
SECTION 3.2. Repurchase upon Breach............................................................................. 27
SECTION 3.3. Custody of Receivables Files....................................................................... 28
ARTICLE IV ADMINISTRATION AND SERVICING OF RECEIVABLES 29
SECTION 4.1. Duties of the Servicer............................................................................. 29
SECTION 4.2. Collection of Receivable Payments; Modifications of Receivables; Lockbox Agreements................ 30
SECTION 4.3. Realization upon Receivables....................................................................... 32
SECTION 4.4. Insurance.......................................................................................... 33
SECTION 4.5. Maintenance of Security Interests in Vehicles...................................................... 35
SECTION 4.6. Covenants, Representations, and Warranties of Servicer............................................. 36
SECTION 4.7. Purchase of Receivables Upon Breach of Covenant.................................................... 36
SECTION 4.8. Total Servicing Fee; Payment of Certain Expenses by Servicer....................................... 37
SECTION 4.9. Preliminary Servicer's Certificate and Servicer's Certificate...................................... 37
SECTION 4.10. Annual Statement as to Compliance, Notice of Servicer Termination Event............................ 38
SECTION 4.11. Annual Independent Accountants' Report............................................................. 39
SECTION 4.12. Access to Certain Documentation and Information Regarding Receivables.............................. 40
SECTION 4.13. Monthly Tape....................................................................................... 40
SECTION 4.14. Retention and Termination of Servicer.............................................................. 40
SECTION 4.15. Fidelity Bond and Errors and Omissions Policy...................................................... 41
ARTICLE V TRUST ACCOUNTS; DISTRIBUTIONS; STATEMENTS TO NOTEHOLDERS 41
SECTION 5.1. Establishment of Trust Accounts.................................................................... 41
SECTION 5.2. Capitalized Interest Account....................................................................... 44
SECTION 5.3. Certain Reimbursements to the Servicer............................................................. 44
SECTION 5.4. Application of Collections......................................................................... 44
SECTION 5.5. Withdrawals from Spread Account.................................................................... 45
SECTION 5.6. Additional Deposits................................................................................ 45
SECTION 5.7. Distributions...................................................................................... 46
SECTION 5.8. Note Distribution Account.......................................................................... 47
SECTION 5.9. Pre-Funding Account................................................................................ 49
SECTION 5.10. Statements to Noteholders.......................................................................... 49
SECTION 5.11. Optional Deposits by the Insurer................................................................... 50
SECTION 5.12. Determination of LIBOR............................................................................. 50
ARTICLE VI THE NOTE POLICY 51
SECTION 6.1. Claims Under Note Policy........................................................................... 51
SECTION 6.2. Preference Claims.................................................................................. 52
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SECTION 6.3. Surrender of Policy................................................................................ 53
ARTICLE VII THE SELLER 53
SECTION 7.1. Representations of Seller.......................................................................... 53
SECTION 7.2. Corporate Existence................................................................................ 55
SECTION 7.3. Liability of Seller; Indemnities................................................................... 56
SECTION 7.4. Merger or Consolidation of, or Assumption of the Obligations of, Seller............................ 56
SECTION 7.5. Limitation on Liability of Seller and Others....................................................... 57
SECTION 7.6. Seller May Own Certificates or Notes............................................................... 57
ARTICLE VIII THE SERVICER 58
SECTION 8.1. Representations of Servicer........................................................................ 58
SECTION 8.2. Liability of Servicer; Indemnities................................................................. 59
SECTION 8.3. Merger or Consolidation of, or Assumption of the Obligations of the Servicer or Backup Servicer.... 61
SECTION 8.4. Limitation on Liability of Servicer, Backup Servicer and Others.................................... 62
SECTION 8.5. Delegation of Duties............................................................................... 63
SECTION 8.6. Servicer and Backup Servicer Not to Resign......................................................... 63
ARTICLE IX DEFAULT 64
SECTION 9.1. Servicer Termination Event......................................................................... 64
SECTION 9.2. Consequences of a Servicer Termination Event....................................................... 65
SECTION 9.3. Appointment of Successor........................................................................... 66
SECTION 9.4. Notification to Noteholders........................................................................ 67
SECTION 9.5. Waiver of Past Defaults............................................................................ 67
ARTICLE X TERMINATION 67
SECTION 10.1. Optional Purchase of All Receivables............................................................... 67
ARTICLE XI ADMINISTRATIVE DUTIES OF THE SERVICER 68
SECTION 11.1. Administrative Duties.............................................................................. 68
SECTION 11.2. Records............................................................................................ 70
SECTION 11.3. Additional Information to be Furnished to the Issuer............................................... 70
ARTICLE XII MISCELLANEOUS PROVISIONS 70
SECTION 12.1. Amendment.......................................................................................... 70
SECTION 12.2. Protection of Title to Trust....................................................................... 72
SECTION 12.3. Notices............................................................................................ 73
SECTION 12.4. Assignment......................................................................................... 74
SECTION 12.5. Limitations on Rights of Others.................................................................... 74
SECTION 12.6. Severability....................................................................................... 75
SECTION 12.7. Separate Counterparts.............................................................................. 75
SECTION 12.8. Headings........................................................................................... 75
SECTION 12.9. Governing Law...................................................................................... 75
SECTION 12.10. Assignment to Trustee.............................................................................. 75
SECTION 12.11. Nonpetition Covenants.............................................................................. 75
SECTION 12.12. Limitation of Liability of Owner Trustee and Trustee............................................... 76
SECTION 12.13. Independence of the Servicer....................................................................... 76
SECTION 12.14. No Joint Venture................................................................................... 76
SECTION 12.15. Replacement Cap Agreement. Upon a request by the Insurer pursuant to Section 4.05 of the
Insurance Agreement, the Trust Collateral Agent shall enter into a Replacement Cap Agreement (as
such term is defined in Section 4.05 of the Insurance Agreement) with a replacement cap or
providers in form and substance satisfactory to the Insurer........................................ 76
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EXHIBITS
Exhibit A - Form of Subsequent Transfer Agreement
Exhibit B - Form of Servicer's Certificate
Exhibit C - Form of Preliminary Servicer's Certificate
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SALE AND SERVICING SALE AND SERVICING AGREEMENT dated as of November
1, 1998, among AMERICREDIT AUTOMOBILE RECEIVABLES TRUST 1998-D, a Delaware
business trust (the "Issuer"), AFS FUNDING CORP., a Nevada corporation (the
"Seller"), and AMERICREDIT FINANCIAL SERVICES, INC., a Delaware corporation (the
"Servicer"), and BANK ONE, N.A., a national banking association, in its capacity
as Backup Servicer and Trust Collateral Agent.
WHEREAS the Issuer desires to purchase a portfolio of receivables
arising in connection with motor vehicle retail installment sale contracts
acquired by AmeriCredit Financial Services, Inc. through motor vehicle dealers;
WHEREAS the Seller has purchased such receivables from AmeriCredit
Financial Services, Inc. and CP Funding Corp. and is willing to sell such
receivables to the Issuer;
WHEREAS the Issuer desires to purchase additional receivables arising
in connection with motor vehicle retail installment sale contracts to be
acquired by AmeriCredit Financial Services, Inc. through motor vehicle dealers;
WHEREAS the Seller has an agreement to purchase such additional
receivables from AmeriCredit Financial Services, Inc. and CP Funding Corp. and
is willing to sell such receivables to the Issuer;
WHEREAS the Servicer is willing to service all such receivables;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereto agree as follows:
ARTICLE I
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Definitions
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SECTION 1.1. Definitions. Whenever used in this Agreement, the
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following words and phrases shall have the following meanings:
"Accelerated Payment Amount Shortfall" means, with respect to any
Distribution Date, the excess, if any, of (i) the greater of (a) the excess, if
any, on such Distribution Date of the Pro Forma Note Balance for such
Distribution Date over the Required Pro Forma Note Balance for such Distribution
Date and (b) the amount necessary (after taking into account the distributions
to be made on such Distribution Date pursuant to Section 5.7(b)(i) through (vi))
to reduce the principal balance of the Class A-1 Notes to zero, over (ii) the
excess of amount of Available Funds (but net of any net Investment Earnings on
deposit in the Collection Account) on such Distribution Date over the amounts
payable on such Distribution Date pursuant to Section 5.7(b)(i) through (vi).
"Accelerated Payment Shortfall Notice" means, with respect to any
Distribution Date, a written notice specifying the Accelerated Payment Amount
Shortfall for such Distribution Date.
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"Accelerated Principal Amount" for a Distribution Date will equal the
lesser of
(x) the sum of (i) excess, if any, of the amount of Available
Funds on such Distribution Date over the amounts payable on such
Distribution Date pursuant to clauses (i) through (vi) of Section 5.7(b)
hereof plus (ii) amounts, if any, available in accordance with the terms of
the Spread Account Agreement; and
(y) the greater of (a) the excess, if any, on such Distribution
Date of (i) the Pro Forma Note Balance for such Distribution Date over (ii)
the Required Pro Forma Note Balance for such Distribution Date and (b) the
amount necessary (after taking into account all other distributions to be
made on such date) to reduce the principal balance of the Class A-1 Notes
to zero.
"Accountants' Report" means the report of a firm of nationally recognized
independent accountants described in Section 4.11.
"Accounting Date" means, with respect to any Collection Period the last day
of such Collection Period.
"Addition Notice" means, with respect to any transfer of Subsequent
Receivables to the Trust pursuant to Section 2.2 of this Agreement, notice of
the Seller's election to transfer Subsequent Receivables to the Trust, such
notice to designate the related, Subsequent Cutoff Date, Subsequent Transfer
Date and the approximate principal amount of Subsequent Receivables to be
transferred on such Subsequent Transfer Date.
"Additional Funds Available" means, with respect to any Insured
Distribution Date, the sum of (i) the Deficiency Claim Amount, if any, received
by the Trust Collateral Agent with respect to such Insured Distribution Date
plus (ii) the Insurer Optional Deposit, if any, received by the Trust Collateral
Agent with respect to such Insured Distribution Date.
"Administrative Receivable" means, 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
Determination Date with respect to such Collection Period.
"Affiliate" means, with respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified Person.
For the purposes of this definition, "control" when used with respect to any
Person means the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Aggregate Principal Balance" means, with respect to any date of
determination, the sum of the Principal Balances for all Receivables (other than
(i) any Receivable that became a Liquidated Receivable prior to the end of the
related Collection Period and (ii) any Receivable that became a Purchased
Receivable prior to the end of the related Collection Period) as of the date of
determination.
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"Agreement" means this Sale and Servicing Agreement, as the same may be
amended and supplemented from time to time.
"AmeriCredit" means AmeriCredit Financial Services, Inc.
"Amount Financed" means, with respect to a Receivable, the aggregate amount
advanced under such Receivable toward the purchase price of the Financed Vehicle
and any 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" of a Receivable means the annual
percentage rate of finance charges or service charges, as stated in the related
Contract.
"Available Funds" means, with respect to any Distribution Date, the sum of
(i) the Collected Funds for the related Collection Period, (ii) all Purchase
Amounts deposited in the Collection Account during the related Collection
Period, plus Investment Earnings with respect to the Trust Accounts for the
related Collection Period, (iii) the Monthly Capitalized Interest Amount with
respect to such Distribution Date, (iv) following the acceleration of the Notes
pursuant to Section 5.2 of the Indenture, the amount of money or property
collected pursuant to Section 5.7 of the Indenture since the preceding
Distribution Date by the Trust Collateral Agent or Controlling Party for
distribution pursuant to Section 5.6 and Section 5.8 hereof, (v) if the
Distribution Date which immediately follows such Collection Period immediately
precedes the Mandatory Redemption Date, any Pre-Funded Amount to be deposited
into the Collection Account on such Distribution Date pursuant to Section 5.7(a)
hereof, (vi) the proceeds of any purchase or sale of the assets of the Trust
described in Section 10.1 hereof, and (vii) any amounts received by the Trust
Collateral Agent pursuant to the Cap Agreement with respect to the Class A-2
Notes and the Class A-3 Notes.
"Backup Servicer" means Bank One, N.A.
"Base Servicing Fee" means, 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 Servicing Fee Rate multiplied by the
Pool Balance as of the opening of business on the first day of such Collection
Period.
"Basic Documents" means this Agreement, the Certificate of Trust, the Trust
Agreement, the Indenture, the Spread Account Agreement, the Spread Account
Agreement Supplement and other documents and certificates delivered in
connection therewith.
"Business Day" means a day other than a Saturday, a Sunday or other day on
which commercial banks located in the states of Delaware, Texas, New York or
Ohio are authorized or obligated to be closed.
"Calculation Date" means the close of business on the last day of each
Collection Period.
"Calendar Quarter" means the three-month period ending on the last day of
March, June, September or December.
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"Capitalized Interest Account" means the account designated as such,
established and maintained pursuant to Section 5.2.
"Cap Agreement" means, originally, that certain ISDA Master Interest Rate
Swap Agreement dated November 4, 1998 between the Trust Collateral Agent and the
Cap Provider, including the related Confirmation and Annex, and together with
any replacement therefore approved by the Insurer.
"Cap Payment" means any payment received by the Trust Collateral Agent
under the Cap Agreement.
"Cap Payment Date" means the fourth day of each month (or, if such fourth
day is not a Business Day, on the next following Business Day).
"Cap Provider" means, originally, Chase Bank of Texas, N.A., together with
any replacement thereafter approved by the Insurer.
"Capitalized Interest Account Initial Deposit" means $1,022,277.35
deposited on the Closing Date.
"Certificate" means the trust certificate evidencing the beneficial
interest of the Certificateholder in the Trust.
"Certificateholder" means the Person in whose name the Certificate is
registered.
"Class" means the Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes
or the Class A-4 Notes, as the context requires.
"Class A-1 Notes" has the meaning assigned to such term in the Indenture.
"Class A-2 Notes" has the meaning assigned to such term in the Indenture.
"Class A-3 Notes" has the meaning assigned to such term in the Indenture.
"Class A-4 Notes" has the meaning assigned to such term in the Indenture.
"Closing Date" means November 5, 1998.
"Collateral Agent" means Bank One, N.A., in its capacity as Collateral
Agent under the Spread Account Agreement.
"Collateral Insurance" shall have the meaning set forth in Section 4.4(a).
"Collected Funds" means, with respect to any Collection Period, the amount
of funds in the Collection Account representing collections on the Receivables
during such Collection Period, including all Net Liquidation Proceeds collected
during such Collection Period (but excluding any Purchase Amounts).
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"Collection Account" means the account designated as such, established and
maintained pursuant to Section 5.1.
"Collection Period" means, with respect to the first Distribution Date, the
period beginning on the close of business on November 1, 1998 and ending on the
close of business on November 30, 1998. 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" means all manually prepared or computer generated
records relating to collection efforts or payment histories with respect to the
Receivables.
"Computer Tape" means the computer tapes or other electronic media
furnished by AFS Funding Corp. to the Issuer and its assigns describing certain
characteristics of the Initial Receivables as of the Cutoff Date and of
Subsequent Receivables as of the related Subsequent Cutoff Date.
"Contract" means a motor vehicle retail installment sale contract.
"Controlling Party" means the Insurer, so long as no Insurer Default shall
have occurred and be continuing and the Trust Collateral Agent for the benefit
of the Noteholders, in the event the Insurer Default shall have occurred and be
continuing.
"Corporate Trust Office" means (i) with respect to the Owner Trustee, the
principal corporate trust office of the Owner Trustee, which at the time of
execution of this agreement is E.A. Delle Donne Corporate Center, Xxxxxxxxxx
Building, 0000 Xxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx 00000, Attention:
Corp. Trust Dept., and (ii) with respect to the Trustee, the Trust Collateral
Agent and the Collateral Agent, the principal office thereof at which at any
particular time its corporate trust business shall be administered, which at the
time of execution of this agreement is 000 Xxxx Xxxxx Xxxxxx, Xxxxxxxx, Xxxx
00000, Attention: Indenture Trust Administration.
"CP Funding" means CP Funding Corp., a Nevada corporation.
"Cram Down Loss" means, with respect to a Receivable, if a court of
appropriate jurisdiction in a proceeding related to an Insolvency Event shall
have issued an order reducing the amount owed on a Receivable or otherwise
modifying or restructuring the Scheduled Receivables Payments to be made on a
Receivable, an amount equal to (i) the excess of the principal balance of such
Receivable immediately prior to such order over the principal balance of such
Receivable as so reduced and/or (ii) if such court shall have issued an order
reducing the effective rate of interest on such Receivable, the excess of the
principal balance of such Receivable immediately prior to such order over 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 Scheduled Receivables Payments as so modified or restructured. A
"Cram Down Loss" shall be deemed to have occurred on the date of issuance of
such order.
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"Custodian" means AmeriCredit and any other Person named from time to time
as custodian in any Custodian Agreement acting as agent for the Trust Collateral
Agent, which Person must be acceptable to the Controlling Party (the Custodian
as of the Closing Date is acceptable to the Insurer as of the Closing Date).
"Custodian Agreement" means any Custodian Agreement from time to time in
effect between the Custodian named therein and the Trust Collateral Agent, 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).
"Dealer" means a dealer who sold a Financed Vehicle and who originated and
assigned the respective Receivable to AmeriCredit under a Dealer Agreement or
pursuant to a Dealer Assignment.
"Dealer Agreement" means any agreement between a Dealer and AmeriCredit
relating to the acquisition of Receivables from a Dealer by AmeriCredit.
"Dealer Assignment" means, 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" means with respect to any Determination Date,
after taking into account the application on the related Distribution Date of
the Available Funds for the related Collection Period, an amount equal to the
sum of, without duplication, (i) any shortfall in the payment of the full
amounts described in clauses (i),(ii), (iii) and (v) of Section 5.7(b) herein,
(ii) the Noteholders' Parity Deficit Amount, if any, for such Distribution Date
and (iii) if the related Distribution Date is the Final Scheduled Distribution
Date of any class, any remaining outstanding principal balance of such class, to
the extent that such amount is available on the related Insured Distribution
Date in accordance with the terms of the Spread Account Agreement.
"Deficiency Claim Date" means, with respect to any Insured Distribution
Date, the fourth Business Day immediately preceding such Insured Distribution
Date.
"Deficiency Notice" shall have the meaning set forth in Section 5.5.
"Delivery" when used with respect to Trust Account Property means:
(a) with respect to bankers' acceptances, commercial paper, negotiable
certificates of deposit and other obligations that constitute "instruments"
within the meaning of Section 9-105(1)(i) of the UCC and are susceptible of
physical delivery, transfer thereof to the Trust Collateral Agent or its nominee
or custodian by physical delivery to the Trust Collateral Agent or its nominee
or custodian endorsed to, or registered in the name of, the Trust Collateral
Agent or its nominee or custodian or endorsed in blank, and, with respect to a
certificated security (as
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defined in Section 8-102 of the UCC) transfer thereof (i) by delivery of such
certificated security endorsed to, or registered in the name of, the Trust
Collateral Agent or its nominee or custodian or endorsed in blank to a financial
intermediary (as defined in Section 8-313 of the UCC) and the making by such
financial intermediary of entries on its books and records identifying such
certificated securities as belonging to the Trust Collateral Agent or its
nominee or custodian and the sending by such financial intermediary of a
confirmation of the purchase of such certificated security by the Trust
Collateral Agent or its nominee or custodian, or (ii) by delivery thereof to a
"clearing corporation" (as defined in Section 8-102(3) of the UCC) and the
making by such clearing corporation of appropriate entries on its books reducing
the appropriate securities account of the transferor and increasing the
appropriate securities account of a financial intermediary by the amount of such
certificated security, the identification by the clearing corporation of the
certificated securities for the sole and exclusive account of the financial
intermediary, the maintenance of such certificated securities by such clearing
corporation or a "custodian bank" (as defined in Section 8-102(4) of the UCC) or
the nominee of either subject to the clearing corporation's exclusive control,
the sending of a confirmation by the financial intermediary of the purchase by
the Trust Collateral Agent or its nominee or custodian of such securities and
the making by such financial intermediary of entries on its books and records
identifying such certificated securities as belonging to the Trust Collateral
Agent or its nominee or custodian (all of the foregoing, "Physical Property"),
and, in any event, any such Physical Property in registered form shall be in the
name of the Trust Collateral Agent or its nominee or custodian; and such
additional or alternative procedures as may hereafter become appropriate to
effect the complete transfer of ownership of any such Trust Account Property to
the Trust Collateral Agent or its nominee or custodian, consistent with changes
in applicable law or regulations or the interpretation thereof;
(b) with respect to any security issued by the U.S. Treasury, the Federal
Home Loan Mortgage Corporation or by the Federal National Mortgage Association
that is a book-entry security held through the Federal Reserve System pursuant
to Federal book-entry regulations, the following procedures, all in accordance
with applicable law, including applicable Federal regulations and Articles 8 and
9 of the UCC: book-entry registration of such Trust Account Property to an
appropriate book-entry account maintained with a Federal Reserve Bank by a
financial intermediary which is also a "depository" pursuant to applicable
Federal regulations and issuance by such financial intermediary of a deposit
advice or other written confirmation of such book-entry registration to the
Trust Collateral Agent or its nominee or custodian of the purchase by the Trust
Collateral Agent or its nominee or custodian of such book-entry securities; the
making by such financial intermediary of entries in its books and records
identifying such book-entry security held through the Federal Reserve System
pursuant to Federal book-entry regulations as belonging to the Trust Collateral
Agent or its nominee or custodian and indicating that such custodian holds such
Trust Account Property solely as agent for the Trust Collateral Agent or its
nominee or custodian; and such additional or alternative procedures as may
hereafter become appropriate to effect complete transfer of ownership of any
such Trust Account Property to the Trust Collateral Agent or its nominee or
custodian, consistent with changes in applicable law or regulations or the
interpretation thereof; and
(c) with respect to any item of Trust Account Property that is an
uncertificated security under Article 8 of the UCC and that is not governed by
clause (b) above, registration on the books and records of the issuer thereof in
the name of the financial intermediary, the sending
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of a confirmation by the financial intermediary of the purchase by the Trust
Collateral Agent or its nominee or custodian of such uncertificated security,
the making by such financial intermediary of entries on its books and records
identifying such uncertificated certificates as belonging to the Trust
Collateral Agent or its nominee or custodian.
