EXHIBIT 4.3
EXECUTION COPY
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SALE AND SERVICING
AGREEMENT
among
AMERICREDIT AUTOMOBILE RECEIVABLES TRUST 2001-D,
Issuer,
AFS FUNDING CORP.,
Seller,
AMERICREDIT FINANCIAL SERVICES, INC.,
Servicer
and
BANK ONE, NA
Backup Servicer and Trust Collateral Agent
Dated as of October 17, 2001
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TABLE OF CONTENTS
Page
Article I Definitions........................................................1
Section 1.1. Definitions...............................................1
Section 1.2. Other Definitional Provisions............................23
Article II Conveyance of Receivables........................................24
Section 2.1. Conveyance of Initial Receivables........................24
Section 2.2. Conveyance of Subsequent Receivables.....................25
Section 2.3. Further Encumbrance of Trust Property....................28
Article III The Receivables.................................................28
Section 3.1. Representations and Warranties of Seller.................28
Section 3.2. Repurchase upon Breach...................................29
Section 3.3. Custody of Receivables Files.............................30
Article IV Administration and Servicing of Receivables......................30
Section 4.1. Duties of the Servicer...................................30
Section 4.2. Collection of Receivable Payments; Modifications of
Receivables; Lockbox Agreements..........................32
Section 4.3. Realization upon Receivables.............................34
Section 4.4. Insurance................................................35
Section 4.5. Maintenance of Security Interests in Vehicles............37
Section 4.6. Covenants, Representations, and Warranties of
Servicer.................................................38
Section 4.7. Purchase of Receivables Upon Breach of Covenant..........39
Section 4.8. Total Servicing Fee; Payment of Certain Expenses by
Servicer.................................................39
Section 4.9. Preliminary Servicer's Certificate and Servicer's
Certificate..............................................39
Section 4.10. Annual Statement as to Compliance, Notice of
Servicer Termination Event...............................40
Section 4.11. Annual Independent Accountants' Report...................41
Section 4.12. Access to Certain Documentation and Information
Regarding Receivables....................................41
Section 4.13. Monthly Tape.............................................42
Section 4.14. Retention and Termination of Servicer....................42
Section 4.15. Fidelity Bond and Errors and Omissions Policy............43
Article V Trust Accounts; Distributions; Statements to Noteholders..........43
Section 5.1. Establishment of Trust Accounts..........................43
Section 5.2. Capitalized Interest Account.............................46
Section 5.3. Certain Reimbursements to the Servicer...................46
Section 5.4. Application of Collections...............................47
Section 5.5. Withdrawals from Spread Account..........................47
Section 5.6. Additional Deposits......................................48
Section 5.7. Distributions............................................48
Section 5.8. Note Distribution Account................................50
Section 5.9. Pre-Funding Account......................................52
Section 5.10. Statements to Noteholders................................52
Section 5.11. Optional Deposits by the Insurer.........................53
Section 5.12. Determination of LIBOR...................................53
Article VI The Note Policy..................................................55
Section 6.1. Claims Under Note Policy.................................55
Section 6.2. Preference Claims Under Note Policy......................56
Section 6.3. Surrender of Note Policy.................................57
Article VII The Seller......................................................57
Section 7.1. Representations of Seller................................57
Section 7.2. Corporate Existence......................................58
Section 7.3. Liability of Seller; Indemnities.........................59
Section 7.4. Merger or Consolidation of, or Assumption of the
Obligations of, Seller...................................60
Section 7.5. Limitation on Liability of Seller and Others.............60
Section 7.6. Ownership of the Certificates or Notes...................61
Article VIII The Servicer...................................................61
Section 8.1. Representations of Servicer..............................61
Section 8.2. Liability of Servicer; Indemnities.......................63
Section 8.3. Merger or Consolidation of, or Assumption of the
Obligations of the Servicer or Backup Servicer...........64
Section 8.4. Limitation on Liability of Servicer, Backup Servicer
and Others...............................................65
Section 8.5. Delegation of Duties.....................................66
Section 8.6. Servicer and Backup Servicer Not to Resign...............66
Article IX Default..........................................................67
Section 9.1. Servicer Termination Event...............................67
Section 9.2. Consequences of a Servicer Termination Event.............68
Section 9.3. Appointment of Successor.................................69
Section 9.4. Notification to Noteholders..............................70
Section 9.5. Waiver of Past Defaults..................................71
Article X Termination.......................................................71
Section 10.1. Optional Purchase of All Receivables.....................71
Article XI Administrative Duties of the Servicer............................72
Section 11.1. Administrative Duties....................................72
Section 11.2. Records..................................................74
Section 11.3. Additional Information to be Furnished to the Issuer.....74
Article XII Miscellaneous Provisions........................................74
Section 12.1. Amendment................................................74
Section 12.2. Protection of Title to Trust.............................75
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Section 12.3. Notices..................................................77
Section 12.4. Assignment...............................................78
Section 12.5. Limitations on Rights of Others..........................78
Section 12.6. Severability.............................................78
Section 12.7. Separate Counterparts....................................78
Section 12.8. Headings.................................................78
Section 12.9. Governing Law............................................78
Section 12.10. Assignment to Trustee....................................79
Section 12.11. Nonpetition Covenants....................................79
Section 12.12. Limitation of Liability of Owner Trustee and Trustee.....79
Section 12.13. Independence of the Servicer.............................80
Section 12.14. No Joint Venture.........................................80
Section 12.15. Replacement Swap Agreement...............................80
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 October 17, 2001, among
AMERICREDIT AUTOMOBILE RECEIVABLES TRUST 2001-D, a Delaware business trust (the
"ISSUER"), AFS FUNDING CORP., a Nevada corporation (the "SELLER"), and
AMERICREDIT FINANCIAL SERVICES, INC., a Delaware corporation (the "SERVICER"),
and BANK ONE, NA 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;
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 amount of Available Funds (but net of any net Investment Earnings on
deposit in the Collection Account) on such Distribution Date over the amounts
payable on such Distribution Date pursuant to Section 5.7(b)(i) through (vii).
"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 PRINCIPAL AMOUNT" for a Distribution Date will equal
the lesser of
(x) the sum of (i) 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 (vii) 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, Subsequent Transfer
Date and the approximate principal amount of Subsequent Receivables to be
transferred on such Subsequent Transfer Date.
"ADDITIONAL FUNDS AVAILABLE" means, with respect to any Insured
Distribution Date, the sum of (i) the Deficiency Claim Amount, if any, received
by the Trust Collateral Agent with respect to such Insured Distribution Date
plus (ii) the Insurer Optional Deposit, if any, received by the Trust Collateral
Agent with respect to such Insured Distribution Date.
"ADMINISTRATIVE RECEIVABLE" means, with respect to any Collection
Period, a Receivable which the Servicer is required to purchase pursuant to
Section 4.7 or which the Servicer has elected to purchase pursuant to Section
4.4(c) on the Determination Date with respect to such Collection Period.
"AFFILIATE" means, with respect to any specified Person, any other
Person controlling or controlled by or under common control with such specified
Person. For the purposes of this definition, "control" when used with respect to
any Person means the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"AGGREGATE PRINCIPAL BALANCE" means, with respect to any date of
determination, the sum of the Principal Balances for all Receivables (other than
(i) any Receivable that became a Liquidated Receivable prior to the end of the
related Collection Period and (ii) any Receivable that became a Purchased
Receivable prior to the end of the related Collection Period) as of the date of
determination.
"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.
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"AMOUNT FINANCED" means, with respect to a Receivable, the aggregate
amount advanced under such Receivable toward the purchase price of the Financed
Vehicle and any related costs, including amounts advanced in respect of
accessories, insurance premiums, service and warranty contracts, other items
customarily financed as part of retail automobile installment sale contracts or
promissory notes, and related costs.
"ANNUAL PERCENTAGE RATE" or "APR" of a Receivable means the annual
percentage rate of finance charges or service charges, as stated in the related
Contract.
"ASSIGNMENT" means the Assignment dated as of October 19, 1999, from
the Seller to AFS Funding Trust, a Delaware business trust.
"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
immediately precedes the Mandatory Redemption Date, any Pre-Funded Amount to be
deposited into the Collection Account on such Distribution Date pursuant to
Section 5.7(a) hereof, (vi) the proceeds of any purchase or sale of the assets
of the Trust described in Section 10.1 hereof, and (vii) any amounts received by
the Trust Collateral Agent pursuant to the Swap Agreement with respect to each
of the Class A-2 and Class A-3 Notes.
"BACKUP SERVICER" means Bank One, NA.
"BASE SERVICING FEE" means, with respect to any Collection Period,
the fee payable to the Servicer for services rendered during such Collection
Period, which shall be equal to one-twelfth of the Servicing Fee Rate multiplied
by the Pool Balance as of the opening of business on the first day of such
Collection Period.
"BASIC DOCUMENTS" means this Agreement, the Certificate of Trust,
the Trust Agreement, the Indenture, the Spread Account Agreement, the Spread
Account Agreement Supplement, the Assignment, the Swap Agreement and other
documents and certificates delivered in connection therewith.
"BUSINESS DAY" means a day other than a Saturday, a Sunday or other
day on which commercial banks located in the states of Delaware, Texas, Ohio or
New York are authorized or obligated to be closed.
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"CALCULATION DATE" means the close of business on the last day of
each Collection Period.
"CALENDAR QUARTER" means the three-month period ending on the last
day of March, June, September or December.
"CAPITALIZED INTEREST ACCOUNT" means the account designated as such,
established and maintained pursuant to Section 5.2.
"CAPITALIZED INTEREST ACCOUNT INITIAL DEPOSIT" means $8,174,259.45
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 October 24, 2001.
"COLLATERAL AGENT" means Bank One, NA, 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.
"COLLECTION PERIOD" means, with respect to the first Distribution
Date, the period beginning on the close of business on October 17, 2001 and
ending on the close of business on November 30, 2001. With respect to each
subsequent Distribution Date, "Collection Period" means the period beginning on
the close of business on the last day of the immediately preceding Collection
Period 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
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Collection Period" shall give effect to the following calculations as determined
as of the end of the day on such last day: (i) all applications of collections
and (ii) all distributions.
"COLLECTION RECORDS" means all manually prepared or computer
generated records relating to collection efforts or payment histories with
respect to the Receivables.
"COMPUTER TAPE" means the computer tapes or other electronic media
furnished by AFS Funding Corp. to the Issuer and its assigns describing certain
characteristics of the Initial Receivables as of the Cutoff Date and of
Subsequent Receivables as of the related Subsequent Cutoff Date.
"CONTRACT" means a motor vehicle retail installment sale contract.
"CONTROLLING PARTY" means the Insurer, so long as no Insurer Default
shall have occurred and be continuing and the Trust Collateral Agent for the
benefit of the Noteholders, in the event the Insurer Default shall have occurred
and be continuing.
"CORPORATE TRUST OFFICE" means (i) with respect to the Owner
Trustee, the principal corporate trust office of the Owner Trustee, which at the
time of execution of this agreement is E.A. Delle Donne Corporate Center,
Xxxxxxxxxx Building, 0000 Xxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx 00000,
Attention: Corp. Trust Dept., and (ii) with respect to the Trustee, the Trust
Collateral Agent, 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 000
Xxxx Xxxxx Xxxxxx, Xxxxxxxx, Xxxx 00000, Attention: Global Corporate Trust
Services, AmeriCredit 2001-D.
"CRAM DOWN LOSS" means, with respect to a Receivable, if a court of
appropriate jurisdiction in a proceeding related to an Insolvency Event shall
have issued an order reducing the amount owed on a Receivable or otherwise
modifying or restructuring the Scheduled Receivables Payments to be made on a
Receivable, an amount equal to (i) the excess of the principal balance of such
Receivable immediately prior to such order over the principal balance of such
Receivable as so reduced and/or (ii) if such court shall have issued an order
reducing the effective rate of interest on such Receivable, the excess of the
principal balance of such Receivable immediately prior to such order over the
net present value (using as the discount rate the higher of the APR on such
Receivable or the rate of interest, if any, specified by the court in such
order) of the Scheduled Receivables Payments as so modified or restructured. A
"CRAM DOWN LOSS" shall be deemed to have occurred on the date of issuance of
such order.
"CUSTODIAN" means AmeriCredit and any other Person named from time
to time as custodian in any Custodian Agreement acting as agent for the Trust
Collateral Agent, which Person must be acceptable to the Controlling Party (the
Custodian as of the Closing Date is acceptable to the Insurer as of the Closing
Date).
"CUSTODIAN AGREEMENT" means any Custodian Agreement from time to
time in effect between the Custodian named therein and the Trust Collateral
Agent, as the same may be amended, supplemented or otherwise modified from time
to time in accordance with the terms thereof, which Custodian Agreement and any
amendments, supplements or modifications thereto
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shall be acceptable to the Controlling Party (the Custodian Agreement which is
effective on the Closing Date is acceptable to the Controlling Party).
"DEALER" means a dealer who sold a Financed Vehicle and who
originated and assigned the respective Receivable to AmeriCredit under a Dealer
Agreement or pursuant to a Dealer Assignment.
"DEALER AGREEMENT" means any agreement between a Dealer and
AmeriCredit relating to the acquisition of Receivables from a Dealer by
AmeriCredit.
"DEALER ASSIGNMENT" means, with respect to a Receivable, the
executed assignment executed by a Dealer conveying such Receivable to
AmeriCredit.
"DEALER UNDERWRITING GUIDE" means the underwriting manual used by
AmeriCredit in the purchase of Receivables as amended from time to time.
"DEFICIENCY CLAIM AMOUNT" means with respect to any Determination
Date, after taking into account the application on the related Distribution Date
of the Available Funds for the related Collection Period, an amount equal to the
sum of, without duplication, (i) any shortfall in the payment of the full
amounts described in clauses (ii), (iii), (iv) and (vi) of Section 5.7(b)
herein, (ii) the Noteholders' Parity Deficit Amount, if any, for such
Distribution Date and (iii) if the related Distribution Date is the Final
Scheduled Distribution Date of any Class, any remaining outstanding principal
balance of such Class, to the extent that such amount is available on the
related Insured Distribution Date in accordance with the terms of the Spread
Account Agreement.
"DEFICIENCY CLAIM DATE" means, with respect to any Insured
Distribution Date, the fourth Business Day immediately preceding such Insured
Distribution Date.
"DEFICIENCY NOTICE" shall have the meaning set forth in Section 5.5.
