EXHIBIT 4.3
EXECUTION COPY
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SALE AND SERVICING
AGREEMENT
among
AMERICREDIT AUTOMOBILE RECEIVABLES TRUST 2006-A-F,
Issuer,
AFS FUNDING TRUST,
Seller,
AMERICREDIT FINANCIAL SERVICES, INC.,
Servicer,
and
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
Backup Servicer and Trust Collateral Agent
Dated as of July 12, 2006
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TABLE OF CONTENTS
Page
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ARTICLE I Definitions.................................................... 1
SECTION 1.1. Definitions............................................ 1
SECTION 1.2. Other Definitional Provisions.......................... 24
ARTICLE II Conveyance of Receivables..................................... 25
SECTION 2.1. Conveyance of Initial Receivables...................... 25
SECTION 2.2. Conveyance of Subsequent Receivables................... 26
SECTION 2.3. Further Encumbrance of Trust Property.................. 29
SECTION 2.4. Intention of the Parties............................... 30
ARTICLE III The Receivables.............................................. 31
SECTION 3.1. Representations and Warranties of Seller............... 31
SECTION 3.2. Repurchase upon Breach................................. 31
SECTION 3.3. Custody of Receivable Files............................ 32
ARTICLE IV Administration and Servicing of Receivables................... 33
SECTION 4.1. Duties of the Servicer................................. 33
SECTION 4.2. Collection of Receivable Payments; Modifications of
Receivables; Lockbox Agreements........................ 34
SECTION 4.3. Realization upon Receivables........................... 37
SECTION 4.4. Insurance.............................................. 39
SECTION 4.5. Maintenance of Security Interests in Vehicles.......... 41
SECTION 4.6. Covenants, Representations, and Warranties of
Servicer............................................... 42
SECTION 4.7. Purchase of Receivables Upon Breach of Covenant........ 43
SECTION 4.8. Total Servicing Fee; Payment of Certain Expenses
by Servicer............................................ 43
SECTION 4.9. Preliminary Servicer's Certificate and Servicer's
Certificate............................................ 44
SECTION 4.10. Annual Statement as to Compliance, Notice of
Servicer Termination Event............................. 44
SECTION 4.11. Annual Independent Accountants' Report................. 45
SECTION 4.12. Access to Certain Documentation and Information
Regarding Receivables.................................. 46
SECTION 4.13. Monthly Tape........................................... 47
SECTION 4.14. Retention and Termination of Servicer.................. 47
SECTION 4.15. [Reserved]............................................. 48
ARTICLE V Trust Accounts; Distributions; Statements to Noteholders....... 48
SECTION 5.1. Establishment of Trust Accounts........................ 48
SECTION 5.2. Capitalized Interest Account........................... 51
SECTION 5.3. Certain Reimbursements to the Servicer................. 51
SECTION 5.4. Application of Collections............................. 52
SECTION 5.5. Withdrawals from Spread Account........................ 52
SECTION 5.6. Additional Deposits.................................... 52
SECTION 5.7. Distributions.......................................... 53
SECTION 5.8. Note Distribution Account.............................. 55
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SECTION 5.9. Pre-Funding Account.................................... 56
SECTION 5.10. Statements to Noteholders.............................. 57
SECTION 5.11. Optional Deposits by the Insurer....................... 58
SECTION 5.12. [Reserved]............................................. 58
ARTICLE VI The Note Policy............................................... 58
SECTION 6.1. Claims Under Note Policy............................... 58
SECTION 6.2. Preference Claims Under Note Policy.................... 59
SECTION 6.3. Surrender of Note Policy............................... 60
ARTICLE VII The Seller................................................... 61
SECTION 7.1. Representations of Seller.............................. 61
SECTION 7.2. Certain Business Conduct............................... 62
SECTION 7.3. Liability of Seller; Indemnities....................... 63
SECTION 7.4. Merger or Consolidation of, or Assumption of the
Obligations of, Seller................................. 64
SECTION 7.5. Limitation on Liability of Seller and Others........... 64
SECTION 7.6. Ownership of the Certificates or Notes................. 65
ARTICLE VIII The Servicer................................................ 65
SECTION 8.1. Representations of Servicer............................ 65
SECTION 8.2. Liability of Servicer; Indemnities..................... 66
SECTION 8.3. Merger or Consolidation of, or Assumption of the
Obligations of the Servicer or Backup Servicer......... 68
SECTION 8.4. Limitation on Liability of Servicer, Backup Servicer
and Others............................................. 69
SECTION 8.5. Delegation of Duties................................... 70
SECTION 8.6. Servicer and Backup Servicer Not to Resign............. 71
ARTICLE IX Default....................................................... 71
SECTION 9.1. Servicer Termination Event............................. 71
SECTION 9.2. Consequences of a Servicer Termination Event........... 73
SECTION 9.3. Appointment of Successor............................... 74
SECTION 9.4. Notification to Noteholders............................ 75
SECTION 9.5. Waiver of Past Defaults................................ 75
ARTICLE X Termination.................................................... 75
SECTION 10.1. Optional Purchase of All Receivables................... 75
ARTICLE XI Administrative Duties of the Servicer......................... 76
SECTION 11.1. Administrative Duties.................................. 76
SECTION 11.2. Records................................................ 78
SECTION 11.3. Additional Information to be Furnished to the Issuer... 78
ARTICLE XII Miscellaneous Provisions..................................... 79
SECTION 12.1. Amendment.............................................. 79
SECTION 12.2. Protection of Title to Trust........................... 80
SECTION 12.3. Notices................................................ 82
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SECTION 12.4. Assignment............................................. 82
SECTION 12.5. Limitations on Rights of Others........................ 83
SECTION 12.6. Severability........................................... 83
SECTION 12.7. Separate Counterparts.................................. 83
SECTION 12.8. Headings............................................... 83
SECTION 12.9. Governing Law.......................................... 83
SECTION 12.10. Assignment to Trustee.................................. 83
SECTION 12.11. Nonpetition Covenants.................................. 84
SECTION 12.12. Limitation of Liability of Owner Trustee and Trustee... 84
SECTION 12.13. Independence of the Servicer........................... 85
SECTION 12.14. No Joint Venture....................................... 85
SECTION 12.15. State Business Licenses................................ 85
SCHEDULES
Schedule A Schedule of Receivables
Schedule B Representations and Warranties of the Seller and the Servicer
Schedule C Servicing Policies and Procedures
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 AGREEMENT dated as of July 12, 2006, among
AMERICREDIT AUTOMOBILE RECEIVABLES TRUST 2006-A-F, a Delaware statutory trust
(the "Issuer"), AFS FUNDING TRUST, a Delaware statutory trust (the "Seller"),
AMERICREDIT FINANCIAL SERVICES, INC., a Delaware corporation (the "Servicer")
and XXXXX FARGO BANK, NATIONAL ASSOCIATION, 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 made
by AmeriCredit Financial Services, Inc. or acquired by AmeriCredit Financial
Services, Inc. through motor vehicle dealers and third party lenders;
WHEREAS the Seller has purchased such receivables from AmeriCredit
Financial Services, Inc. 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.;
WHEREAS the Seller has an agreement to purchase such additional
receivables from AmeriCredit Financial Services, Inc. and is willing to sell
such receivables to the Issuer;
WHEREAS the Servicer is willing to service all such receivables;
WHEREAS the Backup Servicer is willing to provide backup servicing for
all such receivables;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.1. Definitions. Whenever used in this Agreement, the
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 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 over (ii) the
excess of the amount of Available Funds on such Distribution Date over the
amounts payable on such Distribution Date pursuant to Section 5.7(b)(i) through
(b)(vii).
"Accelerated Payment Amount Shortfall Deposit" means, with respect to
any Distribution Date, any amount withdrawn from the Spread Account as an
Accelerated Payment Amount Shortfall and deposited to the Collection Account
pursuant to Sections 5.5(b) and 5.6.
"Accelerated Payment Shortfall Notice" means, with respect to any
Distribution Date, a written notice specifying the Accelerated Payment Amount
Shortfall for such Distribution Date.
"Accelerated Payment Termination Date" has the meaning assigned to
such term in the Spread Account Agreement.
"Accelerated Principal Amount" for a Distribution Date will equal the
lesser of
(x) the sum of (i) the excess, if any, of the amount of the total
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 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.
"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 and 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.
"Administrator" means AmeriCredit, in its capacity as Administrator
for the Seller pursuant to the Administration Agreement, dated as of August 15,
2002, by and between the Seller and AmeriCredit.
"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
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that became a Purchased Receivable prior to the end of the related Collection
Period) as of the date of determination.
"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 contracts, car club and warranty
contracts, other items customarily financed as part of motor vehicle retail
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.
"Assignment" means the Assignment dated as of October 19, 1999, from
AFS Funding Corp. to the Seller.
"Auto Loan Purchase and Sale Agreement" means any agreement between a
Third-Party Lender and AmeriCredit relating to the acquisition of Receivables
from a Third Party Lender by AmeriCredit.
"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 5.3 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 of the Indenture, (v) if
the Distribution Date which immediately follows such Collection Period is also
the Mandatory Redemption Date, any Pre-Funded Amount to be deposited into the
Collection Account on such Distribution Date pursuant to Section 5.7(b) hereof
and (vi) the proceeds of any purchase or sale of the assets of the Trust
described in Section 10.1 hereof.
"Backup Servicer" means Xxxxx Fargo Bank, National Association.
"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 the product of the Servicing Fee Rate times the sum of
(A) the product of (i) the aggregate Principal Balance of the Receivables as of
the opening of business on the first day of such Collection Period multiplied by
(ii) one twelfth plus (B) the product of (i) the aggregate Principal Balance of
the Subsequent Receivables sold to the Issuer during such Collection Period
multiplied by (ii) the number of days during that Collection Period that the
Subsequent Receivables were owned by the Issuer divided by 360.
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"Basic Documents" means this Agreement, the Certificate of Trust, the
Trust Agreement, the Indenture, the Spread Account Agreement, the Underwriting
Agreement, the Lockbox Agreement, the Insurance Agreement, the Indemnification
Agreement, the Assignment, the Custodian Agreement and other documents and
certificates delivered in connection therewith.
"Business Day" means any day other than a Saturday, a Sunday, legal
holiday or other day on which commercial banking institutions located in
Wilmington, Delaware, Fort Worth, Texas, New York City, New York, Minneapolis,
Minnesota or any other location of any successor Servicer, successor Owner
Trustee or successor Trust Collateral Agent are authorized or obligated by law,
executive order or governmental decree to be closed.
"Capitalized Interest Account" means the account designated as such,
established and maintained pursuant to Section 5.2.
"Capitalized Interest Account Initial Deposit" means $7,426,896.08
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 July 20, 2006.
"Collateral Agent" means Xxxxx Fargo Bank, National Association, 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).
"Collection Account" means the account designated as such, established
and maintained pursuant to Section 5.1.
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"Collection Period" means, with respect to the first Distribution
Date, the period beginning on the close of business on July 12, 2006 and ending
on the close of business on July 31, 2006. With respect to each subsequent
Distribution Date, "Collection Period" means the period beginning on the close
of business on the last day of the second preceding calendar month and ending on
the close of business on the last day of the immediately 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.
"Commission" means the United States Securities and Exchange
Commission.
"Computer Tape" means the computer tapes or other electronic media
furnished by the Servicer to the Issuer and the Insurer and its assigns
describing certain characteristics of the Receivables as of the Initial Cutoff
Date or the related Subsequent Cutoff Date, as appropriate.
"Contract" means a motor vehicle retail installment sale contract or
promissory note.
"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 an 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 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx
00000-0000, Attention: Corporate Trust Administration, and (ii) with respect to
the Trustee, the Trust Collateral Agent, the Backup Servicer 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 Sixth Street and Marquette Avenue, MAC N9311-161,
Xxxxxxxxxxx, Xxxxxxxxx 00000, Attention: Corporate Trust Office.
"Cram Down Loss" means, with respect to a Receivable that has not
become a Liquidated 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, the Insurer 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.
"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 Distribution Date in
accordance with the terms of the Spread Account Agreement.
"Deficiency Claim Amount Deposit" means, with respect to any
Distribution Date, any amount withdrawn from the Spread Account as a Deficiency
Claim Amount and deposited to the Collection Account pursuant to Sections 5.5(a)
and 5.6.
"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 9-102(a)(47) of the UCC and are
susceptible of physical delivery, transfer thereof to the Trust Collateral
Agent by physical delivery to the Trust Collateral Agent endorsed to, or
registered in the name of, the Trust Collateral Agent or endorsed in blank,
and, with respect to a certificated security (as defined in Section
8-102(a)(4) of the UCC), transfer thereof (i) by delivery thereof to the
Trust Collateral Agent of such certificated security endorsed to, or
registered in the name of, the Trust Collateral Agent or (ii) by delivery
thereof to a "clearing corporation" (as defined in Section 8-102(a)(5) of
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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 the Trust Collateral
Agent by the amount of such certificated security and the identification by
the clearing corporation of the certificated securities for the sole and
exclusive account of the Trust Collateral Agent (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; 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 securities intermediary
that is also a "depository" pursuant to applicable federal regulations; the
making by such securities intermediary of entries in its books and records
crediting such Trust Account Property to the Trust Collateral Agent's
securities account at the securities intermediary and identifying such
book-entry security held through the Federal Reserve System pursuant to
federal book-entry regulations as belonging to the Trust Collateral Agent;
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, consistent with changes in
applicable law or regulations or the interpretation thereof;
(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 Trust Collateral Agent or its nominee or
custodian who either (i) becomes the registered owner on behalf of the
Trust Collateral Agent or (ii) having previously become the registered
owner, acknowledges that it holds for the Trust Collateral Agent; and
(d) with respect to any item of Trust Account Property that is a
financial asset under Article 8 of the UCC and that is not governed by
clause (b) above, causing the securities intermediary to indicate on its
books and records that such financial asset has been credited to a
securities account of the Trust Collateral Agent.
"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 second Business Day preceding the Distribution Date in the
next calendar month, and (ii) the fourth Business Day preceding the Insured
Distribution Date in the next calendar month.
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"Distribution Date" means, with respect to each Collection Period, the
sixth day of the following calendar month, or, if such day is not a Business
Day, the immediately following Business Day, commencing August 7, 2006. If
AmeriCredit is no longer acting as Servicer, the distribution date may be a
different day of the month.
"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 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 (i) 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 and (ii) such depository
institutions' deposits are insured by the FDIC.
"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 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 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 Prime-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 Prime-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;
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(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;
(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, or any other investment that by its terms
converts to cash within a finite period, if the Rating Agency Condition is
satisfied with respect thereto; and
(h) cash denominated in United States dollars.
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 August 6, 2007 Distribution Date, (ii) the Class A-2 Notes,
the March 8, 2010 Distribution Date, (iii) the Class A-3 Notes, the September 6,
2011 Distribution Date, and (iv) the Class A-4 Notes, the September 6, 2013
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.
"Fitch" means Fitch Inc., or its successor.
"Force-Placed Insurance" has the meaning ascribed thereto in Section
4.4 hereof.
"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) December 31, 2006.
"Indenture" means the Indenture dated as of July 12, 2006, between the
Issuer and Xxxxx Fargo Bank, National Association, as Trust Collateral Agent and
Trustee, as the same may be amended and supplemented from time to time.
"Independent Accountants" shall have the meaning set forth in Section
4.11(a)
"Initial Cutoff Date" means July 12, 2006.
9
"Initial Other Conveyed Property" means all property conveyed by the
Seller to the Trust pursuant to Section 2.1(b) through (i) of this Agreement.
"Initial Receivables" means the Receivables 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 July 12, 2006, among the Insurer, the Trust, the Seller, AmeriCredit
Corp. and AmeriCredit, as the same may be amended or supplemented from time to
time.
"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 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
(if any amounts remain available to be drawn therefrom following application of
amounts on deposit therein on the related Distribution Date) or from the
proceeds of a drawing under the Note Policy. The
10
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:
(a) the Insurer shall have failed to make a payment required
under the Note Policy in accordance with its terms;
(b) 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
(c) a court of competent jurisdiction, the New York Department of
Insurance or other competent regulatory authority shall have entered a
final and nonappealable order, judgment or decree (i) appointing a
custodian, trustee, agent or receiver for the 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
Additional Funds Available 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 18 days for
the Class A-1 Notes and 16 days for the Class A-2 Notes, Class A-3 Notes and
Class A-4 Notes.