"Depositor" shall mean the Seller in its capacity as Depositor under the
Trust Agreement.
"Determination Date" means, with respect to any Collection Period, the
earlier of (i) the fourth Business Day preceding the Insured 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 Date" means, with respect to each Collection Period,
(x) for so long as AmeriCredit is the Servicer, the fifth day of
the following calendar month, or, if such day is not a Business Day, the
immediately following Business Day; provided, that such day for payment
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shall in no event be earlier than the third Business Day of the following
month, commencing December 7, 1998; or
(y) if the Backup Servicer or other successor Servicer becomes
the Servicer, the twelfth day of the following calendar month, or, if such
day is not a Business Day, the immediately following Business Day.
"Draw Date" means, with respect to any Insured Distribution Date, the third
Business Day immediately preceding such Insured Distribution Date.
"Electronic Ledger" means the electronic master record of the retail
installment sales contracts or installment loans of the Servicer.
"Eligible Deposit Account" means either (a) a segregated account with a
depository institution acceptable to the Insurer and rated "A-1" by Standard &
Poor's, for so long as the Class A-1 Notes are outstanding, or (b) a segregated
trust account with the corporate trust department of a depository institution
acceptable to the Insurer organized under the laws of the United States of
America or any one of the states thereof or the District of Columbia (or any
domestic branch of a foreign bank), having corporate trust powers and acting as
trustee for funds deposited in such account, so long as any of the securities of
such depository institution have a credit rating from each Rating Agency in one
of its generic rating categories which signifies investment grade.
"Eligible Investments" mean book-entry securities, negotiable instruments
or securities represented by instruments in bearer or registered form which
evidence:
(a) direct obligations of, and obligations fully guaranteed as to timely
payment by, the United States of America;
(b) demand deposits, time deposits or certificates of deposit of any
depository institution or trust company incorporated under the laws of the
United States of America or any state thereof or the District of Columbia (or
any domestic branch of a foreign bank) and subject
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to supervision and examination by Federal or state banking or depository
institution authorities (including depository receipts issued by any such
institution or trust company as custodian with respect to any obligation
referred to in clause (a) above or portion of such obligation for the benefit of
the holders of such depository receipts); provided, however, that at the time of
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the investment or contractual commitment to invest therein (which shall be
deemed to be made again each time funds are reinvested following each
Distribution Date), the commercial paper or other short-term senior unsecured
debt obligations (other than such obligations the rating of which is based on
the credit of a Person other than such depository institution or trust company)
of such depository institution or trust company shall have a credit rating from
Standard & Poor's of A-1+ and from Moody's of P-1;
(c) commercial paper and demand notes investing solely in commercial paper
having, at the time of the investment or contractual commitment to invest
therein, a rating from Standard & Poor's of A-1+ and from Moody's of P-1;
(d) investments in money market funds (including funds for which the Trust
Collateral Agent or the Owner Trustee in each of their individual capacities or
any of their respective Affiliates is investment manager, controlling party or
advisor) having a rating from Standard & Poor's of AAA-m or AAAm-G and from
Moody's of Aaa and having been approved by the Insurer;
(e) bankers' acceptances issued by any depository institution or trust
company referred to in clause (b) above;
(f) repurchase obligations with respect to any security that is a direct
obligation of, or fully guaranteed by, the United States of America or any
agency or instrumentality thereof the obligations of which are backed by the
full faith and credit of the United States of America, in either case entered
into with a depository institution or trust company (acting as principal)
referred to in clause (b) above; and
(g) any other investment which would satisfy the Rating Agency Condition and
is consistent with the ratings of the Securities and which, so long as no
Insurer Default shall have occurred and be continuing, has been approved by the
Insurer.
Any of the foregoing Eligible Investments may be purchased by or through
the Owner Trustee or the Trust Collateral Agent or any of their respective
Affiliates.
"FDIC" means the Federal Deposit Insurance Corporation.
"Final Scheduled Distribution Date" means with respect to (i) the Class A-1
Notes, the November 1999 Insured Distribution Date, (ii) the Class A-2 Notes,
the April 2002 Insured Distribution Date, (iii) the Class A-3 Notes, the January
2003 Insured Distribution Date, and (iv) the Class A-4 Notes, the March 2005
Insured Distribution Date.
"Financed Vehicle" means an automobile or light-duty truck van or minivan,
together with all accessions thereto, securing an Obligor's indebtedness under
the respective Receivable.
"Force-Placed Insurance" has the meaning ascribed thereto in Section 4.4
hereof.
9
"Funding Period" means the period beginning on and including the Closing
Date and ending on the first to occur of (a) the first date on which the amount
on deposit in the Pre-Funding Account (after giving effect to any transfers
therefrom in connection with the transfer of Subsequent Receivables to the
Issuer on such date) is less than $100,000, (b) the date on which an Event of
Default or a Servicer Termination Event occurs and (c) January 31, 1999.
"Indenture" means the Indenture dated as of November 1, 1998, among the
Issuer and Bank One, N.A., as Trust Collateral Agent and Trustee, as the same
may be amended and supplemented from time to time.
"Initial Cutoff Date" means, with respect to any Initial Receivable, the
earlier of (x) November 1, 1998 and (y) the date of origination of such Initial
Receivable.
"Initial Receivables" means any Receivable conveyed to the Trust on the
Closing Date.
"Insolvency Event" means, with respect to a specified Person, (a) the
filing of a petition against such Person or the entry of a decree or order for
relief by a court having jurisdiction in the premises in respect of such Person
or any substantial part of its property in an involuntary case under any
applicable federal or state bankruptcy, insolvency or other similar law now or
hereafter in effect, or appointing a receiver, liquidator, assignee, custodian,
trustee, sequestrator, or similar official for such Person or for any
substantial part of its property, or ordering the winding-up or liquidation or
such Person's affairs, and such petition, decree or order shall remain unstayed
and in effect for a period of 60 consecutive days; or (b) the commencement by
such Person of a voluntary case under any applicable federal or state
bankruptcy, insolvency or other similar law now or hereafter in effect, or the
consent by such Person to the entry of an order for relief in an involuntary
case under any such law, or the consent by such Person to the appointment of or
taking possession by, a receiver, liquidator, assignee, custodian, trustee,
sequestrator, or similar official for such Person or for any substantial part of
its property, or the making by such Person of any general assignment for the
benefit of creditors, or the failure by such Person generally to pay its debts
as such debts become due, or the taking of action by such Person in furtherance
of any of the foregoing.
"Insurance Add-On Amount" means the premium charged to the Obligor in the
event that the Servicer obtains Force-Placed Insurance pursuant to Section 4.4.
"Insurance Agreement" means the Insurance and Indemnity Agreement, dated as
of November 1, 1998, among the Insurer, the Trust, the Seller, AmeriCredit Corp.
and AmeriCredit.
"Insurance Agreement Event of Default" means an "Event of Default" as
defined in the Insurance Agreement.
"Insurance Policy" means, with respect to a Receivable, any insurance
policy (including the insurance policies described in Section 4.4 hereof)
benefiting the holder of the Receivable providing loss or physical damage,
credit life, credit disability, theft, mechanical breakdown or similar coverage
with respect to the Financed Vehicle or the Obligor.
"Insured Distribution Date" means the twelfth day of each month, or, if
such twelfth day is not a Business Day, the next following Business Day. In the
event that, on any Distribution
10
Date, the Noteholders did not receive the full amount of the Scheduled Payment
(as defined in the Note Policy) then due to them, such shortfall (together with,
in the case of an interest shortfall, interest thereon at the related Interest
Rate) shall be due and payable and shall be funded on the Insured Distribution
Date either from the Spread Account or from the proceeds of a drawing under the
Note Policy. The Record Date applicable to an Insured Distribution Date shall be
the Record Date applicable to the related Distribution Date.
"Insurer" means 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 Note Policy.
"Insurer Default" means the occurrence and continuance of any of the
following events:
(h) the Insurer shall have failed to make a payment required under the Note
Policy in accordance with its terms;
(i) The 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
(j) 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 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 Insurer (or the taking of possession of all or any
material portion of the property of the Insurer).
"Insurer Optional Deposit" means, with respect to any Insured Distribution
Date, an amount delivered by the Insurer pursuant to Section 5.11, at its sole
option, other than amounts in respect of a Note Policy Claim Amount to the Trust
Collateral Agent 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 the Trust with respect to such Insured
Distribution Date; or (ii) to include such amount as part of the Distribution
Amount for such Insured Distribution Date to the extent that without such amount
a draw would be required to be made on the Note Policy.
"Interest Period" means, with respect to any Distribution Date, the period
from and including the most recent Distribution Date on which interest has been
paid (or in the case of the first Distribution Date, from and including the
Closing Date) to, but excluding, the following Distribution Date. In the case
of the first Distribution Date, the Interest Period shall be nine days.
"Interest Rate" means, with respect to (i) the Class A-1 Notes, 5.199% per
annum (computed on the basis of the actual number of days elapsed in a 360-day
year), (ii) the Class X-
00
0 Notes, LIBOR plus .35 % (computed on the basis of the actual number of days
elapsed in a 360-day year), (iii) the Class A-3 Notes, LIBOR plus .45% (computed
on the basis of the actual number of days elapsed in a 360-day year), and (iv)
the Class A-4 Notes, LIBOR plus .60% per annum (computed on the basis of the
actual number of days elapsed in a 360-day year).
"Investment Earnings" means, with respect to any date of determination and
Trust Account, the investment earnings on amounts on deposit in such Trust
Account on such date.
"Issuer" means AmeriCredit Automobile Receivables Trust 1998-D.
"LIBOR" has the meaning set forth in Section 5.12 hereof.
"Lien" means a security interest, lien, charge, pledge, equity, or
encumbrance of any kind, other than tax liens, mechanics' liens and any liens
that attach to the respective Receivable by operation of law as a result of any
act or omission by the related Obligor.
"Lien Certificate" means, 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" means, 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 been received, or (iii) 5% or more of a
Scheduled Receivables Payment shall have become 120 or more days delinquent,
except in the case of a repossessed Financed Vehicle.
"Lockbox Account" means an account maintained on behalf of the Trust
Collateral Agent by the Lockbox Bank pursuant to Section 4.2(d).
"Lockbox Agreement" means the Tri-Party Remittance Processing Agreement,
dated as of November 1, 1998, by and among AmeriCredit, Bank One, Texas, NA, and
the Trust Collateral Agent, as such agreement may be amended or supplemented
from time to time, unless the Trust Collateral Agent 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 Trust
Collateral Agent and the Lockbox Bank.
"Lockbox Bank" means a depository institution named by the Servicer and
acceptable to the Controlling Party.
"Mandatory Redemption Date" means the earlier of (i) the Distribution Date
in February 1999 and (ii) if the last day of the Funding Period occurs on or
prior to the Calculation Date occuring in November 1998 or December 1998, then
the Distribution Date relating to such Calculation Date
12
"Monthly Capitalized Interest Amount" means in the case of the December
1998, January or February 1999 Distribution Dates, an amount equal to the
difference between (i) the product of (x) a fraction the numerator of which is
the actual number of days elapsed in the related Interest Period and the
denominator of which is 360, (y) the weighted average of each Interest Rate and
(z) the difference between (A) the average daily aggregate principal amount of
the Notes during the period since the prior Distribution Date and (B) the Pool
Balance as of the last day of the second preceding Collection Period, or in the
case of the December 1998 Distribution Date, as of the Closing Date and (ii) the
Pre-Funding Earnings for such Distribution Date.
"Monthly Extension Rate" means, with respect to any Accounting Date, the
fraction, expressed as a percentage, the numerator of which is the aggregate
Principal Balance of Receivables whose payments are extended during the related
Collection Period and the denominator of which is the aggregate Principal
Balance of Receivables as of the immediately preceding Accounting Date.
"Monthly Records" means 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 Receivables
Payment; current Insurance Policy expiration date; and past due late charges.
"Moody's" means Xxxxx'x Investors Service, Inc., or its successor.
"Net Liquidation Proceeds" means, 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 Note 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.
"Note Distribution Account" means the account designated as such,
established and maintained pursuant to Section 5.1.
"Note Majority" means a majority by principal amount of the Noteholders.
"Note Policy" means the financial guaranty insurance policy issued by the
Insurer to the Trust Collateral Agent, as agent for the Trustee, for the benefit
of the Noteholders.
"Note Policy Claim Amount" means, for any Insured Distribution Date, the
sum of (x) the excess, if any (without duplication) of (i) the sum of the
Noteholders' Interest Distributable Amount and the Noteholders' Parity Deficit
Amount for the related Distribution Date, together with, (a) if such related
Distribution Date was the Mandatory Redemption Date, the Note Prepayment Amount,
and (b) if such related Distribution Date was the Final Scheduled
13
Distribution Date for any Class, the unpaid principal balance of such Class over
(ii) the sum of (a) the amount actually deposited into the Note Distribution
Account on such related Distribution Date and (b) the Additional Funds
Available, if any, for such Insured Distribution Date plus (y) the Noteholders'
Interest Carryover Amount, if any, which has accrued since the related
Distribution Date.
"Note Pool Factor" for each Class of Notes as of the close of business on
any date of determination means a seven-digit decimal figure equal to the
outstanding principal amount of such Class of Notes divided by the original
outstanding principal amount of such Class of Notes.
"Note Prepayment Amount" means, as of the Distribution Date on or
immediately following the last day of the Funding Period, after giving effect to
any transfer of Subsequent Receivables on such date, an amount equal to the
Noteholders' pro rata share (based on the respective current outstanding
principal balance of each Class of Notes) of the Pre-Funded Amount as of such
Distribution Date; provided, that if the aggregate remaining amount in the Pre-
Funding Account is $100,000 or less, such amount will be applied exclusively to
reduce the outstanding principal balance of the Class of Notes then entitled to
receive distributions of principal.
"Noteholders' Accelerated Principal Amount" means, with respect to any
Distribution Date, the Noteholders' Percentage of the Accelerated Principal
Amount on such Distribution Date, if any.
"Noteholders' Distributable Amount" means, with respect to any Distribution
Date, the sum of the Noteholders' Principal Distributable Amount and the
Noteholders' Interest Distributable Amount.
"Noteholders' Interest Carryover Amount" means, with respect to any Class
of Notes and any date of determination, all or any portion of the Noteholders'
Monthly Interest Distributable Amount for the immediately preceding Distribution
Date and any outstanding Noteholders' Interest Carryover Amount on such
immediately preceding Distribution Date, which remains unpaid as of such date of
determination, plus interest on such unpaid amount, to the extent permitted by
law, at the respective Interest Rate borne by each Class of Notes from such
immediately preceding Distribution Date to but excluding such date of
determination.
"Noteholders' Interest Distributable Amount" means, with respect to any
Distribution Date, the sum of the Noteholders' Monthly Interest Distributable
Amount for such Distribution Date and the Noteholders' Interest Carryover
Amount, if any for such Distribution Date. Interest on the Class A-1 Notes, the
Class A-2 Notes, the Class A-3 Notes and the Class A-4 Notes shall be computed
on the basis of the actual number of days elapsed in a 360-day year.
"Noteholders' Monthly Interest Distributable Amount" means, with respect to
any Distribution Date and any Class of Notes, interest accrued during the
applicable Interest Period on the principal amount of the Notes of each Class
outstanding as of the end of the prior Distribution Date (or, in the case of the
first Distribution Date, as of the Closing Date); provided, that if such
principal balance is further reduced by a payment of principal on the Insured
Distribution Date which immediately follows such prior Distribution Date, then
such interest
14
shall accrue (i) from and including such prior Distribution Date to, but
excluding, such related Insured Distribution Date, on the principal balance
outstanding as of the end of the prior Distribution Date (or, in the case of the
first Distribution Date, as of the Closing Date) and (ii) from and including
such Insured Distribution Date, to, but excluding, the following Distribution
Date, on the principal balance outstanding as of the end of such Insured
Distribution Date, calculated on the basis of a 360-day year and the actual
number of days elapsed, in the case of the Class A-1 Notes, the Class A-2 Notes
and the Class A-3 Notes and the Class A-4 Notes.
"Noteholders' Monthly Principal Distributable Amount" means, with respect
to any Distribution Date, the Noteholders' Percentage of the Principal
Distributable Amount.
"Noteholders' Parity Deficit Amount" means, with respect to any
Distribution Date, the excess, if any, of (x) the aggregate remaining principal
balance of the Notes outstanding on such Distribution Date, after giving effect
to all reductions in such agrregate principal balance from sources other than
(i) the Spread Account and (ii) the Note Policy over (y) the sum of the Pool
Balance and the Pre-Funded Amount at the end of the prior calendar month.
"Noteholders' Percentage" means with respect to any Determination Date (i)
relating to a Distribution Date prior to the Distribution Date on which the
principal amount of the Class A-4 Notes is reduced to zero, 100%; (ii) relating
to the Distribution Date on which the principal amount of the Class A-4 Notes is
reduced to zero, the percentage equivalent of a fraction, the numerator of which
is the principal amount of the Class A-4 Notes immediately prior to such
Distribution Date, and the denominator of which is the Principal Distributable
Amount; and (iii) relating to any other Distribution Date, 0%.
"Noteholders' Principal Carryover Amount" means, as of any date of
determination, all or any portion of the Noteholders' Monthly Principal
Distributable Amount and any outstanding Noteholders' Principal Carryover Amount
from the preceding Distribution Date which remains unpaid as of such date of
determination.
"Noteholders' Principal Distributable Amount" means, with respect to any
Distribution Date, (other than the Final Scheduled Distribution Date for any
Class of Notes), the sum of the Noteholders' Monthly Principal Distributable
Amount for such Distribution Date and the Noteholders' Principal Carryover
Amount, if any, as of the close of the preceding Distribution Date. The
Noteholders' Principal Distributable Amount on the Final Scheduled Distribution
Date for any Class of Notes will equal the sum of (i) the Noteholders' Monthly
Principal Distributable Amount for such Distribution Date, (ii) the Noteholders'
Principal Carryover Amount as of the such Distribution Date, and (iii) the
excess of the outstanding principal amount of such Class of Notes, if any, over
the amounts described in clauses (i) and (ii).
"Noteholders' Remaining Parity Deficit Amount" means, with respect to any
Distribution Date, the Noteholders' Parity Deficit Amount for such Distribution
Date minus any reduction in the aggregate principal balance of the Notes to be
made on the related Insured Distribution Date with funds withdrawn from the
Spread Account.
"Obligor" on a Receivable means the purchaser or co-purchasers of the
Financed Vehicle and any other Person who owes payments under the Receivable.
15
"Officers' Certificate" means a certificate signed by the chairman of the
board, the president, any executive vice president or any vice president, any
treasurer, assistant treasurer, secretary or assistant secretary of the Seller
or the Servicer, as appropriate.
"Opinion of Counsel" means a written opinion of counsel reasonably
acceptable to the Insurer, which opinion is satisfactory in form and substance
to the Trust Collateral Agent and, if such opinion or a copy thereof is required
by the provisions of this Agreement to be delivered to the Insurer, to the
Insurer.
"Original Pool Balance" means the sum, as of any date, of the Pool Balance
as of the Initial Cutoff Date, plus the aggregate Principal Balance of the
Subsequent Receivables, if any, sold to the Trust, as of their respective
Subsequent Cutoff Dates.
"Other Conveyed Property" means all property conveyed by the Seller to the
Trust pursuant to Section 2.1(b) through (h) of this Agreement.
"Overfunded Capitalized Interest Amount" means:
With respect to the December 1998 Distribution Date, the excess of (a) the
amount on deposit in the Capitalized Interest Account on such Distribution Date
(after giving effect to the transfer of the Monthly Capitalized Interest Amount
to the Collection Account on such date) over (b) the product of (i) 1/360, (ii)
2.5%, (iii) 60 and (iv) the amount on deposit in the Pre-Funding Account
(excluding Pre-Funding Earnings) at the close of business on November 30, 1998.
With respect to the January 1999 Distribution Date, the excess of (a) the
amount on deposit in the Capitalized Interest Account on such Distribution Date
(after giving effect to the transfer of the Monthly Capitalized Interest Amount
to the Collection Account on such date) over (b) the product of (i) 1/360, (ii)
2.5%, (iii) 30 and (iv) the amount on deposit in the Pre-Funding Account
(excluding Pre-Funding Earnings) at the close of business on December 31, 1998.