"DELIVERY" when used with respect to Trust Account Property means:
(a) with respect to bankers' acceptances, commercial paper, negotiable
certificates of deposit and other obligations that constitute "instruments"
within the meaning of Section 9-102(a)(47) of the UCC and are susceptible of
physical delivery, transfer thereof to the Trust Collateral Agent or its nominee
or custodian by physical delivery to the Trust Collateral Agent or its nominee
or custodian endorsed to, or registered in the name of, the Trust Collateral
Agent or its nominee or custodian or endorsed in blank, and, with respect to a
certificated security (as defined in Section 8-102 of the UCC), transfer thereof
(i) by delivery of such certificated security endorsed to, or registered in the
name of, the Trust Collateral Agent or its nominee or custodian or endorsed in
blank to a financial intermediary (as defined in Section 8-313 of the UCC) and
the making by such financial intermediary of entries on its books and records
identifying such certificated securities as belonging to the Trust Collateral
Agent or its nominee or custodian and the sending by such financial intermediary
of a confirmation of the purchase of such certificated security by the Trust
Collateral Agent or its nominee or custodian, or (ii) by delivery thereof to a
"clearing corporation" (as defined in Section 8-102(3) of the UCC) and the
making by such clearing corporation of appropriate entries on its books reducing
the appropriate securities
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account of the transferor and increasing the appropriate securities account of a
financial intermediary by the amount of such certificated security, the
identification by the clearing corporation of the certificated securities for
the sole and exclusive account of the financial intermediary, the maintenance of
such certificated securities by such clearing corporation or a "custodian bank"
(as defined in Section 8-102(4) of the UCC) or the nominee of either subject to
the clearing corporation's exclusive control, the sending of a confirmation by
the financial intermediary of the purchase by the Trust Collateral Agent or its
nominee or custodian of such securities and the making by such financial
intermediary of entries on its books and records identifying such certificated
securities as belonging to the Trust Collateral Agent or its nominee or
custodian (all of the foregoing, "PHYSICAL PROPERTY"), and, in any event, any
such Physical Property in registered form shall be in the name of the Trust
Collateral Agent or its nominee or custodian; and such additional or alternative
procedures as may hereafter become appropriate to effect the complete transfer
of ownership of any such Trust Account Property to the Trust Collateral Agent or
its nominee or custodian, consistent with changes in applicable law or
regulations or the interpretation thereof;
(b) with respect to any security issued by the U.S. Treasury, the
Federal Home Loan Mortgage Corporation or by the Federal National Mortgage
Association that is a book-entry security held through the Federal Reserve
System pursuant to federal book-entry regulations, the following procedures, all
in accordance with applicable law, including applicable Federal regulations and
Articles 8 and 9 of the UCC: book-entry registration of such Trust Account
Property to an appropriate book-entry account maintained with a Federal Reserve
Bank by a financial intermediary which is also a "depository" pursuant to
applicable Federal regulations and issuance by such financial intermediary of a
deposit advice or other written confirmation of such book-entry registration to
the Trust Collateral Agent or its nominee or custodian of the purchase by the
Trust Collateral Agent or its nominee or custodian of such book-entry
securities; the making by such financial intermediary of entries in its books
and records identifying such book-entry security held through the Federal
Reserve System pursuant to Federal book-entry regulations as belonging to the
Trust Collateral Agent or its nominee or custodian and indicating that such
custodian holds such Trust Account Property solely as agent for the Trust
Collateral Agent or its nominee or custodian; and such additional or alternative
procedures as may hereafter become appropriate to effect complete transfer of
ownership of any such Trust Account Property to the Trust Collateral Agent or
its nominee or custodian, consistent with changes in applicable law or
regulations or the interpretation thereof; and
(c) with respect to any item of Trust Account Property that is an
uncertificated security under Article 8 of the UCC and that is not governed by
clause (b) above, registration on the books and records of the issuer thereof in
the name of the financial intermediary, the sending of a confirmation by the
financial intermediary of the purchase by the Trust Collateral Agent or its
nominee or custodian of such uncertificated security, the making by such
financial intermediary of entries on its books and records identifying such
uncertificated certificates as belonging to the Trust Collateral Agent or its
nominee or custodian.
"DEPOSITOR" shall mean the Seller in its capacity as Depositor under
the Trust Agreement.
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"DETERMINATION DATE" means, with respect to any Collection Period,
the earlier of (i) the fourth Business Day preceding the Insured Distribution
Date in the next calendar month, and (ii) the Business Day preceding the
Distribution Date in the next calendar month.
"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 December 6, 2001.
"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 any of the securities of such depository institution
have a credit rating from each Rating Agency in one of its generic rating
categories which signifies investment grade.
"ELIGIBLE INVESTMENTS" mean book-entry securities, negotiable
instruments or securities represented by instruments in bearer or registered
form which evidence:
(a) direct obligations of, and obligations fully guaranteed as to timely
payment by, the United States of America;
(b) demand deposits, time deposits or certificates of deposit of any
depository institution or trust company incorporated under the laws of the
United States of America or any state thereof or the District of Columbia (or
any domestic branch of a foreign bank) and subject 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
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respective Affiliates is investment manager, controlling party or advisor)
having a rating from Standard & Poor's of AAA-m or AAAm-G and from Moody's of
Aaa and having been approved by the Insurer;
(e) bankers' acceptances issued by any depository institution or trust
company referred to in clause (b) above;
(f) repurchase obligations with respect to any security that is a direct
obligation of, or fully guaranteed by, the United States of America or any
agency or instrumentality thereof the obligations of which are backed by the
full faith and credit of the United States of America, in either case entered
into with a depository institution or trust company (acting as principal)
referred to in clause (b) above;
(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 November 12, 2002 Insured Distribution Date, (ii) the Class
A-2 Notes, the June 13, 2005 Insured Distribution Date, (iii) the Class A-3
Notes, the September 12, 2006 Insured Distribution Date and (iv) the Class A-4
Notes, the November 12, 2008 Insured Distribution Date.
"FINANCED VEHICLE" means an automobile or light-duty truck van or
minivan, together with all accessions thereto, securing an Obligor's
indebtedness under the respective Receivable.
"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) April 30, 2002.
9
"INDENTURE" means the Indenture dated as of October 17, 2001,
between the Issuer and Bank One, NA, as Trust Collateral Agent and Trustee, as
the same may be amended and supplemented from time to time.
"INITIAL CUTOFF DATE" means October 17, 2001.
"INITIAL RECEIVABLES" means any Receivable conveyed to the Trust on
the Closing Date.
"INSOLVENCY EVENT" means, with respect to a specified Person, (a)
the filing of a petition against such Person or the entry of a decree or order
for relief by a court having jurisdiction in the premises in respect of such
Person or any substantial part of its property in an involuntary case under any
applicable federal or state bankruptcy, insolvency or other similar law now or
hereafter in effect, or appointing a receiver, liquidator, assignee, custodian,
trustee, sequestrator, or similar official for such Person or for any
substantial part of its property, or ordering the winding-up or liquidation or
such Person's affairs, and such petition, decree or order shall remain unstayed
and in effect for a period of 60 consecutive days; or (b) the commencement by
such Person of a voluntary case under any applicable federal or state
bankruptcy, insolvency or other similar law now or hereafter in effect, or the
consent by such Person to the entry of an order for relief in an involuntary
case under any such law, or the consent by such Person to the appointment of or
taking possession by, a receiver, liquidator, assignee, custodian, trustee,
sequestrator, or similar official for such Person or for any substantial part of
its property, or the making by such Person of any general assignment for the
benefit of creditors, or the failure by such Person generally to pay its debts
as such debts become due, or the taking of action by such Person in furtherance
of any of the foregoing.
"INSURANCE ADD-ON AMOUNT" means the premium charged to the Obligor
in the event that the Servicer obtains Force-Placed Insurance pursuant to
Section 4.4.
"INSURANCE AGREEMENT" means the Insurance and Indemnity Agreement,
dated as of October 17, 2001, among the Insurer, the Trust, the Seller, AFS
Funding Trust, AmeriCredit Corp. and AmeriCredit.
"INSURANCE AGREEMENT EVENT OF DEFAULT" means an "EVENT OF Default"
as defined in the Insurance Agreement.
"INSURANCE POLICY" means, with respect to a Receivable, any
insurance policy (including the insurance policies described in Section 4.4
hereof) benefiting the holder of the Receivable providing loss or physical
damage, credit life, credit disability, theft, mechanical breakdown or similar
coverage with respect to the Financed Vehicle or the Obligor.
"INSURED DISTRIBUTION DATE" means the twelfth day of each month, or,
if such twelfth day is not a Business Day, the next following Business Day. In
the event that, on any Distribution Date, the Noteholders did not receive the
full amount of the Scheduled Payment (as defined in the Note Policy) then due to
them, such shortfall (together with, in the case of an interest shortfall,
interest thereon at the related Interest Rate) shall be due and payable and
shall be funded on the Insured Distribution Date either from the Spread Account
or from the proceeds
10
of a drawing under the Note Policy. The Record Date applicable to an Insured
Distribution Date shall be the Record Date applicable to the related
Distribution Date.
"INSURER" means Financial Security Assurance Inc., a monoline
insurance company incorporated under the laws of the State of New York, or any
successor thereto, as issuer of the Note Policy.
"INSURER DEFAULT" means the occurrence and continuance of any of the
following events:
(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
Distribution Amount for such Insured Distribution Date to the extent that
without such amount a draw would be required to be made on the Note Policy.
"INTEREST PERIOD" means, with respect to any Distribution Date, the
period from and including the most recent Distribution Date on which interest
has been paid (or in the case of the first Distribution Date, from and including
the Closing Date) to, but excluding, the following Distribution Date. In the
case of the first Distribution Date, the Interest Period shall be 43 days for
the Class A-1 Notes, Class A-2 and Class A-3 Notes and 42 days for the Class A-4
Notes.
"INTEREST RATE" means, with respect to (i) the Class A-1 Notes,
2.39125% 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, LIBOR + 0.23% per annum (computed on the basis of a
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360-day year and the actual number of days elapsed in the applicable Interest
Period), (iii) the Class A-3 Notes, LIBOR plus 0.30% per annum (computed on the
basis of a 360-day year and the actual number of days elapsed in the applicable
Interest Period) and (iv) the Class A-4 Notes, 4.41% 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 2001-D.
"LIBOR" has the meaning set forth in Section 5.12 hereof.
"LIEN" means a security interest, lien, charge, pledge, equity, or
encumbrance of any kind, other than tax liens, mechanics' liens and any liens
that attach to the respective Receivable by operation of law as a result of any
act or omission by the related Obligor.
"LIEN CERTIFICATE" means, with respect to a Financed Vehicle, an
original certificate of title, certificate of lien or other notification issued
by the Registrar of Titles of the applicable state to a secured party which
indicates that the lien of the secured party on the Financed Vehicle is recorded
on the original certificate of title. In any jurisdiction in which the original
certificate of title is required to be given to the Obligor, the term "Lien
Certificate" shall mean only a certificate or notification issued to a secured
party.
"LIQUIDATED RECEIVABLE" means, with respect to any Collection
Period, a Receivable as to which (i) 90 days have elapsed since the Servicer
repossessed the Financed Vehicle provided, however, that in no case shall 5% or
more of a Scheduled Receivable 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, or
(iii) 5% or more of a Scheduled Receivables Payment shall have become 120 or
more days delinquent, except in the case of a repossessed Financed Vehicle.
"LOCKBOX ACCOUNT" means an account maintained on behalf of the Trust
Collateral Agent by the Lockbox Bank pursuant to Section 4.2(d).
"LOCKBOX AGREEMENT" means the Tri-Party Remittance Processing
Agreement, dated as of October 17, 2001, by and among AmeriCredit, Bank One,
Arizona, NA and the Trust Collateral Agent, as such agreement may be amended or
supplemented from time to time, unless the Trust Collateral Agent shall cease to
be a party thereunder, or such agreement shall be terminated in accordance with
its terms, in which event "Lockbox Agreement" shall mean such other agreement,
in form and substance acceptable to the Controlling Party, among the Servicer,
the Trust Collateral Agent and the Lockbox Bank.
"LOCKBOX BANK" means a depository institution named by the Servicer
and acceptable to the Controlling Party.
"MANDATORY REDEMPTION DATE" means the earliest of (i) the
Distribution Date in December 2001, if the last day of the Funding Period occurs
in October or November 2001, (ii) the Distribution Date in January 2002, if the
last day of the Funding Period occurs in
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December 2001, (iii) the Distribution Date in February 2002, if the last day of
the Funding Period occurs in January 2002, (iv) the Distribution Date in March
2002, if the last day of the Funding Period occurs in February 2002, (v) the
Distribution Date in April 2002, if the last day of the Funding Period occurs in
March 2002 or (vi) the Distribution Date in May 2002.
"MONTHLY CAPITALIZED INTEREST AMOUNT" means in the case of the
December 2001, January 2002, February 2002, March 2002, April 2002 or May 2002
Distribution Dates, an amount equal to the difference between (i) the product of
(x) a fraction the numerator of which is the actual number of days elapsed in
the related Interest Period 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 difference
between (A) the average daily aggregate principal amount of the Notes during the
period since the prior Distribution Date and (B) the Pool Balance as of the last
day of the second preceding Collection Period, or in the case of the December
2001 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;
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, all amounts realized with respect to such Receivable (other than
amounts withdrawn from the Spread Account and drawings under the Note Policy)
net of (i) reasonable expenses incurred by the Servicer in connection with the
collection of such Receivable and the repossession and disposition of the
Financed Vehicle and (ii) amounts that are required to be refunded to the
Obligor on such Receivable; PROVIDED, HOWEVER, that the Liquidation Proceeds
with respect to any Receivable shall in no event be less than zero.
"NOTE DISTRIBUTION ACCOUNT" means the account designated as such,
established and maintained pursuant to Section 5.1.
"NOTE MAJORITY" means a majority by principal amount of the
Noteholders.
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"NOTE POLICY" means the financial guaranty insurance policy issued
by the Insurer to the Trust Collateral Agent, as agent for the Trustee, for the
benefit of the Noteholders.
"NOTE POLICY CLAIM AMOUNT" means, for any Insured Distribution Date,
the sum of (x) the excess, if any (without duplication) of (i) the sum of the
Noteholders' Interest Distributable Amount and the Noteholders' Parity Deficit
Amount for the related Distribution Date, together with, (a) if such related
Distribution Date was the Mandatory Redemption Date, the Note Prepayment Amount,
and (b) if such related Distribution Date was the Final Scheduled Distribution
Date for any Class, the unpaid principal balance of such Class over (ii) the sum
of (a) the amount actually deposited into the Note Distribution Account on such
related Distribution Date and (b) the Additional Funds Available, if any, for
such Insured Distribution Date plus (y) the Noteholders' Interest Carryover
Amount, if any, which has accrued since the related Distribution Date.
"NOTE POOL FACTOR" for each Class of Notes as of the close of
business on any date of determination means a seven-digit decimal figure equal
to the outstanding principal amount of such Class of Notes divided by the
original outstanding principal amount of such Class of Notes.
"NOTE PREPAYMENT AMOUNT" means, as of the Distribution Date on or
immediately following the last day of the Funding Period, after giving effect to
any transfer of Subsequent Receivables on such date, an amount equal to the
Noteholders' pro rata share (based on the respective current outstanding
principal balance of each Class of Notes) of the Pre-Funded Amount as of such
Distribution Date; PROVIDED, that if the aggregate remaining amount in the
Pre-Funding Account is $100,000 or less, such amount will be applied exclusively
to reduce the outstanding principal balance of the Class of Notes then entitled
to receive distributions of principal.
"NOTEHOLDERS' ACCELERATED PRINCIPAL AMOUNT" means, with respect to
any Distribution Date, the Noteholders' Percentage of the Accelerated Principal
Amount on such Distribution Date, if any.
"NOTEHOLDERS' DISTRIBUTABLE AMOUNT" means, with respect to any
Distribution Date, the sum of the Noteholders' Principal Distributable Amount
and the Noteholders' Interest Distributable Amount.
"NOTEHOLDERS' INTEREST CARRYOVER AMOUNT" means, with respect to any
Class of Notes and any date of determination, all or any portion of the
Noteholders' Monthly Interest Distributable Amount for the immediately preceding
Distribution Date and any outstanding Noteholders' Interest Carryover Amount on
such immediately preceding Distribution Date, which remains unpaid as of such
date of determination, plus interest on such unpaid amount, to the extent
permitted by law, at the respective Interest Rate borne by each Class of Notes
from such immediately preceding Distribution Date to but excluding such date of
determination.