"Interest Rate" means, with respect to (i) the Class A-1 Notes,
5.5048% per annum (computed on the basis of a 360-day year and the actual number
of days elapsed in the applicable Interest Period), (ii) the Class A-2 Notes,
5.61% per annum (computed on the basis of a 360-day year consisting of twelve
30-day months), (iii) the Class A-3 Notes, 5.56% per annum
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(computed on the basis of a 360-day year consisting of twelve 30-day months) and
(iv) the Class A-4 Notes, 5.64% per annum (computed on the basis of a 360-day
year consisting of twelve 30-day months).
"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 2006-A-F.
"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. For Financed Vehicles registered in states which issue confirmation of
the lienholder's interest electronically, the "Lien Certificate" may consist of
notification of an electronic recordation by either a third party service
provider or the relevant Registrar of Titles of the applicable state which
indicates that the lien of the secured party on the Financed Vehicle is recorded
on the original certificate of title on the electronic lien and title system of
the applicable state.
"Liquidated Receivable" means, with respect to any Collection Period,
a Receivable for which, as of the last day of the Collection Period (i) 90 days
have elapsed since the Servicer repossessed the Financed Vehicle; provided,
however, that in no case shall 10% or more of a Scheduled Receivables Payment
have become 210 or more days delinquent in the case of a repossessed Financed
Vehicle, (ii) the Servicer has determined in good faith that all amounts it
expects to recover have been received, (iii) 10% or more of a Scheduled
Receivables Payment shall have become 120 or more days delinquent, except in the
case of a repossessed Financed Vehicle, or (iv) that is, without duplication, a
Sold Receivable.
"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), and, with
respect to a Sold Receivable, the related Sale Amount.
"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 July 12, 2006, by and among AmeriCredit, JPMorgan Chase
Bank, N.A. 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
12
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 the month following the month in which the last day of the Funding
Period occurs or (ii) the Distribution Date in January 2007.
"Minimum Sale Price" means (i) with respect to a Receivable (x) that
has become 60 to 210 days delinquent or (y) that has become greater than 210
days delinquent and with respect to which the related Financed Vehicle has been
repossessed by the Servicer and has not yet been sold at auction, the greater of
(A) 55% multiplied by the Principal Balance of such Receivable and (B) the
product of the three month rolling average recovery rate (expressed as a
percentage) for the Servicer in its liquidation of all receivables for which it
acts as servicer, either pursuant to this Agreement or otherwise, multiplied by
the Principal Balance of such Receivable or (ii) with respect to a Receivable
(x) with respect to which the related Financed Vehicle has been repossessed by
the Servicer and has been sold at auction and the Net Liquidation Proceeds for
which have been deposited in the Collection Account, or (y) that has become
greater than 210 days delinquent and with respect to which the related Financed
Vehicle has not been repossessed by the Servicer despite the Servicer's diligent
efforts, consistent with its servicing obligations, to repossess the Financed
Vehicle, $1.
"Monthly Capitalized Interest Amount" means in the case of the
Distribution Dates occurring in August 2006, September 2006, October 2006,
November 2006, December 2006 and January 2007, 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 or in the case of the
final subsequent transfer date, the number of days from and including the
previous Distribution Date to, but excluding the final Subsequent Transfer Date
and the denominator of which is 360, (y) the weighted average of each Interest
Rate and (z) the Prefunded Amount as of the prior Distribution Date, or in the
case of the August 2006 Distribution Date as of the Closing Date and (ii) the
sum of the Pre-Funding Earnings and Investment Earnings on amounts on deposit in
the Capitalized Interest Account 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;
13
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 or its successor.
"Net Liquidation Proceeds" means, with respect to a Liquidated
Receivable, Liquidation Proceeds 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 Net 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' Remaining Parity
Deficit Amount for the related Distribution Date (excluding any portion of a
Noteholders' Interest Distributable Amount due to Noteholders representing
interest on any Noteholders' Interest Carryover Amount accrued from and
including the date of payment of the amount of such Noteholders' Interest
Carryover Amount, unless the Insurer elects, in its sole discretion, to pay such
amounts in whole or in part, pursuant to the Note Policy), together with, if
such related Distribution Date was the Final Scheduled 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 amount 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 amount of the Class of Notes then entitled
to receive distributions of principal.
14
"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' Interest Distributable Amount for the Class of Notes for the
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 the applicable 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 and Class of Notes, the sum of the Noteholders' Monthly
Interest Distributable Amount for such Distribution Date and each Class of Notes
and the Noteholders' Interest Carryover Amount, if any, for such Distribution
Date and each such Class. Interest on the Class A-1 Notes shall be computed on
the basis of a 360-day year and the actual number of days elapsed in the
applicable Interest Period. Interest on the Class A-2 Notes, Class A-3 Notes and
Class A-4 Notes shall be computed on the basis of a 360-day year consisting of
twelve 30-day months.
"Noteholders' Monthly Interest Distributable Amount" means, with
respect to any Distribution Date and any Class of Notes, interest accrued at the
respective Interest Rate during the applicable Interest Period on the principal
amount of the Notes of such 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 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 (x) for
the Class A-1 Notes on the basis of a 360-day year and the actual number of days
elapsed in the applicable Interest Period and (y) for the Class A-2, Class A-3
and Class A-4 Notes on the basis of a 360-day year consisting of twelve 30-day
months (without adjustment for the actual number of business days elapsed in the
applicable Interest Period).
"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 aggregate
15
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 Notes is reduced to zero, 100%; (ii) relating to the
Distribution Date on which the principal amount of the Notes is reduced to zero,
the percentage equivalent of a fraction, the numerator of which is the
outstanding principal balance of the Notes that remain unpaid immediately prior
to such Distribution Date, and the denominator of which is the Principal
Distributable Amount for such Distribution Date; 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' 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 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 made on such 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.
"Officers' Certificate" means a certificate signed by the chief
executive officer, the president, any executive vice president, any senior vice
president, any vice president, any assistant vice president, any treasurer, any
assistant treasurer, any secretary or any 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.
16
"Originating Affiliate" means an Affiliate of AmeriCredit that has
originated Receivables and assigned its full interest therein to AmeriCredit.
"Other Conveyed Property" means the Initial Other Conveyed Property
and the Subsequent Other Conveyed Property.
"Overfunded Capitalized Interest Amount" means:
With respect to the August 2006 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) the difference between the weighted
average of each Interest Rate and the lesser of (x) 1.75% and (y) the
actual interest rate on Eligible Investments, (iii) 150 and (iv) the amount
on deposit in the Pre-Funding Account (excluding Pre-Funding Earnings) at
the close of business on July 31, 2006.
With respect to the September 2006 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) the difference between the weighted
average of each Interest Rate and the lesser of (x) 1.75% and (y) the
actual interest rate on Eligible Investments, (iii) 120 and (iv) the amount
on deposit in the Pre-Funding Account (excluding Pre-Funding Earnings) at
the close of business on August 31, 2006.
With respect to the October 2006 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) the difference between the weighted
average of each Interest Rate and the lesser of (x) 1.75% and (y) the
actual interest rate on Eligible Investments, (iii) 90 and (iv) the amount
on deposit in the Pre-Funding Account (excluding Pre-Funding Earnings) at
the close of business on September 30, 2006.
With respect to the November 2006 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) the difference between the weighted
average of each Interest Rate and the lesser of (x) 1.75% and (y) the
actual interest rate on Eligible Investments, (iii) 60 and (iv) the amount
on deposit in the Pre-Funding Account (excluding Pre-Funding Earnings) at
the close of business on October 31, 2006.
With respect to the December 2006 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
17
Account on such date) over (b) the product of (i) 1/360, (ii) the
difference between the weighted average of each Interest Rate and the
lesser of (x) 1.75% and (y) the actual interest rate on Eligible
Investments, (iii) 30 and (iv) the amount on deposit in the Pre-Funding
Account (excluding Pre-Funding Earnings) at the close of business on
November 30, 2006.
With respect to the January 2007 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 Wilmington Trust Company, 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.
"Pool Balance" means, as of any date of determination, the aggregate
Principal Balance of the Receivables (excluding Purchased Receivables and
Liquidated Receivables) at the end of the preceding calendar month.
"Pre-Funded Amount" means, with respect to any date of determination,
the amount on deposit in the Pre-Funding Account, (exclusive of Pre-Funding
Earnings) which initially shall be $424,998,504.28.
"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 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
18
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 amount 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 minus the Pre-Funded Amount.
"Prospectus Supplement" means the prospectus supplement, dated July
11, 2006, relating to the offering of the Notes, as filed with the Commission.
"Purchase Agreement" means the Purchase Agreement between the Seller
and AmeriCredit, dated as of July 12, 2006, pursuant to which the Seller
acquires the Receivables, as such Agreement may be amended from time to time.
"Purchase Amount" means, with respect to a Purchased 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
Sections 4.2, 4.4(c), or 4.7 or repurchased by the Seller or the Servicer
pursuant to Section 3.2 or Section 10.1(a).
"Rating Agency" means Xxxxx'x, Standard & Poor's and Fitch. 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
of Moody's and Standard & Poor's shall have been given 10 days' (or such shorter
period as shall be
19
acceptable to each of Moody's and Standard & Poor's) prior notice thereof and
that each of Moody's and Standard & Poor's 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, without taking into account the
presence of the Note Policy.
"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.
"Receivables" means the Initial Receivables listed on Schedule A
attached hereto and the Subsequent Receivables listed on Schedule A to each
Subsequent Transfer Agreement (which Schedules may be in the form of microfiche
or a disk).
"Receivable Files" means the documents specified in Section 3.3.
"Record Date" means, with respect to each Distribution Date, the
Business Day immediately preceding such Distribution Date, unless otherwise
specified in the Indenture. 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.
"Regulation AB" means Subpart 229.1100--Asset Backed Securities
(Regulation AB), 17 C.F.R. Sections 229.1100-229.1123, as such may be amended
from time to time and subject to such clarification and interpretation as have
been provided by the Commission in the adopting release (Asset-Backed
Securities, Securities Act Release No. 33-8518.70 Fed. Reg. 1,506,1,531 (January
7, 2005)) or by the staff of the Commission, or as may be provided by the
Commission or its staff from time to time.
"Required Pro Forma Note Balance" means, with respect to any
Distribution Date, a dollar amount equal to the product of (x) the difference
between (i) 100% and (ii) the "OC Level" (as defined in the Spread Account
Agreement), as the same may step down over time in accordance with the terms of
the Spread Account Agreement (which difference will initially equal 87.5%) and
(y) the Pool Balance as of the end of the prior calendar month.
"Responsible Officer" means, with respect to any Person, any Executive
Vice President, Senior Vice President, Assistant Vice President, Treasurer,
Assistant Treasurer, Secretary, Assistant Secretary, or any other officer of
such Person customarily performing functions similar to those performed by any
of the above designated officers and also, with respect to a particular matter,
any other officer to whom such matter is referred because of such officer's
knowledge of and familiarity with the particular subject.
"Requisite Amount" has the meaning specified in the Spread Account
Agreement.
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"Sale Amount" means, with respect to any Sold Receivable, the amount
received from the related third-party purchaser as payment for such Sold
Receivable.
"Schedule of Receivables" means the schedule of all motor vehicle
retail installment sales contracts and promissory notes originally held as part
of the Trust which is attached as Schedule A, as 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).
"Schedule of Representations" means 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 Servicemembers Civil Relief Act 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 Trust, a Delaware statutory trust, 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.
"Sold Receivable" means a Receivable that was more than 60 days
delinquent and was sold to an unaffiliated third party by the Issuer, at the
Servicer's direction, as of the close of
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business on the last day of a Collection Period and in accordance with the
provisions of Section 4.3(c) hereof.
"Spread Account" means the account designated as such, established and
maintained pursuant to the Spread Account Agreement.
"Spread Account Agreement" shall mean the Spread Account Agreement
dated as of July 12, 2006, among the Insurer, the Issuer 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 2.0% of the
aggregate Principal Balance of the Receivables on the Initial Cutoff Date (which
is equal to $20,000,032.34).
"Standard & Poor's" means Standard & Poor's, a Division of The
XxXxxx-Xxxx Companies, Inc., 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 related Subsequent Transfer Date.
"Subsequent Other Conveyed Property" means all property conveyed by
the Seller to the Trust pursuant to Section 2.2(a)(ii) through (a)(ix) of this
Agreement and the related Subsequent Transfer Agreement.
"Subsequent Purchase Agreement" means an agreement by and between the
Seller and AmeriCredit pursuant to which the Seller will acquire Receivables to
be transferred by the Seller to the Issuer as 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 the lesser of (i) 2.0% of the
aggregate principal balance of Subsequent Receivables as of the related
Subsequent Cutoff Date and (ii) the amount necessary to cause the Requisite
Amount to be on deposit in the Spread Account, in each case 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.
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"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.
"Substitution of Collateral Criteria" means AmeriCredit's written
criteria for substitution of collateral as delivered by AmeriCredit to the
Insurer on or before the Closing Date, as amended by revisions to such criteria
as may be delivered by AmeriCredit to the Insurer upon request.
"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.
"Third-Party Lender" means an entity that originated a loan to a
consumer for the purchase of a motor vehicle and sold the loan to AmeriCredit
pursuant to an Auto Loan Purchase and Sale Agreement.
"Third-Party Lender Assignment" means, with respect to a Receivable,
the executed assignment executed by a Third-Party Lender conveying such
Receivable to AmeriCredit.
"Titled Third-Party Lender" means a Third-Party Lender that has agreed
to assist AmeriCredit or any successor servicer, to the extent necessary, with
any repossession or legal action in respect of Financed Vehicles with respect to
which such Third-Party Lender has assigned its full interest therein to
AmeriCredit and is listed as first lienholder or secured party on the Lien
Certificate relating to such Financed Vehicle.
"Trigger Event" has the meaning assigned thereto in the Spread Account
Agreement.
"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 July 6, 2006,
between the Seller and the Owner Trustee, as amended and restated as of July 12,
2006, 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.
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"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
Sections 2.1 and 2.2, together with certain monies paid on or after the Initial
Cutoff Date in the case of the Initial Receivables and related Subsequent Cutoff
Date, in the case of the Subsequent Receivables, the Note Policy, the Collection
Account (including all Eligible Investments therein and all proceeds therefrom),
the Spread Account, the Lockbox Account, the Pre-Funding Account, the
Capitalized Interest Account, the Note Distribution Account (including all
Eligible Investments therein and all proceeds therefrom), and certain other
rights under this Agreement.
"Trustee" means the Person acting as Trustee under the Indenture, its
successors in interest and any successor trustee under the Indenture.
"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
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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 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, whether now
owned or existing or hereafter acquired or arising:
(a) the Initial Receivables and all moneys received thereon after the
Initial Cutoff Date;
(b) 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 and
disability insurance policies covering Financed Vehicles or Obligors and any
proceeds from the liquidation of the Initial Receivables;
(d) any proceeds from any Initial Receivable repurchased by a Dealer
pursuant to a Dealer Agreement or a Third-Party Lender pursuant to an Auto Loan
Purchase and Sale Agreement as a result of a breach of representation or
warranty in the related Dealer Agreement or Auto Loan Purchase and Sale
Agreement;
(e) all rights under any Service Contracts on the related Financed
Vehicles;
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(f) the related Receivable 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 under the Purchase Agreement;
(h) all of the Seller's (i) Accounts, (ii) Chattel Paper, (iii)
Documents, (iv) Instruments and (v) General Intangibles (as such terms are
defined in the UCC) relating to the property described in (a) through (g); and
(i) all proceeds and investments with respect to items (a) through
(h).
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 whether now owned or existing or hereinafter acquired:
(i) the Subsequent Receivables listed on Schedule A to the
related Subsequent Transfer Agreement and all moneys received thereon after
the Subsequent Cutoff Date;
(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 and disability insurance policies covering the related Financed
Vehicles or Obligors and any proceeds from the liquidation of such
Subsequent Receivables;
(iv) any proceeds from any Subsequent Receivable repurchased by a
Dealer pursuant to a Dealer Agreement or a Third-Party Lender pursuant to
an Auto Loan Purchase and Sale Agreement as a result of a breach of
representation or warranty in the related Dealer Agreement or Auto Loan
Purchase and Sale Agreement;
(v) all rights under any Service Contracts on the related
Financed Vehicles:
(vi) the related Receivable 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
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delivery requirements, representations and warranties and the cure and
repurchase obligations of AmeriCredit under each of the Subsequent Purchase
Agreements, on or after the related Subsequent Cutoff Date;
(viii) all of the Seller's (a) Accounts, (b) Chattel Paper, (c)
Documents, (d) Instruments and (e) General Intangibles (as such terms are
defined in the UCC) relating to the property described in (i) through
(vii); and
(ix) all proceeds and investments with respect to items (i)
through (viii).