With respect to the February 1999 Distribution Date, the amount on deposit
in the Capitalized Interest Account on such Distribution Date (after giving
effect to the transfer of the Monthly Capitalized Interest Amount to the
Collection Account on such date).
"Owner Trust Estate" has the meaning assigned to such term in the Trust
Agreement.
"Owner Trustee" means Bankers Trust (Delaware), not in its individual
capacity but solely as Owner Trustee under the Trust Agreement, its successors
in interest or any successor Owner Trustee under the Trust Agreement.
"Person" means any individual, corporation, estate, partnership, joint
venture, association, joint stock company, trust (including any beneficiary
thereof), unincorporated organization or government or any agency or political
subdivision thereof.
"Physical Property" has the meaning assigned to such term in the definition
of "Delivery" above.
16
"Pool Balance" means, as of any date of determination, the aggregate
Principal Balance of the Receivables (excluding Purchased Receivables and
Liquidated Receivables).
"Pre-Funded Amount" means, with respect to any Distribution Date, the
amount on deposit in the Pre-Funding Account, (exclusive of Pre-Funding
Earnings) which initially shall be $135,580,549.86.
"Pre-Funding Account" has the meaning specified in Section 5.1.
"Pre-Funding Earnings" means any Investment Earnings on amounts on deposit
in the Pre-Funding Account.
"Preliminary Determination Date" means, with respect to any Collection
Period, the second Business Day preceding the Distribution Date in the next
calendar month.
"Preliminary Servicer's Certificate" means an Officers' Certificate of the
Servicer delivered pursuant to Section 4.9(a), substantially in the form of
Exhibit C.
"Prepayment Amount" means the amount deposited in the Collection Account
from the Pre-Funding Account on the Mandatory Redemption Date pursuant to
Section 5.7(a)(ii) hereof.
"Principal Balance" means, with respect to any Receivable, as of any date,
the sum of (x) 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 plus (y) the accrued and unpaid interest on such Receivable.
"Principal Distributable Amount" means, with respect to any Distribution
Date, the amount equal to the excess, if any, of (x) the sum of (i) the
principal portion of all Collected Funds received during the immediately
preceding Collection Period (other than Liquidated Receivables and Purchased
Receivables), (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 Amounts
received with respect to all Receivables that became Purchased Receivables
during the related Collection Period, (iv) in the sole discretion of the
Insurer, the Principal Balance of all the Receivables that were required to be
purchased pursuant to Sections 3.2 and 4.7, during such Collection Period but
were not purchased, (v) the aggregate amount of Cram Down Losses that shall have
occurred during the related Collection Period; and (vi) following the
acceleration of the Notes pursuant to Section 5.2 of the Indenture, the amount
of money or property collected pursuant to Section 5.4 of the Indenture since
the preceding Determination Date by the Trust Collateral Agent or Controlling
Party for distribution pursuant to Section 5.7 hereof over (y) the Step-Down
Amount, if any, for such Distribution Date.
"Pro Forma Note Balance" means, with respect to any Distribution Date, the
aggregate remaining principal balance of the Notes outstanding on such
Distribution Date, after giving effect to distributions pursuant to clauses (i)
through (iv) of Section 5.7(b) hereof.
17
"Purchase Agreement" means the Purchase Agreement among the Seller, CP
Funding and AmeriCredit, dated as of November 1, 1998, pursuant to which the
Seller acquired the Initial Receivables, as such Agreement may be amended from
time to time.
"Purchase Amount" means, with respect to a Receivable, the Principal
Balance and all accrued and unpaid interest on the Receivable, after giving
effect to the receipt of any moneys collected (from whatever source) on such
Receivable, if any.
"Purchased Receivable" means a Receivable purchased as of the close of
business on the last day of a Collection Period by the Servicer pursuant to
Section 4.7 or repurchased by the Seller, CP Funding or AmeriCredit pursuant to
Section 3.2 or Section 10.1(a).
"Rating Agency" means Xxxxx'x and Standard & Poor's. If no such
organization or successor maintains a rating on the Securities, "Rating Agency"
shall be a nationally recognized statistical rating organization or other
comparable Person designated by the Seller and acceptable to the Insurer (so
long as an Insurer Default shall not have occurred and be continuing), notice of
which designation shall be given to the Trust Collateral Agent, the Owner
Trustee and the Servicer.
"Rating Agency Condition" means, with respect to any action, that each
Rating Agency shall have been given 10 days' (or such shorter period as shall be
acceptable to each Rating Agency) prior notice thereof and that each of the
Rating Agencies shall have notified the Seller, the Servicer, the Insurer, the
Owner Trustee and the Trust Collateral Agent in writing that such action will
not result in a reduction or withdrawal of the then current rating of any Class
of Notes.
"Realized Losses" means, with respect to any Receivable that becomes a
Liquidated Receivable, the excess of the Principal Balance of such Liquidated
Receivable over Net Liquidation Proceeds to the extent allocable to principal.
"Receivable" means any Contract listed on Schedule A, as such Schedule
shall be amended to reflect the transfer of Subsequent Receivables to the Trust
(which Schedule may be in the form of microfiche or a disk).
"Receivable Files" means the documents specified in Section 3.3.
"Record Date" with respect to each Distribution Date means the Business Day
immediately preceding such Distribution Date, unless otherwise specified in the
Agreement. The "Record Date" for any Insured Distribution Date shall be the
"Record Date" applicable to the related Distribution Date.
"Registrar of Titles" means, 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.
"Required Pro Forma Note Balance" means, with respect to any Distribution
Date, a dollar amount equal to the product of (x) 90% and (y) the sum of the
Pool Balance and the Pre-Funded Amount as of the end of the prior Collection
Period.
18
"Schedule of Receivables" means 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 Receivables Payment" means, 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 Receivables Payment with respect to such Collection Period
shall refer to the Obligor's payment obligation with respect to such Collection
Period as so modified.
"Seller" means AFS Funding Corp., a Nevada corporation, and its successors
in interest to the extent permitted hereunder.
"Service Contract" means, with respect to a Financed Vehicle, the
agreement, if any, financed under the related Receivable that provides for the
repair of such Financed Vehicle.
"Servicer" means AmeriCredit Financial Services, Inc., as the servicer of
the Receivables, and each successor Servicer pursuant to Section 9.3.
"Servicer Termination Event" means an event specified in Section 9.1.
"Servicer's Certificate" means an Officers' Certificate of the Servicer
delivered pursuant to Section 4.9(b), substantially in the form of Exhibit B.
"Servicing Fee" has the meaning specified in Section 4.8.
"Servicing Fee Rate" means 2.25% per annum.
"Simple Interest Method" means 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 Requisite Amount" means 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.
"Specified Spread Account Requisite Amount" has the meaning specified in
the Spread Account Agreement Supplement.
19
"Spread Account" means the account designated as such, established and
maintained pursuant to the Spread Account Agreement Supplement.
"Spread Account Agreement" means the Spread Account Agreement dated as of
December 1, 1994, as amended and restated as of May 11, 1998 among the Insurer,
the Seller and the Collateral Agent, as the same may be modified, supplemented
or otherwise amended in accordance with the terms thereof.
"Spread Account Agreement Supplement" means the Series 1998-D Spread
Account Agreement Supplement dated as of November 1, 1998 among the Insurer, the
Seller and the Collateral Agent, as the same may be modified, supplemented or
otherwise amended in accordance with the terms thereof.
"Spread Account Initial Deposit" means an amount equal to 3.0% of the
aggregate principal balance of the Initial Receivables on the Closing Date
(which is equal to $14,682,583.50).
"Standard & Poor's" means Standard & Poor's Ratings Services, or its
successor.
"Step-Down Amount" means, with respect to any Distribution Date, the
excess, if any, of (x) the Required Pro Forma Note Balance over (y) the Pro
Forma Note Balance on such Distribution Date, calculated for this purpose only
without deduction for any Step-Down Amount (i.e., assuming that the entire
amount described in clause (x) of the definition of "Principal Distributable
Amount" is distributed as principal on the Notes).
"Subsequent Cutoff Date" means the date specified in the related Subsequent
Transfer Agreement, provided, however that such date shall be on or before the
Subsequent Transfer Date.
"Subsequent Purchase Agreement" means an agreement by and between the
Seller, CP Funding and AmeriCredit pursuant to which the Seller will acquire
Subsequent Receivables.
"Subsequent Receivables" means the Receivables transferred to the Issuer
pursuant to Section 2.2, which shall be listed on Schedule A to the related
Subsequent Transfer Agreement.
"Subsequent Spread Account Deposit" means, with respect to each Subsequent
Transfer Date, an amount equal to 3.0% of the aggregate principal balance of
Subsequent Receivables as of the related Subsequent Cutoff Date transferred to
the Trust on such Subsequent Transfer Date from amounts released from the Pre-
Funding Account.
"Subsequent Transfer Agreement" means the agreement among the Issuer, the
Seller and the Servicer, substantially in the form of Exhibit A.
"Subsequent Transfer Date" means, with respect to Subsequent Receivables,
any date, occurring not more frequently than once a month, during the Funding
Period on which Subsequent Receivables are to be transferred to the Trust
pursuant to this Agreement, and a Subsequent Transfer Agreement is executed and
delivered to the Trust.
20
"Supplemental Servicing Fee" means, 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 but excluding any fees or expenses
related to extensions.
"Trigger Event" has the meaning assigned thereto in the Spread Account
Agreement Supplement.
"Trust" means the Issuer.
"Trust Account Property" means the Trust Accounts, all amounts and
investments held from time to time in any Trust Account (whether in the form of
deposit accounts, Physical Property, book-entry securities, uncertificated
securities or otherwise), and all proceeds of the foregoing.
"Trust Accounts" has the meaning assigned thereto in Section 5.1.
"Trust Agreement" means the Trust Agreement dated as of October 23, 1998,
between the Seller and the Owner Trustee, as amended and restated as of November
1, 1998, as the same may be amended and supplemented from time to time.
"Trust Collateral Agent" means the Person acting as Trust Collateral Agent
hereunder, its successors in interest and any successor Trust Collateral Agent
hereunder.
"Trust Officer" means, (i) in the case of the Trust Collateral Agent, the
chairman or vice-chairman of the board of directors, any managing director, the
chairman or vice-chairman of the executive committee of the board of directors,
the president, any vice president, assistant vice president, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any trust officer or assistant trust officer, the controller
and any assistant controller or any other officer of the Trust Collateral Agent
customarily performing functions similar to those performed by any of the above
designated officers and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of such
officer's knowledge of and familiarity with the particular subject, and (ii) in
the case of the Owner Trustee, any officer in the corporate trust office of the
Owner Trustee or any agent of the Owner Trustee under a power of attorney with
direct responsibility for the administration of this Agreement or any of the
Basic Documents on behalf of the Owner Trustee.
"Trust Property" means the property and proceeds conveyed pursuant to
Section 2.1, together with certain monies paid on or after the Initial Cut-off
Date, the Note Policy, the Collection Account (including all Eligible
Investments therein and all proceeds therefrom), the Lockbox Account and certain
other rights under this Agreement. Although the Seller has pledged the Spread
Account to the Trust Collateral Agent and the 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" means the Person acting as Trustee under the Indenture, its
successors in interest and any successor trustee under the Indenture.
21
"UCC" means the Uniform Commercial Code as in effect in the relevant
jurisdiction on the date of the Agreement.
SECTION 1.2. Other Definitional Provisions.
------------------------------
(a) Capitalized terms used herein and not otherwise defined herein have
meanings assigned to them in the Indenture, or, if not defined therein, in the
Trust Agreement.
(b) All terms defined in this Agreement shall have the defined meanings
when used in any instrument governed hereby and in any certificate or other
document made or delivered pursuant hereto unless otherwise defined therein.
(c) As used in this Agreement, in any instrument governed hereby and in
any certificate or other document made or delivered pursuant hereto or thereto,
accounting terms not defined in this Agreement or in any such instrument,
certificate or other document, and accounting terms partly defined in this
Agreement or in any such instrument, certificate or other document to the extent
not defined, shall have the respective meanings given to them under generally
accepted accounting principles as in effect on the date of this Agreement or any
such instrument, certificate or other document, as applicable. To the extent
that the definitions of accounting terms in this Agreement or in any such
instrument, certificate or other document are inconsistent with the meanings of
such terms under generally accepted accounting principles, the definitions
contained in this Agreement or in any such instrument, certificate or other
document shall control.
(d) The words "hereof," "herein," "hereunder" and words of similar import
when used in this Agreement shall refer to this Agreement as a whole and not to
any particular provision of this Agreement; Section, Schedule and Exhibit
references contained in this Agreement are references to Sections, Schedules and
Exhibits in or to this Agreement unless otherwise specified; and the term
"including" shall mean "including without limitation."
(e) The definitions contained in this Agreement are applicable to the
singular as well as the plural forms of such terms and to the masculine as well
as to the feminine and neuter genders of such terms.
(f) Any agreement, instrument or statute defined or referred to herein or
in any instrument or certificate delivered in connection herewith means such
agreement, instrument or statute as from time to time amended, modified or
supplemented and includes (in the case of agreements or instruments) references
to all attachments thereto and instruments incorporated therein; references to a
Person are also to its permitted successors and assigns.
ARTICLE II
----------
Conveyance of Receivables
-------------------------
SECTION 2.1. Conveyance of Initial Receivables. In consideration of
---------------------------------
the Issuer's delivery to or upon the order of the Seller on the Closing Date of
the net proceeds from the sale of the Notes and the other amounts to be
distributed from time to time to the Seller in accordance
22
with the terms of this Agreement, the Seller does hereby sell, transfer, assign,
set over and otherwise convey to the Issuer, without recourse (subject to the
obligations set forth herein), all right, title and interest of the Seller in
and to:
(a) the Initial Receivables and all moneys received thereon after the
Initial Cutoff Date;
(b) an assignment of the security interests in the Financed Vehicles
granted by Obligors pursuant to the Initial Receivables and any other interest
of the Seller in such Financed Vehicles;
(c) any proceeds and the right to receive proceeds with respect to the
Initial Receivables from claims on any physical damage, credit life or
disability insurance policies covering Financed Vehicles or Obligors and any
proceeds from the liquidation of the Initial Receivables;
(d) all rights of the Seller against Dealers pursuant to Dealer
Agreements;
(e) all rights under any Service Contracts on the related Financed
Vehicles;
(f) the related Receivables Files;
(g) all of the Seller's right, title and interest in its rights and
benefits, but none of its obligations or burdens, under the Purchase Agreement,
including the Seller's rights under the Purchase Agreement, and the delivery
requirements, representations and warranties and the cure and repurchase
obligations of AmeriCredit and CP Funding under the Purchase Agreement; and
(h) the proceeds of any and all 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 Trust Property from the Seller to the Issuer and the beneficial interest
in and title to the Receivables and the other Trust 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 security
interest in the property referred to in this Section for the benefit of the
Noteholders and the Insurer.
SECTION 2.2. Conveyance of Subsequent Receivables.
-------------------------------------
(a) Subject to the conditions set forth in paragraph (b) below, in
consideration of the Issuer's delivery on each related Subsequent Transfer Date
to or upon the order of the Seller of the amount described in Section 5.9(a) to
be delivered to the Seller, the Seller does hereby sell, transfer, assign, set
over and otherwise convey to the Issuer without recourse (subject to the
obligations set forth herein), all right, title and interest of the Seller in
and to:
(i) the Subsequent Receivables listed on Schedule A to the related
Subsequent Transfer Agreement;
23
(ii) the security interests in the Financed Vehicles granted by
Obligors pursuant to such Subsequent Receivables and any other interest of
the Seller in such Financed Vehicles;
(iii) any proceeds and the right to receive proceeds with respect
to such Subsequent Receivables from claims on any physical damage, credit
life or disability insurance policies covering the related Financed
Vehicles or Obligors and any proceeds from the liquidation of such
Subsequent Receivables;
(iv) all rights of the Seller against the Dealers pursuant to Dealer
Agreements;
(v) all rights under any Service Contracts on the related Financed
Vehicles:
(vi) the related Receivables Files;
(vii) all of the Seller's right, title and interest in its rights
and benefits, but none of its obligations or burdens, under each of the
Subsequent Purchase Agreements, including the Seller's rights under each of
the Subsequent Purchase Agreements, and the delivery requirements,
representations and warranties and the cure and repurchase obligations of
AmeriCredit and CP Funding under each of the Subsequent Purchase
Agreements, on or after the related Subsequent Cutoff Date; and
(viii) the proceeds of any and all of the foregoing.
(b) The Seller shall transfer to the Issuer the Subsequent Receivables
and the other property and rights related thereto described in paragraph (a)
above only upon the satisfaction of each of the following conditions on or prior
to the related Subsequent Transfer Date:
(i) the Seller shall have provided the Trust Collateral Agent, the
Owner Trustee, the Insurer and the Rating Agencies with an Addition Notice
not later than five days prior to such Subsequent Transfer Date and shall
have provided any information reasonably requested by any of the foregoing
with respect to the Subsequent Receivables;
(ii) the Seller shall have delivered to the Owner Trustee and the
Trust Collateral Agent a duly executed Subsequent Transfer Agreement which
shall include supplements to Schedule A, listing the Subsequent
Receivables;
(iii) the Seller shall, to the extent required by Section 4.2, have
deposited in the Collection Account all collections in respect of the
Subsequent Receivables;
(iv) as of each Subsequent Transfer Date, (A) the Seller shall not
be insolvent and shall not become insolvent as a result of the transfer of
Subsequent Receivables on such Subsequent Transfer Date, (B) the Seller
shall not intend to incur or believe that it shall incur debts that would
be beyond its ability to pay as such debts mature, (C) such transfer shall
not have been made with actual intent to hinder, delay or defraud any
Person and (D) the assets of the Seller shall not constitute unreasonably
small capital to carry out its business as conducted;
24
(v) the Funding Period shall not have terminated;
(vi) after giving effect to any transfer of Subsequent Receivables
on a Subsequent Transfer Date, the Receivables transferred to the Trust
pursuant hereto shall meet the following criteria (based on the
characteristics of the Initial Receivables on the Initial Cutoff Date and
the Subsequent Receivables on the related Subsequent Cutoff Dates) as such
information is provided to the Trust Collateral Agent by the Servicer: (i)
the weighted average APR of the Receivables transferred to the Trust shall
not be less than 18%, unless, with the prior consent of the Rating Agencies
and the Insurer, the Seller increases the Spread Account Initial Deposit
with respect to such Subsequent Receivables by the amount required by the
Insurer; (ii) the weighted average remaining term of the Receivables
transferred to the Trust shall not be greater than 72 months; and (iii) not
more than 35% of the Aggregate Principal Balance shall have Obligors whose
mailing addresses are in Texas and California;
(vii) each of the representations and warranties made by the Seller
pursuant to Section 3.1 with respect to the Subsequent Receivables to be
transferred on such Subsequent Transfer Date shall be true and correct as
of the related Subsequent Transfer Date, and the Seller shall have
performed all obligations to be performed by it hereunder on or prior to
such Subsequent Transfer Date;
(viii) the Seller shall, at its own expense, on or prior to the
Subsequent Transfer Date indicate in its computer files that the Subsequent
Receivables identified in the Subsequent Transfer Agreement have been sold
to the Trust pursuant to this Agreement;
(ix) the Seller shall have taken any action required to maintain the
first priority perfected ownership interest of the Trust in the Owner Trust
Estate and the first perfected security interest of the Trust Collateral
Agent in the Collateral;
(x) no selection procedures adverse to the interests of the
Noteholders or the Insurer shall have been utilized in selecting the
Subsequent Receivables;
(xi) the addition of any such Subsequent Receivables shall not
result in a material adverse tax consequence to the Trust or the
Noteholders;
(xii) the Seller shall have delivered (A) to the Rating Agencies
and the Insurer an Opinion of Counsel with respect to the transfer of such
Subsequent Receivables substantially in the form of the Opinion of Counsel
delivered to the Rating Agencies and the Insurer on the Closing Date and
(B) to the Trust Collateral Agent the Opinion of Counsel required by
Section 12.2(i)(1);
(xiii) Standard & Poor's shall have confirmed in writing to the
Trust Collateral Agent that the rating on the Notes shall not be withdrawn
or reduced as a result of the transfer of such Subsequent Receivables to
the Trust;
(xiv) the Insurer (so long as no Insurer Default shall have
occurred and be continuing), in its absolute and sole discretion, shall
have approved the transfer of such Subsequent
25
Receivables to the Trust and the Insurer shall have been reimbursed for any
fees and expenses incurred by the Insurer in connection with the granting
of such approval;
(xv) the Seller shall simultaneously transfer the Subsequent Spread
Account Deposit to the Trust Collateral Agent with respect to the
Subsequent Receivables transferred on such Subsequent Transfer Date; and
(xvi) the Seller shall have delivered to the Insurer and the Trust
Collateral Agent an Officers' Certificate confirming the satisfaction of
each condition precedent specified in this paragraph (b).
The Seller covenants that in the event any of the foregoing conditions
precedent are not satisfied with respect to any Subsequent Receivable on the
date required as specified above, the Seller will immediately repurchase such
Subsequent Receivable from the Trust, at a price equal to the Purchase Amount
thereof, in the manner specified in Section 4.7.