"NOTEHOLDERS' INTEREST DISTRIBUTABLE AMOUNT" means, with respect to
any Distribution Date and Class of Notes, the sum of the Noteholders' Monthly
Interest Distributable Amount for such Distribution Date and Class of Notes and
the Noteholders' Interest Carryover Amount, if any for such Distribution Date
and such Class. Interest on the Class A-1 Notes, Class
14
A-2 Notes and Class A-3 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-4 Notes shall be computed on the basis of a 360-day year
of twelve 30-day months.
"NOTEHOLDERS' MONTHLY INTEREST DISTRIBUTABLE AMOUNT" means, with
respect to any Distribution Date and any Class of Notes, interest accrued during
the applicable Interest Period on the principal amount of the Notes of 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, Class A-2
Notes and Class A-3 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-4
Notes on the basis of a 360-day year of twelve 30-day months.
"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 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; and (iii) relating to any other Distribution Date, 0%.
"NOTEHOLDERS' PRINCIPAL CARRYOVER AMOUNT" means, as of any date of
determination, all or any portion of the Noteholders' Monthly Principal
Distributable Amount and any outstanding Noteholders' Principal Carryover Amount
from the preceding Distribution Date which remains unpaid as of such date of
determination.
"NOTEHOLDERS' PRINCIPAL DISTRIBUTABLE AMOUNT" means, with respect to
any Distribution Date, (other than the Final Scheduled Distribution Date for any
Class of Notes), the sum of the Noteholders' Monthly Principal Distributable
Amount for such Distribution Date and the Noteholders' Principal Carryover
Amount, if any, as of the close of the preceding Distribution Date. The
Noteholders' Principal Distributable Amount on the Final Scheduled Distribution
Date for any Class of Notes will equal the sum of (i) the Noteholders' Monthly
15
Principal Distributable Amount for such Distribution Date, (ii) the Noteholders'
Principal Carryover Amount as of the such Distribution Date, and (iii) the
excess of the outstanding principal amount of such Class of Notes, if any, over
the amounts described in clauses (i) and (ii).
"NOTEHOLDERS' REMAINING PARITY DEFICIT AMOUNT" means, with respect
to any Distribution Date, the Noteholders' Parity Deficit Amount for such
Distribution Date minus any reduction in the aggregate principal balance of the
Notes to be made on the related Insured Distribution Date with funds withdrawn
from the Spread Account.
"OBLIGOR" on a Receivable means the purchaser or co-purchasers of
the Financed Vehicle and any other Person who owes payments under the
Receivable.
"OFFICERS' CERTIFICATE" means a certificate signed by the chairman
of the board, the president, any executive vice president or any vice president,
any treasurer, assistant treasurer, secretary or assistant secretary of the
Seller or the Servicer, as appropriate.
"OPINION OF COUNSEL" means a written opinion of counsel reasonably
acceptable to the Insurer, which opinion is satisfactory in form and substance
to the Trust Collateral Agent and, if such opinion or a copy thereof is required
by the provisions of this Agreement to be delivered to the Insurer, to the
Insurer.
"ORIGINAL POOL BALANCE" means the sum, as of any date, of the Pool
Balance as of the Initial Cutoff Date, plus the aggregate Principal Balance of
the Subsequent Receivables, if any, sold to the Trust, as of their respective
Subsequent Cutoff Dates.
"OTHER CONVEYED PROPERTY" means all property conveyed by the Seller
to the Trust pursuant to Section 2.1(b) through (h) of this Agreement.
"OVERFUNDED CAPITALIZED INTEREST AMOUNT" means:
With respect to the December 2001 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) 1.75%, (iii) 150 and (iv) the amount on deposit in
the Pre-Funding Account (excluding Pre-Funding Earnings) at the close of
business on November 30, 2001.
With respect to the January 2002 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) 1.75%, (iii) 120 and (iv) the amount on deposit in
the Pre-Funding Account (excluding Pre-Funding Earnings) at the close of
business on December 31, 2001.
With respect to the February 2002 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)
16
over (b) the product of (i) 1/360, (ii) 1.75%, (iii) 90 and (iv) the amount on
deposit in the Pre-Funding Account (excluding Pre-Funding Earnings) at the close
of business on January 31, 2002.
With respect to the March 2002 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) 1.75%, (iii) 60 and (iv) the amount on deposit in the Pre-Funding
Account (excluding Pre-Funding Earnings) at the close of business on February
28, 2002.
With respect to the April 2002 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) 1.75%, (iii) 30 and (iv) the amount on deposit in the Pre-Funding
Account (excluding Pre-Funding Earnings) at the close of business on March 31,
2002.
With respect to the May 2002 Distribution Date, the amount on
deposit in the Capitalized Interest Account on such Distribution Date (after
giving effect to the transfer of the Monthly Capitalized Interest Amount to the
Collection Account on such date).
"OWNER TRUST ESTATE" has the meaning assigned to such term in the
Trust Agreement.
"OWNER TRUSTEE" means Bankers Trust (Delaware), not in its
individual capacity but solely as Owner Trustee under the Trust Agreement, its
successors in interest or any successor Owner Trustee under the Trust Agreement.
"PERSON" means any individual, corporation, estate, partnership,
joint venture, association, joint stock company, trust (including any
beneficiary thereof), unincorporated organization or government or any agency or
political subdivision thereof.
"PHYSICAL PROPERTY" has the meaning assigned to such term in the
definition of "Delivery" above.
"POOL BALANCE" means, as of any date of determination, the aggregate
Principal Balance of the Receivables (excluding Purchased Receivables and
Liquidated Receivables).
"PRE-FUNDED AMOUNT" means, with respect to any Distribution Date,
the amount on deposit in the Pre-Funding Account, (exclusive of Pre-Funding
Earnings) which initially shall be $900,001,040.96.
"PRE-FUNDING ACCOUNT" has the meaning specified in Section 5.1.
"PRE-FUNDING EARNINGS" means any Investment Earnings on amounts on
deposit in the Pre-Funding Account.
"PRELIMINARY DETERMINATION DATE" means, with respect to any
Collection Period, the second Business Day preceding the Distribution Date in
the next calendar month.
17
"PRELIMINARY SERVICER'S CERTIFICATE" means an Officers' Certificate
of the Servicer delivered pursuant to Section 4.9(a), substantially in the form
of Exhibit C.
"PREPAYMENT AMOUNT" means the amount deposited in the Collection
Account from the Pre-Funding Account on the Mandatory Redemption Date pursuant
to Section 5.7(a)(ii) hereof.
"PRINCIPAL BALANCE" means, with respect to any Receivable, as of any
date, the sum of (x) the Amount Financed minus (i) that portion of all amounts
received on or prior to such date and allocable to principal in accordance with
the terms of the Receivable and (ii) any Cram Down Loss in respect of such
Receivable plus (y) the accrued and unpaid interest on such Receivable.
"PRINCIPAL DISTRIBUTABLE AMOUNT" means, with respect to any
Distribution Date, the amount equal to the excess, if any, of (x) the sum of (i)
the principal portion of all Collected Funds received during the immediately
preceding Collection Period (other than Liquidated Receivables and Purchased
Receivables), (ii) the Principal Balance of all Receivables that became
Liquidated Receivables during the related Collection Period (other than
Purchased Receivables), (iii) the principal portion of the Purchase Amounts
received with respect to all Receivables that became Purchased Receivables
during the related Collection Period, (iv) in the sole discretion of the
Insurer, the Principal Balance of all the Receivables that were required to be
purchased pursuant to Sections 3.2 and 4.7, during such Collection Period but
were not purchased, (v) the aggregate amount of Cram Down Losses that shall have
occurred during the related Collection Period; and (vi) following the
acceleration of the Notes pursuant to Section 5.2 of the Indenture, the amount
of money or property collected pursuant to Section 5.4 of the Indenture since
the preceding Determination Date by the Trust Collateral Agent or Controlling
Party for distribution pursuant to Section 5.7 hereof over (y) the Step-Down
Amount, if any, for such Distribution Date.
"PRO FORMA NOTE BALANCE" means, with respect to any Distribution
Date, the aggregate remaining principal balance of the Notes outstanding on such
Distribution Date, after giving effect to distributions pursuant to clauses (i)
through (v) of Section 5.7(b) hereof.
"PURCHASE AGREEMENT" means the Purchase Agreement among the Seller
and AmeriCredit, dated as of October 17, 2001, pursuant to which the Seller
acquired the Initial Receivables, as such Agreement may be amended from time to
time.
"PURCHASE AMOUNT" means, with respect to a Receivable, the Principal
Balance and all accrued and unpaid interest on the Receivable, after giving
effect to the receipt of any moneys collected (from whatever source) on such
Receivable, if any.
"PURCHASED RECEIVABLE" means a Receivable purchased as of the close
of business on the last day of a Collection Period by the Servicer pursuant to
Section 4.7 or repurchased by the Seller 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
18
the Seller and acceptable to the Insurer (so long as an Insurer Default shall
not have occurred and be continuing), notice of which designation shall be given
to the Trust Collateral Agent, the Owner Trustee and the Servicer.
"RATING AGENCY CONDITION" means, with respect to any action, that
each Rating Agency shall have been given 10 days' (or such shorter period as
shall be acceptable to each Rating Agency) prior notice thereof and that each of
the Rating Agencies shall have notified the Seller, the Servicer, the Insurer,
the Owner Trustee and the Trust Collateral Agent in writing that such action
will not result in a reduction or withdrawal of the then current rating of any
Class of Notes.
"RCCA AGENT" means Credit Suisse First Boston, New York Branch, in
its capacity as the Administrative Agent under the RCCA Agreement.
"RCCA AGREEMENT" means the Replacement Cash Collateral Account
Agreement dated as of October 14, 1999, among the Seller, the Security Insurer,
the RCCA Agent and Bank One, NA, as collateral agent.
"RCCA PREMIUM" means the fees due to the Lenders (as defined in the
RCCA Agreement) in the amounts specified in the RCCA Agreement or related
agreements.
"REALIZED LOSSES" means, with respect to any Receivable that becomes
a Liquidated Receivable, the excess of the Principal Balance of such Liquidated
Receivable over Net Liquidation Proceeds to the extent allocable to principal.
"RECEIVABLE" means any Contract listed on Schedule A, as such
Schedule shall be amended to reflect the transfer of Subsequent Receivables to
the Trust (which Schedule may be in the form of microfiche or a disk).
"RECEIVABLE FILES" means the documents specified in Section 3.3.
"RECORD DATE" means, with respect to each Distribution Date, the
Business Day immediately preceding such Distribution Date, unless otherwise
specified in the Agreement. The "Record Date" for any Insured Distribution Date
shall be the "Record Date" applicable to the related Distribution Date.
"REGISTRAR OF TITLES" means, with respect to any state, the
governmental agency or body responsible for the registration of, and the
issuance of certificates of title relating to, motor vehicles and liens thereon.
"REQUIRED PRO FORMA NOTE BALANCE" means, with respect to any
Distribution Date, a dollar amount equal to the product of (x) 91% and (y) the
Pool Balance as of the end of the prior calendar month.
"REQUISITE AMOUNT" has the meaning specified in the Spread Account
Agreement Supplement.
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"SCHEDULE OF RECEIVABLES" means the schedule of all retail
installment sales contracts and promissory notes originally held as part of the
Trust which is attached as Schedule A.
"SCHEDULE OF REPRESENTATIONS" 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 Soldiers' and Sailors'
Civil Relief Act of 1940 or (iii) modifications or extensions of the Receivable
permitted by Section 4.2(b), the Scheduled Receivables Payment with respect to
such Collection Period shall refer to the Obligor's payment obligation with
respect to such Collection Period as so modified.
"SELLER" means AFS Funding Corp., a Nevada corporation, and its
successors in interest to the extent permitted hereunder.
"SERVICE CONTRACT" means, with respect to a Financed Vehicle, the
agreement, if any, financed under the related Receivable that provides for the
repair of such Financed Vehicle.
"SERVICER" means AmeriCredit Financial Services, Inc., as the
servicer of the Receivables, and each successor Servicer pursuant to Section
9.3.
"SERVICER TERMINATION EVENT" means an event specified in Section
9.1.
"SERVICER'S CERTIFICATE" means an Officers' Certificate of the
Servicer delivered pursuant to Section 4.9(b), substantially in the form of
Exhibit B.
"SERVICING FEE" has the meaning specified in Section 4.8.
"SERVICING FEE RATE" means 2.25% per annum.
"SIMPLE INTEREST METHOD" means the method of allocating a fixed
level payment on an obligation between principal and interest, pursuant to which
the portion of such payment that is allocated to interest is equal to the
product of the fixed rate of interest on such obligation multiplied by the
period of time (expressed as a fraction of a year, based on the actual number of
days in the calendar month and 365 days in the calendar year) elapsed since the
preceding payment under the obligation was made.
"SPREAD ACCOUNT" means the account designated as such, established
and maintained pursuant to the Spread Account Agreement Supplement.
"SPREAD ACCOUNT AGREEMENT" means the Spread Account Agreement dated
as of December 1, 1994 as amended and restated as of May 11, 1998 as amended as
of October 25, 1999, as further amended as of May 22, 2000, and as further
amended and restated as of
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November 29, 2000, among the Insurer, the Seller and the Collateral Agent, as
the same may be modified, supplemented or otherwise amended in accordance with
the terms thereof.
"SPREAD ACCOUNT AGREEMENT SUPPLEMENT" means the Series 2001-D Spread
Account Agreement Supplement dated as of October 17, 2001 among the Insurer, AFS
Funding Trust 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 Initial Receivables on the Closing Date
(which is equal to $17,999,979.18).
"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 Subsequent Transfer Date.
"SUBSEQUENT PURCHASE AGREEMENT" means an agreement by and between
the Seller and AmeriCredit pursuant to which the Seller will acquire Subsequent
Receivables.
"SUBSEQUENT RECEIVABLES" means the Receivables transferred to the
Issuer pursuant to Section 2.2, which shall be listed on Schedule A to the
related Subsequent Transfer Agreement.
"SUBSEQUENT SPREAD ACCOUNT DEPOSIT" means, with respect to each
Subsequent Transfer Date, an amount equal to 2.0% of the aggregate principal
balance of Subsequent Receivables as of the related Subsequent Cutoff Date
transferred to the Trust on such Subsequent Transfer Date from amounts released
from the Pre-Funding Account.
"SUBSEQUENT TRANSFER AGREEMENT" means the agreement among the
Issuer, the Seller and the Servicer, substantially in the form of Exhibit A.
"SUBSEQUENT TRANSFER DATE" means, with respect to Subsequent
Receivables, any date, occurring not more frequently than once a month, during
the Funding Period on which Subsequent Receivables are to be transferred to the
Trust pursuant to this Agreement, and a Subsequent Transfer Agreement is
executed and delivered to the Trust.
"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,
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prepayment fees and liquidation fees collected on the Receivables during such
Collection Period but excluding any fees or expenses related to extensions.
"SWAP AGREEMENT" means the ISDA Master Agreement dated October 24,
2001 between the Issuer and the Swap Provider, including the Schedule thereto,
the Credit Support Annex thereto, the Confirmations relating to each of the
Class A-2 and Class A-3 Notes, and together with any replacement swap agreement
thereafter approved by the Insurer; PROVIDED, that no additional swap agreement
shall be a "Swap Agreement" under the Basic Documents for so long as the Swap
Agreement is outstanding without the prior, written consent of the Swap Provider
"SWAP PAYMENT" means any payment received by the Trust Collateral
Agent under the Swap Agreement.