(b) The Seller shall transfer to the Issuer the Subsequent Receivables
and the Subsequent Other Conveyed Property 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 and
Subsequent Purchase 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) neither AmeriCredit
nor the Seller shall be insolvent and shall not become insolvent as a
result of the transfer of Subsequent Receivables on such Subsequent
Transfer Date, (B) neither AmeriCredit nor the Seller shall 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
AmeriCredit or the Seller, as the case may be, shall not constitute
unreasonably small capital to carry out its business as conducted;
(v) the Funding Period shall not have terminated;
(vi) the Receivables transferred to the Trust pursuant hereto
shall meet the following criteria, as such information is provided to the
Trust Collateral Agent by the Servicer: (A) the remaining term of each such
Receivable shall not be more than 72 months; (B) the original term of each
such Receivable shall not be more than 72 months; (C) each such Receivable
shall have a remaining Principal Balance of at least $250 and not more than
$80,000; (D) each such Receivable shall have an Annual Percentage Rate of
at least 1% and not more than 33%; (E) no such Receivable shall be more
than 30 days past due; (F) no funds shall have been advanced by
AmeriCredit, any Originating Affiliate, any Dealer, any Third-Party Lender,
or anyone acting on behalf of any of them in order to cause any such
Receivable to qualify under clause (E), above; (G) the related
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Obligor of each such Receivable shall have had a billing address in the
United States as of the date of origination of the related Receivable,
shall be a natural person and shall not be an Affiliate of any party to
this Agreement; (H) each such Receivable shall be denominated in, and the
related Contract shall provide for payment in, United States dollars; (I)
each such Receivable shall be identified on the Servicer's master servicing
records as an automobile installment sales contract or installment note;
(J) each such Receivable shall arise under a Contract which is assignable
without the consent of, or notice to, the Obligor thereunder, and does not
contain a confidentiality provision that purports to restrict the ability
of the Servicer to exercise its rights under this Agreement, including,
without limitation, its right to review the Contract; and (K) each such
Receivable shall arise under a Contract with respect to which AmeriCredit
has performed all obligations required to be performed by it thereunder,
and, in the event such Contract is an installment sales contract, delivery
of the Financed Vehicle to the related Obligor shall have occurred. In
addition, after giving effect to any transfer of Subsequent Receivables on
a Subsequent Transfer Date, all Receivables transferred to the Trust
pursuant hereto on or prior to that Subsequent Transfer Date 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: (W) not more than 50% of such Receivables
(calculated by Aggregate Principal Balance) shall have an original term to
maturity of 72 months; (X) the weighted average APR of such Receivables
shall not be less than 16.75% unless, with the prior consent of the Rating
Agencies and the Insurer, the Seller increases the Spread Account Initial
Deposit with respect to the Subsequent Receivables by the amount required
by the Insurer; (Y) not more than 35% of the Aggregate Principal Balance
shall have Obligors whose mailing addresses are in Texas and California;
and (Z) any variation in the overall composition or characteristics of the
Initial Receivables and the pool of Receivables as a whole after giving
effect to the transfer of the Subsequent Receivables on such Subsequent
Transfer Date shall not be material;
(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 and each of the conditions under the
Subsequent Purchase Agreement shall have been satisfied or waived as
provided therein;
(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 priority perfected security interest of the
Trust Collateral Agent in the Collateral;
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(x) no selection procedures adverse to the interests of the
Noteholders or the Insurer shall have been utilized in selecting the
Subsequent Receivables;
(xi) for federal income tax purposes, the addition of any such
Subsequent Receivables shall not cause the Notes to fail to qualify as
indebtedness or cause the Issuer to be characterized as an association (or
publicly traded partnership) taxable as a corporation;
(xii) the Seller shall have delivered to the Trust Collateral
Agent the Opinion of Counsel required by Section 12.2(h)(1);
(xiii) 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 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;
(xiv) 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
(xv) 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 2.1 and 2.2, 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 Statutory 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 (other than the Spread Account) to the Trust Collateral
Agent and pursuant to the Spread Account Agreement, the Trust shall grant a
security interest in the Spread Account to the Collateral Agent, in each case
securing 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.
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(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
Notes or Certificates outstanding and all sums due to (i) the Trustee pursuant
to the Indenture, (ii) the Insurer pursuant to the Insurance Agreement and (iii)
the Trust Collateral Agent pursuant to this Agreement, have been paid, release
any remaining portion of the Trust Property to the Seller.
SECTION 2.4. Intention of the Parties.
It is the intention of the Seller that the transfers and assignments
contemplated by this Agreement shall constitute a sale of Receivables and Other
Conveyed Property pursuant to Section 2.1 and Section 2.2 from the Seller to the
Issuer and the beneficial interest in and title to the Receivables and the Other
Conveyed Property shall not be part of the Seller's estate in the event of the
filing of a bankruptcy petition by or against the Seller under any bankruptcy
law. In the event that, notwithstanding the intent of the Seller and the Issuer,
the transfer and assignment contemplated hereby is held by a court of competent
jurisdiction not to be a sale, this Agreement shall constitute a grant of a
security interest by the Seller to the Issuer in the following property for the
benefit of the Noteholders and the Insurer, whether now owned or existing or
hereafter acquired or arising, and this Agreement shall constitute a security
agreement under applicable law (collectively, the "Sale and Servicing Agreement
Collateral"):
(i) the Initial Receivables and all moneys received thereon after
the Initial Cutoff Date and the Subsequent Receivables and all moneys
received thereon after the related Subsequent Cutoff Date;
(ii) the security interests in the Financed Vehicles granted by
Obligors pursuant to the Receivables and any other interest of the Seller
in such Financed Vehicles;
(iii) any proceeds and the right to receive proceeds with respect
to the 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 Receivables;
(iv) any proceeds from any Receivable repurchased by a Dealer
pursuant to a Dealer Agreement or a Third-Party Lender pursuant to an Auto
Loan Purchase and Sale Agreement as a result of a breach of representation
or warranty in the related Dealer Agreement or Auto Loan Purchase and Sale
Agreement;
(v) all rights under any Service Contracts on the related
Financed Vehicles;
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(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 the Purchase
Agreement and each Subsequent Purchase Agreement, including the Seller's
rights under the Purchase Agreement and each Subsequent Purchase Agreement,
and the delivery requirements, representations and warranties and the cure
and repurchase obligations of AmeriCredit under the Purchase Agreement and
each Subsequent Purchase Agreement.
(viii) all of the Seller's (a) Accounts, (b) Chattel Paper, (c)
Documents, (d) Instruments and (e) General Intangibles (as such terms are
defined in the UCC) relating to the property described in (i) through
(vii); and
(ix) all proceeds and investments with respect to items (i)
through (viii).
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 the 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 Trust Collateral Agent pursuant to the Indenture and shall not be
waived.
SECTION 3.2. Repurchase upon Breach. (a) The Seller, the Servicer,
the Backup 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, by 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, the Backup Servicer or the Noteholders with
respect to a breach of representations
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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.
(b) Pursuant to Sections 2.1 and 2.2 of this Agreement, the Seller
conveyed (or will convey) 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 and each Subsequent Purchase Agreement including
the Seller's rights under the Purchase Agreement and each Subsequent Purchase
Agreement and the delivery requirements, representations and warranties and the
cure or repurchase obligations of AmeriCredit thereunder. The Seller hereby
represents and warrants to the Trust that such assignment is or will be valid,
enforceable and effective to permit the Trust to enforce such obligations of
AmeriCredit under the Purchase Agreement and each Subsequent Purchase Agreement.
Any purchase by AmeriCredit pursuant to the Purchase Agreement shall be deemed a
purchase by the Seller pursuant to this Section 3.2 and the definition of
Purchased Receivable.
SECTION 3.3. Custody of Receivable Files.
(a) In connection with the sale, transfer and assignment of the
Receivables and the Other Conveyed Property to the Trust pursuant to this
Agreement and simultaneously with the execution and delivery of this Agreement,
the Trust Collateral Agent shall enter into the Custodian Agreement with the
Custodian, dated as of July 12, 2006, 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 (the "Receivable
Files") which shall be delivered to the Custodian as agent of the Trust
Collateral Agent on or before the Closing Date in the case of the Initial
Receivables and as of the Subsequent Transfer Date in the case of the Subsequent
Receivables:
(i) The fully executed original of the Receivable; and
(ii) The Lien Certificate (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 (or an Originating
Affiliate or Titled Third-Party Lender) as first lienholder or secured
party (including any Lien Certificate received by AmeriCredit),
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or, if such Lien Certificate has not yet been received, a copy of the
application therefor, showing AmeriCredit (or an Originating Affiliate or a
Titled Third-Party Lender) as secured party.
(b) If the Trust Collateral Agent is acting as the Custodian pursuant
to Section 8 of the Custodian Agreement, the Trust Collateral Agent shall be
deemed to have assumed the obligations of the Custodian (except for any
liabilities incurred by the predecessor Custodian) specified in the Custodian
Agreement until such time as a successor Custodian has been appointed. 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. Upon the sale of any
Receivable pursuant to Section 4.3(c) hereof, 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 sale which are required to be deposited in the Collection
Account pursuant to Section 4.3(c) have been so deposited) and shall request
delivery of the Receivable and Receivable File to the purchaser of such
Receivable. From time to time as appropriate for servicing and enforcing any
Receivable, the Custodian shall, upon written request of an officer of the
Servicer and delivery to the Custodian of a receipt signed by such officer,
cause the original Receivable and the related Receivable File to be released to
the Servicer. The Servicer's receipt of a Receivable and/or Receivable File
shall obligate the Servicer to return the original Receivable and the related
Receivable File to the Custodian when its need by the Servicer has ceased unless
the Receivable is repurchased as described in Section 3.2, 4.2 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 substantially comply with the
policies and procedures described on Schedule C, as such policies and procedures
may be updated from time to time. 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
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of Insurance Policies with respect to the Financed Vehicles and performing the
other duties specified herein.
The Servicer, or if AmeriCredit is no longer the Servicer,
AmeriCredit, at the request of the Servicer, shall also administer and enforce
all rights and responsibilities of the holder of the Receivables provided for in
the Dealer Agreements and Auto Loan Purchase and Sale Agreements (and shall
maintain possession of the Dealer Agreements and Auto Loan Purchase and Sale
Agreements, to the extent it is necessary to do so), the Dealer Assignments, the
Third-Party Lender Assignments and the Insurance Policies, to the extent that
such Dealer Agreements, Auto Loan Purchase and Sale Agreements, Dealer
Assignments, Third-Party Lender 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 except in accordance with the Servicer's customary
practices as reflected in the Servicing Policies and Procedures attached hereto
as Schedule C.
The Servicer is hereby authorized to commence, in its 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 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
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receivables that it services for itself or others and otherwise act with respect
to the Receivables, the Dealer Agreements, the Dealer Assignments, the Auto Loan
Purchase and Sale Agreements, the Third-Party Lender 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, including directing the Issuer to sell the
Receivables pursuant to Section 4.3(c) hereof. 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 (A) at any time agree to a modification or
amendment of a Receivable in order to (i) not more than once per year, change
the Obligor's regular monthly due date to a date that shall in no event be later
than 30 days after the original monthly due date of that Receivable or (ii)
re-amortize the Scheduled Receivables Payments on the Receivable (x) following a
partial prepayment of principal, in accordance with its customary procedures or
(y) following the Obligor's reinstatement based on local laws or (B) may direct
the Issuer to sell the Receivables pursuant to Section 4.3 hereof, if the
Servicer believes in good faith that such extension, modification, amendment or
sale 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) hereof), 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 eight months;
(ii) In no event may a Receivable be extended beyond the
Collection Period immediately preceding the latest Final Scheduled
Distribution Date;
(iii) The average Monthly Extension Rate for any three
consecutive calendar months shall not exceed 4%; and
(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
35
Monthly Extension Rates and 4% and (ii) the Aggregate Principal Balance, and pay
the related Purchase Amount on the related Determination Date; provided,
however, that in the event the Backup 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 Deposit 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 at any time, an Obligor's bank account cannot be accessed 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, the Insurer and
Noteholders for servicing and administering the Receivables and the Other
Conveyed Property in accordance with the provisions of this Agreement without
diminution of such obligation or liability by virtue thereof; provided, however,
that the foregoing shall not apply to any Backup Servicer for so long as a
Lockbox Bank is performing its obligations pursuant to the terms of a Lockbox
Agreement.
In the event of a termination of the Servicer, the successor Servicer
shall assume all of the rights and obligations of the outgoing Servicer under
the Lockbox Agreement 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
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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 as soon as
practicable, but in no event later than the second Business Day after receipt
thereof, and such amounts shall be deposited into the Lockbox Account and
transferred from the Lockbox Account to the Collection Account in accordance
with Section 4.2(d) hereof.
(f) AmeriCredit shall not cause or permit the substitution of the
Financed Vehicle relating to a Receivable unless: (i) the substitution is a
replacement of the Financed Vehicle originally financed under the related
Receivable; (ii) the Financed Vehicle originally financed under the related
Receivable was either (x) insured under an Insurance Policy as required under
Section 4.4(a) at the time of a casualty loss that is treated as a total loss
under such Insurance Policy, (y) deemed to be a "lemon" pursuant to applicable
state law and repurchased by the related Dealer or (z) is the subject of an
order by a court of competent jurisdiction directing AmeriCredit to substitute
another vehicle under the related Receivable; (iii) the related Receivable is
not more than 30 days delinquent; (iv) the Obligor is deemed to be in "good
standing" by the Servicer and is not in breach of any requirement under the
related Receivable; (v) the replacement Financed Vehicle has a book value
(N.A.D.A.) at least equal to the book value (N.A.D.A.) of the Financed Vehicle
that is being replaced, measured immediately before the casualty loss or
replacement by the Dealer; (vi) as of the date of such substitution, the
replacement Financed Vehicle's mileage is no greater than the mileage on the
Financed Vehicle that is being replaced and (vii) the substitution complies with
the Substitution of Collateral Criteria; provided, however, that if the
substitution is made pursuant to clause (ii)(z), above, clauses (iii) through
(v) inclusive, shall not be applicable. So long as the Note Policy is
outstanding, AmeriCredit shall not cause or permit the substitution of Financed
Vehicles relating to Receivables having an original aggregate Principal Balance
greater than two percent (2%) of the Original Pool Balance, (the "Substitution
Limit"). In the event that the Substitution Limit is exceeded for any reason,
AmeriCredit shall, on or before the next following Accounting Date, repurchase a
sufficient number of such Receivables to cause the aggregate original Principal
Balances of such Receivables to be less than the Substitution Limit.
SECTION 4.3. Realization upon Receivables.
(a) In addition to the Servicer's ability to direct the Issuer to sell
Receivables pursuant to Section 4.3(c) hereof, and consistent with the
standards, policies and procedures required by this Agreement, the Servicer
shall use its best efforts to repossess (or otherwise
37
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 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 or if it instead elects to direct the Issuer to sell
the Receivables pursuant to Section 4.3(c). 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 and Third-Party Lenders, the sale of the related Financed Vehicle at
public or private sale, the submission of claims under an Insurance Policy and
other actions by the Servicer in order to realize upon such a Receivable. The
foregoing is subject to the provision that, in any case in which the Financed
Vehicle shall have suffered damage, the Servicer shall not expend funds in
connection with any repair or towards the repossession of such Financed Vehicle
unless it shall determine in its discretion that such repair and/or repossession
shall increase the proceeds of liquidation of the related Receivable by an
amount greater than the amount of such expenses. All amounts received upon
liquidation of a Financed Vehicle shall be remitted directly by the Servicer to
the 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 or Third-Party Lender, 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, or if AmeriCredit is no longer the Servicer,
AmeriCredit at the request of the Servicer, elects to commence a legal
proceeding to enforce a Dealer Agreement, Auto Loan Purchase and Sale Agreement,
Dealer Assignment or Third-Party Lender Assignment, the act of commencement
shall be deemed to be an automatic assignment from the Trust to the Servicer, or
to AmeriCredit at the request of the Servicer, of the rights under such Dealer
Agreement, Auto Loan Purchase and Sale Agreement, Dealer Assignment or
Third-Party Lender Assignment for purposes of collection only. If, however, in
any enforcement suit or legal proceeding it is held that the Servicer or
AmeriCredit, as appropriate, may not enforce a Dealer Agreement, Auto Loan
Purchase and Sale Agreement, Dealer Assignment or Third-Party Lender Assignment
on the grounds that it is not a real party in interest or a Person entitled to
enforce the Dealer Agreement, Auto Loan Purchase and Sale Agreement, Dealer
Assignment or Third-Party Lender Assignment, the Owner Trustee and/or the Trust
Collateral Agent, at AmeriCredit'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, Auto Loan Purchase and Sale Agreement, Dealer
Assignment or Third-Party Lender 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
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Agent for the benefit of the Noteholders. All amounts recovered shall be
remitted directly by the Servicer as provided in Section 4.2(e).