SECTION 2.3. Further Encumbrance of Trust Property.
--------------------------------------
(a) Immediately upon the conveyance to the Trust by the Seller of any
item of the Trust Property pursuant to Section 2.01, all right, title and
interest of the Seller in and to such item of Trust Property shall terminate,
and all such right, title and interest shall vest in the Trust, in accordance
with the Trust Agreement and Sections 3802 and 3805 of the Business Trust
Statute (as defined in the Trust Agreement).
(b) Immediately upon the vesting of the Trust Property in the Trust, the
Trust shall have the sole right to pledge or otherwise encumber, such Trust
Property. Pursuant to the Indenture, the Trust shall grant a security interest
in the Trust Property to the Trust Collateral Agent secure the repayment of the
Notes. The Certificates shall represent the beneficial ownership interest in
the Trust Property, and the Certificateholders shall be entitled to receive
distributions with respect thereto as set forth herein.
(c) Following the payment in full of the Notes and the release and
discharge of the Indenture, all covenants of the Issuer under Article III of the
Indenture shall, until payment in full of the Certificates, remain as covenants
of the Issuer for the benefit of the Certificateholders, enforceable by the
Certificateholders to the same extent as such covenants were enforceable by the
Noteholders prior to the discharge of the Indenture. Any rights of the Trustee
under Article III of the Indenture, following the discharge of the Indenture,
shall vest in Certificateholders.
(d) The Trust Collateral Agent shall, at such time as there are no
Securities outstanding and all sums due to (i) the Trustee pursuant to the
Indenture and (ii) the Trust Collateral Agent pursuant to this Agreement, have
been paid, release any remaining portion of the Trust Property to the Seller.
26
ARTICLE III
-----------
The Receivables
---------------
SECTION 3.1. Representations and Warranties of Seller. The Seller
----------------------------------------
hereby represents and warrants that each of the representations and warranties
set forth on the Schedule of Representations attached hereto as Schedule B is
true and correct on which the Issuer is deemed to have relied in acquiring the
Receivables and upon which the Insurer shall be deemed to rely in issuing the
Note Policy. Such representations and warranties speak as of the execution and
delivery of this Agreement and as of the Closing Date in the case of the Initial
Receivables, and as of the related Subsequent Transfer Date in case of the
Subsequent Receivables, but shall survive the sale, transfer and assignment of
the Receivables to the Issuer and the pledge thereof to the Trustee pursuant to
the Indenture.
SECTION 3.2. Repurchase upon Breach.
-------------------------
(a) The Seller, the Servicer, the Insurer, the Trust Collateral Agent or
the Owner Trustee, as the case may be, shall inform the other parties to this
Agreement promptly, notice in writing, upon the discovery of any breach of the
Seller's representations and warranties made pursuant to Section 3.1. As of the
last day of the second (or, if the Seller so elects, the first) month following
the discovery by the Seller or receipt by the Seller of notice of such breach,
unless such breach is cured by such date, the Seller shall have an obligation to
repurchase any Receivable in which the interests of the Noteholders or the
Insurer are materially and adversely affected by any such breach as of such
date. The "second month" shall mean the month following the month in which
discovery occurs or notice is given, and the "first month" shall mean the month
in which discovery occurs or notice is given. In consideration of and
simultaneously with the repurchase of the Receivable, the Seller shall remit, or
cause AmeriCredit to remit, to the Collection Account the Purchase Amount in the
manner specified in Section 5.6 and the Issuer shall execute such assignments
and other documents reasonably requested by such person in order to effect such
repurchase. The sole remedy of the Issuer, the Owner Trustee, the Trust
Collateral Agent, the Trustee or the Noteholders with respect to a breach of
representations and warranties pursuant to Section 3.1 and the agreement
contained in this Section shall be the repurchase of Receivables pursuant to
this Section, subject to the conditions contained herein or to enforce the
obligation of AmeriCredit to the Seller to repurchase such Receivables pursuant
to the Purchase Agreement. Neither the Owner Trustee, the Trust Collateral
Agent nor the Trustee shall have a duty to conduct any affirmative investigation
as to the occurrence of any conditions requiring the repurchase of any
Receivable pursuant to this Section.
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 Trust Collateral Agent,
Collateral Agent and the officers, directors, agents and employees thereof, the
Insurer, and the Noteholders 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.
27
(b) Pursuant to Section 2.1 of this Agreement, the Seller conveyed to the
Trust all of the Seller's right, title and interest in its rights and benefits,
but none of its obligations or burdens, under the Purchase Agreement including
the Seller's rights under the Purchase Agreement and the delivery requirements,
representations and warranties and the cure or repurchase obligations of
AmeriCredit and CP Funding thereunder. The Seller hereby represents and
warrants to the Trust that such assignment is valid, enforceable and effective
to permit the Trust to enforce such obligations of AmeriCredit and CP Funding
under the Purchase Agreement.
SECTION 3.3. Custody of Receivables 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 Trust Collateral Agent shall enter into the Custodian Agreement with the
Custodian, dated as of November 1, 1998, pursuant to which the Trust Collateral
Agent shall revocably appoint the Custodian, and the Custodian shall accept such
appointment, to act as the agent of the Trust Collateral Agent as custodian of
the following documents or instruments in its possession which shall be
delivered to the Custodian as agent of the Trust Collateral Agent 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 Trust Collateral Agent may act as the Custodian, in which case the
Trust Collateral Agent 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
28
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 3.2 or 4.7.
ARTICLE IV
----------
Administration and Servicing of Receivables
-------------------------------------------
SECTION 4.1. 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 Trust Collateral Agent, the Trustee and the
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 it's own name or in the
name of the Trust, 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
29
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, demands, claims, complaints,
responses, affidavits or other documents or instruments in connection with any
such proceeding. The Trust Collateral Agent and the Owner Trustee shall furnish
the Servicer with any limited 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.
SECTION 4.2. 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 Receivables Payments on the Receivable following a partial
prepayment of principal, 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.
(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) The average Monthly Extension Rate for any three consecutive
calendar months shall not exceed 4%; and
30
(iv) 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 Insurer or a Note Majority (if an Insurer Default shall have occurred
and be continuing).
With respect to clause (iii) of this Section 4.2(c), in the event the
average of the Monthly Extension Rates calculated with respect to three
consecutive calendar months exceeds 4% (which information shall be set forth in
the related Servicer's Certificate), the Servicer shall, on the third such
Accounting Date, purchase from the Trust the Receivables with respect to which
payment had been extended (starting with the Receivables most recently so
extended) in an aggregate Principal Balance equal to the product of (i) the
difference between such average of Monthly Extension Rates and 4% and (ii) the
Aggregate Principal Balance, and pay the related Purchase Amount on the related
Preliminary Determination Date; provided, however, that in the event the Backup
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Servicer shall be acting as Servicer hereunder, the foregoing sentence shall
apply only in respect of Receivables as to which payments had been extended by
such Backup Servicer.
(d) The Servicer shall use its best efforts to notify or direct 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 notify or direct 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.
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, the Trust Collateral Agent and Noteholders for
servicing and administering the Receivables and the Other Conveyed Property in
accordance with the provisions of this Agreement without
31
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 subject to the terms hereof. 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 Trust Collateral Agent, 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 Insurer (so long as an Insurer
Default shall not have occurred and be continuing) or a Note 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 Insurer (so long as an
Insurer Default shall not have occurred and be continuing) or a Note Majority
(if an Insurer Default shall have occurred and be continuing) to the Trust
Collateral Agent 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 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.
SECTION 4.3. 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 Receivables Payment has become 91 days
delinquent; provided, however, that the Servicer may elect not to repossess a
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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
32
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 Collection 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 Net 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 Owner Trustee and/or the Trust
Collateral Agent, at the Servicer's expense, or the Seller, at the Seller's
expense, shall take such steps as the Servicer deems reasonably 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 Owner Trustee and/or
the Trust Collateral Agent for the benefit of the Noteholders. All amounts
recovered shall be remitted directly by the Servicer as provided in Section
4.2(e).
SECTION 4.4. 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
33
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 Net 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 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 Notes and 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 Receivables Payments
and then to the Insurance Add-On Amount. Net 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 Determination 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 Owner Trustee and/or the Trust Collateral Agent, 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
34
in its name or the name of the Trust and the Owner Trustee and/or the Trust
Collateral Agent for the benefit of the Noteholders.
(e) The Servicer will cause itself and may cause the Trust Collateral
Agent to be named as named insured under all policies of Collateral Insurance.
SECTION 4.5. 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 Trust Collateral Agent 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 Trust, the Servicer hereby agrees that AmeriCredit's
designation as the secured party on the certificate of title is in its capacity
as Servicer as agent of the Trust.
(b) Upon the occurrence of an Insurance Agreement Event of Default, the
Insurer may (so long as an Insurer Default shall not have occurred and be
continuing) instruct the Trust Collateral Agent 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 Trust Collateral Agent 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 Trust 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 Trust Collateral Agent 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 Trust, 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
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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
Trust Collateral Agent in connection with such action shall be reimbursed to the
Servicer or the Trust Collateral Agent, as applicable, by the Controlling Party.
AmeriCredit and CP Funding hereby appoint the Trust Collateral Agent as their
attorney-in-fact to take any and all steps required to be
35
performed by AmeriCredit or CP Funding pursuant to this Section 4.5(b) (it being
understood that and agreed that the Trust Collateral Agent shall have no
obligation to take such steps, except as pursuant to the Basic Documents to
which it is a party), including execution of certificates of title or any other
documents in the name and stead of AmeriCredit or CP Funding, and the Trust
Collateral Agent hereby accepts such appointment.
SECTION 4.6. 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 Trust
Collateral Agent relies in accepting the Receivables, on which the Trustee
relies in authenticating the Notes and on which the Insurer relies in issuing
the Note 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 Noteholders in the Receivables, the Dealer
Agreements, the Dealer Assignments, the Insurance Policies or the Other
Conveyed Property except as otherwise expressly provided herein;
(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 Trust Collateral Agent for the benefit of the Noteholders and
Insurer, the Lien imposed by the Spread Account Agreement Supplement in
favor of the Collateral Agent for the benefit of the Trust Collateral Agent
and 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 Trust Collateral Agent, for the
benefit of the Noteholders and the Insurer.
(b) The Servicer represents, warrants and covenants as of the Closing
Date as to itself that the representations and warranties set forth on the
Schedule of Representations attached hereto as Schedule B are true and correct,
provided that such representations and warranties contained therein and herein
shall not apply to any entity other than AmeriCredit.
SECTION 4.7. Purchase of Receivables Upon Breach of Covenant. Upon
-----------------------------------------------
discovery by any of the Servicer, the Insurer, a Responsible Officer of
the Trust Collateral Agent, the Owner Trustee or a Responsible Officer of the
Trustee of a breach of any of the covenants set forth in
36
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
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such notice shall not affect any obligation of AmeriCredit as Servicer under
this Section. 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 Noteholders
or the Insurer in any Receivable (including any Liquidated Receivable) (or, at
AmeriCredit's election, the first Accounting Date so following) or the related
Financed Vehicle, 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 Determination 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 Insurer, the Noteholders, the Owner Trustee or the Trust
Collateral Agent; provided, however, that AmeriCredit shall indemnify the Trust,
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the Backup Servicer, the Collateral Agent, the Insurer, the Owner Trustee, the
Trust Collateral Agent, the Trustee and the Noteholders from and 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. This section shall survive the termination of this
Agreement and the earlier removal or resignation of the Trustee and/or the Trust
Collateral Agent and/or the Backup Servicer.
SECTION 4.8. 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 5.7. 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 Noteholders or the Insurer and all other fees and expenses of the
Owner Trustee, the Collateral Agent, the Backup Servicer, the Trust Collateral
Agent or 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 Owner Trustee, the Backup Servicer, the Trust Collateral Agent,
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 including the backup
servicer permitted by Section 9.3 shall not be liable for taxes levied or
assessed against the Trust or claims against the Trust in respect of
indemnification, or the fees and expenses referred to above.
SECTION 4.9. Preliminary Servicer's Certificate and Servicer's
-------------------------------------------------
Certificate.
-----------
(a) No later than 10:00 am. Eastern time on each Preliminary
Determination Date, the Servicer shall deliver (facsimile delivery being
acceptable) to the Trustee, the Owner Trustee, the Trust Collateral Agent, the
Collateral Agent, the Backup Servicer, the Insurer, the Collateral Agent and
each Rating Agency a Preliminary Servicer's Certificate executed by a
Responsible Officer of the Servicer containing among other things, all
information necessary to enable the
37
Trust Collateral Agent to give any notice required by Section 5.5(b) and to make
the distributions required by Sections 5.7(a) and 5.7(b).
(b) No later than 10:00 am. Eastern time on each Determination Date, the
Servicer shall deliver (facsimile delivery being acceptable) to the Trustee, the
Owner Trustee, the Trust Collateral Agent, the Backup Servicer, the 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 Trust Collateral Agent to make any
withdrawal and deposit required by Section 5.5 and to make the distributions
required by Section 5.7(c), (ii) a listing of all Purchased Receivables and
Administrative Receivables purchased as of the related Accounting Date,
identifying the Receivables so purchased, (iii) all information necessary to
enable the Trust Collateral Agent to send the statements to Noteholders and the
Insurer required by Section 5.10, and (iv) all information necessary to enable
the Trust Collateral Agent to reconcile the aggregate cash flows, the Collection
Account for the related Collection Period, Distribution Date and Insured
Distribution Date, including the accounting required by Section 5.10.
Receivables purchased by the Servicer or by the Seller on the related Accounting
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). In addition to the
information set forth in the preceding sentence, the Servicer's Certificate
shall also contain the following information: (a) the Delinquency Ratio, Average
Delinquency Ratio, Cumulative Default Ratio and Cumulative Net Loss Ratio (as
such terms are defined in the Spread Account Agreement) for such Determination
Date; (b) whether any Trigger Event has occurred as of such Determination Date;
(c) whether any Trigger Event 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.
(c) In the event that the Distribution Date is the date described in
clause (y) of the definition of "Distribution Date" (i.e., if AmeriCredit is no
longer the Servicer), then the information required by the Preliminary
Servicer's Certificate shall be added to the information required by the
Servicer's Certificate, and the expanded Servicer's Certificate shall be
delivered as required by paragraph (b) above.
SECTION 4.10. Annual Statement as to Compliance, Notice of Servicer
-----------------------------------------------------
Termination Event.
------------------
(a) The Servicer shall deliver to the Trustee, the Owner Trustee, the
Trust Collateral Agent, the Backup Servicer, the 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, 1999, 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
38
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 Owner Trustee, the
Trust Collateral Agent, the Backup Servicer, the Insurer, 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 9.1(a).
The Seller or the Servicer shall deliver to the Trustee, the Owner Trustee, the
Trust Collateral Agent, the Backup Servicer, the 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 9.1.
SECTION 4.11. Annual Independent Accountants' Report.
---------------------------------------
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 Owner Trustee, the Trust Collateral Agent, the Backup Servicer, the
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, 1999, 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 Owner Trustee, the Trust Collateral Agent, the
Backup Servicer and to the 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.
39
SECTION 4.12. Access to Certain Documentation and Information Regarding
---------------------------------------------------------
Receivables. The Servicer shall provide to representatives of the Trustee, the
-----------
Owner Trustee, the Trust Collateral Agent, the Backup Servicer and the 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 affect 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.
SECTION 4.13. Monthly Tape. On or before the Insured Distribution Date,
------------
but in no event later than the seventh calendar day, of each month, the Servicer
will deliver to the Trust Collateral Agent and the Backup Servicer a computer
tape and a diskette (or any other electronic transmission acceptable to the
Trust Collateral Agent and the Backup Servicer) in a format acceptable to the
Trust Collateral Agent 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 the immediately preceding
Determination Date and necessary to determine the application of collections as
provided in Section 5.4. The Backup Servicer shall use such tape or diskette (or
other electronic transmission acceptable to the Trust Collateral Agent 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 and shall
notify the Servicer and the Controlling Party of any discrepancies, in each
case, on or before the second Business Day following the Insured Distribution
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 next succeeding 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 next succeeding 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 next
succeeding Distribution Date, the Servicer shall cause the Independent
Accountants, at the Servicer's expense, to audit the Servicer's Certificate and,
prior to the last day of the month after the month in which such Servicer's
Certificate was delivered, reconcile the discrepancies. The effect, if any, of
such reconciliation shall be reflected in the Preliminary Servicer's Certificate
for the next succeeding Distribution Date, and/or 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.
SECTION 4.14. 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 December 31, 1998, which term
shall be extendible by the Controlling Party for successive quarterly terms
ending on each successive March 31, June 30
40
and September 30 (or, pursuant to revocable written standing instructions from
time to time to the Servicer and the Trust Collateral Agent for any specified
number of terms greater than one), until the Notes and the Securities 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 Insurer to the Trust Collateral Agent 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 Trust
Collateral Agent agrees that if as of the fifteenth day prior to the last day of
any term of the Servicer the Trust Collateral Agent shall not have received any
Servicer Extension Notice from the Insurer, the Trust Collateral Agent will,
within five days thereafter, give written notice of such non-receipt to the
Insurer and the Servicer.
SECTION 4.15. 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.
ARTICLE V
---------
Trust Accounts; Distributions;
------------------------------
Statements to Noteholders
-------------------------
SECTION 5.1. Establishment of Trust Accounts.
--------------------------------
(a) (i) The Trust Collateral Agent, on behalf of the Noteholders and
the Insurer, shall establish and maintain in its own name an Eligible
Deposit Account (the "Collection Account"), bearing a designation clearly
indicating that the funds deposited therein are held for the benefit of the
Trust Collateral Agent on behalf of the Noteholders and the Insurer. The
Collection Account shall initially be established with the Trust Collateral
Agent.
(ii) The Trust Collateral Agent, on behalf of the Noteholders, shall
establish and maintain in its own name an Eligible Deposit Account (the
"Note Distribution Account"), bearing a designation clearly indicating that
the funds deposited therein are held for the benefit of the Trust
Collateral Agent on behalf of the Noteholders and the Insurer. The Note
Distribution Account shall initially be established with the Trust
Collateral Agent.
(iii) The Trust Collateral Agent, on behalf of the Noteholders and
the Insurer, shall establish and maintain in its own name an Eligible
Deposit Account (the "Pre-Funding Account"), bearing a designation clearly
indicating that the funds deposited therein are held for the benefit of the
Trust Collateral Agent on behalf of the Noteholders and the
41
Insurer. The Pre-Funding Account shall initially be established with the
Trust Collateral Agent.
(b) Funds on deposit in the Collection Account, the Pre-Funding Account,
the Note Distribution Account and the Capitalized Interest Account
(collectively, the "Trust Accounts") and the Lockbox Accounts shall be invested
by the Trust Collateral Agent (or any custodian with respect to funds on deposit
in any such account) in Eligible Investments selected in writing by the Servicer
(pursuant to standing instructions or otherwise). All such Eligible Investments
shall be held by or on behalf of the Trust Collateral Agent for the benefit of
the Noteholders and the Insurer, as applicable. Other than as permitted by the
Rating Agencies and the Insurer, funds on deposit in any Account shall be
invested in Eligible Investments that will mature so that such funds will be
available at the close of business on the Business Day immediately preceding the
following Distribution Date or, if earlier, on the following Insured
Distribution Date. Funds deposited in a Trust Account on the day immediately
preceding a Distribution Date or an Insured Distribution Date upon the maturity
of any Eligible Investments are not required to be invested overnight. All
Eligible Investments will be held to maturity.
(c) All investment earnings of moneys deposited in the Trust Accounts
shall be deposited (or caused to be deposited) by the Trust Collateral Agent in
the Collection Account, and any loss resulting from such investments shall be
charged to such account. The Servicer will not direct the Trust Collateral
Agent to make any investment of any funds held in any of the Trust Accounts
unless the security interest granted and perfected in such account will continue
to be perfected in such investment, in either case without any further action by
any Person, and, in connection with any direction to the Trust Collateral Agent
to make any such investment, if requested by the Trust Collateral Agent, the
Servicer shall deliver to the Trust Collateral Agent an Opinion of Counsel,
acceptable to the Trust Collateral Agent, to such effect.
(d) The Trust Collateral Agent shall not in any way be held liable by
reason of any insufficiency in any of the Trust Accounts resulting from any loss
on any Eligible Investment included therein except for losses attributable to
the Trust Collateral Agent's negligence or bad faith or its failure to make
payments on such Eligible Investments issued by the Trust Collateral Agent, in
its commercial capacity as principal obligor and not as trustee, in accordance
with their terms.
(e) If (i) the Servicer shall have failed to give investment directions
in writing for any funds on deposit in the Trust Accounts to the Trust
Collateral Agent by 1:00 p.m. Eastern Time (or such other time as may be agreed
by the Issuer and Trust Collateral Agent) on any Business Day; or (ii) a Default
or Event of Default shall have occurred and be continuing with respect to the
Notes but the Notes shall not have been declared due and payable, or, if such
Notes shall have been declared due and payable following an Event of Default,
amounts collected or receivable from the Trust Property are being applied as if
there had not been such a declaration; then the Trust Collateral Agent shall, to
the fullest extent practicable, invest and reinvest funds in the Trust Accounts
in the investment described in clause (g) of the definition of Eligible
Investments.