"SWAP PAYMENT DATE" means the sixth day of each month (or, if such
sixth day is not a Business Day, on the next following Business Day).
"SWAP PROVIDER" means Deutsche Bank AG, together with any
replacement Swap Provider thereafter approved by the Insurer.
"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.
"TRIGGER EVENT" has the meaning assigned thereto in the Spread
Account Agreement Supplement.
"TRUST" means the Issuer.
"TRUST ACCOUNT PROPERTY" means the Trust Accounts, all amounts and
investments held from time to time in any Trust Account (whether in the form of
deposit accounts, Physical Property, book-entry securities, uncertificated
securities or otherwise), and all proceeds of the foregoing.
"TRUST ACCOUNTS" has the meaning assigned thereto in Section 5.1.
"TRUST AGREEMENT" means the Trust Agreement dated as of October 4,
2001, between the Seller and the Owner Trustee, as amended and restated as of
October 17, 2001, 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 Section 2.1, together with certain monies paid on or after the Initial
Cut-off Date, the Note Policy, the Collection Account (including all Eligible
Investments therein and all proceeds therefrom), the Lockbox Account and certain
other rights under this Agreement. Although the Seller has pledged the Spread
Account to the Trust Collateral Agent and the Insurer pursuant to the Spread
Account Agreement, the Spread Account shall not under any circumstances be
deemed to be a part of or otherwise includable in the Trust or the Trust
Property.
"TRUSTEE" means the Person acting as Trustee under the Indenture,
its successors in interest and any successor trustee under the Indenture.
"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
23
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:
(a) the Initial Receivables and all moneys received thereon after the
Initial Cutoff Date;
(b) an assignment of the security interests in the Financed Vehicles
granted by Obligors pursuant to the Initial Receivables and any other interest
of the Seller in such Financed Vehicles;
(c) any proceeds and the right to receive proceeds with respect to the
Initial Receivables from claims on any physical damage, credit life or
disability insurance policies covering Financed Vehicles or Obligors and any
proceeds from the liquidation of the Initial Receivables;
(d) 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 Agreement;
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(e) all rights under any Service Contracts on the related Financed
Vehicles;
(f) the related Receivables Files;
(g) all of the Seller's right, title and interest in its rights and
benefits, but none of its obligations or burdens, under the Purchase Agreement,
including the Seller's rights under the Purchase Agreement, and the delivery
requirements, representations and warranties and the cure and repurchase
obligations of AmeriCredit under the Purchase Agreement; and
(h) the proceeds of any and all of the foregoing.
It is the intention of the Seller that the transfer and assignment
contemplated by this Agreement shall constitute a sale of the Receivables and
other Trust Property from the Seller to the Issuer and the beneficial interest
in and title to the Receivables and the other Trust Property shall not be part
of the Seller's estate in the event of the filing of a bankruptcy petition by or
against the Seller under any bankruptcy law. In the event that, notwithstanding
the intent of the Seller, the transfer and assignment contemplated hereby is
held by a court of competent jurisdiction not to be a sale, this Agreement shall
constitute a grant of a security interest in the property referred to in this
Section for the benefit of the Noteholders and the Insurer.
SECTION 2.2 CONVEYANCE OF SUBSEQUENT RECEIVABLES.
(a) Subject to the conditions set forth in paragraph (b) below, in
consideration of the Issuer's delivery on each related Subsequent Transfer Date
to or upon the order of the Seller of the amount described in Section 5.9(a) to
be delivered to the Seller, the Seller does hereby sell, transfer, assign, set
over and otherwise convey to the Issuer without recourse (subject to the
obligations set forth herein), all right, title and interest of the Seller in
and to:
(i) the Subsequent Receivables listed on Schedule A to the related
Subsequent Transfer Agreement;
(ii) the security interests in the Financed Vehicles granted by
Obligors pursuant to such Subsequent Receivables and any other interest of
the Seller in such Financed Vehicles;
(iii) any proceeds and the right to receive proceeds with respect to
such Subsequent Receivables from claims on any physical damage, credit
life or disability insurance policies covering the related Financed
Vehicles or Obligors and any proceeds from the liquidation of such
Subsequent Receivables;
(iv) 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 Receivables Files;
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(vii) all of the Seller's right, title and interest in its rights
and benefits, but none of its obligations or burdens, under each of the
Subsequent Purchase Agreements, including the Seller's rights under each
of the Subsequent Purchase Agreements, and the delivery requirements,
representations and warranties and the cure and repurchase obligations of
AmeriCredit under each of the Subsequent Purchase Agreements, on or after
the related Subsequent Cutoff Date; and
(viii) the proceeds of any and all of the foregoing.
(b) The Seller shall transfer to the Issuer the Subsequent Receivables
and the other property and rights related thereto described in paragraph (a)
above only upon the satisfaction of each of the following conditions on or prior
to the related Subsequent Transfer Date:
(i) the Seller shall have provided the Trust Collateral Agent, the
Owner Trustee, the Insurer and the Rating Agencies with an Addition Notice
not later than five days prior to such Subsequent Transfer Date and shall
have provided any information reasonably requested by any of the foregoing
with respect to the Subsequent Receivables;
(ii) the Seller shall have delivered to the Owner Trustee and the
Trust Collateral Agent a duly executed Subsequent Transfer Agreement which
shall include supplements to Schedule A, listing the Subsequent
Receivables;
(iii) the Seller shall, to the extent required by Section 4.2, have
deposited in the Collection Account all collections in respect of the
Subsequent Receivables;
(iv) as of each Subsequent Transfer Date, (A) the Seller shall not
be insolvent and shall not become insolvent as a result of the transfer of
Subsequent Receivables on such Subsequent Transfer Date, (B) the Seller
shall not intend to incur or believe that it shall incur debts that would
be beyond its ability to pay as such debts mature, (C) such transfer shall
not have been made with actual intent to hinder, delay or defraud any
Person and (D) the assets of the Seller shall not constitute unreasonably
small capital to carry out its business as conducted;
(v) the Funding Period shall not have terminated;
(vi) after giving effect to any transfer of Subsequent Receivables
on a Subsequent Transfer Date, the Receivables transferred to the Trust
pursuant hereto shall meet the following criteria (based on the
characteristics of the Initial Receivables on the Initial Cutoff Date and
the Subsequent Receivables on the related Subsequent Cutoff Dates) as such
information is provided to the Trust Collateral Agent by the Servicer: (i)
the weighted average APR of the Receivables transferred to the Trust shall
not be less than 17%, unless, with the prior consent of the Rating
Agencies and the Insurer, the Seller increases the Spread Account Initial
Deposit with respect to such Subsequent Receivables by the amount required
by the Insurer; (ii) the weighted average remaining term of the
Receivables transferred to the Trust shall not be greater than 72 months;
(iii) not more than 35% of the Aggregate Principal Balance shall have
Obligors whose mailing addresses are in Texas and California; (iv) not
more than 40% (calculated by Aggregate Principal Balance) of the
Receivables shall have an original term to maturity
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of 72 months; and (v) the weighted average AmeriCredit proprietary credit
score of all 72-month loans is greater than or equal to 230.
(vii) each of the representations and warranties made by the Seller
pursuant to Section 3.1 with respect to the Subsequent Receivables to be
transferred on such Subsequent Transfer Date shall be true and correct as
of the related Subsequent Transfer Date, and the Seller shall have
performed all obligations to be performed by it hereunder on or prior to
such Subsequent Transfer Date;
(viii) the Seller shall, at its own expense, on or prior to the
Subsequent Transfer Date indicate in its computer files that the
Subsequent Receivables identified in the Subsequent Transfer Agreement
have been sold to the Trust pursuant to this Agreement;
(ix) the Seller shall have taken any action required to maintain the
first priority perfected ownership interest of the Trust in the Owner
Trust Estate and the first perfected security interest of the Trust
Collateral Agent in the Collateral;
(x) no selection procedures adverse to the interests of the
Noteholders or the Insurer shall have been utilized in selecting the
Subsequent Receivables;
(xi) the addition of any such Subsequent Receivables shall not
result in a material adverse tax consequence to the Trust or the
Noteholders;
(xii) the Seller shall have delivered (A) to the Rating Agencies and
the Insurer an Opinion of Counsel with respect to the transfer of such
Subsequent Receivables substantially in the form of the Opinion of Counsel
delivered to the Rating Agencies and the Insurer on the Closing Date and
(B) to the Trust Collateral Agent the Opinion of Counsel required by
Section 12.2(h)(1);
(xiii) Standard & Poor's shall have confirmed in writing to the
Trust Collateral Agent that the rating on the Notes shall not be withdrawn
or reduced as a result of the transfer of such Subsequent Receivables to
the Trust;
(xiv) the Insurer (so long as no Insurer Default shall have occurred
and be continuing), in its absolute and sole discretion, shall have
approved the transfer of such Subsequent Receivables to the Trust and the
Insurer shall have been reimbursed for any fees and expenses incurred by
the Insurer in connection with the granting of such approval;
(xv) the Seller shall simultaneously transfer the Subsequent Spread
Account Deposit to the Trust Collateral Agent with respect to the
Subsequent Receivables transferred on such Subsequent Transfer Date; and
(xvi) the Seller shall have delivered to the Insurer and the Trust
Collateral Agent an Officers' Certificate confirming the satisfaction of
each condition precedent specified in this paragraph (b).
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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, all right, title and interest of
the Seller in and to such item of Trust Property shall terminate, and all such
right, title and interest shall vest in the Trust, in accordance with the Trust
Agreement and Sections 3802 and 3805 of the Business Trust Statute (as defined
in the Trust Agreement).
(b) Immediately upon the vesting of the Trust Property in the Trust, the
Trust shall have the sole right to pledge or otherwise encumber, such Trust
Property. Pursuant to the Indenture, the Trust shall grant a security interest
in the Trust Property to the Trust Collateral Agent 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.
(c) Following the payment in full of the Notes and the release and
discharge of the Indenture, all covenants of the Issuer under Article III of the
Indenture shall, until payment in full of the Certificates, remain as covenants
of the Issuer for the benefit of the Certificateholders, enforceable by the
Certificateholders to the same extent as such covenants were enforceable by the
Noteholders prior to the discharge of the Indenture. Any rights of the Trustee
under Article III of the Indenture, following the discharge of the Indenture,
shall vest in Certificateholders.
(d) The Trust Collateral Agent shall, at such time as there are no
Securities outstanding and all sums due to (i) the Trustee pursuant to the
Indenture and (ii) the Trust Collateral Agent pursuant to this Agreement, have
been paid, release any remaining portion of the Trust Property to the Seller.
ARTICLE III
THE RECEIVABLES
SECTION 3.1. REPRESENTATIONS AND WARRANTIES OF SELLER. The Seller hereby
represents and warrants that each of the representations and warranties set
forth on the Schedule of Representations attached hereto as Schedule B is true
and correct on which the Issuer is deemed to have relied in acquiring the
Receivables and upon which the Insurer shall be deemed to rely in issuing the
Note Policy. Such representations and warranties speak as of the execution and
delivery of this Agreement and as of the Closing Date in the case of the Initial
Receivables, and as of the related Subsequent Transfer Date in case of the
Subsequent Receivables, but shall survive the sale, transfer and assignment of
the Receivables to the Issuer and the pledge thereof to the Trustee pursuant to
the Indenture.
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SECTION 3.2. REPURCHASE UPON BREACH.
(a) The Seller, the Servicer, the Insurer, the Trust Collateral Agent or
the Owner Trustee, as the case may be, shall inform the other parties to this
Agreement promptly, notice in writing, upon the discovery of any breach of the
Seller's representations and warranties made pursuant to Section 3.1. As of the
last day of the second (or, if the Seller so elects, the first) month following
the discovery by the Seller or receipt by the Seller of notice of such breach,
unless such breach is cured by such date, the Seller shall have an obligation to
repurchase any Receivable in which the interests of the Noteholders or the
Insurer are materially and adversely affected by any such breach as of such
date. The "second month" shall mean the month following the month in which
discovery occurs or notice is given, and the "first month" shall mean the month
in which discovery occurs or notice is given. In consideration of and
simultaneously with the repurchase of the Receivable, the Seller shall remit, or
cause AmeriCredit to remit, to the Collection Account the Purchase Amount in the
manner specified in Section 5.6 and the Issuer shall execute such assignments
and other documents reasonably requested by such person in order to effect such
repurchase. The sole remedy of the Issuer, the Owner Trustee, the Trust
Collateral Agent, the Trustee or the Noteholders with respect to a breach of
representations and warranties pursuant to Section 3.1 and the agreement
contained in this Section shall be the repurchase of Receivables pursuant to
this Section, subject to the conditions contained herein or to enforce the
obligation of AmeriCredit to the Seller to repurchase such Receivables pursuant
to the Purchase Agreement. Neither the Owner Trustee, the Trust Collateral Agent
nor the Trustee shall have a duty to conduct any affirmative investigation as to
the occurrence of any conditions requiring the repurchase of any Receivable
pursuant to this Section.
In addition to the foregoing and notwithstanding whether the related
Receivable shall have been purchased by the Seller, the Seller shall indemnify
the Trust, the Trustee, the Backup Servicer, the Trust Collateral Agent,
Collateral Agent and the officers, directors, agents and employees thereof, the
Insurer, and the Noteholders against all costs, expenses, losses, damages,
claims and liabilities, including reasonable fees and expenses of counsel, which
may be asserted against or incurred by any of them as a result of third party
claims arising out of the events or facts giving rise to such breach.
(b) Pursuant to Section 2.1 of this Agreement, the Seller conveyed to the
Trust all of the Seller's right, title and interest in its rights and benefits,
but none of its obligations or burdens, under the Purchase Agreement including
the Seller's rights under the Purchase Agreement and the delivery requirements,
representations and warranties and the cure or repurchase obligations of
AmeriCredit thereunder. The Seller hereby represents and warrants to the Trust
that such assignment is valid, enforceable and effective to permit the Trust to
enforce such obligations of AmeriCredit under the Purchase Agreement.
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SECTION 3.3 CUSTODY OF RECEIVABLES FILES.
(a) In connection with the sale, transfer and assignment of the
Receivables and the Other Conveyed Property to the Trust pursuant to this
Agreement and simultaneously with the execution and delivery of this Agreement,
the Trust Collateral Agent shall enter into the Custodian Agreement with the
Custodian, dated as of October 17, 2001, pursuant to which the Trust Collateral
Agent shall revocably appoint the Custodian, and the Custodian shall accept such
appointment, to act as the agent of the Trust Collateral Agent as custodian of
the following documents or instruments in its possession which shall be
delivered to the Custodian as agent of the Trust Collateral Agent on or before
the Closing Date (with respect to each Receivable):
(i) The fully executed original of the Receivable (together with any
agreements modifying the Receivable, including, without limitation, any
extension agreements);
(ii) The original credit application, or a copy thereof, of each
Obligor, fully executed by each such Obligor on AmeriCredit's customary
form, or on a form approved by AmeriCredit, for such application; and
(iii) The original certificate of title (when received) and
otherwise such documents, if any, that AmeriCredit keeps on file in
accordance with its customary procedures indicating that the Financed
Vehicle is owned by the Obligor and subject to the interest of AmeriCredit
as first lienholder or secured party (including any Lien Certificate
received by AmeriCredit), or, if such original certificate of title has
not yet been received, a copy of the application therefor, showing
AmeriCredit as secured party.