(c) Consistent with the standards, policies and procedures required by
this Agreement, the Servicer may use its best efforts to locate a third party
purchaser that is not affiliated with the Servicer, the Seller or the Issuer to
purchase from the Issuer any Receivable that has become more than 60 days
delinquent, and shall have the right to direct the Issuer to sell any such
Receivable to the third-party purchaser; provided, that no more than 20% of the
sum of the number of Initial Receivables and Subsequent Receivables may be sold
by the Issuer pursuant to this Section 4.3(c) in the aggregate; provided
further, that the Servicer may elect to not direct the Issuer to sell a
Receivable that has become more than 60 days delinquent if in its good faith
judgment the Servicer determines that the proceeds ultimately recoverable with
respect to such Receivable would be increased by forbearance. In selecting
Receivables to be sold to a third party purchaser pursuant to this Section
4.3(c), the Servicer shall use commercially reasonable efforts to locate
purchasers for the most delinquent Receivables first. In any event, the Servicer
shall not use any procedure in selecting Receivables to be sold to third party
purchasers which is materially adverse to the interest of the Noteholders or the
Insurer. The Issuer shall sell each Sold Receivable for the greatest market
price possible; provided, however, that aggregate Sale Amounts received by the
Issuer for all Receivables sold to a single third-party purchaser on a single
date must be at least equal to the sum of the Minimum Sale Prices for all such
Receivables. The Servicer shall remit or cause the third-party purchaser to
remit all sale proceeds from the sale of Receivables directly 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.
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 (or an Originating
Affiliate or a Titled Third-Party Lender) and its successors and assigns as
additional insureds, and permits the holder of such Receivable to obtain
physical loss and damage insurance at the expense of the Obligor if the Obligor
fails to maintain such insurance. If the Servicer shall determine that an
Obligor has failed to obtain or maintain a physical loss and damage Insurance
Policy covering the related Financed Vehicle which satisfies the conditions set
forth in clause (i)(a) of such Paragraph 24 (including, without limitation,
during the repossession of such Financed Vehicle) the Servicer may enforce the
rights of the holder of the Receivable under the Receivable to require the
Obligor to obtain such physical loss and damage insurance in accordance with its
customary servicing policies and procedures. The Servicer may maintain a
vendor's single interest or other collateral protection insurance policy with
respect to all Financed Vehicles ("Collateral Insurance") which policy shall by
its terms insure against physical loss and damage in the event any Obligor fails
to maintain physical loss and damage insurance with respect to the related
Financed Vehicle. All policies of Collateral Insurance shall be endorsed
39
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 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.
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(e) The Servicer will cause itself or a Titled Third-Party Lender, 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 the designation
of AmeriCredit (or an Originating Affiliate or a Titled Third-Party Lender) as
the secured party on the Lien Certificate 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 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 hereby appoints the Trust Collateral Agent as its
attorney-in-fact to take any and all steps required to be performed by
41
AmeriCredit 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 with
respect to all perfection or reperfection, except as pursuant to the Basic
Documents to which it is a party and to which AmeriCredit has paid all
expenses), including execution of Lien Certificates or any other documents in
the name and stead of AmeriCredit 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 Auto Loan Purchase and Sale Agreements, the Dealer
Assignments, the Third-Party Lender 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 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.
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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 Sections 1, 2 or 3 of
the Custodian Agreement or in Sections 4.5(a) or 4.6 hereof, the party
discovering such breach shall give prompt written notice to the others;
provided, however, that the failure to give any such notice shall not affect any
obligation of AmeriCredit as Servicer under this Section. 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 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, the Backup Servicer or the Trust
Collateral Agent; provided, however, that AmeriCredit shall indemnify the Trust,
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. Notwithstanding anything to the contrary contained
herein, AmeriCredit will not be required to repurchase Receivables due solely to
the Servicer's not having received Lien Certificates that have been properly
applied for from the Registrar of Titles in the applicable states for such
Receivables unless (i) such Lien Certificates shall not have been received with
respect to Receivables with Principal Balances which total more than 1.0% of the
Aggregate Principal Balance as of the 180th day after the Closing Date or the
Subsequent Transfer Date as applicable, in which case AmeriCredit shall be
required to repurchase a sufficient number of such Receivables to cause the
aggregate Principal Balances of the remaining Receivables for which no such Lien
Certificate shall have been received to be no greater than 1.0% of the Aggregate
Principal Balance as of such date or (ii) such Lien Certificates shall not have
been received as of the 240th day after the Closing Date or the Subsequent
Transfer Date as applicable. 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 Base Servicing Fee and any Supplemental
Servicing Fee for the related Collection Period (together, the "Servicing Fee")
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
43
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 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 noon 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 Collateral Agent, the Backup
Servicer, the Insurer, 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 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 noon 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 Collateral Agent, the Backup
Servicer, the Insurer 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 Sections 5.7(a) and 5.7(b), (ii) a listing of all Purchased
Receivables and Sold Receivables purchased by the Servicer or sold by the Issuer
as of the related Accounting Date, identifying the Receivables so purchased by
the Servicer or sold by the Issuer, (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 and 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, Monthly Extension Rate, Cumulative
Default Ratio and Cumulative Net Loss Ratio (as such terms are defined herein or
in the Spread Account Agreement) for the related Collection Period; (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.
SECTION 4.10. Annual Statement as to Compliance, Notice of Servicer
Termination Event.
(a) To the extent required by Section 1123 of Regulation AB, the
Servicer shall deliver to the Trustee, the Owner Trustee, the Trust Collateral
Agent, the Backup Servicer,
44
the Insurer and each Rating Agency, on or before March 31 of each year
(regardless of whether the Seller has ceased filing reports under the Exchange
Act), beginning on March 31, 2007, an officer's certificate signed by any
Responsible Officer of the Servicer, dated as of December 31 of the previous
calendar year, stating that (i) a review of the activities of the Servicer
during the preceding calendar year (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 in all material respects all its obligations under this Agreement
throughout such period, or, if there has been a failure to fulfill any such
obligation in any material respect, identifying each such failure known to such
officer and the nature and status of such failure.
(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.
(c) The Servicer will deliver to the Issuer, on or before March 31 of
each year, beginning on March 31, 2007, a report regarding the Servicer's
assessment of compliance with certain minimum servicing criteria during the
immediately preceding calendar year, as required under Rules 13a-18 and 15d-18
of the Exchange Act and Item 1122 of Regulation AB.
(d) The Servicer will cause any affiliated servicer or any other party
deemed to be participating in the servicing function pursuant to Item 1122 of
Regulation AB to provide to the Issuer, on or before March 31 of each year,
beginning on March 31, 2007, a report regarding such party's assessment of
compliance with certain minimum servicing criteria during the immediately
preceding calendar year, as required under Rules 13a-18 and 15d-18 of the
Exchange Act and Item 1122 of Regulation AB.
(e) Xxxxx Fargo Bank, National Association acknowledges, in its
capacity as Backup Servicer and Trust Collateral Agent under this Agreement and
in its capacity as Indenture Trustee under the Basic Documents, that to the
extent it is deemed to be participating in the servicing function pursuant to
Item 1122 of Regulation AB, it will take any action reasonably requested by the
Servicer to ensure compliance with the requirements of Sections 4.10(d) and
4.11(b) hereof and with Item 1122 of Regulation AB.
SECTION 4.11. Annual Independent Accountants' Report.
(a) The Servicer shall cause a firm of nationally recognized
independent certified public accountants (the "Independent Accountants"), who
may also render other services to the Servicer or its Affiliates, to deliver to
the Trustee, the Owner Trustee, the Trust
45
Collateral Agent, the Collateral Agent, the Insurer, the Backup Servicer, on or
before March 31 (or 90 days after the end of the Issuer's fiscal year, if other
than December 31) of each year, beginning in March 31, 2007, a report, dated as
of December 31 of the preceding calendar year, addressed to the board of
directors of the Servicer, providing its attestation report on the servicing
assessment delivered pursuant to Section 4.10(c), including disclosure of any
material instance of non-compliance, as required by Rule 13a-18 and 15d-18 of
the Exchange Act and Item 1122(b) of Regulation AB. Such attestation will be in
accordance with Rules 1-02(a)(3) and 2-02(g) of Regulation S-X under the
Securities Act and the Exchange Act.
(b) Each party required to deliver an assessment of compliance
described in section 4.10(d) shall cause Independent Accountants, who may also
render other services to such party or its Affiliates, to deliver to the
Trustee, the Owner Trustee, the Trust Collateral Agent, the Collateral Agent,
the Insurer, the Backup Servicer and the Servicer, on or before March 31 (or 90
days after the end of the Issuer's fiscal year, if other than December 31) of
each year, beginning in March 31, 2007, a report, dated as of December 31 of the
preceding calendar year, addressed to the board of directors of such party,
providing its attestation report on the servicing assessment delivered pursuant
to Section 4.10(d), including disclosure of any material instance of
non-compliance, as required by Rule 13a-18 and 15d-18 of the Exchange Act and
Item 1122(b) of Regulation AB. Such attestation will be in accordance with Rules
1-02(a)(3) and 2-02(g) of Regulation S-X under the Securities Act and the
Exchange Act.
(c) The Servicer shall cause a firm of Independent Accountants, who
may also render other services to the Servicer or to the Seller, (1) 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, 2007, 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
(which period shall not be less than six months)), a copy of the Form 10-K filed
with the United States Securities and Exchange Commission for AmeriCredit Corp.,
which filing includes a statement that 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) upon request of the Trustee, the
Owner Trustee, the Trust Collateral Agent, the Backup Servicer or the Insurer,
to issue an acknowledgement 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 pursuant to item (1) of this
section and that the accounting 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) to deliver to the Insurer,
upon the request of the Insurer, such request not being more often than
annually, 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.
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
46
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. No later than the second Business Day
after each Distribution Date (but at least four Business Days prior to the
related Insured Distribution Date), the Servicer will deliver to the Trust
Collateral Agent, the Insurer and the Backup Servicer a computer tape and a
diskette (or any other electronic transmission acceptable to the Trust
Collateral Agent, the Insurer and the Backup Servicer) in a format acceptable to
the Trust Collateral Agent, the Insurer 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 review the application
of collections as provided in Section 5.4 (the "Monthly Tape"). The Backup
Servicer shall use such tape or diskette (or other electronic transmission
acceptable to the Trust Collateral Agent and the Backup Servicer) to confirm
that such tape, diskette or other electronic transmission is in readable form
and confirm the Pool Balance. 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 or any successor 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 September 30, 2006, which
term shall be subject to extension by the Controlling Party for successive
quarterly terms ending on each successive March 31, June 30, September 30 and
December 31 (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 Servicer agrees that
if as of the fifteenth day prior to the last day of any term of the Servicer the
Servicer shall not have received any Servicer Extension Notice from the Insurer
(which extension notices the Insurer has agreed to deliver for so long as no
other Servicer Termination Event has occurred), the Servicer will, within five
days thereafter, give written notice of such non-receipt to the Trust Collateral
Agent and the Backup Servicer. Notwithstanding anything herein to the contrary,
the Insurer
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shall be obligated to deliver Servicer Extension Notices extending the
Servicer's term as Servicer hereunder in the manner set forth in this Section
4.14 for so long as no Servicer Termination Event has occurred.
SECTION 4.15. [Reserved].
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 Insurer. The
Pre-Funding Account shall initially be established with the Trust Collateral
Agent.
(b) Funds on deposit in the Collection Account, the Note Distribution
Account, the Pre-Funding 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 Trust 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, at the close of business on the
Business Day immediately preceding the following Insured Distribution Date
(except that if such Eligible Investments are obligations of the institution
that maintains such Trust Account or a fund for which such institution or an
Affiliate thereof serves as an investment advisor, administrator, shareholder
servicing agent, custodian and/or sub-custodian, then such Eligible Investment
shall be permitted to mature on the Distribution Date). Funds deposited in a
Trust Account on the day immediately preceding a Distribution Date or an Insured
Distribution Date
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upon the maturity of any Eligible Investments are required to be invested
overnight. All Eligible Investments will be held to maturity. Each institution
at which the relevant Trust Account is maintained shall invest the funds therein
as directed in writing by the Servicer in Eligible Investments.
(c) All investment earnings of moneys deposited in each Trust Account
shall be deposited (or caused to be deposited) on each Distribution Date by the
Trust Collateral Agent in such Trust Account, and any loss resulting from such
investments shall be charged to such Trust 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 (d) 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 for the benefit of the Noteholders and the Insurer 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.
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(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 securities intermediary (as such term
is defined in Section 8-102(14) of the UCC) acting solely for the
Trust Collateral Agent;
(C) the "securities intermediary's jurisdiction" for
purposes of Section 8-110 of the UCC shall be the State of New
York;
(D) 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;
(E) any Trust Account Property that is an "uncertificated
security" or a "security entitlement" under Article 8 of the UCC
and that is not governed by clause (D) above shall be delivered
to the Trust Collateral Agent in accordance with paragraph (c) or
(d), if applicable, 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;
and
(F) any cash that is Trust Account Property shall be
considered a "financial asset" under Article 8 of the UCC.
(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.
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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 August 2006, September
2006, October 2006, November 2006, December 2006 and January 2007, 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 August 2006,
September 2006, October 2006, November 2006 and December 2006, the Servicer
shall instruct the Trust Collateral Agent in writing to withdraw from the
Capitalized Interest Account and pay the Seller on such Distribution Date an
amount equal to the Overfunded Capitalized Interest Amount for such Distribution
Date. On the Distribution Date on or immediately following the end of the
Funding Period, the Overfunded Capitalized Interest Amount shall be remitted by
the Trust Collateral Agent to the Seller. Upon any such distribution to the
Seller, the Noteholders, the Certificateholders and the Insurer will have no
further rights in, or claims to, such amount.
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; provided, however, that
the Servicer must provide such clarification within 12 months of such mistaken
deposit, posting, or returned check. 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. The Servicer will additionally be entitled to
receive from amounts on deposit in the Collection Account with respect to a
Collection Period any amounts paid by Obligors that were collected in the
Lockbox Account but that do not relate to (i) principal and interest payments
due on the Receivables and (ii) any fees or expenses related to extensions due
on the Receivables.
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SECTION 5.4. Application of Collections. All collections for the
Collection Period shall be applied by the Servicer as follows:
With respect to each Receivable (other than a Purchased Receivable or
a Sold 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 Preliminary Servicer's Certificate with
respect to any Determination Date shall state that there is a Deficiency Claim
Amount with respect to the related Distribution Date, then the Trust Collateral
Agent shall deliver to the Collateral Agent, the Owner Trustee, the Trustee, the
Insurer and the Servicer, by hand delivery or facsimile transmission, (1) no
later than 2:00 p.m. Eastern time on the Business Day preceding such
Distribution Date, a written notice (a "Deficiency Notice") specifying the
Deficiency Claim Amount for such Distribution Date and (2) no later than 12:00
noon Eastern time on the fourth Business Day immediately preceding the related
Insured Distribution Date, 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 Distribution Date.
(b) In the event that the Preliminary Servicer's Certificate with
respect to any Determination Date shall state that there shall be an Accelerated
Payment Amount Shortfall with respect to the related Distribution Date, then no
later than 2:00 p.m. Eastern time on the Business Day preceding such
Distribution Date the Trust Collateral Agent shall deliver to the Collateral
Agent, the Owner Trustee, the Trustee, 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 extent of funds
available to be distributed in the Spread Account) to the Trust Collateral Agent
for deposit in the Collection Account on the related 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 for application on the related
Distribution Date pursuant to Section 5.7.