(f) (i) The Trust Collateral Agent shall possess all right, title and
interest in all funds on deposit from time to time in the Trust Accounts and in
all proceeds thereof (excluding all
42
Investment Earnings on the Collection Account) and all such funds, investments,
proceeds and income shall be part of the Owner Trust Estate. Except as otherwise
provided herein, the Trust Accounts shall be under the sole dominion and control
of the Trust Collateral Agent for the benefit of the Noteholders, as the case
may be, and the Insurer. If, at any time, any of the Trust Accounts ceases to be
an Eligible Deposit Account, the Trust Collateral Agent (or the Servicer on its
behalf) shall within five Business Days (or such longer period as to which each
Rating Agency and the Insurer may consent) establish a new Trust Account as an
Eligible Deposit Account and shall transfer any cash and/or any investments to
such new Trust Account. In connection with the foregoing, the Servicer agrees
that, in the event that any of the Trust Accounts are not accounts with the
Trust Collateral Agent, the Servicer shall notify the Trust Collateral Agent in
writing promptly upon any of such Trust Accounts ceasing to be an Eligible
Deposit Account.
(ii) With respect to the Trust Account Property, the Trust
Collateral Agent agrees that:
(A) any Trust Account Property that is held in deposit accounts
shall be held solely in the Eligible Deposit Accounts; and, except as
otherwise provided herein, each such Eligible Deposit Account shall be
subject to the exclusive custody and control of the Trust Collateral
Agent, and the Trust Collateral Agent shall have sole signature
authority with respect thereto;
(B) any Trust Account Property that constitutes Physical
Property shall be delivered to the Trust Collateral Agent in
accordance with paragraph (a) of the definition of "Delivery" and
shall be held, pending maturity or disposition, solely by the Trust
Collateral Agent or a financial intermediary (as such term is defined
in Section 8-313(4) of the UCC) acting solely for the Trust Collateral
Agent;
(C) any Trust Account Property that is a book-entry security
held through the Federal Reserve System pursuant to Federal book-entry
regulations shall be delivered in accordance with paragraph (b) of the
definition of "Delivery" and shall be maintained by the Trust
Collateral Agent, pending maturity or disposition, through continued
book-entry registration of such Trust Account Property as described in
such paragraph; and
(D) any Trust Account Property that is an "uncertificated
security" under Article 8 of the UCC and that is not governed by
clause (C) above shall be delivered to the Trust Collateral Agent in
accordance with paragraph (c) of the definition of "Delivery" and
shall be maintained by the Trust Collateral Agent, pending maturity or
disposition, through continued registration of the Trust Collateral
Agent's (or its nominee's) ownership of such security.
(g) The Servicer shall have the power, revocable by the Insurer or, with
the consent of the Insurer by the Trustee or by the Owner Trustee with the
consent of the Trustee, to instruct the Trust Collateral Agent to make
withdrawals and payments from the Trust Accounts for the purpose of permitting
the Servicer and the Trust Collateral Agent to carry out its respective duties
hereunder.
43
SECTION 5.2. Capitalized Interest Account.
-----------------------------
(a) The Servicer shall cause the Trust Collateral Agent to establish and
maintain an Eligible Deposit Account (the "Capitalized Interest Account") with
the Trust Collateral Agent, bearing a designation clearly indicating that the
funds deposited therein are held in trust for the benefit of the Noteholders and
the Insurer.
On or prior to the Closing Date, the Seller shall deposit an amount equal
to the Capitalized Interest Account Initial Deposit into the Capitalized
Interest Account.
(b) (i) On the Distribution Dates occurring in December 1998, January
1999 and February 1999 the Trust Collateral Agent shall withdraw at the written
direction of the Servicer from the Capitalized Interest Account the Monthly
Capitalized Interest Amount for such Distribution Date and deposit such amount
in the Collection Account as further provided in Section 5.7.
(ii) On the Distribution Dates occurring in December 1998, January
1999 and February 1999 the Servicer shall instruct the Trust Collateral
Agent in writing to withdraw from the Capitalized Interest Account and pay
to the Seller on such Distribution Date an amount equal to the Overfunded
Capitalized Interest Amount for such Distribution Date. Any amounts
remaining in the Capitalized Interest Account on the Distribution Date
which immediately follows the end of the Funding Period after taking into
account the transfer pursuant to Section 5.7(a)(i) shall be remitted by the
Trust Collateral Agent to the Seller. Upon any such distributions to the
Seller, the Noteholders, the Certificateholders and the Insurer will have
no further rights in, or claims to, such amounts.
SECTION 5.3. Certain Reimbursements to the Servicer. 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 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 5.7(b)(i) upon certification by
the Servicer of such amounts and the provision of such information to the Trust
Collateral Agent and the Insurer as may be necessary in the opinion of the
Insurer to verify the accuracy of such certification. In the event that the
Insurer has not received evidence satisfactory to it of the Servicer's
entitlement to reimbursement pursuant to this Section, the Insurer shall (unless
an Insurer Default shall have occurred and be continuing) give the Trust
Collateral Agent notice in writing to such effect, following receipt of which
the Trust Collateral Agent shall not make a distribution to the Servicer in
respect of such amount pursuant to Section 5.7, or if the Servicer prior thereto
has been reimbursed pursuant to Section 5.7, the Trust Collateral Agent shall
withhold such amounts from amounts otherwise distributable to the Servicer on
the next succeeding Distribution Date.
SECTION 5.4. Application of Collections. All collections for the
--------------------------
Collection Period shall be applied by the Servicer as follows:
44
With respect to each Receivable (other than a Purchased Receivable),
payments by or on behalf of the Obligor, (other than 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.
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 5.7(b).
SECTION 5.5. Withdrawals from Spread Account.
-------------------------------
(a) In the event that the Servicer's Certificate with respect to any
Determination Date shall state that there is a Deficiency Claim Amount then on
the Deficiency Claim Date immediately preceding the related Insured Distribution
Date, the Trust Collateral Agent shall deliver to the Collateral Agent, the
Owner Trustee, the Insurer and the Servicer, by hand delivery or facsimile
transmission, a written notice (a "Deficiency Notice") specifying the Deficiency
Claim Amount for such Insured Distribution Date and the Note Policy Claim
Amount, if any. 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 Trust Collateral
Agent for deposit in the Collection Account on the related Insured Distribution
Date.
Any Deficiency shall be delivered by 12:00 noon, Eastern time, on the
fourth Business Day preceding such Insured Distribution Date.
(b) In the event that the Preliminary Servicer's Certificate with respect
to any Preliminary Determination Date shall state that there shall be an
Accelerated Payment Amount Shortfall with respect to the related Distribution
Date, then on the Business Day preceding such Distribution Date, the Trust
Collateral Agent shall deliver to the Collateral Agent, the Insurer and the
Servicer, by hand delivery or facsimile transmission, an Accelerated Payment
Shortfall Notice. Such Accelerated Payment Shortfall Notice shall direct the
Collateral Agent to remit such Accelerated Payment Amount Shortfall to the Trust
Collateral Agent (to the extent of funds available to be distributed in the
Spread Account Agreement) for deposit in the Collection Account on the related
Distribution Date. Any Accelerated Payment Shortfall Notice shall be delivered
by 2:00 p.m. Eastern time, on the Business Day preceding such Distribution Date.
(c) The amounts distributed by the Collateral Agent to the Trust
Collateral Agent pursuant to a Deficiency Notice or Accelerated Payment
Shortfall Notice shall be deposited by the Trust Collateral Agent into the
Collection Account pursuant to Section 5.6.
SECTION 5.6. Additional Deposits.
--------------------
(a) The Servicer and the Seller, as applicable, shall deposit or cause to
be deposited in the Collection Account on the Preliminary Determination Date on
which such obligations are due the aggregate Purchase Amount with respect to
Purchased Receivables. On or before each Draw Date, the Trust Collateral Agent
shall remit to the Collection Account any amounts delivered to the Trust
Collateral Agent by the Collateral Agent.
45
(b) The proceeds of any purchase or sale of the assets of the Trust
described in Section 10.1 hereof shall be deposited in the Collection Account.
SECTION 5.7. Distributions.
--------------
(a) No later than 11:00 a.m. New York time on each Distribution Date, the
Trust Collateral Agent shall (based solely on the information contained in the
Preliminary Servicer's Certificate delivered on the related Preliminary
Determination Date) cause to be made the following transfers and distributions
in the amounts set forth in the Preliminary Servicer's Certificate for such
Distribution Date:
(i) During the Funding Period, from the Capitalized Interest Account
to the Collection Account, in immediately available funds, the Monthly
Capitalized Interest Amount for such Distribution Date; and
(ii) If such Distribution Date is the Mandatory Redemption Date,
from the Pre-Funding Account to the Collection Account, in immediately
available funds, the Pre-Funded Amount after giving effect to the purchase
of Subsequent Receivables, if any, on the Mandatory Redemption Date.
(b) On each Distribution Date, the Trust Collateral Agent shall (based
solely on the information contained in the Preliminary Servicer's Certificate
delivered with respect to the related Preliminary Determination Date) distribute
the following amounts from the Collection Account unless otherwise specified, to
the extent of the sources of funds stated to be available therefor, and in the
following order of priority:
(i) from the Available Funds, to the Servicer, the Base Servicing
Fee for the related Collection Period, any Supplemental Servicing Fees for
the related Collection Period, and any amounts specified in Section 5.3, to
the extent the Servicer has not reimbursed itself in respect of such
amounts pursuant to Section 5.3 and to the extent not retained by the
Servicer;
(ii) from the Available Funds, to each of the Lockbox Banks, the
Trustee and the Owner Trustee, their respective accrued and unpaid
trustees' fees and expenses and any accrued and unpaid fees and expenses of
the Trust Collateral Agent (in each case, to the extent such fees have not
been previously paid by the Servicer and provided that such fees shall not
exceed $300,000 in the aggregate in any calendar year);
(iii) from the Available Funds to the Note Distribution Account,
the Noteholders' Interest Distributable Amount;
(iv) from the Available Funds to the Note Distribution Account, the
Noteholders' Principal Distributable Amount plus, on the Mandatory
Redemption Date, the Note Prepayment Amount;
(v) from the Available Funds, to the Insurer, to the extent of any
amounts owing to the Insurer under the Insurance Agreement and not paid;
46
(vi) from Available Funds (minus the amount of Investment Earnings
relating to the Collection Account (provided, that such amount so remaining
after deduction of such Investment Earnings shall not be less than zero)),
to the Spread Account, an amount, if necessary, required to increase the
amount therein to its then required level;
(vii) from Available Funds (minus the amount of Investment Earnings
relating to the Collection Account (provided, that such amount so remaining
after deduction of such Investment Earnings shall not be less than zero))
and amounts, if any, received by the Trust Collateral Agent in respect of
the Accelerated Payment Amount Shortfall, to the Note Distribution Account,
the Noteholders' Accelerated Principal Amount; and
(viii) from Available Funds, any remaining Available Funds to the
Collateral Agent for deposit in the Spread Account;
provided, however, that, (A) following an acceleration of the Notes or, (B) if
-------- -------
an Insurer Default shall have occurred and be continuing and an Event of Default
pursuant to Section 5.1(i), 5.1(ii), 5.1(iv), 5.1(v) or 5.1(vi) of the Indenture
shall have occurred and be continuing, or (C) the receipt of Insolvency Proceeds
pursuant to Section 10.1(b), amounts deposited in the Note Distribution Account
(including any such Insolvency Proceeds) shall be paid to the Noteholders,
pursuant to Section 5.6 of the Indenture.
(c) On each Insured Distribution Date, the Trust Collateral Agent shall
(based solely on the information contained in the Servicer's Certificate
delivered with respect to the related Determination Date, unless the Insurer
shall have notified the Trust Collateral Agent in writing of any errors or
deficiencies with respect thereto) distribute from the Collection Account the
Additional Funds Available, if any, plus the Note Policy Claim Amount, if any,
in each case then on deposit in the Collection Account, and deposit in the Note
Distribution Account any excess of the Scheduled Payments (as defined in the
Note Policy) due on such Insured Distribution Date over the amount of all
Available Funds previously deposited in the Note Distribution Account with
respect to the related Distribution Date, which amount shall be applied solely
to the payment of amounts then due and unpaid on the Notes in accordance with
the priorities set forth in Section 5.8(a).
(d) In the event that the Collection Account is maintained with an
institution other than the Trust Collateral Agent, the Servicer shall instruct
and cause such institution to make all deposits and distributions pursuant to
Sections 5.7(b) and 5.7(c) on the related Distribution Date and the related
Insured Distribution Date, as applicable.
SECTION 5.8. Note Distribution Account.
--------------------------
(a) On each Distribution Date (based solely on the information contained
in the Preliminary Servicer's Certificate) and each Insured Distribution Date
(based solely on the information in the Servicer's Certificate), as applicable,
the Trust Collateral Agent shall distribute all amounts on deposit in the Note
Distribution Account to Noteholders in respect of the Notes to the extent of
amounts due and unpaid on the Notes for principal and interest in the following
amounts and in the following order of priority:
47
(i) accrued and unpaid interest on the Notes; provided that if there
--------
are not sufficient funds in the Note Distribution Account to pay the entire
amount of accrued and unpaid interest then due on each Class of Notes, the
amount in the Note Distribution Account shall be applied to the payment of
such interest on each Class of Notes pro rata on the basis of the amount of
accrued and unpaid interest due on each Class of Notes;
(ii) any amounts deposited in the Note Distribution Account with
respect to the Note Prepayment Amount, shall be distributed to the Holders
of the Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes and the
Class A-4 Notes, based upon the pro rata share as represented by the
--- ----
relative Outstanding Amount of each Class of Notes; provided, that if the
aggregate remaining amount in the Pre-Funding Account is $100,000 or less,
such amount will be applied exclusively to reduce the outstanding principal
balance of the Class of Notes then entitled to receive distributions of
principal;
(iii) to the Holders of the Class A-1 Notes, the Noteholders'
Principal Distributable Amount and the Accelerated Principal Amount until
the outstanding principal balance of the Class A-1 Notes is reduced to
zero;
(iv) to the Holders of the Class A-2 Notes, the Noteholders'
Principal Distributable Amount and the Accelerated Principal Amount until
the outstanding principal balance of the Class A-2 Notes is reduced to
zero;
(v) to the Holders of the Class A-3 Notes, the Noteholders'
Principal Distributable Amount and the Accelerated Principal Amount until
the outstanding principal balance of the Class A-3 Notes is reduced to
zero; and
(vi) to the Holders of the Class A-4 Notes, the Noteholders'
Principal Distributable Amount and the Accelerated Principal Amount until
the outstanding principal balance of the Class A-4 Notes is reduced to
zero.
(b) On each Insured Distribution Date, the Trust Collateral Agent shall
send to each Noteholder the statement provided to the Trust Collateral Agent by
the Servicer pursuant to Section 5.10 hereof on such Insured Distribution Date.
(c) In the event that any withholding tax is imposed on the Trust's
payment (or allocations of income) to a Noteholder, such tax shall reduce the
amount otherwise distributable to the Noteholder in accordance with this
Section. The Trust Collateral Agent is hereby authorized and directed to retain
from amounts otherwise distributable to the Noteholders sufficient funds for the
payment of any tax attributable to the Trust (but such authorization shall not
prevent the Trust Collateral Agent from contesting any such tax in appropriate
proceedings, and withholding payment of such tax, if permitted by law, pending
the outcome of such proceedings). The amount of any withholding tax imposed
with respect to a Noteholder shall be treated as cash distributed to such
Noteholder at the time it is withheld by the Trust and remitted to the
appropriate taxing authority. If there is a possibility that withholding tax is
payable with respect to a distribution (such as a distribution to a non-US
Noteholder), the Trust Collateral Agent may in its sole discretion withhold such
amounts in accordance with this clause (c). In the event that a Noteholder
wishes to apply for a refund of any such withholding tax, the Trust
48
Collateral Agent shall reasonably cooperate with such Noteholder in making such
claim so long as such Noteholder agrees to reimburse the Trust Collateral Agent
for any out-of-pocket expenses (including legal fees and expenses) incurred.
(d) Distributions required to be made to Noteholders on any Distribution
Date or any Insured Distribution Date shall be made to each Noteholder of record
on the preceding Record Date either by (i) wire transfer, in immediately
available funds, to the account of such Holder at a bank or other entity having
appropriate facilities therefor, if such Noteholder shall have provided to the
Note Registrar appropriate written instructions at least five Business Days
prior to such Distribution Date and such Holder's Notes in the aggregate
evidence a denomination of not less than $1,000,000 or (ii) by check mailed to
such Noteholder at the address of such holder appearing in the Note Register.
Notwithstanding the foregoing, the final distribution in respect of any Note
(whether on the Final Scheduled Distribution Date or otherwise) will be payable
only upon presentation and surrender of such Note at the office or agency
maintained for that purpose by the Note Registrar pursuant to Section 2.4 of the
Indenture.
(e) Subject to Section 5.1 and this section, monies received by the Trust
Collateral Agent hereunder need not be segregated in any manner except to the
extent required by law and may be deposited under such general conditions as may
be prescribed by law, and the Trust Collateral Agent shall not be liable for any
interest thereon.
SECTION 5.9. Pre-Funding Account.
--------------------
(a) On the Closing Date, the Trust Collateral Agent will deposit, on
behalf of and at the written direction of the Seller, in the Pre-Funding Account
$135,580,549.86 from the proceeds of the sale of the Notes. On each Subsequent
Transfer Date, the Servicer shall instruct the Trust Collateral Agent in writing
to withdraw from the Pre-Funding Account (i) an amount equal to 97% of the
Principal Balance of the Subsequent Receivables transferred to the Issuer on
such Subsequent Transfer Date and to distribute such amount to or upon the order
of the Seller upon satisfaction of the conditions set forth in this Agreement
with respect to such transfer and (ii) an amount equal to the Subsequent Spread
Account Deposit on such Subsequent Transfer Date upon satisfaction of the
conditions set forth in this Agreement with respect to such transfer.
(b) If the Pre-Funded Amount has not been reduced to zero on the date on
which the Funding Period ends after giving effect to any reductions in the Pre-
Funded Amount on such date, the Servicer shall instruct the Trust Collateral
Agent in writing to withdraw from the Pre-Funding Account on the Mandatory
Redemption Date the Pre-Funded Amount (exclusive of any Pre-Funding Earnings)
and deposit an amount equal to the Note Prepayment Amount in the Note
Distribution Account.
SECTION 5.10. Statements to Noteholders. On or prior to each
-------------------------
Distribution Date, the Trust Collateral Agent shall provide each Noteholder of
record (with a copy to the Insurer and the Rating Agencies) a statement setting
forth at least the following information as to the Notes to the extent
applicable:
(i) the amount of such distribution allocable to principal of each
Class of Notes;
49
(ii) the amount of such distribution allocable to interest on or
with respect to each Class of Notes;
(iii) the amount of such distribution payable out of amounts
withdrawn from the Spread Account or pursuant to a claim on the Note
Policy;
(iv) the Pool Balance as of the close of business on the last day of
the preceding Collection Period;
(v) the aggregate outstanding principal amount of each Class of the
Notes and the Note Pool Factor for each such Class after giving effect to
payments allocated to principal reported under (i) above;
(vi) the amount of the Servicing Fee paid to the Servicer with
respect to the related Collection Period and/or due but unpaid with respect
to such Collection Period or prior Collection Periods, as the case may be;
(vii) the Noteholders' Interest Carryover Amount and the Noteholders'
Principal Carryover Amount;
(viii) the amount of the aggregate Realized Losses, if any, for the
second preceding Collection Period;
(ix) the aggregate Purchase Amounts for Receivables, if any, that
were repurchased in such period;
(x) for Distribution Dates during the Funding Period (if any), the
remaining Pre-Funded Amount; and
(xi) for the final Subsequent Transfer Date, the amount of any
remaining Pre-Funded Amount that has not been used to fund the purchase of
Subsequent Receivables and is passed through as principal to Noteholders.
Each amount set forth pursuant to paragraph (i), (ii), (iii), (vi) and (vii)
above shall be expressed as a dollar amount per $1,000 of the initial principal
balance of the Notes (or Class thereof).
SECTION 5.11. Optional Deposits by the Insurer. The Insurer shall at
--------------------------------
any time, and from time to time, with respect to an Insured Distribution Date,
have the option (but shall not be required, except in accordance with the terms
of the Note Policy) to deliver amounts to the Trust Collateral Agent 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 the Trust with respect to such Insured Distribution Date, or (ii) to include
such amount to the extent that without such amount a draw would be required to
be made on the Note Policy.
SECTION 5.12. Determination of LIBOR.
------------------------
The Trust Collateral Agent will determine LIBOR for purposes of calculating
the Interest Rate for the Class A-2 Notes, the Class A-3 Notes and the Class A-4
Notes for each given
50
Interest Period on the second business day prior to the commencement of each
Interest Periods (each, a "LIBOR Determination Date"). For purposes of
calculating LIBOR, a business day means a Business Day and a day on which
banking institutions in the City of London, England are not required or
authorized by law to be closed.