(b) The Trust Collateral Agent may act as the Custodian, in which case the
Trust Collateral Agent shall be deemed to have assumed the obligations of the
Custodian specified in the Custodian Agreement. Upon payment in full of any
Receivable, the Servicer will notify the Custodian pursuant to a certificate of
an officer of the Servicer (which certificate shall include a statement to the
effect that all amounts received in connection with such payments which are
required to be deposited in the Collection Account pursuant to Section 4.1 have
been so deposited) and shall request delivery of the Receivable and Receivable
File to the Servicer. From time to time as appropriate for servicing and
enforcing any Receivable, the Custodian shall, upon written request of an
officer of the Servicer and delivery to the Custodian of a receipt signed by
such officer, cause the original Receivable and the related Receivable File to
be released to the Servicer. The Servicer's receipt of a Receivable and/or
Receivable File shall obligate the Servicer to return the original Receivable
and the related Receivable File to the Custodian when its need by the Servicer
has ceased unless the Receivable is repurchased as described in Section 3.2 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
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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 of Insurance Policies with respect to the
Financed Vehicles and performing the other duties specified herein.
The Servicer shall also administer and enforce all rights and
responsibilities of the holder of the Receivables provided for in the Dealer
Agreements and 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.
The Servicer is hereby authorized to commence, in it's own name or
in the name of the Trust, a legal proceeding to enforce a Receivable pursuant to
Section 4.3 or to commence or participate in any other legal proceeding
(including, without limitation, a bankruptcy proceeding) relating to or
involving a Receivable, an Obligor or a Financed Vehicle. If the Servicer
commences or participates in such a legal proceeding in its own name, the Trust
shall thereupon 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
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which the Servicer may reasonably request and which the Servicer deems necessary
or appropriate and take any other steps which the Servicer may deem necessary or
appropriate to enable the Servicer to carry out its servicing and administrative
duties under this Agreement.
SECTION 4.2. COLLECTION OF RECEIVABLE PAYMENTS; MODIFICATIONS OF
RECEIVABLES; LOCKBOX AGREEMENTS.
(a) Consistent with the standards, policies and procedures required by
this Agreement, the Servicer shall make reasonable efforts to collect all
payments called for under the terms and provisions of the Receivables as and
when the same shall become due, and shall follow such collection procedures as
it follows with respect to all comparable automobile receivables that it
services for itself or others and otherwise act with respect to the Receivables,
the Dealer Agreements, the Dealer Assignments, the 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. The Servicer is authorized in its discretion to waive any prepayment
charge, late payment charge or any other similar fees that may be collected in
the ordinary course of servicing any Receivable.
(b) The Servicer may at any time agree to a modification or amendment of a
Receivable in order to (i) change the Obligor's regular due date to a date
within the Collection Period in which such due date occurs or (ii) re-amortize
the Scheduled Receivables Payments on the Receivable following a partial
prepayment of principal, in accordance with its customary procedures if the
Servicer believes in good faith that such extension, modification or amendment
is necessary to avoid a default on such Receivable, will maximize the amount to
be received by the Trust with respect to such Receivable, and is otherwise in
the best interests of the Trust.
(c) The Servicer may grant payment extensions on, or other modifications
or amendments to, a receivable (in addition to those modifications permitted by
Section 4.2(b)) in accordance with its customary procedures if the Servicer
believes in good faith that such extension, modification or amendment is
necessary to avoid a default on such Receivable, will maximize the amount to be
received by the Trust with respect to such Receivable, and is otherwise in the
best interests of the Trust; PROVIDED, HOWEVER, that:
(i) The aggregate period of all extensions on a Receivable shall not
exceed 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).
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With respect to clause (iii) of this Section 4.2(c), in the event
the average of the Monthly Extension Rates calculated with respect to three
consecutive calendar months exceeds 4% (which information shall be set forth in
the related Servicer's Certificate), the Servicer shall, on the third such
Accounting Date, purchase from the Trust the Receivables with respect to which
payment had been extended (starting with the Receivables most recently so
extended) in an aggregate Principal Balance equal to the product of (i) the
difference between such average of Monthly Extension Rates and 4% and (ii) the
Aggregate Principal Balance, and pay the related Purchase Amount on the related
Preliminary Determination Date; PROVIDED, HOWEVER, that in the event the Backup
Servicer shall be acting as Servicer hereunder, the foregoing sentence shall
apply only in respect of Receivables as to which payments had been extended by
such Backup Servicer.
(d) The Servicer shall use its best efforts to notify or direct Obligors
to make all payments on the Receivables, whether by check or by direct debit of
the Obligor's bank account, to be made directly to one or more Lockbox Banks,
acting as agent for the Trust pursuant to a Lockbox Agreement. The Servicer
shall use its best efforts to notify or direct any Lockbox Bank to deposit all
payments on the Receivables in the Lockbox Account no later than the Business
Day after receipt, and to cause all amounts credited to the Lockbox Account on
account of such payments to be transferred to the Collection Account no later
than the second Business Day after receipt of such payments. The Lockbox Account
shall be a demand deposit account held by the Lockbox Bank, or at the request of
the Controlling Party, an Eligible Account.
Prior to the Closing Date, the Servicer shall have notified each
Obligor that makes its payments on the Receivables by check to make such
payments thereafter directly to the Lockbox Bank (except in the case of Obligors
that have already been making such payments to the Lockbox Bank), and shall have
provided each such Obligor with remittance invoices in order to enable such
Obligors to make such payments directly to the Lockbox Bank for deposit into the
Lockbox Account, and the Servicer will continue, not less often than every three
months, to so notify those Obligors who have failed to make payments to the
Lockbox Bank. If and to the extent requested by the Controlling Party, the
Servicer shall request each Obligor that makes payment on the Receivables by
direct debit of such Obligor's bank account, to execute a new authorization for
automatic payment which in the judgment of the Controlling Party is sufficient
to authorize direct debit by the Lockbox Bank on behalf of the Trust. If at any
time, the Lockbox Bank is unable to directly debit an Obligor's bank account
that makes payment on the Receivables by direct debit and if such inability is
not cured within 15 days or cannot be cured by execution by the Obligor of a new
authorization for automatic payment, the Servicer shall notify such Obligor that
it cannot make payment by direct debit and must thereafter make payment by
check.
Notwithstanding any Lockbox Agreement, or any of the provisions of
this Agreement relating to the Lockbox Agreement, the Servicer shall remain
obligated and liable to the Trust, the Trust Collateral Agent and Noteholders
for servicing and administering the Receivables and the Other Conveyed Property
in accordance with the provisions of this Agreement without 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.
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In the event of a termination of the Servicer, the successor
Servicer shall assume all of the rights and obligations of the outgoing Servicer
under the Lockbox Agreement subject to the terms hereof. In such event, the
successor Servicer shall be deemed to have assumed all of the outgoing
Servicer's interest therein and to have replaced the outgoing Servicer as a
party to each such Lockbox Agreement to the same extent as if such Lockbox
Agreement had been assigned to the successor Servicer, except that the outgoing
Servicer shall not thereby be relieved of any liability or obligations on the
part of the outgoing Servicer to the Lockbox Bank under such Lockbox Agreement.
The outgoing Servicer shall, upon request of the Trust Collateral Agent, but at
the expense of the outgoing Servicer, deliver to the successor Servicer all
documents and records relating to each such Lockbox Agreement and an accounting
of amounts collected and held by the Lockbox Bank and otherwise use its best
efforts to effect the orderly and efficient transfer of any Lockbox Agreement to
the successor Servicer. In the event that the Insurer (so long as an Insurer
Default shall not have occurred and be continuing) or a Note Majority (if an
Insurer Default shall have occurred and be continuing) elects to change the
identity of the Lockbox Bank, the outgoing Servicer, at its expense, shall cause
the Lockbox Bank to deliver, at the direction of the Insurer (so long as an
Insurer Default shall not have occurred and be continuing) or a Note Majority
(if an Insurer Default shall have occurred and be continuing) to the Trust
Collateral Agent or a successor Lockbox Bank, all documents and records relating
to the Receivables and all amounts held (or thereafter received) by the Lockbox
Bank (together with an accounting of such amounts) and shall otherwise use its
best efforts to effect the orderly and efficient transfer of the lockbox
arrangements and the Servicer shall notify the Obligors to make payments to the
Lockbox established by the successor.
(e) The Servicer shall remit all payments by or on behalf of the Obligors
received directly by the Servicer to the Lockbox Bank for deposit into the
Collection Account, in either case, without deposit into any intervening account
and as soon as practicable, but in no event later than the Business Day after
receipt thereof.
SECTION 4.3. REALIZATION UPON RECEIVABLES.
(a) Consistent with the standards, policies and procedures required by
this Agreement, the Servicer shall use its best efforts to repossess (or
otherwise comparably convert the ownership of) and liquidate any Financed
Vehicle securing a Receivable with respect to which the Servicer has determined
that payments thereunder are not likely to be resumed, as soon as is practicable
after default on such Receivable but in no event later than the date on which
all or any portion of a Scheduled Receivables Payment has become 91 days
delinquent; PROVIDED, HOWEVER, that the Servicer may elect not to repossess a
Financed Vehicle within such time period if in its good faith judgment it
determines that the proceeds ultimately recoverable with respect to such
Receivable would be increased by forbearance. The Servicer is authorized to
follow such customary practices and procedures as it shall deem necessary or
advisable, consistent with the standard of care required by Section 4.1, which
practices and procedures may include reasonable efforts to realize upon any
recourse to Dealers 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
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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 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 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 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 the
Servicer's expense, or the Seller, at the Seller's expense, shall take such
steps as the Servicer deems reasonably necessary to enforce the Dealer
Agreement, 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
Agent for the benefit of the Noteholders. All amounts recovered shall be
remitted directly by the Servicer as provided in Section 4.2(e).
SECTION 4.4. INSURANCE.
(a) The Servicer shall require, in accordance with its customary servicing
policies and procedures, that each Financed Vehicle be insured by the related
Obligor under the Insurance Policies referred to in Paragraph 24 of the Schedule
of Representations and Warranties and shall monitor the status of such physical
loss and damage insurance coverage thereafter, in accordance with its customary
servicing procedures. Each Receivable requires the Obligor to maintain such
physical loss and damage insurance, naming AmeriCredit and its successors and
assigns as additional insureds, and permits the holder of such Receivable to
obtain physical loss and damage insurance at the expense of the Obligor if the
Obligor fails to maintain such insurance. If the Servicer shall determine that
an Obligor has failed to obtain or maintain a physical loss and damage Insurance
Policy covering the related Financed Vehicle which satisfies the conditions set
forth in clause (i)(a) of such Paragraph 24 (including, without limitation,
during the repossession of such Financed Vehicle) the Servicer may enforce the
rights of the holder of the Receivable under the Receivable to require the
Obligor to obtain such physical loss and damage insurance in accordance with its
customary servicing policies and procedures. The Servicer may maintain a
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vendor's single interest or other collateral protection insurance policy with
respect to all Financed Vehicles ("COLLATERAL INSURANCE") which policy shall by
its terms insure against physical loss and damage in the event any Obligor fails
to maintain physical loss and damage insurance with respect to the related
Financed Vehicle. All policies of Collateral Insurance shall be endorsed with
clauses providing for loss payable to the Servicer. Costs incurred by the
Servicer in maintaining such Collateral Insurance shall be paid by the Servicer.
(b) The Servicer may, if an Obligor fails to obtain or maintain a physical
loss and damage Insurance Policy, obtain insurance with respect to the related
Financed Vehicle and advance on behalf of such Obligor, as required under the
terms of the insurance policy, the premiums for such insurance (such insurance
being referred to herein as "FORCE-PLACED INSURANCE"). All policies of
Force-Placed Insurance shall be endorsed with clauses providing for loss payable
to the Servicer. Any cost incurred by the Servicer in maintaining such
Force-Placed Insurance shall only be recoverable out of premiums paid by the
Obligors or 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
36
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.
(e) The Servicer will cause itself and may cause the Trust Collateral
Agent to be named as named insured under all policies of Collateral Insurance.
SECTION 4.5. MAINTENANCE OF SECURITY INTERESTS IN VEHICLES.
(a) Consistent with the policies and procedures required by this
Agreement, the Servicer shall take such steps on behalf of the Trust as are
necessary to maintain perfection of the security interest created by each
Receivable in the related Financed Vehicle, including, but not limited to,
obtaining the execution by the Obligors and the recording, registering, filing,
re-recording, re-filing, and re-registering of all security agreements,
financing statements and continuation statements as are necessary to maintain
the security interest granted by the Obligors under the respective Receivables.
The Trust Collateral Agent hereby authorizes the Servicer, and the Servicer
agrees, to take any and all steps necessary to re-perfect such security interest
on behalf of the Trust as necessary because of the relocation of a Financed
Vehicle or for any other reason. In the event that the assignment of a
Receivable to the Trust is insufficient, without a notation on the related
Financed Vehicle's certificate of title, or without fulfilling any additional
administrative requirements under the laws of the state in which the Financed
Vehicle is located, to perfect a security interest in the related Financed
Vehicle in favor of the Trust, the Servicer hereby agrees that AmeriCredit's
designation as the secured party on the certificate of title is in its capacity
as Servicer as agent of the Trust.
(b) Upon the occurrence of an Insurance Agreement Event of Default, the
Insurer may (so long as an Insurer Default shall not have occurred and be
continuing) instruct the Trust Collateral Agent and the Servicer to take or
cause to be taken, or, if an Insurer Default shall have occurred, upon the
occurrence of a Servicer Termination Event, the Trust Collateral Agent and the
Servicer shall take or cause to be taken such action as may, in the opinion of
counsel to the Controlling Party, be necessary to perfect or re-perfect the
security interests in the Financed Vehicles securing the Receivables in the name
of the Trust by amending the title documents of such Financed Vehicles or by
such other reasonable means as may, in the opinion of counsel to the Controlling
Party, be necessary or prudent.
AmeriCredit hereby agrees to pay all expenses related to such
perfection or reperfection and to take all action necessary therefor. In
addition, prior to the occurrence of an Insurance Agreement Event of Default,
the Controlling Party may instruct the Trust Collateral Agent and the Servicer
to take or cause to be taken such action as may, in the opinion of counsel to
the Controlling Party, be necessary to perfect or re-perfect the security
interest in the Financed Vehicles underlying the Receivables in the name of the
Trust, including by amending the title documents of such Financed Vehicles or by
such other reasonable means as may, in the opinion of counsel to the Controlling
Party, be necessary or prudent; PROVIDED, HOWEVER, that if the Controlling Party
requests 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
37
Collateral Agent as its attorney-in-fact to take any and all steps required to
be performed by 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 certificates of title 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
Supplement in favor of the Collateral Agent for the benefit of the Trust
Collateral Agent and Insurer, and the restrictions on transferability
imposed by this Agreement or (ii) sign or file under the Uniform
Commercial Code of any jurisdiction any financing statement which names
AmeriCredit or the Servicer as a debtor, or sign any security agreement
authorizing any secured party thereunder to file such financing statement,
with respect to the Receivables, except in each case any such instrument
solely securing the rights and preserving the Lien of the Trust Collateral
Agent, for the benefit of the Noteholders and the Insurer.