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 Determination Date on which
such obligations are due the aggregate Purchase Amount with respect to Purchased
Receivables and the aggregate Sale Amounts with respect to Sold Receivables. On
or before each Distribution Date, the Trust
52
Collateral Agent shall remit to the Collection Account any amounts delivered to
the Trust Collateral Agent by the Collateral Agent.
(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 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 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 and any Deficiency Claim Amount
Deposits, to the Servicer, (1) the Base Servicing Fee for the related
Collection Period, (2) any Supplemental Servicing Fees for the related
Collection Period and (3) 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 and
to pay to AmeriCredit any amounts paid by Obligors during the preceding
calendar month that did not relate to (x) principal and interest payments
due on the Receivables and (y) any fees or expenses related to extensions
due on the Receivables and, to any successor Servicer, transition fees not
to exceed $200,000 (including boarding fees) in the aggregate;
(ii) from the Available Funds and any Deficiency Claim Amount
Deposits, to each of the Lockbox Banks, the Trustee, the Backup Servicer
and the Owner Trustee, their respective accrued and unpaid fees and
expenses and any accrued and unpaid fees and expenses of the Trust
Collateral Agent (in each case, to the extent such fees or expenses have
not been previously paid by the Servicer and provided that such fees and
expenses shall not exceed (w) $100,000 in the aggregate in any calendar
year to the Owner Trustee and (x) $200,000 in the aggregate in any calendar
year to the Lockbox Banks, the Trust Collateral Agent, the Backup Servicer
and the Trustee);
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(iii) from the Available Funds and any Deficiency Claim Amount
Deposits, to the Note Distribution Account, the Noteholders' Interest
Distributable Amount;
(iv) from the Available Funds and any Deficiency Claim Amount
Deposits (other than amounts relating to Deficiency Claim Amounts described
in clause (i) of the definition thereof), 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 and any Deficiency Claim Amount
Deposits to the Insurer, to the extent of any amounts owing to the Insurer
under the Insurance Agreement and not paid;
(vi) from the Available Funds to the Spread Account, an amount,
if necessary, required to increase the amount therein to its then required
level;
(vii) from the Available Funds and other amounts, if any,
received by the Trust Collateral Agent in respect of the Accelerated
Payment Amount Shortfall Deposits, to the Note Distribution Account, the
Noteholders' Accelerated Principal Amount; and
(viii) from the 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 pursuant to
the Indenture 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(v),
5.1(vi) or 5.1(vii) 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 in accordance with
the priorities set forth in Section 5.7(b) and the Trust Collateral Agent shall
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, Deficiency Claim Amount Deposits and Accelerated
Payment Amount Shortfall Deposits 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) hereof or Section 5.6
of the Indenture, as applicable.
(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
54
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) 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:
(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 principal 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 amount of the Class of Notes then entitled to receive
distributions of principal;
(iii) The Principal Distributable Amount shall be distributed as
follows:
(1) to the Holders of the Class A-1 Notes with the total
amount paid out on each Distribution Date until the outstanding
principal balance of the Class A-1 Notes has been reduced to
zero;
(2) to the Holders of the Class A-2 Notes with the total
amount paid out on each Distribution Date until the outstanding
principal balance of the Class A-2 Notes has been reduced to
zero;
(3) to the Holders of the Class A-3 Notes with the total
amount paid out on each Distribution Date until the outstanding
principal balance of the Class A-3 Notes has been reduced to
zero; and
(4) to the Holders of the Class A-4 Notes 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
55
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 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 therefore, 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
$424,998,504.28 from the proceeds of the sale of the Notes.
(b) On each Subsequent Transfer Date, the Servicer shall instruct the
Trust Collateral Agent in writing to withdraw from the Pre-Funding Account an
amount equal to 92.5% of the Principal Balance of the Subsequent Receivables
transferred to the Issuer on such Subsequent Transfer Date and, upon
satisfaction of the conditions set forth in this Agreement with respect to such
transfer, (i) to deposit in the Spread Account an amount equal to the related
Subsequent Spread Account Deposit and (ii) to distribute the balance of the
amount withdrawn from the Pre-Funding Account to or upon the order of the
Seller.
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(c) 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.
(a) 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;
(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 and the amount, if any, expected to be
paid under the Note Policy on the related Insured Distribution Date;
(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, if any, and the change in those
amounts from the preceding statement;
(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 by the Servicer in such period;
(x) for Distribution Dates during the Funding Period, the
remaining Pre-Funded Amount and the amount remaining in the Capitalized
Interest Account, if any;
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(xi) the aggregate Sale Amounts for Sold Receivables, if any,
that were sold by the Issuer in such period; and
(xii) 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 will be passed through as principal to
Noteholders.
Each amount set forth pursuant to paragraph (i), (ii), (iii) and (vii) above
shall be expressed as a dollar amount per $1,000 of the initial principal
balance of the Notes (or Class thereof).
(b) The Trust Collateral Agent will make available each month to each
Noteholder the statements referred to in Section 5.10(a) above (and certain
other documents, reports and information regarding the Receivables provided by
the Servicer from time to time) via the Trust Collateral Agent's internet
website with the use of a password provided by the Trust Collateral Agent. The
Trust Collateral Agent's internet website will be located at xxx.XXXXxxx.xxx or
at such other address as the Trust Collateral Agent shall notify the Noteholders
from time to time. For assistance with regard to this service, Noteholders can
call the Trust Collateral Agent's Corporate Trust Office at (000) 000-0000. The
Trust Collateral Agent shall have the right to change the way the statements
referred to in Section 5.10(a) above are distributed in order to make such
distribution more convenient and/or more accessible to the parties entitled to
receive such statements. The Trust Collateral Agent shall provide notification
of any such change to all parties entitled to receive such statements in the
manner described in Section 12.3 hereof, Section 11.4 of the Indenture or
Section 11.5 of the Indenture, as appropriate.
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. [Reserved]
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
Trustee 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)
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below) in the amount of the Note Policy Claim Amount. Amounts paid by the
Insurer pursuant to a claim submitted under this Section shall be deposited by
the Trustee into the Note Distribution Account for payment to Noteholders on the
related Insured Distribution Date.
(b) Any notice delivered by the Trustee to the Insurer in the form
attached as Exhibit A to the Note Policy 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 Trustee the
Note Policy Claim Amount properly claimed thereunder by 10:00 a.m., New York
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 Trustee 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 Trustee or 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 Trustee 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 Trustee and the Trust Collateral Agent shall keep a complete
and accurate record of all funds deposited by the Trustee on behalf of the
Insurer into the Collection Account with respect to the Note Policy 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 or the Trustee.
(e) The Trustee 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 Under Note Policy.
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(a) In the event that the Trustee 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 law pursuant to a final nonappealable order
of a court having competent jurisdiction, the Trustee 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 and the Trustee 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 or the Trustee 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, the Trustee 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 Trustee for distribution to such Noteholder upon proof
of such payment reasonably satisfactory to the Insurer).
(b) The Trust Collateral Agent or the Trustee 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 of any distribution made
with respect to the Notes (a "Note Preference Claim"). Each Noteholder, by its
purchase of Notes, the Trustee 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
Note Preference Claim direct all matters relating to such Note Preference Claim,
including, without limitation, (i) the direction of any appeal of any order
relating to any Note Preference Claim and (ii) the posting of any surety,
supersedeas 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, the Trustee 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 Note 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 Note Preference
Claim.
SECTION 6.3. Surrender of Note Policy. The Trustee shall surrender the
Note Policy to the Insurer for cancellation upon the expiration of such policy
in accordance with the terms thereof.
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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 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 Trust Collateral
Agent 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 statutory trust in good standing under the laws of
the State of Delaware, with power and authority to own its properties and to
conduct its business as such properties are currently owned and such business is
currently conducted, and had at all relevant times, 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, is
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 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 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.
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(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 trust agreement 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 Notes 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 Notes.
(h) No Consents. The Seller 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.
(i) True Sale. The Receivables are being transferred with the
intention of removing them from the Seller's estate pursuant to Section 541 of
the Bankruptcy Code, as the same may be amended from time to time.
(j) Chief Executive Office. The chief executive office of the Seller
is at E.A. Delle Donne Corporation Center, Xxxxxxxxxx Building, 0000 Xxxxxx
Xxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx 00000-0000.
SECTION 7.2. Certain Business Conduct.
(a) The Seller shall at all times maintain or cause to be maintained
the following procedures to avoid or minimize any risk of substantive
consolidation of the assets and liabilities of the Seller and its Affiliates or
any other Person: (i) maintenance of books of account and records, bank accounts
and assets separate from those of any Person; (ii) filing or causing to be filed
tax returns separate from those of its Affiliates (except to the extent required
or permitted by applicable law, rule or regulation to be included in a
consolidated or unitary group, as appropriate); (iii) except as required or
specifically provided in this Agreement, conducting business with Affiliates of
the Owner Trustee on an arm's-length basis; (iv) observance of trust (or similar
organizational) formalities; (v) holding the Seller out to the
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public as a legal entity separate and distinct from any of the Owner Trustee's
Affiliates and from AFS Funding Corp. or any Affiliate thereof; and (vi) paying
from its assets all obligations and indebtedness of any kind incurred by the
Seller. The Seller shall act solely in its own name through the Owner Trustee,
any co-trustee (in accordance with the terms and conditions of Section 9.5 of
the Trust Agreement) or the Administrator (in accordance with the terms of the
Administration Agreement) or other agents in the conduct of its businesses in
accordance with this Agreement except to the extent required by the laws of any
applicable jurisdiction.
(b) The Seller shall conduct its business through the office of the
Owner Trustee and will use stationery and other business forms under its own
name and not that of AFS Funding Corp. or any Affiliate thereof and will use its
best efforts to avoid the appearance of conducting business on behalf of AFS
Funding Corp. or any Affiliate thereof or that the assets of the Seller are
available to pay the creditors of AFS Funding Corp. or any Affiliate thereof.
(c) Nothing in this Section 7.2 shall restrict the authority of the
Seller to authorize the Servicer to act in the name or on behalf of the Seller
when authorized by any of the Basic Documents, including pursuant to the limited
power of attorney granted by the Seller to the Servicer pursuant to the
Administration Agreement.
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, the
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, without regard to the
transactions contemplated hereby), 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 Owner
Trustee, the Trustee, Backup Servicer, the Collateral Agent, the Insurer and the
Trust Collateral Agent and the officers, directors, employees and agents thereof
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 Issuer,
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,
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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, the Backup Servicer, the Collateral
Agent 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 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 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 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, 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
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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. Ownership of the 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 with respect to any other
transfer of any Certificate.
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 Trust Collateral Agent
pursuant to the Indenture.
(a) 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;
(b) 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;
(c) 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;
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(d) 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;
(e) 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;
(f) 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 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;
(g) 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 Notes 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 Notes;
(h) 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. 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.
(a) The Servicer shall defend, indemnify and hold harmless the Trust,
the Trustee, the Trust Collateral Agent, the Owner Trustee, the Backup Servicer,
the Collateral Agent, the Insurer, their respective officers, directors, agents
and employees, and the
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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;
(b) 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 Collateral Agent, 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 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 Notes) 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 Collateral Agent, 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 Notes) and costs and expenses in
defending against the same; and
(c) The Servicer shall indemnify, defend and hold harmless the Trust,
the Trustee, the Trust Collateral Agent, the Owner Trustee, the Backup Servicer,
the Collateral Agent, 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, including reasonable fees and expenses
of counsel and expenses of litigation, to the extent that such cost, expense,
loss, claim, damage, or liability arose out of, or was imposed upon the Trust,
the Trustee, the Owner Trustee, the Trust Collateral Agent, the Backup Servicer,
the Collateral Agent, 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.
(d) AmeriCredit shall indemnify, defend and hold harmless the Trust,
the Trustee, the Trust Collateral Agent, the Owner Trustee, the Backup Servicer,
the Collateral Agent, 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
Notes. This section shall survive the termination of this Agreement, or the
earlier removal or resignation of the Trustee, Trust Collateral Agent, the
Backup Servicer or the Collateral Agent.
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(e) AmeriCredit shall indemnify the Trustee, the Owner Trustee, the
Trust Collateral Agent, the Backup Servicer and the Collateral Agent, 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, the Owner Trustee or the Trust Collateral Agent or the
Collateral Agent as a result of any such entity's willful misconduct, bad faith
or negligence.
(f) Indemnification under this Article shall include, without
limitation, reasonable fees and expenses of counsel and expenses of litigation.
If the Servicer has made any indemnity payments pursuant to this Article and the
recipient thereafter collects any of such amounts from others, the recipient
shall promptly repay such amounts collected to the Servicer, without interest.
Notwithstanding anything contained herein to the contrary, any indemnification
payable by the Servicer to the Backup Servicer, to the extent not paid by the
Servicer, shall be paid solely from the Spread Account in accordance with the
terms of the Spread Account Agreement.
(g) When the Trustee, the Trust Collateral Agent, the Collateral Agent
or the Backup Servicer incurs expenses after the occurrence of a Servicer
Termination Event specified in Section 9.1(d) or (e) with respect to the
Servicer, the expenses are intended to constitute expenses of administration
under Title 11 of the United States Code or any other applicable federal or
state bankruptcy, insolvency or similar law.
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
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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 Trustee, the 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 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,
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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 Collateral Agent, the Trustee, 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 Xxxxx Fargo Bank,
National Association, acting in the possible dual capacity of Backup Servicer or
successor Servicer and in the capacity as Trust Collateral Agent. Xxxxx Fargo
Bank, National Association, may, in such dual or other capacity, discharge its
separate functions fully, without hindrance or regard to conflict of interest
principles, duty of loyalty principles or other breach of fiduciary duties to
the extent that any such conflict or breach arises from the performance by Xxxxx
Fargo Bank, National Association, of express duties set forth in 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 Xxxxx Fargo Bank,
National Association.
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 and the Trust Collateral Agent. Notwithstanding
the foregoing, AmeriCredit, as Servicer, may delegate its duties hereunder and
under any other Basic Document with respect to the servicing of and collections
on certain Receivables to AmeriCredit Financial Services of Canada Ltd. without
first obtaining the consent of any person. No delegation or sub-contracting by
the Servicer of its duties herein in the
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manner described in this Section 8.5 shall relieve the Servicer of its
responsibility with respect to such duties.
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 may resign with the
written consent of the Insurer, and (iii) if Xxxxx Fargo Bank, National
Association, resigns as 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;
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(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 first Business Day prior to the
Distribution Date, or failure on the part of the Servicer to observe its
covenants and agreements set forth in Section 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 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 Insurer, 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 and the current term of the Servicer's appointment
under this Agreement has ended;
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(h) So long as an Insurer Default shall not have occurred and be
continuing, an Insurance Agreement Event of Default occurs or an Event of
Default under any other Insurance and Indemnity Agreement relating to any other
securitization sponsored by AmeriCredit and insured by the Insurer 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) or 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 terminate all of the rights and
obligations of the Servicer under this Agreement. On or after the receipt by the
Servicer of such written notice or upon termination of the term of the Servicer,
all authority, power, obligations and responsibilities of the Servicer under
this Agreement, whether with respect to the 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 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.
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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; (i) the Backup Servicer (unless the Controlling Party 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, 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
or 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
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 or such other compensation as agreed to by
the Insurer in writing, if no Insurer Default has occurred and is continuing, or
if an Insurer Default has occurred and is continuing, by a Note Majority and the
successor Servicer. 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; provided, however, it being understood 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
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appointed for any reason other than the Backup Servicer's refusal to act as
Servicer although legally able to do so, the Backup Servicer shall not be liable
for any Servicing Fee, additional compensation or other amounts to be paid to
such successor Servicer in connection with its assumption and performance of the
servicing duties described herein.