"LIBOR" means, with respect to any Interest Period, the London interbank
offered rate for deposits in the U.S. dollars having a maturity of one month
commencing on the related LIBOR Determination Date (the "Index Maturity") which
appears on Telerate Page 3750 as of 11:00 a.m., London time, on such LIBOR
Determination Date. If such rate does not appear on the Telerate page 3750, the
rate for that day will be determined on the basis of the rate at which deposits
in U.S. dollars, having the Index Maturity and in a principal amount of not less
than U.S. $1,000,000 are offered at approximately 11:00 a.m., London Time, on
such LIBOR Determination Date to prime banks in the London interbank market by
the Reference Banks. The Trust Collateral Agent will request the principal
London office of each of such Reference Banks to provide a quotation of its
rate. If at least two such quotations are provided, the rate for that day will
be the arithmetic mean, rounded upward, if necessary, to the nearest 1/100,000
of 1% (0.0000001), with five one-millionths of a percentage point rounded
upward, of all such quotations. If fewer than two such quotations are provided,
the rate for that day will be the arithmetic mean, rounded upward of necessary
to the nearest 1/100,000 of 1% (0.0000001), with five one-millionths of a
percentage point rounded upward, of the offered per annum rates that one or more
leading banks in New York City, selected by the Trust Collateral Agent, are
quoting as of approximately 11:00, Eastern time, on such LIBOR Determination
Date to leading European banks for United States dollar deposits for the Index
Maturity; provided that if the banks selected as aforesaid are not quoting as
mentioned in this sentence, LIBOR in effect for the applicable Interest Period
will be LIBOR in effect for the previous Interest Period.
"Telerate Page 3750" means the display page so designative on the Dow Xxxxx
Telerate Services (or such other page as may replace that page on that service
for the purpose of displaying comparable name or rates).
"Reference Banks" means four major banks in the London interbank market
selected by the Trust Collateral Agent.
ARTICLE VI
The Note Policy
---------------
SECTION 6.1. Claims Under Note Policy.
-------------------------
(a) In the event that the Trust Collateral Agent has delivered a
Deficiency Notice with respect to any Determination Date pursuant to Section 5.5
hereof, the Trust Collateral Agent shall on the related Draw Date determine the
Note Policy Claim Amount for the related Insured Distribution Date. If the Note
Policy Claim Amount for such Insured Distribution Date is greater than zero, the
Trust Collateral Agent shall furnish to the Insurer no later than 12:00 noon
Eastern time on the related Draw Date a completed Notice of Claim (as defined in
(b) below) in the amount of the Note Policy Claim Amount. Amounts paid by the
Insurer pursuant to a claim
51
submitted under this Section shall be deposited by the Trust Collateral Agent
into the Note Distribution Account for payment to Noteholders on the related
Insured Distribution Date.
(b) Any notice delivered by the Trust Collateral Agent to the Insurer
pursuant to subsection 6.1(a) shall specify the Note Policy Claim Amount claimed
under the Note Policy and shall constitute a "Notice of Claim" under the Note
Policy. In accordance with the provisions of the Note Policy, the Insurer is
required to pay to the Trust Collateral Agent the Note Policy Claim Amount
properly claimed thereunder by 10:00 a.m., Eastern 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 Insured Distribution Date. Any payment made by the
Insurer under the Note Policy shall be applied solely to the payment of the
Notes, and for no other purpose.
(c) The Trust Collateral Agent shall (i) receive as attorney-in-fact of
each Noteholder any Note Policy Claim Amount from the Insurer and (ii) deposit
the same in the Collection Account for distribution to Noteholders. Any and all
Note Policy Claim Amounts disbursed by the Trust Collateral Agent from claims
made under the Note Policy shall not be considered payment by the Trust or from
the Spread Account with respect to such Notes, and shall not discharge the
obligations of the Trust with respect thereto. The Insurer shall, to the extent
it makes any payment with respect to the Notes, 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 Notes by or on behalf of
the Insurer, the Trust Collateral Agent shall assign to the Insurer all rights
to the payment of interest or principal with respect to the Notes which are then
due for payment to the extent of all payments made by the Insurer, and the
Insurer may exercise any option, vote, right, power or the like with respect to
the Notes to the extent that it has made payment pursuant to the Note Policy.
To evidence such subrogation, the Note Registrar shall note the Insurer's rights
as subrogee upon the register of Noteholders upon receipt from the Insurer of
proof of payment by the Insurer of any Noteholders' Interest Distributable
Amount or Noteholders' Principal Distributable Amount. The foregoing
subrogation shall in all cases be subject to the rights of the Noteholders to
receive all Scheduled Payments (as defined in the Note Policy) in respect of the
Notes.
(d) The Trust Collateral Agent shall keep a complete and accurate record
of all funds deposited by the Insurer into the Collection Account and the
allocation of such funds to payment of interest on and principal paid in respect
of any Note. The Insurer shall have the right to inspect such records at
reasonable times upon one Business Day's prior notice to the Trust Collateral
Agent.
(e) The Trust Collateral Agent shall be entitled to enforce on behalf of
the Noteholders the obligations of the Insurer under the Note Policy.
Notwithstanding any other provision of this Agreement or any Basic Document, the
Noteholders are not entitled to institute proceedings directly against the
Insurer.
SECTION 6.2. Preference Claims.
------------------
(a) In the event that the Trust Collateral Agent has received a certified
copy of an order of the appropriate court that any Scheduled Payment (as defined
in the Note Policy) paid on a Note has been avoided in whole or in part as a
preference payment under applicable bankruptcy
52
law, the Trust Collateral Agent shall so notify the Insurer, shall comply with
the provisions of the Note Policy to obtain payment by the Insurer of such
avoided payment, and shall, at the time it provides notice to the Insurer,
notify Holders of the Notes by mail that, in the event that any Noteholder's
payment is so recoverable, such Noteholder will be entitled to payment pursuant
to the terms of the Note Policy. The Trust Collateral Agent shall furnish to the
Insurer its records evidencing the payments of principal of and interest on
Notes, if any, which have been made by the Trust Collateral Agent and
subsequently recovered from Noteholders, and the dates on which such payments
were made. Pursuant to the terms of the Note Policy, the Insurer will make such
payment on behalf of the Noteholder to the receiver, conservator, debtor-in-
possession or trustee in bankruptcy named in the Order (as defined in the Note
Policy) and not to the Trust Collateral Agent or any Noteholder directly (unless
a Noteholder has previously paid such payment to the receiver, conservator,
debtor-in-possession or trustee in bankruptcy, in which case the Insurer will
make such payment to the Trust Collateral Agent for distribution to such
Noteholder upon proof of such payment reasonably satisfactory to the Insurer).
(b) The Trust Collateral Agent shall promptly notify the Insurer of any
proceeding or the institution of any action (of which a Responsible Officer of
the Trust Collateral Agent has actual knowledge) seeking the avoidance as a
preferential transfer under applicable bankruptcy, insolvency, receivership,
rehabilitation or similar law (a "Note Preference Claim") of any distribution
made with respect to the Notes. Each Holder, by its purchase of Notes, and the
Trust Collateral Agent hereby agree that so long as an Insurer Default shall not
have occurred and be continuing, the 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, supersedes as or performance bond pending any such
appeal at the expense of the Insurer, but subject to reimbursement as provided
in the Insurance Agreement. In addition, and without limitation of the
foregoing, as set forth in Section 6.1(c), the Insurer shall be subrogated to,
and each Noteholder and the Trust Collateral Agent hereby delegate and assign,
to the fullest extent permitted by law, the rights of the trustee and each
Noteholder 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.
SECTION 6.3. Surrender of Policy. The Trust Collateral Agent shall
-------------------
surrender the Note Policy to the Insurer for cancellation upon the expiration of
such policy in accordance with the terms thereof.
ARTICLE VII
The Seller
----------
SECTION 7.1. Representations of Seller. The Seller makes the following
-------------------------
representations on which the Insurer shall be deemed to have relied in executing
and delivering the Note Policy and on which the Issuer is deemed to have relied
in acquiring the Receivables and on which the Trustee, Collateral Agent, Trust
Collateral Agent and Backup Servicer may rely. The representations speak as of
the execution and delivery of this Agreement and as of the Closing
53
Date, in the case of Initial Receivables, and as of the applicable Subsequent
Transfer Date, in the case of Subsequent Receivables, and shall survive the sale
of the Receivables to the Issuer and the pledge thereof to the Trustee pursuant
to the Indenture.
(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 Nevada, 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, 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 Basic Documents.
(d) Power and Authority. The Seller has the power and authority to
-------------------
execute and deliver this Agreement and its Basic 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 Basic
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 Basic 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 Basic Documents and the fulfillment of the terms of this
Agreement and the Basic 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
54
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.
(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 Basic Documents, (B)
seeking to prevent the issuance of the Securities or the consummation of any of
the transactions contemplated by this Agreement or any of the Basic 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 Basic Documents, or (D)
seeking to adversely affect the federal income tax or other federal, state or
local tax attributes of the Securities.
(h) Chief Executive Office. The chief executive office of the Seller is
----------------------
at 0000 Xxxxxxxxx Xxx, Xxxx, Xxxxxx 00000.
SECTION 7.2. Corporate Existence.
--------------------
(a) During the term of this Agreement, the Seller will keep in full force
and effect its existence, rights and franchises as a corporation under the laws
of the jurisdiction of its incorporation and will obtain and preserve its
qualification to do business in each jurisdiction in which such qualification is
or shall be necessary to protect the validity and enforceability of this
Agreement, any Subsequent Transfer Agreement, the Basic Documents and each other
instrument or agreement necessary or appropriate to the proper administration of
this Agreement and the transactions contemplated hereby.
(b) During the term of this Agreement, the Seller shall observe the
applicable legal requirements for the recognition of the Seller as a legal
entity separate and apart from its Affiliates, including as follows:
(i) the Seller shall maintain corporate records and books of
account separate from those of its Affiliates;
(ii) except as otherwise provided in this Agreement, the Seller
shall not commingle its assets and funds with those of its Affiliates;
(iii) the Seller shall hold such appropriate meetings of its Board
of Directors as are necessary to authorize all the Seller's corporate
actions required by law to be authorized by the Board of Directors, shall
keep minutes of such meetings and of meetings of its stockholder(s) and
observe all other customary corporate formalities (and any successor Seller
not a corporation shall observe similar procedures in accordance with its
governing documents and applicable law);
(iv) the Seller shall at all times hold itself out to the public
under the Seller's own name as a legal entity separate and distinct from
its Affiliates; and
55
(v) all transactions and dealings between the Seller and its
Affiliates will be conducted on an arm's-length basis.
SECTION 7.3. Liability of Seller; Indemnities. The Seller shall be
--------------------------------
liable in accordance herewith only to the extent of the obligations specifically
undertaken by the Seller under this Agreement.
(a) The Seller shall indemnify, defend and hold harmless the Issuer, the
Owner Trustee, the Trust, the Insurer, the Trustee, Backup Servicer, Collateral
Agent and the Trust Collateral Agent and its officers, directors, employees and
agents from and against any taxes that may at any time be asserted against any
such Person with respect to the transactions contemplated in this Agreement and
any of the Basic Documents (except any income taxes arising out of fees paid to
the Owner Trustee, the Trust Collateral Agent, the Trustee and the Insurer and
except any taxes to which the Owner Trustee, the Trust Collateral Agent or the
Trustee may otherwise be subject to), including any sales, gross receipts,
general corporation, tangible personal property, privilege or license taxes
(but, in the case of the Issuer, not including any taxes asserted with respect
to, federal or other income taxes arising out of distributions on the Notes) and
costs and expenses in defending against the same.
(b) The Seller shall indemnify, defend and hold harmless the Issuer, the
Owner Trustee, the Trustee, Backup Servicer, Collateral Agent and the Trust
Collateral Agent and the officers, directors, employees and agents thereof, the
Insurer and the Noteholders from and against any loss, liability or expense
incurred by reason of (i) the Seller's willful misfeasance, bad faith or
negligence in the performance of its duties under this Agreement, or by reason
of reckless disregard of its obligations and duties under this Agreement and
(ii) the Seller's or the Issuer's violation of Federal or state securities laws
in connection with the offering and sale of the Notes.
(c) The Seller shall indemnify, defend and hold harmless the Owner
Trustee, Trustee, Trust Collateral Agent, Collateral Agent and Backup Servicer
and the officers, directors, employees and agents thereof from and against any
and all costs, expenses, losses, claims, damages and liabilities arising out of,
or incurred in connection with the acceptance or performance of the trusts and
duties set forth herein and in the Basic Documents except to the extent that
such cost, expense, loss, claim, damage or liability shall be due to the willful
misfeasance, bad faith or negligence (except for errors in judgment) of the
Owner Trustee, Trustee, Trust Collateral Agent, Collateral Agent and Backup
Servicer respectively.
Indemnification under this Section shall survive the resignation or removal
of the Owner Trustee, the Trustee or the Trust Collateral Agent and the
termination of this Agreement or the Indenture or the Trust Agreement, as
applicable, and shall include reasonable fees and expenses of counsel and other
expenses of litigation. If the Seller shall have made any indemnity payments
pursuant to this Section and the Person to or on behalf of whom such payments
are made thereafter shall collect any of such amounts from others, such Person
shall promptly repay such amounts to the Seller, without interest.
SECTION 7.4. Merger or Consolidation of, or Assumption of the
------------------------------------------------
Obligations of, Seller. Any Person (a) into which the Seller may be merged or
----------------------
consolidated, (b) which may result from any merger or consolidation to which the
Seller shall be a party or (c) which may succeed to the
56
properties and assets of the Seller substantially as a whole, which Person in
any of the foregoing cases executes an agreement of assumption to perform every
obligation of the Seller under this Agreement, shall be the successor to the
Seller hereunder without the execution or filing of any document or any further
act by any of the parties to this Agreement; provided, however, that (i) the
Seller shall have received the written consent of the Insurer prior to entering
into any such transaction, (ii) immediately after giving effect to such
transaction, no representation or warranty made pursuant to Section 3.1 shall
have been breached and no Servicer Termination Event, and no event which, after
notice or lapse of time, or both, would become a Servicer Termination Event
shall have happened and be continuing, (iii) the Seller shall have delivered to
the Owner Trustee, the Trust Collateral Agent, the Trustee and the Insurer an
Officers' Certificate and an Opinion of Counsel each stating that such
consolidation, merger or succession and such agreement of assumption comply with
this Section and that all conditions precedent, if any, provided for in this
Agreement relating to such transaction have been complied with, (iv) the Rating
Agency Condition shall have been satisfied with respect to such transaction and
(v) the Seller shall have delivered to the Owner Trustee, the Trust Collateral
Agent, the Backup Servicer, the Collateral Agent, the Trustee and the Insurer an
Opinion of Counsel stating that, 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 fully to preserve and protect the
interest of the Trust Collateral Agent, the Owner Trustee and the Trustee,
respectively, in the Receivables and reciting the details of such filings or (B)
no such action shall be necessary to preserve and protect such interest.
Notwithstanding anything herein to the contrary, the execution of the foregoing
agreement of assumption and compliance with clauses (i), (ii), (iii), (iv) and
(v) above shall be conditions to the consummation of the transactions referred
to in clauses (a), (b) or (c) above.
SECTION 7.5. 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 any Basic Document. The Seller shall not be under any obligation to appear
in, prosecute or defend any legal action that shall not be incidental to its
obligations under this Agreement, and that in its opinion may involve it in any
expense or liability.
SECTION 7.6. Seller May Own Certificates or Notes. The Seller and any
------------------------------------
Affiliate thereof may in its individual or any other capacity become the owner
or pledgee of Certificates or Notes with the same rights as it would have if it
were not the Seller or an Affiliate thereof, except as expressly provided herein
or in any Basic Document. Notes or Certificates so owned by the Seller or such
Affiliate shall have an equal and proportionate benefit under the provisions of
the Basic Documents, without preference, priority, or distinction as among all
of the Notes or Certificates; provided, however, that any Notes or Certificates
-------- -------
owned by the Seller or any Affiliate thereof, during the time such Notes or
Certificates are owned by them, shall be without voting rights for any purpose
set forth in the Basic Documents and will not be entitled to the benefits of the
Note Policy. The Seller shall notify the Owner Trustee, the Trustee, the Trust
Collateral Agent and the Insurer promptly after it or any of its Affiliates
become the owner of a Certificate or a Note.
57
ARTICLE VIII
The Servicer
------------
SECTION 8.1. Representations of Servicer. The Servicer makes the
---------------------------
following representations on which the Insurer shall be deemed to have relied in
executing and delivering the Note Policy and on which the Issuer is deemed to
have relied in acquiring the Receivables. The representations speak as of the
execution and delivery of this Agreement and as of the Closing Date, in the case
of the Initial Receivables, and as of the applicable Subsequent Transfer Date,
in the case of the Subsequent Receivables, and shall survive the sale of the
Receivables to the Issuer and the pledge thereof to the Trustee pursuant to the
Indenture.
(i) Representations and Warranties. The representations and
------------------------------
warranties set forth on the Schedule of Representations attached hereto as
Schedule B are true and correct, provided that such representations and
warranties contained therein and herein shall not apply to any entity other
than AmeriCredit or CP Funding respectively;
(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 Basic Documents and to carry
out its terms and their terms, respectively, and the execution, delivery
and performance of this Agreement and the Servicer's Basic Documents have
been duly authorized by the Servicer by all necessary corporate action;
(v) Binding Obligation. This Agreement and the Servicer's Basic
------------------
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 Basic Documents, and the
fulfillment of the terms of this Agreement and the Servicer's Basic
Documents, shall not conflict with, result in any
58
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 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
Basic Documents, (B) seeking to prevent the issuance of the Securities or
the consummation of any of the transactions contemplated by this Agreement
or any of the Basic 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 Basic Documents or (D) seeking to adversely affect
the federal income tax or other federal, state or local tax attributes of
the Securities;
(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.
SECTION 8.2. 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 Trust Collateral Agent, the Owner Trustee, the Backup Servicer, the
Insurer, their respective officers, directors, agents and employees, and the
Noteholders 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 (when the Servicer is AmeriCredit) shall indemnify,
defend and hold harmless the Trust, the Trustee, the Trust Collateral Agent, the
Owner Trustee, the Backup Servicer, the Insurer, their respective officers,
directors, agents and employees and the Noteholders 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
59
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 Securities) and costs and expenses in defending against the
same;
The Servicer (when the Servicer is not AmeriCredit) shall indemnify, defend
and hold harmless the Trust, the Trustee, the Trust Collateral Agent, the Owner
Trustee, the Backup Servicer, the Insurer, their respective officers, directors,
agents and employees and the Noteholders from and against any taxes with respect
to the sale of Receivables in connection with servicing hereunder 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 Securities) and costs and expenses in defending against the
same; and
(d) The Servicer shall indemnify, defend and hold harmless the Trust, the
Trustee, the Trust Collateral Agent, the Owner Trustee, the Backup Servicer, the
Insurer, their respective officers, directors, agents and employees and the
Noteholders 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 Trust Collateral Agent, the Backup Servicer, the Insurer or the Noteholders
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) AmeriCredit shall indemnify, defend and hold harmless the Trust, the
Trustee, the Trust Collateral Agent, the Owner Trustee, the Backup Servicer, the
Insurer, their respective officers, directors, agents and employees and the
Noteholders from and against any loss, liability or expense incurred by reason
of the violation by Servicer or Seller of federal or state securities laws in
connection with the registration or the sale of the Securities. This section
shall survive the termination of this Agreement, or the earlier removal or
resignation of the Trustee, Trust Collateral Agent, Backup Servicer or the
Collateral Agent.
(f) The AmeriCredit shall indemnify the Trustee, the Trust Collateral
Agent, the Collateral Agent and the Backup Servicer, and the respective
officers, directors, agents and employees thereof against any and all loss,
liability or expense, (other than overhead and expenses incurred in the normal
course of business) incurred by each of them in connection with the acceptance
or administration of the Trust and the performance of their duties under the
Basic Documents other than if such loss, liability or expense was incurred by
the Trustee, Trust Collateral Agent or Collateral Agent as a result of any such
entity's willful misconduct, bad faith or negligence.
(g) 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
60
others, the recipient shall promptly repay such amounts collected to the
Servicer, without interest.
SECTION 8.3. 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 to
the Owner Trustee, the Trust Collateral Agent, the Noteholders, the 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 Owner Trustee, the Trust Collateral
Agent, Trustee, Backup Servicer and Collateral Agent, the Rating Agencies and
the 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 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 Owner Trustee, the Trust Collateral
Agent, the Rating Agencies and the 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 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
61
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.