(b) The Servicer represents, warrants and covenants as of the Closing Date
as to itself that the representations and warranties set forth on the Schedule
of Representations attached hereto as Schedule B are true and correct, provided
that such representations and warranties contained therein and herein shall not
apply to any entity other than AmeriCredit.
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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 4.5(a) or
4.6(a), the party discovering such breach shall give prompt written notice to
the others; PROVIDED, HOWEVER, that the failure to give any such notice shall
not affect any obligation of AmeriCredit as Servicer under this Section. As of
the second Accounting Date following its discovery or receipt of notice of any
breach of any covenant set forth in Sections 4.5(a) or 4.6(a) which materially
and adversely affects the interests of the Noteholders or the Insurer in any
Receivable (including any Liquidated Receivable) (or, at AmeriCredit's election,
the first Accounting Date so following) or the related Financed Vehicle,
AmeriCredit shall, unless such breach shall have been cured in all material
respects, purchase from the Trust the Receivable affected by such breach and, on
the related Determination Date, AmeriCredit shall pay the related Purchase
Amount. It is understood and agreed that the obligation of AmeriCredit to
purchase any Receivable (including any Liquidated Receivable) with respect to
which such a breach has occurred and is continuing shall, if such obligation is
fulfilled, constitute the sole remedy against AmeriCredit for such breach
available to the Insurer, the Noteholders, the Owner Trustee or the Trust
Collateral Agent; PROVIDED, HOWEVER, that AmeriCredit shall indemnify the Trust,
the Backup Servicer, the Collateral Agent, the Insurer, the Owner Trustee, the
Trust Collateral Agent, the Trustee and the Noteholders from and against all
costs, expenses, losses, damages, claims and liabilities, including reasonable
fees and expenses of counsel, which may be asserted against or incurred by any
of them as a result of third party claims arising out of the events or facts
giving rise to such breach. This section shall survive the termination of this
Agreement and the earlier removal or resignation of the Trustee and/or the Trust
Collateral Agent and/or the Backup Servicer.
SECTION 4.8. TOTAL SERVICING FEE; PAYMENT OF CERTAIN EXPENSES BY SERVICER.
On each Distribution Date, the Servicer shall be entitled to receive out of the
Collection Account the 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 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 10:00 a.m. Eastern time on each Preliminary
Determination Date, the Servicer shall deliver (facsimile delivery being
acceptable) to the Trustee, the Owner Trustee,
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the Trust Collateral Agent, the Collateral Agent, the Backup Servicer, the
Insurer, the Collateral Agent, the Swap Provider 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 10:00 a.m. Eastern time on each Determination Date, the
Servicer shall deliver (facsimile delivery being acceptable) to the Trustee, the
Owner Trustee, the Trust Collateral Agent, the Backup Servicer, the Insurer, the
Collateral Agent and each Rating Agency a Servicer's Certificate executed by a
Responsible Officer of the Servicer containing among other things, (i) all
information necessary to enable the Trust Collateral Agent to make any
withdrawal and deposit required by Section 5.5 and to make the distributions
required by Section 5.7(c), (ii) a listing of all Purchased Receivables and
Administrative Receivables purchased as of the related Accounting Date,
identifying the Receivables so purchased, (iii) all information necessary to
enable the Trust Collateral Agent to send the statements to Noteholders and the
Insurer required by Section 5.10, and (iv) all information necessary to enable
the Trust Collateral Agent to reconcile the aggregate cash flows, the Collection
Account for the related Collection Period, Distribution Date and Insured
Distribution Date, including the accounting required by Section 5.10.
Receivables purchased by the Servicer or by the Seller on the related Accounting
Date and each Receivable which became a Liquidated Receivable or which was paid
in full during the related Collection Period shall be identified by account
number (as set forth in the Schedule of Receivables). In addition to the
information set forth in the preceding sentence, the Servicer's Certificate
shall also contain the following information: (a) the Delinquency Ratio, Average
Delinquency Ratio, Cumulative Default Ratio and Cumulative Net Loss Ratio (as
such terms are defined in the Spread Account Agreement) for such Determination
Date; (b) whether any Trigger Event has occurred as of such Determination Date;
(c) whether any Trigger Event that may have occurred as of a prior Determination
Date is deemed cured as of such Determination Date; and (d) whether to the
knowledge of the Servicer an Insurance Agreement Event of Default has occurred.
SECTION 4.10. ANNUAL STATEMENT AS TO COMPLIANCE, NOTICE OF SERVICER
TERMINATION EVENT.
(a) The Servicer shall deliver to the Trustee, the Owner Trustee, the
Trust Collateral Agent, the Backup Servicer, the Insurer and each Rating Agency,
on or before October 31 (or 120 days after the end of the Servicer's fiscal
year, if other than June 30) of each year, beginning on October 31, 2002, an
officer's certificate signed by any Responsible Officer of the Servicer, dated
as of June 30 (or other applicable date) of such year, stating that (i) a review
of the activities of the Servicer during the preceding 12-month period (or such
other period as shall have elapsed from the Closing Date to the date of the
first such certificate (which period shall not be less than six months)) and of
its performance under this Agreement has been made under such officer's
supervision, and (ii) to such officer's knowledge, based on such review, the
Servicer has fulfilled all its obligations under this Agreement throughout such
period, or, if there has been a default in the fulfillment of any such
obligation, specifying each such default known to such officer and the nature
and status thereof.
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(b) The Servicer shall deliver to the Trustee, the Owner Trustee, the
Trust Collateral Agent, the Backup Servicer, the Insurer, the Collateral Agent,
and each Rating Agency, promptly after having obtained knowledge thereof, but in
no event later than two (2) Business Days thereafter, written notice in an
officer's certificate of any event which with the giving of notice or lapse of
time, or both, would become a Servicer Termination Event under Section 9.1(a).
The Seller or the Servicer shall deliver to the Trustee, the Owner Trustee, the
Trust Collateral Agent, the Backup Servicer, the Insurer, the Collateral Agent,
the Servicer or the Seller (as applicable) and each Rating Agency promptly after
having obtained knowledge thereof, but in no event later than two (2) Business
Days thereafter, written notice in an officer's certificate of any event which
with the giving of notice or lapse of time, or both, would become a Servicer
Termination Event under any other clause of Section 9.1.
SECTION 4.11. ANNUAL INDEPENDENT ACCOUNTANTS' REPORT.
The Servicer shall cause a firm of nationally recognized independent
certified public accountants (the "INDEPENDENT ACCOUNTANTS"), who may also
render other services to the Servicer or to the Seller, to deliver to the
Trustee, the Owner Trustee, the Trust Collateral Agent, the Backup Servicer, the
Insurer and each Rating Agency, on or before October 31 (or 120 days after the
end of the Servicer's fiscal year, if other than June 30) of each year,
beginning on October 31, 2002, 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 statement (the
"ACCOUNTANTS' REPORT") addressed to the Board of Directors of the Servicer, to
the Trustee, the Owner Trustee, the Trust Collateral Agent, the Backup Servicer
and to the Insurer, to the effect that such firm has audited the books and
records of AmeriCredit Corp., in which the Servicer is included as a
consolidated subsidiary, and issued its report thereon in connection with the
audit report on the consolidated financial statements of AmeriCredit Corp. and
that (1) such audit was made in accordance with generally accepted auditing
standards, and accordingly included such tests of the accounting records and
such other auditing procedures as such firm considered necessary in the
circumstances; (2) the firm is independent of the Seller and the Servicer within
the meaning of the Code of Professional Ethics of the American Institute of
Certified Public Accountants, and (3) includes a report on the application of
agreed upon procedures to three randomly selected Servicer's Certificates
including the delinquency, default and loss statistics required to be specified
therein noting whether any exceptions or errors in the Servicer's Certificates
were found.
SECTION 4.12. ACCESS TO CERTAIN DOCUMENTATION AND INFORMATION REGARDING
RECEIVABLES. The Servicer shall provide to representatives of the Trustee, the
Owner Trustee, the Trust Collateral Agent, the Backup Servicer and the Insurer
reasonable access to the documentation regarding the Receivables. In each case,
such access shall be afforded without charge but only upon reasonable request
and during normal business hours. Nothing in this Section shall affect the
obligation of the Servicer to observe any applicable law prohibiting disclosure
of information regarding the Obligors, and the failure of the Servicer to
provide access as provided in this Section as a result of such obligation shall
not constitute a breach of this Section.
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SECTION 4.13. MONTHLY TAPE. On or before the Insured Distribution Date,
but in no event later than the seventh calendar day, of each month, the Servicer
will deliver to the Trust Collateral Agent and the Backup Servicer a computer
tape and a diskette (or any other electronic transmission acceptable to the
Trust Collateral Agent and the Backup Servicer) in a format acceptable to the
Trust Collateral Agent and the Backup Servicer containing the information with
respect to the Receivables as of the preceding Accounting Date necessary for
preparation of the Servicer's Certificate relating to the immediately preceding
Determination Date and necessary to review the application of collections as
provided in Section 5.4. The Backup Servicer shall use such tape or diskette (or
other electronic transmission acceptable to the Trust Collateral Agent and the
Backup Servicer) to (i) confirm that the Servicer's Certificate is complete,
(ii) confirm that such tape, diskette or other electronic transmission is in
readable form, (iii) verify the mathematical accuracy of all calculations
contained within the Servicer's Certificate and (iv) calculate and confirm (A)
the aggregate amount distributable as principal on the related Distribution Date
to each Class of Notes, (B) the aggregate amount distributable as interest on
the related Distribution Date to each Class of Notes, (C) any amounts
distributable on the related Distribution Date which are to be paid with funds
(y) withdrawn from the Spread Account or (z) drawn under the Note Policy, (D)
the outstanding principal amount of each Class of Notes after giving effect to
all distributions made pursuant to clause (A), above, (E) the Pool Factor for
each Class of Notes after giving effect to all distributions made pursuant to
clause (A), above, and (F) the aggregate Noteholders' Principal Carryover Amount
and the aggregate Noteholders' Interest Carryover Amount on such Distribution
Date after giving effect to all distributions made pursuant to clauses (A) and
(B), above, respectively. The Backup Servicer shall certify to the Controlling
Party that it has verified the Servicer's Certificate in accordance with this
Section and shall notify the Servicer and the Controlling Party of any
discrepancies, in each case, on or before the second Business Day following the
Insured Distribution Date. In the event that the Backup Servicer reports any
discrepancies, the Servicer and the Backup Servicer shall attempt to reconcile
such discrepancies prior to the next succeeding Distribution Date, but in the
absence of a reconciliation, the Servicer's Certificate shall control for the
purpose of calculations and distributions with respect to the next succeeding
Distribution Date. In the event that the Backup Servicer and the Servicer are
unable to reconcile discrepancies with respect to a Servicer's Certificate by
the next succeeding Distribution Date, the Servicer shall cause the Independent
Accountants, at the Servicer's expense, to audit the Servicer's Certificate and,
prior to the last day of the month after the month in which such Servicer's
Certificate was delivered, reconcile the discrepancies. The effect, if any, of
such reconciliation shall be reflected in the Preliminary Servicer's Certificate
for the next succeeding Distribution Date, and/or the Servicer's Certificate for
such next succeeding Determination Date. In addition, upon the occurrence of a
Servicer Termination Event the Servicer shall, if so requested by the
Controlling Party, deliver to the Backup Servicer its Collection Records and its
Monthly Records within 15 days after demand therefor and a computer tape
containing as of the close of business on the date of demand all of the data
maintained by the Servicer in computer format in connection with servicing the
Receivables. Other than the duties specifically set forth in this Agreement, the
Backup Servicer shall have no obligations hereunder, including, without
limitation, to supervise, verify, monitor or administer the performance of the
Servicer. The Backup Servicer shall have no liability for any actions taken or
omitted by the Servicer.
SECTION 4.14. RETENTION AND TERMINATION OF SERVICER. The Servicer hereby
covenants and agrees to act as such under this Agreement for an initial term,
commencing on the
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Closing Date and ending on December 31, 2001, 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 Trust Collateral Agent agrees that if as of the fifteenth day
prior to the last day of any term of the Servicer the Trust Collateral Agent
shall not have received any Servicer Extension Notice from the Insurer, the
Trust Collateral Agent will, within five days thereafter, give written notice of
such non-receipt to the Insurer and the Servicer.
SECTION 4.15. FIDELITY BOND AND ERRORS AND OMISSIONS POLICY. The Servicer
has obtained, and shall continue to maintain in full force and effect, a
Fidelity Bond and Errors and Omissions Policy of a type and in such amount as is
customary for servicers engaged in the business of servicing automobile
receivables.
ARTICLE V
TRUST ACCOUNTS; DISTRIBUTIONS;
STATEMENTS TO NOTEHOLDERS
SECTION 5.1. ESTABLISHMENT OF TRUST ACCOUNTS.
(a) (i) The Trust Collateral Agent, on behalf of the Noteholders and the
Insurer, shall establish and maintain in its own name an Eligible Deposit
Account (the "COLLECTION ACCOUNT"), bearing a designation clearly indicating
that the funds deposited therein are held for the benefit of the Trust
Collateral Agent on behalf of the Noteholders and the Insurer. The Collection
Account shall initially be established with the Trust Collateral Agent.
(ii) The Trust Collateral Agent, on behalf of the Noteholders, shall
establish and maintain in its own name an Eligible Deposit Account (the "NOTE
DISTRIBUTION ACCOUNT"), bearing a designation clearly indicating that the funds
deposited therein are held for the benefit of the Trust Collateral Agent on
behalf of the Noteholders and the Insurer. The Note Distribution Account shall
initially be established with the Trust Collateral Agent.
(iii) The Trust Collateral Agent, on behalf of the Noteholders and
the Insurer, shall establish and maintain in its own name an Eligible Deposit
Account (the "PRE-FUNDING ACCOUNT"), bearing a designation clearly indicating
that the funds deposited therein are held for
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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 Pre-Funding Account,
the Note Distribution Account and the Capitalized Interest Account
(collectively, the "TRUST ACCOUNTS") and the Lockbox Accounts shall be invested
by the Trust Collateral Agent (or any custodian with respect to funds on deposit
in any such account) in Eligible Investments selected in writing by the Servicer
(pursuant to standing instructions or otherwise). All such Eligible Investments
shall be held by or on behalf of the Trust Collateral Agent for the benefit of
the Noteholders and the Insurer, as applicable. Other than as permitted by the
Rating Agencies and the Insurer, funds on deposit in any Account shall be
invested in Eligible Investments that will mature so that such funds will be
available at the close of business on the Business Day immediately preceding the
following Distribution Date or, if earlier, on the following Insured
Distribution Date. Funds deposited in a Trust Account on the day immediately
preceding a Distribution Date or an Insured Distribution Date upon the maturity
of any Eligible Investments are required to be invested overnight. All Eligible
Investments will be held to maturity.
(c) All investment earnings of moneys deposited in the Trust Accounts
shall be deposited (or caused to be deposited) by the Trust Collateral Agent in
the Collection Account, and any loss resulting from such investments shall be
charged to such account. The Servicer will not direct the Trust Collateral Agent
to make any investment of any funds held in any of the Trust Accounts unless the
security interest granted and perfected in such account will continue to be
perfected in such investment, in either case without any further action by any
Person, and, in connection with any direction to the Trust Collateral Agent to
make any such investment, if requested by the Trust Collateral Agent, the
Servicer shall deliver to the Trust Collateral Agent an Opinion of Counsel,
acceptable to the Trust Collateral Agent, to such effect.