(d) Notwithstanding anything contained in this Agreement to the
contrary, the Backup Servicer is authorized to accept and rely on all of the
accounting records (including computer records) and work of the prior Servicer
relating to the Receivables (collectively, the "Predecessor Servicer Work
Product") without any audit or other examination thereof, and the Backup
Servicer shall have no duty, responsibility, obligation or liability for the
acts and omissions of the prior Servicer. If any error, inaccuracy, omission or
incorrect or non-standard practice or procedure (collectively, "Errors") exist
in any Predecessor Servicer Work Product and such Errors make it materially more
difficult to service or should cause or materially contribute to the Backup
Servicer making or continuing any Errors (collectively, "Continuing Errors"),
the Backup Servicer shall have no duty, responsibility, obligation or liability
for such Continuing Errors; provided, however, that the Backup Servicer agrees
to use its best efforts to prevent further Continuing Errors. In the event that
the Backup Servicer becomes aware of Errors or Continuing Errors, it shall, with
the prior consent of the Controlling Party use its best efforts to reconstruct
and reconcile such data as is commercially reasonable to correct such Errors and
Continuing Errors and to prevent future Continuing Errors. The Backup Servicer
shall be entitled to recover its costs thereby expended in accordance with
Section 3.03 of the Spread Account Agreement.
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 and the Basic Documents. 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) Subject to Section 10.1(a) of the Indenture, 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
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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. To exercise such option, the Servicer or the
Seller, as the case may 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 Backup Servicer, the Trust
Collateral Agent, the 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
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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 federal tax and securities laws (including any
filings required pursuant to the Xxxxxxxx-Xxxxx Act of 2002 or any rule or
regulation promulgated thereunder), 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. The
Servicer shall monitor the activities of the Issuer to ensure the Issuer's
compliance with Section 4.6 of the Trust Agreement and shall take all
action necessary to ensure that the Issuer is operated in accordance with
the provisions of such section.
(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 by 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) and (b)
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 any necessary Schedule K-1s, as
applicable, 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 or the Servicer.
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(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 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 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. Notwithstanding the foregoing or any other provision of this Agreement,
AmeriCredit shall continue to perform the obligations 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 and the Insurer 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 and the Insurer from time to time such
additional information regarding the Collateral as the Issuer and the Insurer
shall reasonably request.
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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 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, the Insurer 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; provided, however, that with respect to tax matters, such action
shall not be deemed to adversely affect in any material respect the interests of
any Noteholder if, for federal income tax purposes, the action does not cause
the issuing entity to be treated as an association or publicly traded
partnership taxable as a corporation, or the Notes that were characterized as
debt at the time of issuance to fail to qualify as debt.
This Agreement may also be amended from time to time by the parties
hereto, with the consent of the Insurer (so long as no Insurer Default has
occurred and is continuing), the consent of the Trustee, and with 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
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.
79
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, the Spread Account, a Trigger Event or any component
definition of a Trigger Event and (ii) any additional sources of funds which may
be added to the 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 9-506 of the UCC,
unless it shall have given the Insurer, the Owner Trustee, the Trust Collateral
Agent, the Backup Servicer 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 or jurisdiction of organization if, as a result of such
relocation, the applicable provisions of the UCC would require the filing of
80
any amendment of any previously filed financing or continuation statement or of
any new financing statement and shall promptly file any such amendment or new
financing statement. The Servicer shall at all times maintain (i) each office
from which it shall service Receivables within the United States of America or
Canada, and (ii) 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 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 or sold pursuant to this Agreement.
(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, the Backup Servicer 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 Backup Servicer,
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 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; 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 Initial Cutoff
81
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,
electronically delivered or mailed by certified mail, return receipt requested,
federal express or similar overnight courier service, and shall be deemed to
have been duly given upon receipt (a) in the case of the Seller to AFS Funding
Trust, c/o Deutsche Bank Trust Company, as Owner Trustee, E.A. Delle Donne
Corporate Center, Xxxxxxxxxx Building, 0000 Xxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx,
Xxxxxxxx 00000-0000, Attention: Corporate Trust, with a copy to AmeriCredit
Financial Services, Inc., as Administrator, 000 Xxxxxx Xxxxxx, Xxxxx 0000, Xxxx
Xxxxx, Xxxxx 00000, Attention: Chief Financial Officer, (b) in the case of the
Servicer to AmeriCredit Financial Services, Inc., 000 Xxxxxx Xxxxxx, Xxxxx 0000,
Xxxx Xxxxx, Xxxxx 00000, Attention: Chief Financial Officer, (c) in the case of
the Issuer or the Owner Trustee, at the Corporate Trust Office of the Owner
Trustee, Wilmington Trust Company, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxx 00000-0000, Attention: Corporate Trust Administration (d) in the case
of the Trustee, the Collateral Agent or the Trust Collateral Agent, at the
Corporate Trust Office, (e) in the case of the Insurer, to Financial Security
Assurance Inc., 00 Xxxx 00xx 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; (g) in the case of Standard & Poor's, via electronic delivery to
Xxxxxxxx_xxxxxxx@xxxxx.xxx, or, for any information not available in electronic
format, to Standard & Poor's Ratings Services, 00 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000-0000, Attention: ABS Surveillance Group; and (h) in the
case of Fitch, to Xxx Xxxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000. 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
82
and 8.4 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 66-2/3% 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, the
Insurer, 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.
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, AND THIS AGREEMENT AND ALL MATTERS ARISING OUT OF OR RELATING
IN ANY WAY TO THIS AGREEMENT SHALL BE, GOVERNED BY, THE LAW OF THE STATE OF NEW
YORK, WITHOUT GIVING EFFECT TO ITS CONFLICT OF LAW PROVISIONS (OTHER THAN
SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW).
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 Trust Collateral Agent 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 listed in Schedule A hereto and/or
83
the assignment of any or all of the Issuer's rights and obligations hereunder to
the Trust Collateral Agent.
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.
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 Wilmington Trust Company not in its
individual capacity but solely in its capacity as Owner Trustee of the Issuer
and in no event shall Wilmington Trust Company 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 Xxxxx Fargo Bank, National
Association, not in its individual capacity but solely as Trust Collateral Agent
and Backup Servicer and in no event shall Xxxxx Fargo Bank, National
Association, 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 Xxxxx Fargo Bank, National Association, in any
of its capacities hereunder, be deemed to have assumed any duties of the Owner
Trustee under the Delaware Statutory Trust Statute, common law, or the Trust
Agreement.
84
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. State Business Licenses. The Servicer or the
Certificateholder shall prepare and instruct the Trust to file each state
business license (and any renewal thereof) required to be filed under applicable
state law without further consent or instruction from the Instructing Party (as
defined in the Trust Agreement), including a Sales Finance Company Application
(and any renewal thereof) with the Pennsylvania Department of Banking, Licensing
Division, and a Financial Regulation Application (and any renewal thereof) with
the Maryland Department of Labor, Licensing and Regulation.
[Remainder of page intentionally left blank.]
85
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
2006-A-F
By: WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as
Owner Trustee on behalf of the Trust
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Financial Services Officer
AFS FUNDING TRUST, Seller,
By: AMERICREDIT FINANCIAL
SERVICES, INC., as Administrator
By: /s/ Xxxxx Xxxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxxx
Title: Vice President, Structured
Finance
AMERICREDIT FINANCIAL SERVICES, INC.,
Servicer,
By: /s/ Xxxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Senior Vice President,
Structured Finance
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Backup Servicer
By: /s/ Xxxxxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxxxxx X. Xxxxxxxx
Title: Vice President
Acknowledged and accepted by
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
not in its individual capacity but solely
as Trust Collateral Agent
By: /s/ Xxxxxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxxxxx X. Xxxxxxxx
Title: Vice President
SCHEDULE A
SCHEDULE OF RECEIVABLES
[On File with AmeriCredit, the Trustee and Xxxxx Xxxxxxxxxx LLP]
Sch-A-1
SCHEDULE B
REPRESENTATIONS AND WARRANTIES OF THE SELLER AND THE SERVICER
1. Characteristics of Receivables. Each Receivable (A) was originated (i)
by AmeriCredit, (ii) by an Originating Affiliate and was validly assigned by
such Originating Affiliate to AmeriCredit, (iii) by a Dealer and 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 or (iv) by a Third-Party Lender and
purchased by AmeriCredit from such Third-Party Lender under an existing Auto
Loan Purchase and Sale Agreement or pursuant to a Third-Party Lender Assignment
with AmeriCredit and was validly assigned by such Third-Party Lender to
AmeriCredit pursuant to a Third-Party Lender Assignment (B) was originated by
AmeriCredit, such Originating Affiliate, such Dealer or such Third-Party Lender
for the retail sale of a Financed Vehicle in the ordinary course of
AmeriCredit's, such Originating Affiliate's, the Dealer's or the Third-Party
Lender's business, in each case was originated in accordance with AmeriCredit's
credit policies and was fully and properly executed by the parties thereto, and
AmeriCredit, each Originating Affiliate, each Dealer and each Third-Party Lender
had all necessary licenses and permits to originate Receivables in the state
where AmeriCredit, each such Originating Affiliate, each such Dealer or each
such Third-Party Lender was located, (C) contains customary and enforceable
provisions such as to render the rights and remedies of the holder thereof
adequate for realization against the collateral security, (D) is a Receivable
which provides for level monthly payments (provided that the period in the first
Collection Period and the payment in the final Collection Period of the
Receivable may be minimally different from the normal period and level payment)
which, if made when due, shall fully amortize the Amount Financed over the
original term and (E) has not been amended or collections with respect to which
waived, other than as evidenced in the Receivable File or the Servicer's
electronic records relating thereto.
2. No Fraud or Misrepresentation. Each Receivable was originated (i) by
AmeriCredit, (ii) by an Originating Affiliate and was assigned by the
Originating Affiliate to AmeriCredit, (iii) by a Dealer and was sold by the
Dealer to AmeriCredit or (iv) by a Third-Party Lender and was sold by the
Third-Party Lender to AmeriCredit, and was sold by AmeriCredit to the Seller
without any fraud or misrepresentation on the part of such Originating
Affiliate, Dealer or Third-Party Lender or AmeriCredit 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" (including amendments to the
Federal Reserve's Official Staff Commentary to Regulation Z, effective October
1, 1998, concerning negative equity loans), the Servicemembers Civil Relief Act,
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
Sch-B-1
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 Initial Cutoff Date or the Subsequent
Cutoff Date, as applicable, of the Servicemembers Civil Relief Act, as amended;
and all parties to each Receivable had full legal capacity to execute and
deliver such Receivable and all other documents related thereto and to grant the
security interest purported to be granted thereby.
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 Initial Cutoff Date or the Subsequent Cutoff
Date, as applicable, no Obligor had been identified on the records of
AmeriCredit as being the subject of a current bankruptcy proceeding.
8. Schedules of Receivables. The information set forth in the Schedules 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 Initial
Cutoff Date or the Subsequent Cutoff Date, as applicable.
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 AmeriCredit 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 was complete and accurate as of the Initial Cutoff
Date or the Subsequent Cutoff Date, as applicable, 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 "tangible chattel paper"
within the meaning of the UCC as in effect in the States of Texas, New York,
Delaware and Nevada.
13. One Original. There is only one original executed copy of each
Receivable.
Sch-B-2
14. Receivable Files Complete. There exists a Receivable File pertaining to
each Receivable and such Receivable File contains a fully executed original of
the Receivable and the original Lien Certificate or a copy of the application
therefor. Related documentation concerning the Receivable, including any
documentation regarding modifications of the Receivable, will be maintained
electronically by the Servicer. 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 or the Servicer's electronic records.
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 Notes.
17. Good Title. Immediately prior to the conveyance of the Receivables to
the Trust pursuant to this Agreement or a 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 or
Third-Party Lender 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, Auto Loan
Purchase and Sale Agreements, Dealer Assignments or Third-Party Lender
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 AmeriCredit (or an Originating Affiliate or a Titled Third-Party Lender
which first priority security interest has been assigned to AmeriCredit) in the
Financed Vehicle. The Lien Certificate for each Financed Vehicle shows, 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,
AmeriCredit (or an Originating Affiliate or a Titled Third-Party Lender) named
as the original secured party under each Receivable as the holder of a first
priority security interest in such Financed Vehicle. With respect to each
Receivable for which the Lien Certificate has not yet been returned from the
Registrar of Titles, AmeriCredit or the related Originating Affiliate has
applied for or received written evidence from the related Dealer or Third-Party
Lender that such Lien Certificate showing AmeriCredit, an Originating Affiliate,
the Issuer or a Titled Third-Party Lender, as applicable, as first lienholder
has been applied for and the Originating Affiliate's or Titled Third-Party
Lender's security interest has been validly assigned by the Originating
Affiliate or Titled Third-Party Lender, as applicable, to AmeriCredit and
AmeriCredit's security interest (assigned by AmeriCredit to the Seller pursuant
to the Purchase Agreement) has been validly assigned by
Sch-B-3
the Seller to the Trust pursuant to this Agreement. This Agreement creates a
valid and continuing security interest (as defined in the UCC) in the
Receivables in favor of the Trust, which security interest is prior to all other
Liens, and is enforceable as such as against creditors of and purchasers from
the Seller. Immediately after the sale, transfer and assignment 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 Trust
Collateral Agent 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 Initial
Cutoff Date or the Subsequent Cutoff Date, as applicable, 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 (including, without limitation, the filing by the Seller of all
appropriate financing statements in the proper filing office in the State of
Delaware under applicable law in order to perfect the security interest in the
Receivables granted to the Trust hereunder)) 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 and the Trust Collateral Agent 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 Receivables 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. Other than the security interest granted to the Trust pursuant
to this Agreement and except any other security interests that have been fully
released and discharged as of the Closing Date, the Seller has not pledged,
assigned, sold, granted a security interest in, or otherwise conveyed any of the
Receivables. The Seller has not authorized the filing of and is not aware of any
financing statements against the Seller that include a description of collateral
covering the Receivables other than any financing statement relating to the
security interest granted to the Trust hereunder or that has been terminated.
The Seller is not aware of any judgment or tax lien filings against it.
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
Sch-B-4
foregoing. As of the Initial Cutoff Date or the Subsequent Cutoff Date, as
applicable, no Financed Vehicle had been repossessed.
24. Insurance. At the time of an origination of a Receivable by
AmeriCredit, an Originating Affiliate, a Dealer or Third-Party Lender, 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 (or an Originating Affiliate or
a Titled Third-Party Lender) 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, an
Originating Affiliate or a Titled Third-Party Lender 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 Initial Cutoff Date or the Subsequent
Cutoff Date, as applicable.
25. Past Due. At the Initial Cutoff Date or the Subsequent Cutoff Date, as
applicable, no Receivable was more than 30 days past due.
26. Remaining Principal Balance. At the Initial Cutoff Date or the
Subsequent Cutoff Date, as applicable, the Principal Balance of each Receivable
set forth in the Schedules of Receivables is true and accurate in all material
respects.
27. Certain Characteristics of Receivables.
(A) Each Receivable had a remaining maturity, as of the Initial Cutoff
Date or the Subsequent Cutoff Date, as applicable, of not more than 72
months.
(B) Each Receivable had an original maturity, as of the Initial Cutoff
Date or the Subsequent Cutoff Date, as applicable, of not more than 72
months.
(C) Not more than 50% of the Initial Receivables (calculated by
Aggregate Principal Balance) had an original term to maturity of 72 months,
and on each Subsequent Transfer Date, not more than 50% of all Receivables
which have been transferred to the Issuer including the Initial Receivables
as of the Initial Cutoff Date and all Subsequent Receivables transferred to
the Issuer as of such Subsequent Cutoff Date (calculated by Aggregate
Principal Balance) had an original term to maturity of 72 months.
(D) Each Receivable had a remaining Principal Balance as of the
Initial Cutoff Date or the Subsequent Cutoff Date, as applicable, of at
least $250 and not more than $80,000.
(E) Each Receivable had an Annual Percentage Rate as of the Initial
Cutoff Date or the Subsequent Cutoff Date, as applicable, of at least 1%
and not more than 33%.
Sch-B-5
(F) No Receivable was more than 30 days past due as of the Initial
Cutoff Date or the Subsequent Cutoff Date, as applicable.
(G) No funds had been advanced by AmeriCredit, any Originating
Affiliate, any Dealer, any Third-Party Lender, or anyone acting on behalf
of any of them in order to cause any Receivable to qualify under clause (F)
above.
(H) Not more than 35% of the Obligors on the Initial Receivables as of
the Initial Cutoff Date resided in Texas and California (based on the
Obligor's mailing address as of the Initial Cutoff Date) and on each
Subsequent Transfer Date, not more than 35% of the Obligors on all
Receivables which have been transferred to the Issuer (including Subsequent
Receivables transferred to the Issuer on such Subsequent Cutoff Date)
resided in Texas and California (based on the Obligor's mailing address as
of the Initial Cutoff Date (with respect to the Initial Receivables) or as
of the Subsequent Cutoff Date for the related Receivable (with respect to
the Subsequent Receivables)).