SECTION 8.4. 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 Noteholders, 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 Trust Collateral Agent and the
Owner Trustee for costs, taxes, expenses, claims, liabilities, losses or damages
paid by the Trust Collateral Agent and the Owner Trustee, in their individual
capacities. 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 or for any errors of the Servicer contained
in any computer tape, certificate or other data or document delivered to the
Backup Servicer hereunder or on which the Backup Servicer must rely in order to
perform its obligations hereunder, and the Owner Trustee, the Trustee, the Trust
Collateral Agent, the Collateral Agent, the Backup Servicer, the Seller and the
Insurer and the Noteholders shall look only to the Servicer to perform such
obligations. The Backup Servicer, Trust Collateral Agent, the Trustee, the
Collateral Agent, the Owner Trustee and the Custodian shall have no
responsibility and shall not be in default hereunder or incur any liability for
any failure, error, malfunction or any delay in carrying out any of their
respective duties under this Agreement if such failure or delay results from the
Backup Servicer acting in accordance with information prepared or supplied by a
Person other than the Backup Servicer (or contractual agents) or the failure of
any such other Person to prepare or provide such information. The Backup
Servicer shall have no responsibility, shall not be in default and shall incur
no liability for (i) any act or failure to act of any third party (other than
its contractual agents), including the Servicer or the Controlling Party, (ii)
any inaccuracy or omission in a notice or communication received by the Backup
Servicer from any third party (other than its contractual agents), (iii) the
invalidity or unenforceability of any Receivable under applicable law, (iv) the
breach or inaccuracy of any representation or warranty made with respect to any
Receivable, or (v) the acts or omissions of any successor Backup Servicer.
(c) The parties expressly acknowledge and consent to Bank One, N.A.
acting in the possible dual capacity of Backup Servicer or successor Servicer
and in the capacity as Trust Collateral Agent. Bank One, N.A. may, in such dual
or other capacity, discharge its separate functions fully, without hindrance or
regard to conflict of interest principles, duty of loyalty
62
principles or other breach of fiduciary duties to the extent that any such
conflict or breach arises from the performance by Bank One, N.A. 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 and the Noteholders except in the case of gross negligence and willful
misconduct by Bank One, N.A. .
SECTION 8.5. Delegation of Duties. The Servicer may delegate duties
--------------------
under this Agreement to an Affiliate of AmeriCredit with the prior written
consent of the Insurer (unless an Insurer Default shall have occurred and be
continuing), the Trust Collateral Agent, the Owner 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 Liquidated Receivables, in each case, without the consent of the 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 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 Insurer, the Trustee and the Backup Servicer.
SECTION 8.6. Servicer and Backup Servicer Not to Resign. Subject to the
------------------------------------------
provisions of Section 8.3, 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 Insurer (so long as an Insurer Default shall not have
occurred and be continuing) or a Note 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 Trust Collateral Agent, the Owner Trustee and the 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 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 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
(i) 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, the Backup Servicer may
petition a court for its removal, (ii) the Backup Servicer
63
may resign with the written consent of the Insurer and (iii) if Bank One, N.A.
resigns as the Trustee under the Indenture it will no longer be the Backup
Servicer.
ARTICLE IX
Default
-------
SECTION 9.1. 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 Trust Collateral Agent
for distribution to Noteholders 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
Trust Collateral Agent or (unless an Insurer Default shall have occurred and be
continuing) the Insurer or after discovery of such failure by a Responsible
Officer of the Servicer;
(b) Failure by the Servicer to deliver to the Trust Collateral Agent and
(so long as an Insurer Default shall not have occurred and be continuing) the
Insurer the Servicer's Certificate by the fourth Business Day prior to the
Insured Distribution Date, or failure on the part of the Servicer to observe its
covenants and agreements set forth in Section 8.3(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 Noteholders
(determined without regard to the availability of funds under the Note Policy),
or of the 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 Trust Collateral Agent or the Insurer (or, if an Insurer Default
shall have occurred and be continuing by any Noteholder);
(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 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
64
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, and the incorrectness of such representation,
warranty or statement has a material adverse effect on the Trust or the
Noteholders and, within 30 days after knowledge thereof by the Servicer or after
written notice thereof shall have been given to the Servicer by the Trust
Collateral Agent or the Insurer (or, if an Insurer Default shall have occurred
and be continuing, a Noteholder), 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 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 Note Policy.
SECTION 9.2. Consequences of a Servicer Termination Event. If a Servicer
--------------------------------------------
Termination Event shall occur and be continuing, the Insurer (or, if an Insurer
Default shall have occurred and be continuing either the Trust Collateral Agent,
(to the extent it has knowledge thereof) a Note Majority), by notice given in
writing to the Servicer (and to the Trust Collateral Agent if given by the
Insurer or the Noteholders) or by non-extension of the term of the Servicer as
referred to in Section 4.14 may term inate 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 Notes, 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 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
65
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 Trust Collateral Agent, the successor
Servicer and the Controlling Party reasonable access to the terminated
Servicer's premises at the terminated Servicer's expense.
SECTION 9.3. Appointment of Successor.
-------------------------
(a) On and after the time the Servicer receives a notice of termination
pursuant to Section 9.2, upon non-extension of the servicing term as referred to
in Section 4.14, or upon the resignation of the Servicer pursuant to Section
8.6, the Backup Servicer (unless the Insurer shall have exercised its option
pursuant to Section 9.3(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 Trust Collateral Agent 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 9.2 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 Backup Servicer at the time, and (without limiting its
obligations under the Note Policy) shall have no liability to the Trust
Collateral Agent, AmeriCredit, CP Funding, the Seller, the Person then serving
as Backup Servicer, any Noteholders 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 Trust Collateral Agent or a Note 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 8.6, 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 9.2,
the resignation of the Servicer pursuant to Section 8.6 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 9.2 or the resignation of the
Servicer pursuant to Section 8.6, the Controlling Party appoints a successor
66
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 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 provided, however, it being understood
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and agreed that the Insurer shall give prior notice to the Backup Servicer with
respect to the appointment of such successor and the payment of additional
compensation, if any. 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 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.
SECTION 9.4. Notification to Noteholders. Upon any termination of, or
---------------------------
appointment of a successor to, the Servicer, the Trust Collateral Agent shall
give prompt written notice thereof to each Noteholder and to the Rating
Agencies.
SECTION 9.5. Waiver of Past Defaults. So long as no Insurer Default
-----------------------
shall have occurred and be continuing, the Insurer (or, if an Insurer Default
shall have occurred and be continuing, the Note Majority) may, on behalf of all
Noteholders, waive any default by the Servicer in the performance of its
obligations 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 thereto.
ARTICLE X
Termination
-----------
SECTION 10.1. Optional Purchase of All Receivables.
-------------------------------------
(a) On the last day of any Collection Period as of which the Pool Balance
shall be less than or equal to 10% of the Original Pool Balance, the Servicer
and the Seller each shall have the option to purchase the Owner Trust Estate,
other than the Trust Accounts (with the consent of the Insurer if such purchase
would result in a claim on the Note Policy or would result in any amount owing
to the Insurer under the Insurance Agreement remaining unpaid); provided,
--------
however, that the amount to be paid for such purchase (as set forth in the
-------
following sentence) shall be sufficient to pay the full amount of principal,
premium, if any, and interest then due and payable on the Notes and the
Certificates. To exercise such option, the Servicer or the Seller, as the case
may
67
be, shall deposit pursuant to Section 5.6 in the Collection Account an amount
equal to the aggregate Purchase Amount for the Receivables (including Liquidated
Receivables), plus the appraised value of any other property held by the Trust,
such value to be determined by an appraiser mutually agreed upon by the
Servicer, the Insurer and the Trust Collateral Agent, and shall succeed to all
interests in and to the Trust.
(b) Upon any sale of the assets of the Trust pursuant to Section 8.1 of
the Trust Agreement, the Servicer shall instruct the Trust Collateral Agent to
deposit the proceeds from such sale after all payments and reserves therefrom
(including the expenses of such sale) have been made (the "Insolvency Proceeds")
in the Collection Account.
(c) Notice of any termination of the Trust shall be given by the Servicer
to the Owner Trustee, the Trustee, the Collateral Agent, the Backup Servicer,
the Trust Collateral Agent, the Insurer and the Rating Agencies as soon as
practicable after the Servicer has received notice thereof.
(d) Following the satisfaction and discharge of the Indenture and the
payment in full of the principal of and interest on the Notes, the
Certificateholders will succeed to the rights of the Noteholders hereunder and
the Owner Trustee will succeed to the rights of, and assume the obligations of,
the Trust Collateral Agent pursuant to this Agreement.
ARTICLE XI
Administrative Duties of the Servicer
-------------------------------------
SECTION 11.1. Administrative Duties.
---------------------
(a) Duties with Respect to the Indenture. The Servicer shall perform
------------------------------------
all its duties and the duties of the Issuer under the Indenture. In addition,
the Servicer shall consult with the Owner Trustee as the Servicer deems
appropriate regarding the duties of the Issuer under the Indenture. The
Servicer shall monitor the performance of the Issuer and shall advise the Owner
Trustee when action is necessary to comply with the Issuer's duties under the
Indenture. The Servicer shall prepare for execution by the Issuer or shall
cause the preparation by other appropriate Persons of all such documents,
reports, filings, instruments, certificates and opinions as it shall be the duty
of the Issuer to prepare, file or deliver pursuant to the Indenture. In
furtherance of the foregoing, the Servicer shall take all necessary action that
is the duty of the Issuer to take pursuant to the Indenture, including, without
limitation, pursuant to Sections 2.7, 3.5, 3.6, 3.7, 3.9, 3.10, 3.17, 5.1, 5.4,
7.3, 8.3, 9.2, 9.3, 11.1 and 11.15 of the Indenture.
(b) Duties with Respect to the Issuer.
---------------------------------
(i) In addition to the duties of the Servicer set forth in this
Agreement or any of the Basic Documents, the Servicer shall perform such
calculations and shall prepare for execution by the Issuer or the Owner
Trustee or shall cause the preparation by other appropriate Persons of all
such documents, reports, filings, instruments, certificates and opinions as
it shall be the duty of the Issuer or the Owner Trustee to prepare, file or
deliver pursuant to this Agreement or any of the Basic Documents or under
state and
68
federal tax and securities laws, and at the request of the Owner
Trustee shall take all appropriate action that it is the duty of the Issuer
to take pursuant to this Agreement or any of the Basic Documents,
including, without limitation, pursuant to Sections 2.6 and 2.11 of the
Trust Agreement. In accordance with the directions of the Issuer or the
Owner Trustee, the Servicer shall administer, perform or supervise the
performance of such other activities in connection with the Collateral
(including the Basic Documents) as are not covered by any of the foregoing
provisions and as are expressly requested by the Issuer or the Owner
Trustee and are reasonably within the capability of the Servicer.
(ii) Notwithstanding anything in this Agreement or any of the Basic
Documents to the contrary, the Servicer shall be responsible for promptly
notifying the Owner Trustee and the Trust Collateral Agent in the event
that any withholding tax is imposed on the Issuer's payments (or
allocations of income) to an Owner (as defined in the Trust Agreement) as
contemplated this Agreement. Any such notice shall be in writing and
specify the amount of any withholding tax required to be withheld by the
Owner Trustee or the Trust Collateral Agent pursuant to such provision.
(iii) Notwithstanding anything in this Agreement or the Basic
Documents to the contrary, the Servicer shall be responsible for
performance of the duties of the Issuer set forth in Section 5.1(a), (b),
(c) and (d) of the Trust Agreement with respect to, among other things,
accounting and reports to Owners (as defined in the Trust Agreement);
provided, however, that once prepared by the Servicer the Owner Trustee
-------- -------
shall retain responsibility for the distribution of the Schedule K-1s
necessary to enable the Certificateholder to prepare its federal and state
income tax returns.
(iv) The Servicer shall perform the duties of the Servicer specified
in Section 9.2 of the Trust Agreement required to be performed in
connection with the resignation or removal of the Owner Trustee, and any
other duties expressly required to be performed by the Servicer under this
Agreement or any of the Basic Documents.
(v) In carrying out the foregoing duties or any of its other
obligations under this Agreement, the Servicer may enter into transactions
with or otherwise deal with any of its Affiliates; provided, however, that
-------- -------
the terms of any such transactions or dealings shall be in accordance with
any directions received from the Issuer and shall be, in the Servicer's
opinion, no less favorable to the Issuer in any material respect.
(c) Tax Matters. The Servicer shall prepare and file, on behalf of the
-----------
Seller, all tax returns, tax elections, financial statements and such annual or
other reports attributable to the activities engaged in by the Issuer as are
necessary for preparation of tax reports, including without limitation forms
1099. All tax returns will be signed by the Seller.
(d) Non-Ministerial Matters. With respect to matters that in the
-----------------------
reasonable judgment of the Servicer are non-ministerial, the Servicer shall not
take any action pursuant to this Article unless within a reasonable time before
the taking of such action, the Servicer shall have notified the Owner Trustee
and the Trustee of the proposed action and the Owner Trustee and, with respect
to items (A), (B), (C) and (D) below, the Trustee shall not have withheld
consent or
69
provided an alternative direction. For the purpose of the preceding sentence,
"non-ministerial matters" shall include:
(A) the amendment of or any supplement to the Indenture;
(B) the initiation of any claim or lawsuit by the Issuer and
the compromise of any action, claim or lawsuit brought by or against
the Issuer (other than in connection with the collection of the
Receivables);
(C) the amendment, change or modification of this Agreement or
any of the Basic Documents;
(D) the appointment of successor Note Registrars, successor
Paying Agents and successor Trustees pursuant to the Indenture or the
appointment of Successor Servicers or the consent to the assignment by
the Note Registrar, Paying Agent or Trustee of its obligations under
the Indenture; and
(E) the removal of the Trustee or the Trust Collateral Agent.
(e) Exceptions. Notwithstanding anything to the contrary in this
----------
Agreement, except as expressly provided herein or in the other Basic Documents,
the Servicer, in its capacity hereunder, shall not be obligated to, and shall
not, (1) make any payments to the Noteholders or Certificateholders under the
Basic Documents, (2) sell the Indenture Trust Property pursuant to Section 5.5
of the Indenture, (3) take any other action that the Issuer directs the Servicer
not to take on its behalf or (4) in connection with its duties hereunder assume
any indemnification obligation of any other Person.
(f) The Backup Servicer or any successor Servicer shall not be
responsible for any obligations or duties of the servicer under this Section
11.1.
SECTION 11.2. Records. The Servicer shall maintain appropriate books of
-------
account and records relating to services performed under this Agreement, which
books of account and records shall be accessible for inspection by the Issuer at
any time during normal business hours.
SECTION 11.3. Additional Information to be Furnished to the Issuer. The
----------------------------------------------------
Servicer shall furnish to the Issuer from time to time such additional
information regarding the Collateral as the Issuer shall reasonably request.
ARTICLE XII
-----------
Miscellaneous Provisions
------------------------
SECTION 12.1. Amendment.
---------
(a) This Agreement may be amended from time to time by the parties
hereto, with the consent of the Trustee (which consent may not be unreasonably
withheld), with the prior written consent of the Insurer (so long as no Insurer
Default has occurred and is continuing) but without
70
the consent of any of the Noteholders, to cure any ambiguity, to correct or
supplement any provisions in this Agreement, to comply with any changes in the
Code, or to make any other provisions with respect to matters or questions
arising under this Agreement which shall not be inconsistent with the provisions
of this Agreement or the Insurance Agreement; provided, however, that such
-------- -------
action shall not, as evidenced by an Opinion of Counsel delivered to Owner
Trustee and the Trustee, adversely affect in any material respect the interests
of any Noteholder; provided further that if an Insurer Default has occurred and
is continuing, such action shall not materially adversely affect the interests
of the Insurer
This Agreement may also be amended from time to time by the parties hereto,
with the consent of the Insurer, the consent of the Trustee, the consent of the
Holders of Notes evidencing not less than a majority of the outstanding
principal amount of the Notes 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 Noteholders; 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 for the benefit of the
Noteholders or (b) reduce the aforesaid percentage of the outstanding principal
amount of the Notes, the Holders of which are required to consent to any such
amendment, without the consent of the Holders of all the outstanding Notes of
each class affected thereby; provided further, that if an Insurer Default has
not occurred and is continuing, such action shall not materially adversely
affect the interest of the Insurer.
Promptly after the execution of any such amendment or consent, the Trust
Collateral Agent shall furnish written notification of the substance of such
amendment or consent to each Noteholder and the Rating Agencies.
It shall not be necessary for the consent of Noteholders pursuant to this
Section 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 Noteholders
provided for in this Agreement) and of evidencing the authorization of any
action by Noteholders shall be subject to such reasonable requirements as the
Trustee or the Owner Trustee, as applicable, may prescribe.
Prior to the execution of any amendment to this Agreement, the Owner
Trustee and the Trustee, Trust Collateral Agent, Collateral Agent and Backup
Servicer shall be entitled to receive and conclusively rely upon an Opinion of
Counsel stating that the execution of such amendment is authorized or permitted
by this Agreement and the Opinion of Counsel referred to in Section 12.2(h)(1)
has been delivered. The Owner Trustee, the Trust Collateral Agent, the Backup
Servicer and the Trustee may, but shall not be obligated to, enter into any such
amendment which affects the Issuer's, the Owner Trustee's, the Trust Collateral
Agent's, the Backup Servicer's or the Trustee's, as applicable, own rights,
duties or immunities under this Agreement or otherwise.
(b) Notwithstanding anything to the contrary contained in Section 12.1(a)
above, the provisions of the Agreement relating to (i) the Spread Account
Agreement Supplement, the Spread Account, the Specified Spread Account
Requirement, a Trigger Event or any component definition of a Trigger Event and
(ii) any additional sources of funds which may be added to the
71
Spread Account or uses of funds on deposit in the Spread Account may be amended
in any respect by the Seller, the Servicer, the Insurer and the Collateral Agent
(the consent of which shall not be withheld or delayed with respect to any
amendment that does not adversely affect the Collateral Agent) without the
consent of, or notice to, the Noteholders.
SECTION 12.2. Protection of Title to Trust.
----------------------------
(a) The Seller shall execute and file such financing statements and cause
to be executed and filed such continuation 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 Issuer and the interests of the Trust Collateral Agent in
the Receivables and in the proceeds thereof. The Seller shall deliver (or cause
to be delivered) to the Insurer, the Owner Trustee and the Trust Collateral
Agent file-stamped copies of, or filing receipts for, any document filed as
provided above, as soon as available following such filing.
(b) 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 in accordance with paragraph
(a) above seriously misleading within the meaning of 9-402(7) of the UCC, unless
it shall have given the Insurer, the Owner Trustee, the Trust Collateral Agent
and the Trustee at least five days' prior written notice thereof and shall have
promptly filed appropriate amendments to all previously filed financing
statements or continuation statements. Promptly upon such filing, the Seller or
the Servicer, as the case may be, shall deliver an Opinion of Counsel in form
and substance reasonably satisfactory to the Insurer, stating either (A) all
financing statements and continuation statements have been executed and filed
that are necessary fully to preserve and protect the interest of the Trust and
the Trust Collateral Agent 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) no such action shall be necessary to preserve and protect such
interest.
(c) Each of the Seller and the Servicer shall have an obligation to give
the Insurer, the Owner Trustee, the Trust Collateral Agent and the Trustee 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 and shall promptly file
any such amendment. The Servicer shall at all times maintain each office from
which it shall service Receivables, and its principal executive office, within
the United States of America.
(d) 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.
(e) The Servicer shall maintain its computer systems so that, from and
after the time of sale under this Agreement of the Receivables to the Issuer,
the Servicer's master computer records (including any backup archives) that
refer to a Receivable shall indicate clearly the
72
interest of the Trust in such Receivable and that such Receivable is owned by
the Trust. Indication of the Trust's interest in a Receivable shall be deleted
from or modified on the Servicer's computer systems when, and only when, the
related Receivable shall have been paid in full or repurchased.
(f) If at any time the Seller or the Servicer shall propose to sell,
grant a security interest in or otherwise transfer any interest in automotive
receivables to any prospective 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 shall refer in any manner whatsoever to any Receivable,
shall indicate clearly that such Receivable has been sold and is owned by the
Trust.
(g) Upon request, the Servicer shall furnish to the Insurer, the Owner
Trustee or to the Trustee, within five Business Days, a list of all Receivables
(by contract number and name of Obligor) 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.
(h) The Servicer shall deliver to the Insurer, the Owner Trustee and the
Trustee:
(1) promptly after the execution and delivery of the Agreement
and, if required pursuant to Section 12.1, of each amendment, an Opinion of
Counsel stating that, in the opinion of such Counsel, in form and substance
reasonably satisfactory to the Insurer, either (A) all financing statements
and continuation statements have been executed and filed that are necessary
fully to preserve and protect the interest of the Trust and 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) no such
action shall be necessary to preserve and protect such interest; and
(2) within 90 days after the beginning of each calendar year
beginning with the first calendar year beginning more than three months
after the Cutoff Date, an Opinion of Counsel, dated as of a date during
such 90-day period, stating that, in the opinion of such counsel, either
(A) all financing statements and continuation statements have been executed
and filed that are necessary fully to preserve and protect the interest of
the Trust and 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) no such action shall be necessary to preserve and
protect such interest.
Each Opinion of Counsel referred to in clause (1) or (2) above shall
specify any action necessary (as of the date of such opinion) to be taken in the
following year to preserve and protect such interest.