(d) The Trust Collateral Agent shall not in any way be held liable by
reason of any insufficiency in any of the Trust Accounts resulting from any loss
on any Eligible Investment included therein except for losses attributable to
the Trust Collateral Agent's negligence or bad faith or its failure to make
payments on such Eligible Investments issued by the Trust Collateral Agent, in
its commercial capacity as principal obligor and not as trustee, in accordance
with their terms.
(e) If (i) the Servicer shall have failed to give investment directions in
writing for any funds on deposit in the Trust Accounts to the Trust Collateral
Agent by 1:00 p.m. Eastern Time (or such other time as may be agreed by the
Issuer and Trust Collateral Agent) on any Business Day; or (ii) a Default or
Event of Default shall have occurred and be continuing with respect to the Notes
but the Notes shall not have been declared due and payable, or, if such Notes
shall have been declared due and payable following an Event of Default, amounts
collected or receivable from the Trust Property are being applied as if there
had not been such a declaration; then the Trust Collateral Agent shall, to the
fullest extent practicable, invest and reinvest funds in the Trust Accounts in
the investment described in clause (g) of the definition of Eligible
Investments.
(f) (i) The Trust Collateral Agent shall possess all right, title and
interest in all funds on deposit from time to time in the Trust Accounts and in
all proceeds thereof (excluding all
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Investment Earnings on the Collection Account) and all such funds, investments,
proceeds and income shall be part of the Owner Trust Estate. Except as otherwise
provided herein, the Trust Accounts shall be under the sole dominion and control
of the Trust Collateral Agent for the benefit of the Noteholders, as the case
may be, and the Insurer. If, at any time, any of the Trust Accounts ceases to be
an Eligible Deposit Account, the Trust Collateral Agent (or the Servicer on its
behalf) shall within five Business Days (or such longer period as to which each
Rating Agency and the Insurer may consent) establish a new Trust Account as an
Eligible Deposit Account and shall transfer any cash and/or any investments to
such new Trust Account. In connection with the foregoing, the Servicer agrees
that, in the event that any of the Trust Accounts are not accounts with the
Trust Collateral Agent, the Servicer shall notify the Trust Collateral Agent in
writing promptly upon any of such Trust Accounts ceasing to be an Eligible
Deposit Account.
(ii) With respect to the Trust Account Property, the Trust Collateral
Agent agrees that:
(A) any Trust Account Property that is held in deposit
accounts shall be held solely in the Eligible Deposit Accounts; and,
except as otherwise provided herein, each such Eligible Deposit
Account shall be subject to the exclusive custody and control of the
Trust Collateral Agent, and the Trust Collateral Agent shall have
sole signature authority with respect thereto;
(B) any Trust Account Property that constitutes Physical
Property shall be delivered to the Trust Collateral Agent in
accordance with paragraph (a) of the definition of "DELIVERY" and
shall be held, pending maturity or disposition, solely by the Trust
Collateral Agent or a financial intermediary (as such term is
defined in Section 8-313(4) of the UCC) acting solely for the Trust
Collateral Agent;
(C) any Trust Account Property that is a book-entry security
held through the Federal Reserve System pursuant to Federal
book-entry regulations shall be delivered in accordance with
paragraph (b) of the definition of "DELIVERY" and shall be
maintained by the Trust Collateral Agent, pending maturity or
disposition, through continued book-entry registration of such Trust
Account Property as described in such paragraph; and
(D) any Trust Account Property that is an "UNCERTIFICATED
SECURITY" under Article 8 of the UCC and that is not governed by
clause (C) above shall be delivered to the Trust Collateral Agent in
accordance with paragraph (c) of the definition of "DELIVERY" and
shall be maintained by the Trust Collateral Agent, pending maturity
or disposition, through continued registration of the Trust
Collateral Agent's (or its nominee's) ownership of such security.
(g) The Servicer shall have the power, revocable by the Insurer or, with
the consent of the Insurer by the Trustee or by the Owner Trustee with the
consent of the Trustee, to instruct the Trust Collateral Agent to make
withdrawals and payments from the Trust Accounts for the purpose of permitting
the Servicer and the Trust Collateral Agent to carry out its respective duties
hereunder.
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(h) The Trust Collateral Agent acknowledges that, pursuant to the
provisions of the Swap Agreement, the Swap Provider may be required to post
collateral with the Trust Collateral Agent to secure the Swap Provider's
obligations under the Swap Agreement. The Trust Collateral Agent agrees to
establish and maintain an Eligible Deposit Account to hold such collateral, if
requested to do so by the Servicer or the Controlling Party. The Trust
Collateral Agent further agrees to follow such written instructions relating to
the administration of, and transfers from such account, as may be delivered by
(i) the Servicer (with the consent of the Controlling Party) or (ii) the
Controlling Party.
SECTION 5.2 CAPITALIZED INTEREST ACCOUNT.
(a) The Servicer shall cause the Trust Collateral Agent to establish and
maintain an Eligible Deposit Account (the "CAPITALIZED INTEREST ACCOUNT") with
the Trust Collateral Agent, bearing a designation clearly indicating that the
funds deposited therein are held in trust for the benefit of the Noteholders and
the Insurer.
On or prior to the Closing Date, the Seller shall deposit an amount
equal to the Capitalized Interest Account Initial Deposit into the Capitalized
Interest Account.
(b) (i) On the Distribution Dates occurring in December 2001, January
2002, February 2002, March 2002, April 2002 and May 2002, the Trust Collateral
Agent shall withdraw at the written direction of the Servicer from the
Capitalized Interest Account the Monthly Capitalized Interest Amount for such
Distribution Date and deposit such amount in the Collection Account as further
provided in Section 5.7.
(ii) On the Distribution Dates occurring in December 2001, January 2002,
February 2002, March 2002, April 2002 and May 2002 the Servicer shall instruct
the Trust Collateral Agent in writing to withdraw from the Capitalized Interest
Account and pay to the Seller on such Distribution Date an amount equal to the
Overfunded Capitalized Interest Amount for such Distribution Date. Any amounts
remaining in the Capitalized Interest Account on the Distribution Date which
immediately follows the end of the Funding Period after taking into account the
transfer pursuant to Section 5.7(a)(i) shall be remitted by the Trust Collateral
Agent to the Seller. Upon any such distributions to the Seller, the Noteholders,
the Certificateholders and the Insurer will have no further rights in, or claims
to, such amounts.
SECTION 5.3. CERTAIN REIMBURSEMENTS TO THE SERVICER. The Servicer will be
entitled to be reimbursed from amounts on deposit in the Collection Account with
respect to a Collection Period for amounts previously deposited in the
Collection Account but later determined by the Servicer to have resulted from
mistaken deposits or postings or checks returned for insufficient funds. The
amount to be reimbursed hereunder shall be paid to the Servicer on the related
Distribution Date pursuant to Section 5.7(b)(ii) 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
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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 Borrowers 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.
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),
payments by or on behalf of the Obligor, (other than Supplemental Servicing Fees
with respect to such Receivable, to the extent collected) shall be applied to
interest and principal in accordance with the Simple Interest Method.
All amounts collected that are payable to the Servicer as
Supplemental Servicing Fees hereunder shall be deposited in the Collection
Account and paid to the Servicer in accordance with Section 5.7(b).
SECTION 5.5. WITHDRAWALS FROM SPREAD ACCOUNT.
(a) In the event that the Servicer's Certificate with respect to any
Determination Date shall state that there is a Deficiency Claim Amount then on
the Deficiency Claim Date immediately preceding the related Insured Distribution
Date, the Trust Collateral Agent shall deliver to the Collateral Agent, the
Owner Trustee, the Insurer and the Servicer, by hand delivery or facsimile
transmission, a written notice (a "DEFICIENCY NOTICE") specifying the Deficiency
Claim Amount for such Insured Distribution Date and the Note Policy Claim
Amount, if any. Such Deficiency Notice shall direct the Collateral Agent to
remit such Deficiency Claim Amount (to the extent of the funds available to be
distributed pursuant to the Spread Account Agreement) to the Trust Collateral
Agent for deposit in the Collection Account on the related Insured Distribution
Date.
Any Deficiency Notice shall be delivered by 12:00 noon, Eastern
time, on the fourth Business Day preceding such Insured Distribution Date.
(b) In the event that the Preliminary Servicer's Certificate with respect
to any Preliminary Determination Date shall state that there shall be an
Accelerated Payment Amount Shortfall with respect to the related Distribution
Date, then on the Business Day preceding such Distribution Date, the Trust
Collateral Agent shall deliver to the Collateral Agent, the Insurer and the
Servicer, by hand delivery or facsimile transmission, an Accelerated Payment
Shortfall Notice. Such Accelerated Payment Shortfall Notice shall direct the
Collateral Agent to remit such Accelerated Payment Amount Shortfall to the Trust
Collateral Agent (to the extent of funds available to be distributed in the
Spread Account) for deposit in the Collection Account on the
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related Distribution Date. Any Accelerated Payment Shortfall Notice shall be
delivered by 2:00 p.m. Eastern time, on the Business Day preceding such
Distribution Date.
(c) The amounts distributed by the Collateral Agent to the Trust
Collateral Agent pursuant to a Deficiency Notice or Accelerated Payment
Shortfall Notice shall be deposited by the Trust Collateral Agent into the
Collection Account pursuant to Section 5.6.
SECTION 5.7. ADDITIONAL DEPOSITS.
(a) The Servicer and the Seller, as applicable, shall deposit or cause to
be deposited in the Collection Account on the Preliminary Determination Date on
which such obligations are due the aggregate Purchase Amount with respect to
Purchased Receivables. On or before each Draw Date, the Trust Collateral Agent
shall remit to the Collection Account any amounts delivered to the Trust
Collateral Agent by the Collateral Agent.
(b) The proceeds of any purchase or sale of the assets of the Trust
described in Section 10.1 hereof shall be deposited in the Collection Account.
SECTION 5.7. DISTRIBUTIONS.
(a) No later than 11:00 a.m. New York time on each Distribution Date, the
Trust Collateral Agent shall (based solely on the information contained in the
Preliminary Servicer's Certificate delivered on the related Preliminary
Determination Date) cause to be made the following transfers and distributions
in the amounts set forth in the Preliminary Servicer's Certificate for such
Distribution Date:
(i) During the Funding Period, from the Capitalized Interest Account
to the Collection Account, in immediately available funds, the Monthly
Capitalized Interest Amount for such Distribution Date; and
(ii) If such Distribution Date is the Mandatory Redemption Date,
from the Pre-Funding Account to the Collection Account, in immediately
available funds, the Pre-Funded Amount after giving effect to the purchase
of Subsequent Receivables, if any, on the Mandatory Redemption Date.
(b) On each Distribution Date, the Trust Collateral Agent shall (based
solely on the information contained in the Preliminary Servicer's Certificate
delivered with respect to the related Preliminary Determination Date) distribute
the following amounts from the Collection Account unless otherwise specified, to
the extent of the sources of funds stated to be available therefor, and in the
following order of priority:
(i) from the Available Funds, to the Swap Provider, net payments, if
any, then due to it under the Swap Agreement;
(ii) from the Available Funds, to the Servicer, the Base Servicing
Fee for the related Collection Period, any Supplemental Servicing Fees for
the related Collection Period, 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
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retained by the Servicer and to pay to AmeriCredit any amounts paid by
Obligors during the preceding calendar month that did 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;
(iii) from the Available Funds, to each of the Lockbox Banks, the
Trustee, the Backup Servicer and the Owner Trustee, their respective
accrued and unpaid trustees' fees and expenses and any accrued and unpaid
fees and expenses of the Trust Collateral Agent (in each case, to the
extent such fees have not been previously paid by the Servicer and
provided that such fees shall not exceed (x) $100,000 in the aggregate in
any calendar year to the Owner Trustee and (y) $200,000 in the aggregate
in any calendar year to the Lockbox Banks, the Trust Collateral Agent, the
Backup Servicer and the Trustee;
(iv) from the Available Funds to the Note Distribution Account, the
Noteholders' Interest Distributable Amount;
(v) from the Available Funds to the Note Distribution Account, the
Noteholders' Principal Distributable Amount plus, on the Mandatory
Redemption Date, the Note Prepayment Amount;
(vi) from the Available Funds, FIRST PARI PASSU, (a) to the Insurer,
to the extent of any amounts owing to the Insurer under the Insurance
Agreement and not paid and (b) to the RCCA Agent, the RCCA Premium then
due to it, but not in excess of such amount calculated at an annual
premium rate of 4.50% and SECOND, to the RCCA Agent, any portion of the
RCCA Premium then due to it and not paid pursuant to the preceding clause
(a) to the extent the actual premium exceeds 4.50%;
(vii) from the Available Funds (minus the amount of Investment
Earnings relating to the Collection Account (PROVIDED, that such amount so
remaining after deduction of such Investment Earnings shall not be less
than zero)), to the Spread Account, an amount, if necessary, required to
increase the amount therein to its then required level;
(viii) from the Available Funds (minus the amount of Investment
Earnings relating to the Collection Account (PROVIDED, that such amount so
remaining after deduction of such Investment Earnings shall not be less
than zero)) and amounts, if any, received by the Trust Collateral Agent in
respect of the Accelerated Payment Amount Shortfall, to the Note
Distribution Account, the Noteholders' Accelerated Principal Amount; and
(ix) from Available Funds, any remaining Available Funds to the
Collateral Agent for deposit in the Spread Account;
PROVIDED, HOWEVER, that, (A) following an acceleration of the Notes or, (B) if
an Insurer Default shall have occurred and be continuing and an Event of Default
pursuant to Section 5.1(i), 5.1(ii), 5.1(iv), 5.1(v) or 5.1(vi) of the Indenture
shall have occurred and be continuing, or (C) the receipt of Insolvency Proceeds
pursuant to Section 10.1(b), amounts deposited in the Note
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Distribution Account (including any such Insolvency Proceeds) shall be paid to
the Noteholders, pursuant to Section 5.6 of the Indenture.
(c) On each Insured Distribution Date, the Trust Collateral Agent shall
(based solely on the information contained in the Servicer's Certificate
delivered with respect to the related Determination Date, unless the Insurer
shall have notified the Trust Collateral Agent in writing of any errors or
deficiencies with respect thereto) distribute from the Collection Account the
Additional Funds Available, if any, plus the Note Policy Claim Amount, if any,
in each case then on deposit in the Collection Account, and deposit in the Note
Distribution Account any excess of the Scheduled Payments (as defined in the
Note Policy) due on such Insured Distribution Date over the amount of all
Available Funds previously deposited in the Note Distribution Account with
respect to the related Distribution Date, which amount shall be applied solely
to the payment of amounts then due and unpaid on the Notes in accordance with
the priorities set forth in Section 5.8(a).
(d) In the event that the Collection Account is maintained with an
institution other than the Trust Collateral Agent, the Servicer shall instruct
and cause such institution to make all deposits and distributions pursuant to
Sections 5.7(b) and 5.7(c) on the related Distribution Date and the related
Insured Distribution Date, as applicable.
SECTION 5.8. NOTE DISTRIBUTION ACCOUNT.