(I) Each Obligor had a billing address in the United States as of the
date of origination of the related Receivable, is a natural person and is
not an Affiliate of any party to this Agreement.
(J) Each Receivable is denominated in, and each Contract provides for
payment in, United States dollars.
(K) The weighted average Annual Percentage Rate of all Receivables
which have been transferred to the Issuer including the Initial Receivables
as of the Initial Cutoff Date and all Subsequent Receivables transferred to
the Issuer as of such Subsequent Cutoff Date is not less than 16.75%,
unless, with the prior consent of the Rating Agencies and the Insurer, the
Seller increases the Spread Account Initial Deposit with respect to the
Subsequent Receivables by the amount required by the Insurer.
(L) Each Receivable is identified on the Servicer's master servicing
records as an automobile installment sales contract or installment note.
(M) Each Receivable arose under a Contract which is assignable without
the consent of, or notice to, the Obligor thereunder, and does not contain
a confidentiality provision that purports to restrict the ability of the
Servicer to exercise its rights under the Sale and Servicing Agreement,
including, without limitation, its right to review the Contract.
(N) Each Receivable arose under a Contract with respect to which
AmeriCredit has performed all obligations required to be performed by it
thereunder, and, in the event such Contract is an installment sales
contract, delivery of the Financed Vehicle to the related Obligor has
occurred.
28. Interest Calculation. Each Contract provides for the calculation of
interest payable thereunder under either the "simple interest" method, the "Rule
of 78's" method or the "precomputed interest" method.
Sch-B-6
29. Lockbox Account. Each Obligor has been, or will be, directed to make
all payments on their related Receivable to the Lockbox Account.
30. Lien Enforcement. Each Receivable provides for enforcement of the lien
or the clear legal right of repossession, as applicable, on the Financed Vehicle
securing such Receivable.
31. Prospectus Supplement Description. Each Receivable conforms, and all
Receivables in the aggregate conform, in all material respects to the
description thereof set forth in the Prospectus Supplement.
32. Risk of Loss. Each Contract contains provisions requiring the Obligor
to assume all risk of loss or malfunction on the related Financed Vehicle,
requiring the Obligor to pay all sales, use, property, excise and other similar
taxes imposed on or with respect to the Financed Vehicle and making the Obligor
liable for all payments required to be made thereunder, without any setoff,
counterclaim or defense for any reason whatsoever, subject only to the Obligor's
right of quiet enjoyment.
33. Leasing Business. To the best of the Seller's and the Servicer's
knowledge, as appropriate, no Obligor is a Person involved in the business of
leasing or selling equipment of a type similar to the Obligor's related Financed
Vehicle.
34. Consumer Leases. No Receivable constitutes a "consumer lease" under
either (a) the UCC as in effect in the jurisdiction the law of which governs the
Receivable or (b) the Consumer Leasing Act, 15 USC 1667.
35. Perfection. The Seller has taken all steps necessary to perfect its
security interest against the related Obligors in the property securing the
Receivables and will take all necessary steps on behalf of the Trust to maintain
the Trust's perfection of the security interest created by each Receivable in
the related Financed Vehicle.
Sch-B-7
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
AmeriCredit mails each customer 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. The CACS segregates accounts into two major groups: loans 5-45 days
delinquent and those over 45 days delinquent.
C. Loans delinquent up to 45 days are then further segregated into two groups:
accounts that have good phone numbers and those that do not.
D. Loans up to 45 days delinquent are transferred to the Concerto system
(AmeriCredit's predictive dialing system). The system automatically dials
the phone number related to a delinquent account for all accounts that have
good phone numbers. When a connection is made, the account is then routed
to the next available account representative.
E. Loans without good phone numbers are called manually, through the CACS
system, or in a preview dialer campaign.
F. All reasonable collection efforts are made in an attempt to prevent these
accounts from becoming 30+ days delinquent - this includes the use of
collection letters. Collection letters may be utilized between 5th and 25th
days of delinquency.
G. When an account reaches 31 days delinquent, a collector determines if any
default notification is required in the state where the debtor lives.
H. When an account exceeds 45 days delinquent, the loan is assigned to a 46+
collection team which will continue the collection effort until resolution.
If the account cannot be resolved through normal collection efforts (i.e.,
satisfactory payment arrangements) then the account may be submitted for
repossession approval. An officer must approve all repossession requests.
I. CACS allows each collector to accurately document and update each customer
file when contact (verbal or written) is made.
Sch-C-1
Repossessions
If repossession of the collateral occurs, the following steps are taken:
A. Proper authorities are notified (if applicable).
B. An inventory of all personal property is taken and a condition report is
prepared on the vehicle.
C. Written notification, as required by state law, is sent to the customer(s)
stating 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 is made.
E. Collateral disposition through public or private sale, (dictated by state
law), in a commercially reasonable manner, through a third-party 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 30 days over the life of the
contract.
C. The first installment payment has been paid in full.
D. Only one due date change in a twelve month period.
An Officer must approve any exceptions to the above stated policy.
Use of Payment Deferments
A payment deferral is offered to customers who have the desire and capacity to
make future payments but who have encountered temporary financial difficulties,
with management approval.
A. Without prior approval, minimum of six payments have been made on the
account and a minimum of six payments have been made since the most recent
deferment (if any).
B. The account will be brought current with the deferment, but not paid ahead,
without management approval.
C. A deferment fee is collected on all transactions.
Sch-C-2
D. No more than eight total payments may be deferred over the life of the
loan, without management approval.
An Officer must approve any exceptions to the above stated policy.
Charge-Offs
It is AmeriCredit's policy that any account that is not successfully recovered
by 120 days delinquent is submitted to an Officer for approval and charge-off.
It is AmeriCredit's policy to carry all Chapter 13 bankruptcy accounts until 120
days delinquent. A partial charge-off is taken for the unsecured portion of the
account. On fully reaffirmed Chapter 7 bankruptcy accounts, the accounts can be
deferred current at the time of discharge.
Deficiency Collections
Collections on charged-off accounts are continued internally and/or assigned to
third party collection agencies for deficiency balances.
Sch-C-3
EXHIBIT A
SUBSEQUENT TRANSFER AGREEMENT
Transfer No. ______________ of Subsequent Receivables pursuant to a
Sale and Servicing Agreement dated as of July 12, 2006, among AMERICREDIT
AUTOMOBILE RECEIVABLES TRUST 2006-A-F, a Delaware statutory trust (the
"Issuer"), AFS FUNDING TRUST, a Delaware statutory trust (the "Seller"),
AMERICREDIT FINANCIAL SERVICES, INC. a Delaware corporation (the "Servicer") and
XXXXX FARGO BANK, NATIONAL ASSOCIATION, a national banking association (the
"Trust Collateral Agent"), in its capacity as the backup servicer (the "Backup
Servicer").
WITNESSETH:
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 and the Servicer 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, _______________, 200_.
"Subsequent Transfer Date" shall mean, with respect to the
Subsequent Receivables conveyed hereby, _____________, 200_.
2. Schedule of Receivables. Attached hereto as Schedule A 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
after the Subsequent Cutoff Date;
Ex-A-1
(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;
(c) any proceeds and the right to receive proceeds with respect
to the Subsequent Receivables from claims and the right to receive proceeds on
any physical damage, credit life and disability insurance policies covering
Financed Vehicles or Obligors and any proceeds from the liquidation of such
Subsequent Receivables;
(d) any proceeds with respect to the Subsequent Receivables
repurchased by a Dealer pursuant to a Dealer Agreement or a Third-Party Lender
pursuant to an Auto Loan Purchase and Sale Agreement as a result of a breach of
representation or warranty in the related Dealer Agreement or Auto Loan Purchase
and Sale Agreement;
(e) all rights under any Service Contracts on the related Finance
Vehicles;
(f) the related Receivable Files;
(g) all of the Seller's rights, title and interests, 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 Seller under the Subsequent Purchase Agreement, on or
after the Subsequent Cutoff Date;
(h) all of the Seller's (i) Accounts, (ii) Chattel Paper, (iii)
Documents, (iv) Instruments and (v) General Intangibles (as such terms are
defined in the UCC) relating to the property described in (a) through (g); and
(i) the proceeds of any and all of the foregoing.
The execution and delivery of this Agreement shall constitute an
acknowledgment by the Seller and the Issuer that they intend that the assignment
and transfer herein contemplated constitute a sale and assignment outright, and
not for security, of the Subsequent Receivables and the Subsequent Other
Conveyed Property, conveying good title thereto free and clear of any Liens,
from the Seller to the Issuer, and that the Subsequent Receivables and the
Subsequent Other Conveyed Property shall not be a part of the Seller's estate in
the event of the bankruptcy, reorganization, arrangement, insolvency or
liquidation proceeding, or other proceeding under any federal or state
bankruptcy or similar law, or the occurrence of another similar event, of, or
with respect to the Seller. In the event that such conveyance is determined to
be made as security for a loan made by the Issuer, the Noteholders or the
Certificateholder to the Seller, the parties hereto intend that the Seller shall
have granted to the Issuer a security interest in all of the Seller's right,
title and interest in and to the Subsequent Receivables and the Subsequent Other
Conveyed Property conveyed pursuant to this Section 3, and that this Agreement
shall constitute a security agreement under applicable law.
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:
Ex-A-2
(a) Schedule of Representations. The representations and
warranties relating to the Subsequent Receivables set forth on the Schedule of
Representations attached as Schedule B to the Sale and Servicing Agreement are
true and correct and the Seller has performed all obligations to be performed by
it under the Sale and Servicing Agreement.
(b) Organization and Good Standing. The Seller has been duly
organized and is validly existing as a statutory trust in good standing under
the laws of the State of Delaware, with power and authority to own its
properties and to conduct its business as such properties are currently owned
and such business is currently conducted, and had at all relevant times, 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, is 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
Subsequent Receivables and the Subsequent Other Conveyed Property to the Trust
pursuant to this Agreement, or the validity or enforceability of the Subsequent
Receivables and the Subsequent 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 Subsequent Receivables and the Subsequent 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 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 action.
(e) Valid Sale, Binding Obligations. This Agreement effects a
valid sale, transfer and assignment of the Subsequent Receivables and the
Subsequent 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 trust agreement 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,
Ex-A-3
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 E.A. Delle Donne Corporation Center, Xxxxxxxxxx Building, 0000
Xxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx 00000-0000.
(i) Principal Balance. The aggregate Principal Balance of the
Subsequent Receivables listed on Schedule A annexed hereto and conveyed to the
Issuer pursuant to this Agreement as of the Subsequent Cutoff Date is
$____________.
(j) Seller's Intention. The Subsequent Receivables are being
transferred with the intention of removing them from the Seller's estate
pursuant to Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code, as the same may be
amended from time to time.
5. Conditions Precedent. The obligation of the Issuer to acquire the
Subsequent Receivables hereunder is subject to the satisfaction, on or prior to
the Subsequent Transfer Date, of the following conditions precedent:
(a) 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.
(b) 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.
(c) 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.
Ex-A-4
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
AND THIS AGREEMENT AND ALL MATTERS ARISING OUT OF OR RELATING IN ANY WAY TO THIS
AGREEMENT SHALL BE, GOVERNED BY, THE LAW OF THE STATE OF NEW YORK, WITHOUT
GIVING EFFECT TO ITS CONFLICT OF LAW PROVISIONS (OTHER THAN SECTIONS 5-1401 AND
5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW).
Ex-A-5
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 2006-A-F
By: WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as
Owner Trustee on behalf of the
Trust.
By:
------------------------------------
Name:
Title:
AFS FUNDING TRUST, Seller,
By: AMERICREDIT FINANCIAL SERVICES,
INC., as Administrator
By:
------------------------------------
Name:
Title:
AMERICREDIT FINANCIAL SERVICES, INC.,
Servicer,
By:
------------------------------------
Name:
Title:
Acknowledged and accepted by
XXXXX FARGO BANK,
NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Trust Collateral Agent
By:
---------------------------------
Name:
Title:
Ex-A-6
Acknowledged and accepted by
XXXXX FARGO BANK,
NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Backup Servicer
By:
---------------------------------
Name:
Title:
Ex-A-7
SCHEDULE A
SCHEDULE OF RECEIVABLES
Ex-A-8
EXHIBIT B
SERVICER'S CERTIFICATE
Ex-B-1
AmeriCredit Automobile Receivables Trust 2006-A-F
Class A-1 5.5048% Asset Backed Notes
Class A-2 5.61% Asset Backed Notes
Class A-3 5.56% Asset Backed Notes
Class A-4 5.64% Asset Backed Notes
Preliminary Servicer's Certificate
This Servicer's Certificate has been prepared pursuant to Section 4.9 of the
Sale and Servicing Agreement among AmeriCredit Automobile Receivables Trust
2006-A-F, as Issuer, AmeriCredit Financial Services, Inc., as Servicer, AFS
Funding Trust, as Seller, and Xxxxx Fargo Bank, N.A., as Trust Collateral Agent
and Backup Servicer, dated as of July 12, 2006. Defined terms have the meanings
assigned to them in the Sale and Servicing Agreement or in other Transaction
Documents.
The undersigned hereby certifies that no Trigger Event has occurred on the
related Determination Date and that, to the knowledge of the Servicer, no
Insurance Agreement Event of Default has occurred.