SECTION 12.3. Notices. All demands, notices and communications upon or
-------
to the Seller, the Servicer, the Owner Trustee, the Trustee or the Rating
Agencies 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 to AFS Funding Corp.,
0000 Xxxxxxxxx Xxx, Xxxx, Xxxxxx 00000, (b) in the case of the Servicer to
73
AmeriCredit Financial Services, Inc., 000 Xxxxxx Xxxxxx, Xxxx Xxxxx, Xxxxx
00000-0000, Attention: Chief Financial Officer, (c) in the case of the Issuer or
the Owner Trustee, at the Corporate Trust Office of the Owner Trustee, Bankers
Trust (Delaware), E.A. Delle Donne Corporate Center, Xxxxxxxxxx Building, 0000
Xxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx Xxxxxxxx, 00000-0000, Attention: Corporate
Trust with a copy to Bankers Trust Company, 0 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Corporate Trust Agency, Structured Finance, 10th floor, (d) in
the case of the Trustee, the Trust Collateral Agent or the Collateral Agent, at
the Corporate Trust Office, (e) in the case of the Insurer, to Financial
Security Assurance Inc., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000; Attention:
Senior Vice President, Surveillance (in each case in which notice or other
communication to the Insurer refers to a Servicer Termination Event, a claim on
the Note Policy, a Deficiency Notice pursuant to Section 5.5 of this Agreement
or with respect to which failure on the part of the Insurer to respond shall be
deemed to constitute consent or acceptance, then a copy of such notice or other
communication should also be sent to the attention of each of the General
Counsel and the Head-Financial Guaranty Group and shall be marked to indicate
"URGENT MATERIAL ENCLOSED"); (f) in the case of Moody's, to Xxxxx'x Investors
Service, Inc., ABS Monitoring Department, 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000; and (g) in the case of Standard & Poor's, to Standard & Poor's Ratings
Group, 00 Xxxxxxxx - 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Asset
Backed Surveillance Department. Any notice required or permitted to be mailed to
a Noteholder shall be given by first class mail, postage prepaid, at the address
of such Holder as shown in the Note Register. Any notice so mailed within the
time prescribed in the Agreement shall be conclusively presumed to have been
duly given, whether or not the Noteholder shall receive such notice.
SECTION 12.4. Assignment. This Agreement shall inure to the benefit of
----------
and be binding upon the parties hereto and their respective successors and
permitted assigns. Notwithstanding anything to the contrary contained herein,
except as provided in Sections 7.4 and 8.3 and as provided in the provisions of
this Agreement concerning the resignation of the Servicer, this Agreement may
not be assigned by the Seller or the Servicer without the prior written consent
of the Owner Trustee, the Trust Collateral Agent, the Backup Servicer, the
Trustee and the Insurer (or if an Insurer Default shall have occurred and be
continuing the Holders of Notes evidencing not less than 66% of the principal
amount of the outstanding Notes).
SECTION 12.5. Limitations on Rights of Others. The provisions of this
-------------------------------
Agreement are solely for the benefit of the parties hereto, the Trustee and the
Noteholders, as third-party beneficiaries. The 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, any right of the Insurer to direct,
appoint, consent to, approve of, or take any action under this Agreement, shall
be a right exercised by the Insurer in its sole and absolute discretion. The
Insurer may disclaim any of its rights and powers under this Agreement (but not
its duties and obligations under the Note Policy) upon delivery of a written
notice to the Owner Trustee. Nothing in this Agreement, whether express or
implied, shall be construed to give to any other Person any legal or equitable
right, remedy or claim in the Owner Trust Estate or under or in respect of this
Agreement or any covenants, conditions or provisions contained herein.
74
SECTION 12.6. Severability. Any provision of this Agreement that is
------------
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
SECTION 12.7. Separate Counterparts. This Agreement may be executed by
---------------------
the parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
SECTION 12.8. Headings. The headings of the various Articles and
--------
Sections herein are for convenience of reference only and shall not define or
limit any of the terms or provisions hereof.
SECTION 12.9. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
-------------
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 12.10. Assignment to Trustee. The Seller hereby acknowledges
---------------------
and consents to any mortgage, pledge, assignment and grant of a security
interest by the Issuer to the Trustee pursuant to the Indenture for the benefit
of the Noteholders of all right, title and interest of the Issuer in, to and
under the Receivables and/or the assignment of any or all of the Issuer's rights
and obligations hereunder to the Trustee.
SECTION 12.11. Nonpetition Covenants.
----------------------
(a) Notwithstanding any prior termination of this Agreement, the Servicer
and the Seller shall not, prior to the date which is one year and one day after
the termination of this Agreement with respect to the Issuer, acquiesce,
petition or otherwise invoke or cause the Issuer to invoke the process of any
court or government authority for the purpose of commencing or sustaining a case
against the Issuer under any federal or state bankruptcy, insolvency or similar
law or appointing a receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of the Issuer or any substantial part of
its property, or ordering the winding up or liquidation of the affairs of the
Issuer
(b) Notwithstanding any prior termination of this Agreement, the Servicer
shall not, prior to the date that is one year and one day after the termination
of this Agreement with respect to the Seller, acquiesce to, petition or
otherwise invoke or cause the Seller to invoke the process of any court or
government authority for the purpose of commencing or sustaining a case against
the Seller under any federal or state bankruptcy, insolvency or similar law,
appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator,
or other similar official of the Seller or any substantial part of its property,
or ordering the winding up or liquidation of the affairs of the Seller.
75
SECTION 12.12. Limitation of Liability of Owner Trustee and Trustee.
-----------------------------------------------------
(a) Notwithstanding anything contained herein to the contrary, this
Agreement has been countersigned by Bankers Trust (Delaware) not in its
individual capacity but solely in its capacity as Owner Trustee of the Issuer
and in no event shall Bankers Trust (Delaware) in its individual capacity or,
except as expressly provided in the Trust Agreement, as Owner Trustee have any
liability for the representations, warranties, covenants, agreements or other
obligations of the Issuer hereunder or in any of the certificates, notices or
agreements delivered pursuant hereto, as to all of which recourse shall be had
solely to the assets of the Issuer. For all purposes of this Agreement, in the
performance of its duties or obligations hereunder or in the performance of any
duties or obligations of the Issuer hereunder, the Owner Trustee shall be
subject to, and entitled to the benefits of, the terms and provisions of
Articles V, VI and VII of the Trust Agreement.
(b) Notwithstanding anything contained herein to the contrary, this
Agreement has been executed and delivered by Bank One, N.A., not in its
individual capacity but solely as Trust Collateral Agent and Backup Servicer and
in no event shall Bank One, N.A., have any liability for the representations,
warranties, covenants, agreements or other obligations of the Issuer hereunder
or in any of the certificates, notices or agreements delivered pursuant hereto,
as to all of which recourse shall be had solely to the assets of the Issuer.
(c) In no event shall Bank One, N.A., in any of its capacities hereunder,
be deemed to have assumed any duties of the Owner Trustee under the Delaware
Business Trust Statute, common law, or the Trust Agreement.
SECTION 12.13. Independence of the Servicer. For all purposes of this
----------------------------
Agreement, the Servicer shall be an independent contractor and shall not be
subject to the supervision of the Issuer, the Trust Collateral Agent and Backup
Servicer or the Owner Trustee with respect to the manner in which it
accomplishes the performance of its obligations hereunder. Unless expressly
authorized by this Agreement, the Servicer shall have no authority to act for or
represent the Issuer or the Owner Trustee in any way and shall not otherwise be
deemed an agent of the Issuer or the Owner Trustee.
SECTION 12.14. No Joint Venture. Nothing contained in this Agreement
----------------
(i) shall constitute the Servicer and either of the Issuer or the Owner Trustee
as members of any partnership, joint venture, association, syndicate,
unincorporated business or other separate entity, (ii) shall be construed to
impose any liability as such on any of them or (iii) shall be deemed to confer
on any of them any express, implied or apparent authority to incur any
obligation or liability on behalf of the others.
SECTION 12.15. Replacement Cap Agreement. Upon a request by the Insurer
-------------------------
pursuant to Section 4.05 of the Insurance Agreement, the Trust Collateral Agent
shall enter into a Replacement Cap Agreement (as such term is defined in Section
4.05 of the Insurance Agreement) with a replacement cap or providers in form and
substance satisfactory to the Insurer.
76
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their respective duly authorized officers as of
the day and the year first above written.
AMERICREDIT AUTOMOBILE RECEIVABLES TRUST 1998-D
by BANKERS TRUST (DELAWARE) not in its
individual capacity but solely as Owner
Trustee on behalf of the Trust,
by /s/ Xxxxx Xxxx
-----------------------------------
Name: Xxxxx Xxxx
Title:
AFS FUNDING CORP., Seller,
by /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President and
Treasurer
AMERICREDIT FINANCIAL SERVICES, INC., Servicer,
by /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President and
Treasurer
[Sale & Servicing Agreement]
77
BANK ONE, N.A.,
not in its individual capacity but solely as
Backup Servicer
by /s/ Xxxx Xxxxxxxx
--------------------------------
Name: Xxxx Xxxxxxxx
Title:
Acknowledged and accepted by
BANK ONE, N.A.,
not in its individual capacity but solely as
Trust Collateral Agent
by /s/ Xxxx Xxxxxxxx
----------------------------
Name: Xxxx Xxxxxxxx
Title:
[Sale and Servicing Agreement]
78
SCHEDULE A
SCHEDULE OF RECEIVABLES
-----------------------
SCHEDULE B
REPRESENTATIONS AND WARRANTIES OF THE SELLER
--------------------------------------------
1. 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, (C) 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 (D) has not
been amended or collections with respect to which waived, other than as
evidenced in the Receivable File relating thereto.
2. Fraud or Misrepresentation. Each Receivable was originated by a Dealer
--------------------------
and was sold by the Dealer to AmeriCredit and by AmeriCredit or CP Funding to
the Seller without any fraud or misrepresentation on the part of such Dealer in
any case.
3. 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.
4. Origination. Each Receivable was originated in the United States.
-----------
5. 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 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
1
Receivable and all other documents related thereto and to grant the security
interest purported to be granted thereby.
6. No Government Obligor. No Obligor is the United States of America or any
---------------------
State or any agency, department, subdivision or instrumentality thereof.
7. Obligor Bankruptcy. At the related Cutoff Date no Obligor had been
------------------
identified on the records of AmeriCredit as being the subject of a current
bankruptcy proceeding.
8. 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 related
Cutoff Date.
9. Marking Records. By the Closing Date or Subsequent Transfer Date, as
---------------
applicable, the Seller 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 Seller by the Servicer and resold by the
Seller to the Trust in accordance with the terms of the Sale and Servicing
Agreement.
10. Computer Tape. The Computer Tape made available by the Seller to the
-------------
Trust on the Closing Date or Subsequent Transfer Date, as applicable, was
complete and accurate as of the related Cutoff Date and includes a description
of the same Receivables that are described in the Schedule of Receivables.
11. Adverse Selection. No selection procedures adverse to the Noteholders
-----------------
or the Insurer were utilized in selecting the Receivables from those receivables
owned by the Seller which met the selection criteria contained in the Sale and
Servicing Agreement.
12. Chattel Paper. The Receivables constitute chattel paper within the
-------------
meaning of the UCC as in effect in the States of Texas and New York.
13. One Original. There is only one original executed copy of each
------------
Receivable.
14. 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.
15. 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.
2
16. 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 Securities.
17. Good Title. Immediately prior to the conveyance of the Receivables to
----------
the Trust pursuant to this Agreement or Subsequent Transfer Agreement, as
applicable, the Seller 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 the Seller, the Trust 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. The
Seller 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.
18. Security Interest in Financed Vehicle. Each Receivable created or shall
-------------------------------------
create a valid, binding and enforceable first priority security interest in
favor of the Seller 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 or
Subsequent Transfer Date, as applicable, and will show the Seller 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, the Seller has received written evidence from the related Dealer that
such Lien Certificate showing the Seller as first lienholder has been applied
for and the Seller's security interest has been validly assigned by the Seller
to the Trust pursuant to this Agreement. Immediately after the sale, transfer
and assignment thereof by the Seller 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 related 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.
19. 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 Trust 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.
20. No Impairment. The Seller 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 Insurer, the
Trustee, the Trust Collateral Agent and the Noteholders in any Receivable or the
proceeds thereof.
3
21. 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.
22. 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.
23. 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 related Cutoff Date no Financed Vehicle had been
repossessed.
24. 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 related Cutoff Date.
25. Past Due. At the related Cutoff Date no Receivable was more than 30
--------
days past due.
26. Remaining Principal Balance. At the related Cutoff Date the Principal
---------------------------
Balance of each Receivable set forth in the Schedule of Receivables is true and
accurate in all material respects.
27. Certain Characteristics of Initial Receivables. (A) Each Initial
----------------------------------------------
Receivable had a remaining maturity, as of the Initial Cutoff Date, of not more
than 72 months; (B) each Receivable had an original maturity of not more than 72
months; (C) each Initial Receivable had a remaining Principal Balance as of the
Initial Cutoff Date of at least $250 and not more than $30,000; (D) each Initial
Receivable has an Annual Percentage Rate of at least 9.00% and not more than
33.00%; (E) no Initial Receivable was more than 30 days past due as of the
Initial 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 Initial
Receivable to qualify under clause (E) above.
4
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.
A. 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.
B. Accounts are then segregated into two groups, those less than 30 days
delinquent and those over 30 days delinquent.
C. Accounts less than 30 days delinquent are further segregated into accounts
that have good residential and business phone numbers and those that do
not.
D. For those that have good phone numbers, they are assigned to the Melita
Group.
E. For those without good phone numbers, they are assigned to the front-end
collector.
F. 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.
G. 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.
H. 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 an Officer.
I. 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.
1
Repossessions
-------------
If repossession of the collateral occurs, whether voluntary or involuntary, the
following steps are taken:
A. Notification of repossession to proper authorities when necessary.
B. Inventory of all personal property is taken and a condition report is done
on the vehicle. Pictures are also taken of the vehicle.
C. 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.
D. Written request to the originating dealer for all refunds due for dealer
adds.
E. 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.
F. 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:
A. The account is contractually current or will be brought current with the
due date change.
B. Due date changes cannot exceed the total of 15 days over the life of the
contract.
C. The first installment payment has been paid in full.
D. Only one date change in a twelve month period.
E. Any exceptions to the above stated policy must be approved by an Officer.
Use of Payment Deferments
-------------------------
A payment deferral is offered to customers who have encountered temporary
financial difficulties.
A. Minimum of six payments have been made on the account.
B. The account will be brought current with the deferment, but not paid ahead.
C. A deferment fee is collected on all transactions.
D. Only one deferment transaction can be performed in a twelve month period.
2
E. 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.
F. Any exceptions to the above stated policy must be approved by an Officer.
Charge-Offs
-----------
A. 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.
B. It is AmeriCredit's policy that any account that is not successfully
recovered by 180 days delinquent is submitted to an Officer for approval
and charge-off.
C. 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
----------------------
A. Contact is made with the customer in an attempt to establish acceptable
payment arrangements or settlements on the account.
B. If the customer is unwilling to do so, AmeriCredit may invoke any legal
collection remedy that the state allows, i.e., judgements, garnishments,
etc.
3
EXHIBIT A
SUBSEQUENT TRANSFER AGREEMENT
Transfer No. of Subsequent Receivables pursuant to a
Sale and Servicing Agreement dated as of November 1, 1998, among THE AMERICREDIT
AUTOMOBILE RECEIVABLES TRUST 1998-D, a Delaware business trust (the "Issuer"),
AFS FUNDING CORP., a Nevada corporation (the "Seller"), AMERICREDIT FINANCIAL
SERVICES, INC. a Delaware corporation (the "Servicer"), and BANK ONE, N.A., an
Ohio corporation (the "Trust Collateral Agent").
W I T N E S S E T H:
WHEREAS pursuant to the Sale and Servicing Agreement, the Seller wishes to
convey the Subsequent Receivables to the Issuer; and
WHEREAS, the Issuer is willing to accept such conveyance subject to the
terms and conditions hereof.
NOW, THEREFORE, the Issuer, the Seller, the Servicer and the Trust
Collateral Agent hereby agree as follows:
1. Defined Terms. Capitalized terms used herein shall have the meanings
-------------
ascribed to them in the Sale and Servicing Agreement unless otherwise defined
herein.
"Subsequent Cutoff Date" shall mean, with respect to the Subsequent
Receivables conveyed hereby,________________, 1998.
"Subsequent Transfer Date" shall mean. with respect to the Subsequent
Receivables conveyed hereby,______________, 1998.
2. Schedule of Receivables. Annexed hereto is a supplement to Schedule A
-----------------------
to the Sale and Servicing Agreement listing the Receivables that constitute the
Subsequent Receivables to be conveyed pursuant to this Agreement on the
Subsequent Transfer Date.
3. Conveyance of Subsequent Receivables. In consideration of the Issuer's
------------------------------------
delivery to or upon the order of the Seller of $____________, the Seller does
hereby sell, transfer, assign, set over and otherwise convey to the Issuer,
without recourse (except as expressly provided in the Sale and Servicing
Agreement), all right, title and interest of the Seller in and to:
(a) the Subsequent Receivables and all moneys received thereon, on and
after the related Subsequent Cutoff Date;
(b) the security interests in the Financed Vehicles granted by Obligors
pursuant to the Subsequent Receivables and any other interest of the Seller in
such Financed Vehicles;
A-1
(c) any proceeds and the right to receive proceeds with respect to the
Subsequent Receivables from claim and the right to receive proceeds on any
physical damage, credit life or disability insurance policies covering Financed
Vehicles or Obligors;
(d) all rights of the Seller against the Dealers;
(e) any proceeds with respect to the Subsequent Receivables from recourse
to Dealers in respect to which the Servicer has determined in accordance with
its customary servicing procedures that eventual payment in full is unlikely;
(f) the related Receivables Files;
(g) its rights and benefits, but none of its obligations or burdens,
under the Subsequent Transfer Agreement, including the delivery requirements,
representations and warranties and the cure and repurchase obligations of
AmeriCredit and CP Funding under the Subsequent Purchase Agreement, on or after
the Subsequent Cutoff Date; and
(h) the proceeds of any and all of the foregoing.
4. Representations and Warranties of the Seller. The Seller hereby
--------------------------------------------
represents and warrants to the Issuer as of the date of this Agreement and as of
the Subsequent Transfer Date that:
(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 Nevada, 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, 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 Basic Documents.
(d) Power and Authority. The Seller has the power and authority to
-------------------
execute and deliver this Agreement and its Basic 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 Basic
Documents have been duly authorized by the Seller by all necessary corporate
action.
A-2
(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 Basic 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 Basic Documents and the fulfillment of the terms of this
Agreement and the Basic 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.
(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 Basic Documents, (B)
seeking to prevent the issuance of the Securities or the consummation of any of
the transactions contemplated by this Agreement or any of the Basic 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 Basic Documents, or (D)
seeking to adversely affect the federal income tax or other federal, state or
local tax attributes of the Securities.
(h) Chief Executive Office. The chief executive office of the Seller is
----------------------
at 0000 Xxxxxxxxx Xxx, Xxxx, Xxxxxx 00000.
(i) Principal Balance. The aggregate Principal Balance of the
-----------------
Receivables listed on the supplement to Schedule A annexed hereto and conveyed
to the Issuer pursuant to this Agreement as of the Subsequent Cutoff Date is
$____________.
5. Conditions Precedent. The obligation of the Issuer to acquire the
--------------------
Receivables hereunder is subject to the satisfaction, on or prior to the
Subsequent Transfer Date, of the following conditions precedent:
(j) Representations and Warranties. Each of the representations and
------------------------------
warranties made by the Seller in Section 4 of this Agreement and in Section 6.1
of the Sale and Servicing Agreement shall be true and correct as of the date of
this Agreement and as of the Subsequent Transfer Date.
A-3
(k) Sale and Servicing Agreement Conditions. Each of the conditions set
---------------------------------------
forth in Section 2.2(b) to the Sale and Servicing Agreement shall have been
satisfied.
(l) Additional Information. The Seller shall have delivered to the
----------------------
Issuer such information as was reasonably requested by the Issuer to satisfy
itself as to (i) the accuracy of the representations and warranties set forth in
Section 4 of this Agreement and in Section 6.1 of the Sale and Servicing
Agreement and (ii) the satisfaction of the conditions set forth in this Section
5.
6. Ratification of Agreement. As supplemented by this Agreement, the Sale
-------------------------
and Servicing Agreement is in all respects ratified and confirmed and the Sale
and Servicing Agreement as so supplemented by this Agreement shall be read,
taken and construed as one and the same instrument.
7. Counterparts. This Agreement may be executed in two or more
------------
counterparts (and by different parties in separate counterparts), each of which
shall be an original but all of which together shall constitute one and the same
instrument.
GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE
-------------
LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW
PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
A-4
IN WITNESS WHEREOF, the Issuer, the Seller and the Servicer have caused
this Agreement to be duly executed and delivered by their respective duly
authorized officers as of day and the year first above written.
AMERICREDIT AUTOMOBILE RECEIVABLES TRUST 1998-D
by BANKERS TRUST (DELAWARE) not in its
individual capacity but solely as Owner
Trustee on behalf of the Trust,
by
----------------------------------
Title:
AFS FUNDING CORP., Seller,
by
----------------------------------
Title:
AMERICREDIT FINANCIAL SERVICES, INC., Servicer,
by
----------------------------------
Title:
Acknowledged and Accepted:
BANK ONE, N.A.,
not in its individual
capacity but solely as
Trust Collateral Agent
by
-------------------------------
Title:
A-5
EXHIBIT B
SERVICER'S CERTIFICATE
----------------------
B-1
EXHIBIT C
PRELIMINARY SERVICER'S CERTIFICATE
----------------------------------
C-1