---------------------------------------- --------------------------------------------------------------------------------
MONTHLY PERIOD BEGINNING: ORIGINAL
MONTHLY PERIOD ENDING: PURCHASES UNITS CUT-OFF DATE CLOSING DATE POOL BALANCE
PREV. DISTRIBUTION/CLOSE DATE: --------------------------------------------------------------------------------
DISTRIBUTION DATE: INITIAL PURCHASE
DAYS OF INTEREST FOR PERIOD: SUB. PURCHASE #1
DAYS IN COLLECTION PERIOD: SUB. PURCHASE #2
MONTHS SEASONED: ------------------------------------------------
---------------------------------------- TOTAL
--------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
I. MONTHLY PERIOD RECEIVABLES PRINCIPAL BALANCE CALCULATION:
------------------------------------------------------------------------------------------------------------------------------------
{1} Beginning of period Aggregate Principal Balance {1}___________
{2} Purchase of Subsequent Receivables {2}___________
Monthly Principal Amounts
{3} Collections on Receivables outstanding at end of period {3}___________
{4} Collections on Receivables paid off during period {4}___________
{5} Receivables becoming Liquidated Receivables during period {5}___________
{6} Receivables becoming Purchased Receivables during period {6}___________
{7} Other Receivables adjustments {7}___________
{8} Less amounts allocable to Interest {8}___________
{9} Total Monthly Principal Amounts {9}___________
{10} End of period Aggregate Principal Balance {10}
==========
{11} Pool Factor ( {10} / Original Pool Balance) {11}
==========
------------------------------------------------------------------------------------------------------------------------------------
II. MONTHLY PERIOD NOTE BALANCE CALCULATION: CLASS A-1 CLASS A-2 CLASS A-3 CLASS A-4 TOTAL
---------------------------------------------------------------------------- --------- --------- --------- --------- -----
{12} Original Note Balance {12}
------------------------------------------------------------------------------------------------------------------------------------
{13} Beginning of period Note Balance {13}
--------------------------------------------------------
{14} Noteholders' Principal Distributable Amount {14}
{15} Noteholders' Accelerated Principal Amount {15}
{16} Accelerated Payment Amount Shortfall {16}
{17} Deficiency Claim Amount {17}
--------------------------------------------------------
{18} End of period Note Balance {18}
========================================================
{19} Note Pool Factors ( {18} / {12} ) {19}
========================================================
1
------------------------------------------------------------------------------------------------------------------------------------
III. RECONCILIATION OF PRE-FUNDING ACCOUNT:
------------------------------------------------------------------------------------------------------------------------------------
{20} Beginning of period Pre-Funding Account balance {20} __________
{21} Purchase of Subsequent Receivables {21}__________
{22} Investment Earnings {22}__________
{23} Investment Earnings Transfer to Collections Account {23}__________
{24} Payment of Mandatory Prepayment Amount {24}__________
{25} Total Month Activity {25} __________
{26} End of period Pre-Funding Account balance {26}
==========
------------------------------------------------------------------------------------------------------------------------------------
IV. OVERCOLLATERALIZATION AMOUNT CALCULATION
------------------------------------------------------------------------------------------------------------------------------------
{27} Current Distribution Date Before January 2008? {27}__________
{28} If {27} is Yes, then Overcollateralization Amount 12.5% __________
{29} If {36} is No, then refer to the following table 3mo Avg Cumulative 3mo Avg
OC Amount Delinquency Ratio Net Loss Ratio Default Ratio Extension Ratio
------------------------------------------------------------------------
{30} Overcollateralization Amount per Table if applicable ==========
{31} Overcollateralization Amount ==========
------------------------------------------------------------------------------------------------------------------------------------
V. CALCULATION OF PRINCIPAL DISTRIBUTABLE AMOUNT
------------------------------------------------------------------------------------------------------------------------------------
{32} Total Monthly Principal Amounts {32} __________
{33} Required Pro-forma Note Balance (the product of 100%-OC Amount {31} and the Aggregate
Principal Bal. {10}) {33}__________
{34} Pro-forma Note Balance ({13} - {9}) {34}__________
{35} Step-down Amount (Max of 0 or ({33} - {34})) {35} __________
{36} Principal Distributable Amount ({32} - {35}) {36}
==========
------------------------------------------------------------------------------------------------------------------------------------
VI. RECONCILIATION OF CAPITALIZED INTEREST ACCOUNT:
------------------------------------------------------------------------------------------------------------------------------------
{37} Beginning of period Capitalized Interest Account balance {37} __________
{38} Monthly Capitalized Interest Amount {38}__________
{39} Investment Earnings {39}__________
{40} Investment Earnings Transfer to Collections Account {40}__________
{41} Payment of Overfunded Capitalized Interest Amount {41}__________
{42} Payment of Remaining Capitalized Interest Account {42}__________
{43} Total Monthly Activity {43} __________
{44} End of period Capitalized Interest Account balance {44}
==========
------------------------------------------------------------------------------------------------------------------------------------
VII. RECONCILIATION OF COLLECTION ACCOUNT:
------------------------------------------------------------------------------------------------------------------------------------
AVAILABLE FUNDS:
{45} Collections on Receivables during period (net of Liquidation Proceeds and Fees) {45}__________
{46} Liquidation Proceeds collected during period {46}__________
{47} Purchase Amounts deposited in Collection {47}__________
{48} Investment Earnings - Collection Account {48}__________
{49} Investment Earnings - Transfer From Prefunding Account {49}__________
{50} Investment Earnings - Transfer From Capitalized Interest Account {50}__________
{51} Collection of Supplemental Servicing - Extension Fees {51}__________
{52} Collection of Supplemental Servicing - Repo and Recovery Fees Advanced {52}__________
{53} Collection of Supplemental Servicing - Late Fees {53}__________
{54} Monthly Capitalized Interest Amount {54}__________
{55} Mandatory Note Prepayment Amount {55}__________
{56} Total Available Funds {56} __________
DISTRIBUTIONS:
{57} Base Servicing Fee - to Servicer {57}__________
{58} Repo and Recovery Fees - reimbursed to Servicer {58}__________
{59} Bank Service Charges - reimbursed to Servicer {59}__________
{60} Late Fees - to Servicer {60}__________
{61} Backup Servicing Fees {61}__________
NOTEHOLDERS' INTEREST DISTRIBUTABLE AMOUNT
---------------------------------------------------------------------------------
BEGINNING INTEREST INTEREST CALCULATED
CLASS NOTE BALANCE CARRYOVER RATE DAYS DAYS BASIS INTEREST
---------------------------------------------------------------------------------
{62} Class A - 1 5.5048% Actual days/360 {62}__________
{63} Class A - 2 5.6100% 30 30/360 {63}__________
{64} Class A - 3 5.5600% 30 30/360 {64}__________
{65} Class A - 4 5.6400% 30 30/360 {65}__________
---------------------------------------------------------------------------------
NOTEHOLDERS' PRINCIPAL DISTRIBUTABLE AMOUNT
--------------------------------------------------------------------------------
PRINCIPAL PRINCIPAL EXCESS MANDATORY TOTAL
CLASS DISTRIBUTABLE CARRYOVER PRINCIPAL DUE NOTE PREPAYMENT PRINCIPAL
--------------------------------------------------------------------------------
{66} Class A - 1 {66}__________
{67} Class A - 2 {67}__________
{68} Class A - 3 {68}__________
{69} Class A - 4 {69}__________
--------------------------------------------------------------------------------
{70} Security Insurer Premiums - to FSA {70}__________
{71} Total distributions {71} __________
{72} Excess Available Funds (or Deficiency Claim Amount) {72} __________
{73} Any Remaining Amounts owed to FSA under the Insurance Agreement {73} __________
{74} Deposit to Spread Account to Increase to Required Level {74} __________
{75} Noteholders' Accelerated Principal Amount {75} __________
{76} Deposit to Spread Account {76}
==========
2
------------------------------------------------------------------------------------------------------------------------------------
VIII. CALCULATION OF ACCELERATED PRINCIPAL AMOUNT
------------------------------------------------------------------------------------------------------------------------------------
{77} Excess Available Funds After Amount to Increase Spread to Required Level ({76}) {77}__________
{78} Pro-forma Note Balance ({13} - {9}) {78}__________
{79} Required Pro-forma Note Balance (the product of 100%-OC Amount {31} and the Aggregate
Principal Bal. {10}) {79}__________
{80} Excess of Pro Forma Balance over Required Balance ({78} - {79}) {80}__________
{81} End of Period Class A-1 Note Balance {81}__________
{82} Lesser of {80} or {81} {82}__________
{83} Accelerated Principal Amount (lesser of {77} or {82}) {83} __________
------------------------------------------------------------------------------------------------------------------------------------
IX. CALCULATION OF ACCELERATED PAYMENT AMOUNT SHORTFALL
------------------------------------------------------------------------------------------------------------------------------------
{84} Pro-forma Note Balance ({13} - {9}) {84}__________
{85} Required Pro-forma Note Balance (the product of 100%-OC Amount {31} and the Aggregate
Principal Bal. {10}) {85}__________
{86} Excess of Pro Forma Balance over Required Balance ({84} - {85}) {86}__________
{87} End of Period Class A-1 Note Balance {87}__________
{88} Greater of {86} or {87} {88}__________
{89} Excess Available Funds After Amount to Increase Spread to Required Level {89}__________
{90} Investment Earnings on Collection Account ({48}) {90}__________
{91} Accelerated Payment Amount Shortfall ({88} - {89} + {90}) {91} __________
------------------------------------------------------------------------------------------------------------------------------------
X. RECONCILIATION OF SPREAD ACCOUNT:
------------------------------------------------------------------------------------------------------------------------------------
INITIAL SUB #1 SUB #2 SUB #3 TOTAL
------------------------------------------
{92} INITIAL OR SUBSEQUENT SPREAD ACCOUNT DEPOSITS
------------------------------------------------------------------------------------------------------------------------------------
{93} BEGINNING OF PERIOD SPREAD ACCOUNT BALANCE {93} __________
ADDITIONS TO SPREAD ACCOUNT
{94} Deposits from Collections Account ({76}) {94}__________
{95} Investment Earnings {95}__________
{96} Deposits Related to Subsequent Receivables Purchases {96}__________
{97} Deposit From Other FSA Series Spread Accounts {97} __________
{98} Total Additions {98}
{99} SPREAD ACCOUNT BALANCE AVAILABLE FOR WITHDRAWALS {99} __________
REQUISITE AMOUNT OF SPREAD ACCOUNT
Specified Series Spread Account Shortfall ___________
After Target Satisfaction Date, the excess of Target OC over OC% ___________
Floor Amount (Calculation Below) ___________ {100}_________
{100} (Max of (1.) $100,000 or (2.) Lesser of Note Balance and 2%
Original Pool Balance) {101}_________
{101} Floor Amount + Spread Account Shortfall ___________ {102}_________
{102} If Trigger Event exists then 7.50% of the Aggregate Principal Balance + ___________
Spread Account Shortfall ___________ {103}_________
{103} If an Insurance Agreement Event of Default exists then an unlimited amount
(as specified by FSA)
{104} Requisite Amount of Spread Account {104} __________
WITHDRAWALS FROM SPREAD ACCOUNT
{105} Priority First - Deficiency Claim Amount ___________ {105}_________
{106} Priority Second - Accelerated Payment Amount Shortfall ___________ {106}_________
{107} Priority Third - amounts owed by the Servicer (Trustee, Lockbox Bank,
Owner Trustee, Custodian,
Backup Servicer Administrator, Collateral Agent, Trust Collateral Agent or
other service provider not reimbursed by the Servicer pursuant to priority
(ii) of Section 5.7(b) of the SSA {107}_________
{108} Priority Fourth - 1.) Amounts in respect if indemnity payments to the
Trustee, Lockbox Bank, Owner Trustee, Custodian,
Backup Servicer, Collateral Agent, Trust Collateral Agent, or other
service provider that have not been reimbused by Servicer pro rata
2.) to the Trust {108}_________
{109} Priority Fifth - to Certificateholder {109}_________
{110} Total withdrawals {110} __________
{111} END OF PERIOD SPREAD ACCOUNT BALANCE {111} __________
------------------------------------------------------------------------------------------------------------------------------------
XI. CALCULATION OF OC LEVEL AND OC PERCENTAGE
------------------------------------------------------------------------------------------------------------------------------------
{112} Aggregate Principal Balance {112}_________
{113} End of period Note Balance {113}_________
{114} Line {111} less line {112} (During Funding Period amount equal to zero) {114}_________
{115} OC level {113} / {111} {115}_________
{116} Ending Spread Bal as a percentage of Aggregate Principal Bal plus
Prefunding Bal ({110}/{111}+{26}) {116}_________
{117} OC Percentage ({114} + {115}) {117} __________
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
Date:
-------------------------------
3
EXHIBIT C
PRELIMINARY SERVICER'S CERTIFICATE
Ex-C-1
AmeriCredit Automobile Receivables Trust 2006-A-F
Class A-1 5.5048% Asset Backed Notes
Class A-2 5.61% Asset Backed Notes
Class A-3 5.56% Asset Backed Notes
Class A-4 5.64% Asset Backed Notes
Preliminary Servicer's Certificate
This Servicer's Certificate has been prepared pursuant to Section 4.9 of the
Sale and Servicing Agreement among AmeriCredit Automobile Receivables Trust
2006-A-F, as Issuer, AmeriCredit Financial Services, Inc., as Servicer, AFS
Funding Trust, as Seller, and Xxxxx Fargo Bank, N.A., as Trust Collateral Agent
and Backup Servicer, dated as of July 12, 2006. Defined terms have the meanings
assigned to them in the Sale and Servicing Agreement or in other Transaction
Documents.
The undersigned hereby certifies that no Trigger Event has occurred on the
related Determination Date and that, to the knowledge of the Servicer, no
Insurance Agreement Event of Default has occurred.
----------------------------------------
MONTHLY PERIOD BEGINNING:
MONTHLY PERIOD ENDING:
PREV. DISTRIBUTION/CLOSE DATE:
DISTRIBUTION DATE:
DAYS OF INTEREST FOR PERIOD:
DAYS IN COLLECTION PERIOD:
MONTHS SEASONED:
----------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
I. MONTHLY PERIOD NOTE BALANCE CALCULATION: CLASS A-1 CLASS A-2 CLASS A-3 CLASS A-4 TOTAL
--------- --------- --------- --------- -----
{1} Original Note Balance {1}
------------------------------------------------------------------------------------------------------------------------------------
{2} Preliminary End of period Note Balance {2}
--------------------------------------------------------
{3} Deficiency Claim Amount {3}
{4} End of period Note Balance {4}
========================================================
{5} Note Pool Factors {4} / {1} {5}
========================================================
------------------------------------------------------------------------------------------------------------------------------------
II. RECONCILIATION OF SPREAD ACCOUNT:
------------------------------------------------------------------------------------------------------------------------------------
{6} Preliminary End of period Spread Account balance {6}___________
{7} Priority First - Deficiency Claim Amount from preliminary certificate {7}___________
{8} End of period Spread Account balance {8}___________
------------------------------------------------------------------------------------------------------------------------------------
III. MONTHLY PERIOD AND CUMULATIVE NUMBER OF RECEIVABLES CALCULATION:
------------------------------------------------------------------------------------------------------------------------------------
---------------------------
CUMULATIVE MONTHLY
---------------------------
{9} Original Number of Receivables {9}
---------------------------
{10} Beginning of period number of Receivables {10}
{11} Number of Subsequent Receivables Purchased {11}
{12} Number of Receivables becoming Liquidated Receivables during period {12}
{13} Number of Receivables becoming Purchased Receivables during period {13}
{14} Number of Receivables paid off during period {14}
---------------------------
{15} End of period number of Receivables {15}
---------------------------
------------------------------------------------------------------------------------------------------------------------------------
IV. STATISTICAL DATA: (CURRENT AND HISTORICAL)
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------
ORIGINAL PREV. MONTH CURRENT
------------------------------------
{16} Weighted Average APR of the Receivables {16}
{17} Weighted Average Remaining Term of the Receivables {17}
{18} Weighted Average Original Term of Receivables {18}
{19} Average Receivable Balance {19}
{20} Aggregate Realized Losses {20}
------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
V. DELINQUENCY:
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------
Receivables with Scheduled Payment delinquent UNITS DOLLARS PERCENTAGE
------------------------------------
{21} 31-60 days {21}
{22} 61-90 days {22}
{23} over 90 days {23}
------------------------------------
{24} Receivables with Scheduled Payment delinquent more than 30 days at end of period {24}
------------------------------------
4
------------------------------------------------------------------------------------------------------------------------------------
VI. PERFORMANCE TESTS:
------------------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------------
DELINQUENCY RATIO
{25} Receivables with Scheduled Payment delinquent more than 60 days at end of
period ({22} + {23}) {25}___________________
{26} Purchased Receivables with Scheduled Payment delinquent more than 60 days
at end of period {26}___________________
{27} Beginning of period Principal Balance {27}___________________
{28} Delinquency Ratio {25} + {26} divided by {27} {28} ______________
{29} Previous Monthly Period Delinquency Ratio {29} ______________
{30} Second previous Monthly Period Delinquency Ratio {30} ______________
{31} Average Delinquency Ratio ({28} + {29} + {30}) / 3 {31} ______________
{32} Compliance (Delinquency Test Failure is a Delinquency Ratio equal to or
greater than 4.00%.) {32} ______________
-------------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------------
CUMULATIVE DEFAULT RATE
{33} Defaulted Receivables in Current Period {33}___________________
{34} Cumulative Defaulted Receivables from last month {34}___________________
{35} Cumulative Defaulted Receivables {33} + {34} {35}___________________
{36} Original Pool Balance {36}___________________
{37} Cumulative Default Rate {35} divided by {36} {37} ______________
{38} Compliance (Default Test Failure is a Cumulative Default Rate equal to
or greater than 3.31%.) {38} ______________
-------------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------------
CUMULATIVE NET LOSS RATE
{39} Receivables becoming Liquidated Receivables during period {39}___________________
{40} Purchased Receivables with Scheduled Payment delinquent more than 30 days
at end of period {40}___________________
{41} Liquidation Proceeds collected during period {41}___________________
{42} Net Losses during period {39} + {40} + {41} {42}___________________
{43} Net Losses since Initial Cut-off Date (Beginning of Period) {43}___________________
{44} CUMULATIVE NET LOSS RATE BEFORE 50% OF 90 DAY DELINQUENCIES
({42} + {43}) / {46} {44} ______________
{45} 50% of Receivables with Scheduled Payment delinquent more than 90 days at
end of period {45}___________________
{46} Original Aggregate Principal Balance {46}___________________
{47} Cumulative Net Loss Rate ({42} + {43} + {45}) / {46} {47} ______________
{48} Compliance (Net Loss Test Failure is a Net Loss Rate equal to or greater
than 1.99%.) {48} ______________
-------------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------------
EXTENSION RATE
{49} Principal Balance of Receivables extended during current period {49}___________________
{50} Beginning of Period Aggregate Principal Balance {50}___________________
{51} Extension Rate {49} divided by {50} {51} ______________
{52} Previous Monthly Extension Rate {52} ______________
{53} Second previous Monthly Extension Rate {53} ______________
{54} Average Extension Rate ({51} +{52} +{53}) / 3 {54} ______________
{55} Compliance (Extension Test Failure is an Extension Rate equal to or greater
than 4%.) {55} ______________
-------------------------------------------------------------------------------------------------------------------------------
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
Date:
-------------------------------
5