(a) On each Distribution Date (based solely on the information contained
in the Preliminary Servicer's Certificate) and each Insured Distribution Date
(based solely on the information in the Servicer's Certificate), as applicable,
the Trust Collateral Agent shall distribute all amounts on deposit in the Note
Distribution Account to Noteholders in respect of the Notes to the extent of
amounts due and unpaid on the Notes for principal and interest in the following
amounts and in the following order of priority:
(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 balance of each Class of Notes; PROVIDED,
that if the aggregate remaining amount in the Pre-Funding Account is
$100,000 or less, such amount will be applied exclusively to reduce the
outstanding principal balance of the Class of Notes then entitled to
receive distributions of principal;
(iii) 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;
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(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 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
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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
$900,001,040.96 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 (i)
an amount equal to 98% of the Principal Balance of the Subsequent Receivables
transferred to the Issuer on such Subsequent Transfer Date and to distribute
such amount to or upon the order of the Seller upon satisfaction of the
conditions set forth in this Agreement with respect to such transfer and (ii) an
amount equal to the Subsequent Spread Account Deposit for such Subsequent
Transfer Date and to deposit such amount in the Spread Account upon satisfaction
of the conditions set forth in this Agreement with respect to such transfer.
(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 or pursuant to a claim on the Note
Policy;
(iv) the Pool Balance as of the close of business on the last day of
the preceding Collection Period;
(v) the aggregate outstanding principal amount of each Class of the
Notes and the Note Pool Factor for each such Class after giving effect to
payments allocated to principal reported under (i) above;
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(vi) the amount of the Servicing Fee paid to the Servicer with
respect to the related Collection Period and/or due but unpaid with
respect to such Collection Period or prior Collection Periods, as the case
may be;
(vii) the Noteholders' Interest Carryover Amount and the
Noteholders' Principal Carryover Amount;
(viii) the amount of the aggregate Realized Losses, if any, for the
second preceding Collection Period;
(ix) the aggregate Purchase Amounts for Receivables, if any, that
were repurchased in such period;
(x) for Distribution Dates during the Funding Period, if any, the
remaining Pre-Funded Amount; and
(xi) for the final Subsequent Transfer Date, the amount of any
remaining Pre-Funded Amount that has not been used to fund the purchase of
Subsequent Receivables and is passed through as principal to Noteholders.
Each amount set forth pursuant to paragraph (i), (ii), (iii), (vi) and (vii)
above shall be expressed as a dollar amount per $1,000 of the initial principal
balance of the Notes (or Class thereof).
(b) The Trust Collateral Agent will make the statements referred to in
Section 5.10(a) above (and, at its option, any additional files containing the
same information in an alternative format) available each month via the Trust
Collateral Agent's internet website, which is presently located at
xxx.xxxxxxx.xxx. Persons that are entitled to receive such statements but are
unable to use the above website are entitled to have a paper copy mailed to them
via first class mail by calling the Trust Collateral Agent 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. DETERMINATION OF LIBOR. The Trust Collateral Agent will
determine LIBOR for purposes of calculating the Interest Rate for the Class A-2
Notes and Class A-3 Notes on October 22, 2001 for the period from the Closing
Date to the first Distribution Date, and for each given Interest Period
thereafter, on the second London Business Day prior to the prior Distribution
Date (each, a "LIBOR DETERMINATION DATE"). For purposes of calculating LIBOR, a
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business day means a Business Day and a day on which banking institutions in the
City of London, England are not required or authorized by law to be closed.
"LIBOR" means, (i) with respect to any Interest Period, the London
interbank offered rate for deposits in U.S. dollars having a maturity of one
month commencing on the related LIBOR Determination Date (the "INDEX Maturity")
which appears on Telerate Page 3750 as of 11:00 a.m., London time, on such LIBOR
Determination Date, plus (ii) with respect to the first distribution date, the
Interpolated LIBOR Increment. If the rates used to determine LIBOR or the
Interpolated LIBOR Increment do not appear on the Telerate page 3750, the rates
for that day will be determined on the basis of the rates at which deposits in
U.S. dollars, having the Index Maturity and in a principal amount of not less
than U.S. $1,000,000 are offered at approximately 11:00 a.m., London Time, on
such LIBOR Determination Date to prime banks in the London interbank market by
the Reference Banks. The Trust Collateral Agent will request the principal
London office of each of such Reference Banks to provide a quotation of its
rate. If at least two such quotations are provided, the rate for that day will
be the arithmetic mean, rounded upward, if necessary, to the nearest 1/100,000
of 1% (0.0000001), with five-one millionths of a percentage point rounded
upward, of all such quotations. If fewer than two such quotations are provided,
the rate for that day will be the arithmetic mean, rounded upward of necessary
to the nearest 1/100,000 of 1% (0.0000001), with five-one millionths of a
percentage point rounded upward, of the offered per annum rates that one or more
leading banks in New York City, selected by the Trust Collateral Agent, are
quoting as of approximately 11:00 a.m., Eastern time, on such LIBOR
Determination Date to leading European banks for United States dollar deposits
for that Maturity; PROVIDED that if the banks selected as aforesaid are not
quoting as mentioned in this sentence, LIBOR in effect for the applicable
Interest Period will be LIBOR in effect for the previous Interest Period.
"INTERPOLATED LIBOR INCREMENT" means:
(1) .43333;
MULTIPLIED BY
(2) the excess, if any, of
(a) the London interbank offered rate for deposits in U.S.
dollars having a maturity of two months commencing on the related
LIBOR determination date which appears on Telerate Page 3750 as
of 11:00 a.m., London time, on the first LIBOR determination date;
MINUS
(b) LIBOR on the first LIBOR determination date.
"TELERATE PAGE 3750" is the display page named on the Dow Xxxxx
Telerate Services (or any other page that replaces that page on that service for
the purpose of displaying comparable name or rates).
"REFERENCE BANKS" means the four major banks in the London interbank
market selected by the Trust Collateral Agent.
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ARTICLE VI
THE NOTE POLICY
SECTION 6.1. CLAIMS UNDER NOTE POLICY.
(a) In the event that the Trust Collateral Agent has delivered a
Deficiency Notice with respect to any Determination Date pursuant to Section 5.5
hereof, the Trust Collateral Agent shall on the related Draw Date determine the
Note Policy Claim Amount for the related Insured Distribution Date. If the Note
Policy Claim Amount for such Insured Distribution Date is greater than zero, the
Trust Collateral Agent shall furnish to the Insurer no later than 12:00 noon
Eastern time on the related Draw Date a completed Notice of Claim (as defined in
(b) below) in the amount of the Note Policy Claim Amount. Amounts paid by the
Insurer pursuant to a claim submitted under this Section shall be deposited by
the Trust Collateral Agent into the Note Distribution Account for payment to
Noteholders on the related Insured Distribution Date.
(b) Any notice delivered by the Trust Collateral Agent to the Insurer
pursuant to subsection 6.1(a) shall specify the Note Policy Claim Amount claimed
under the Note Policy and shall constitute a "NOTICE OF CLAIM" under the Note
Policy. In accordance with the provisions of the Note Policy, the Insurer is
required to pay to the Trust Collateral Agent the Note Policy Claim Amount
properly claimed thereunder by 10:00 a.m., Eastern time, on the later of (i) the
third Business Day following receipt on a Business Day of the Notice of Claim,
and (ii) the applicable Insured Distribution Date. Any payment made by the
Insurer under the Note Policy shall be applied solely to the payment of the
Notes, and for no other purpose.
(c) The Trust Collateral Agent shall (i) receive as attorney-in-fact of
each Noteholder any Note Policy Claim Amount from the Insurer and (ii) deposit
the same in the Collection Account for distribution to Noteholders. Any and all
Note Policy Claim Amounts disbursed by the Trust Collateral Agent from claims
made under the Note Policy shall not be considered payment by the Trust or from
the Spread Account with respect to such Notes, and shall not discharge the
obligations of the Trust with respect thereto. The Insurer shall, to the extent
it makes any payment with respect to the Notes, become subrogated to the rights
of the recipients of such payments to the extent of such payments. Subject to
and conditioned upon any payment with respect to the Notes by or on behalf of
the Insurer, the Trust Collateral Agent shall assign to the Insurer all rights
to the payment of interest or principal with respect to the Notes which are then
due for payment to the extent of all payments made by the Insurer, and the
Insurer may exercise any option, vote, right, power or the like with respect to
the Notes to the extent that it has made payment pursuant to the Note Policy. To
evidence such subrogation, the Note Registrar shall note the Insurer's rights as
subrogee upon the register of Noteholders upon receipt from the Insurer of proof
of payment by the Insurer of any Noteholders' Interest Distributable Amount or
Noteholders' Principal Distributable Amount. The foregoing subrogation shall in
all cases be subject to the rights of the Noteholders to receive all Scheduled
Payments (as defined in the Note Policy) in respect of the Notes.
(d) The Trust Collateral Agent shall keep a complete and accurate record
of all funds deposited by the Insurer into the Collection Account 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
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Insurer shall have the right to inspect such records at reasonable times upon
one Business Day's prior notice to the Trust Collateral Agent.
(e) The Trust Collateral Agent shall be entitled to enforce on behalf of
the Noteholders the obligations of the Insurer under the Note Policy.
Notwithstanding any other provision of this Agreement or any Basic Document, the
Noteholders are not entitled to institute proceedings directly against the
Insurer.
SECTION 6.2. PREFERENCE CLAIMS UNDER NOTE POLICY.
(a) In the event that the Trust Collateral Agent has received a certified
copy of an order of the appropriate court that any Scheduled Payment (as defined
in the Note Policy) paid on a Note has been avoided in whole or in part as a
preference payment under applicable bankruptcy law, the Trust Collateral Agent
shall so notify the Insurer, shall comply with the provisions of the Note Policy
to obtain payment by the Insurer of such avoided payment, and shall, at the time
it provides notice to the Insurer, notify Holders of the Notes by mail that, in
the event that any Noteholder's payment is so recoverable, such Noteholder will
be entitled to payment pursuant to the terms of the Note Policy. The Trust
Collateral Agent shall furnish to the Insurer its records evidencing the
payments of principal of and interest on Notes, if any, which have been made by
the Trust Collateral Agent and subsequently recovered from Noteholders, and the
dates on which such payments were made. Pursuant to the terms of the Note
Policy, the Insurer will make such payment on behalf of the Noteholder to the
receiver, conservator, debtor-in-possession or trustee in bankruptcy named in
the Order (as defined in the Note Policy) and not to the Trust Collateral Agent
or any Noteholder directly (unless a Noteholder has previously paid such payment
to the receiver, conservator, debtor-in-possession or trustee in bankruptcy, in
which case the Insurer will make such payment to the Trust Collateral Agent for
distribution to such Noteholder upon proof of such payment reasonably
satisfactory to the Insurer).
(b) The Trust Collateral Agent shall promptly notify the Insurer of any
proceeding or the institution of any action (of which a Responsible Officer of
the Trust Collateral Agent has actual knowledge) seeking the avoidance as a
preferential transfer under applicable bankruptcy, insolvency, receivership,
rehabilitation or similar law (a "NOTE PREFERENCE CLAIM") of any distribution
made with respect to the Notes. Each Holder, by its purchase of Notes, and the
Trust Collateral Agent hereby agree that so long as an Insurer Default shall not
have occurred and be continuing, the Insurer may at any time during the
continuation of any proceeding relating to a Preference Claim direct all matters
relating to such Preference Claim, including, without limitation, (i) the
direction of any appeal of any order relating to any Preference Claim and (ii)
the posting of any surety, supersedes as or performance bond pending any such
appeal at the expense of the Insurer, but subject to reimbursement as provided
in the Insurance Agreement. In addition, and without limitation of the
foregoing, as set forth in Section 6.1(c), the Insurer shall be subrogated to,
and each Noteholder and the Trust Collateral Agent hereby delegate and assign,
to the fullest extent permitted by law, the rights of the trustee and each
Noteholder in the conduct of any proceeding with respect to a Preference Claim,
including, without limitation, all rights of any party to an adversary
proceeding action with respect to any court order issued in connection with any
such Preference Claim.
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SECTION 6.3. SURRENDER OF NOTE POLICY. The Trust Collateral Agent shall
surrender the Note Policy to the Insurer for cancellation upon the expiration of
such policy in accordance with the terms thereof.
ARTICLE VII
THE SELLER
SECTION 7.1. REPRESENTATIONS OF SELLER. The Seller makes the following
representations on which the Insurer shall be deemed to have relied in executing
and delivering the Note Policy and on which the Issuer is deemed to have relied
in acquiring the Receivables and on which the Trustee, Collateral Agent, Trust
Collateral Agent and Backup Servicer may rely. The representations speak as of
the execution and delivery of this Agreement and as of the Closing Date, in the
case of Initial Receivables, and as of the applicable Subsequent Transfer Date,
in the case of Subsequent Receivables, and shall survive the sale of the
Receivables to the Issuer and the pledge thereof to the Trustee pursuant to the
Indenture.
(a) SCHEDULE OF REPRESENTATIONS. The representations and warranties set
forth on the Schedule of Representations attached hereto as Schedule B are true
and correct.
(b) ORGANIZATION AND GOOD STANDING. The Seller has been duly organized and
is validly existing as a corporation in good standing under the laws of the
State of Nevada, with power and authority to own its properties and to conduct
its business as such properties are currently owned and such business is
currently conducted, and had at all relevant times, and now has, power,
authority and legal right to acquire, own and sell the Receivables and the Other
Conveyed Property transferred to the Trust.
(c) DUE QUALIFICATION. The Seller is duly qualified to do business as a
foreign corporation in good standing and has obtained all necessary licenses and
approvals in all jurisdictions where the failure to do so would materially and
adversely affect Seller's ability to transfer the Receivables and the Other
Conveyed Property to the Trust pursuant to this Agreement, or the validity or
enforceability of the Receivables and the Other Conveyed Property or to perform
Seller's obligations hereunder and under the Seller's Basic Documents.
(d) POWER AND AUTHORITY. The Seller has the power and authority to execute
and deliver this Agreement and its Basic Documents and to carry out its terms
and their terms, respectively; the Seller has full power and authority to sell
and assign the Receivables and the Other Conveyed Property to be sold and
assigned to and deposited with the Trust by it and has duly authorized such sale
and assignment to the Trust by all necessary corporate action; and the
execution, delivery and performance of this Agreement and the Seller's Basic
Documents have been duly authorized by the Seller by all necessary corporate
action.
(e) VALID SALE, BINDING OBLIGATIONS. This Agreement effects a valid sale,
transfer and assignment of the Receivables and the Other Conveyed Property,
enforceable against the Seller and creditors of and purchasers from the Seller;
and this Agreement and the Seller's Basic Documents, when duly executed and
delivered, shall constitute legal, valid and binding obligations of the Seller
enforceable in accordance with their respective terms, except as
57
enforceability may be limited by bankruptcy, insolvency, reorganization or other
similar laws affecting the enforcement of creditors' rights generally and by
equitable limitations on the availability of specific remedies, regardless of
whether such enforceability is considered in a proceeding in equity or at law.
(f) NO VIOLATION. The consummation of the transactions contemplated by
this Agreement and the Basic Documents and the fulfillment of the terms of this
Agreement and the Basic Documents shall not conflict with, result in any breach
of any of the terms and provisions of or constitute (with or without notice,
lapse of time or both) a default under the certificate of incorporation or
by-laws of the Seller, or any indenture, agreement, mortgage, deed of trust or
other instrument to which the Seller is a party or by which it is bound, or
result in the creation or imposition of any Lien upon any of its properties
pursuant to the terms of any such indenture, agreement, mortgage, deed of trust
or other instrument, other than this Agreement, or violate any law, order, rule
or regulation applicable to the Seller of any court or of any federal or state
regulatory body, administrative agency or other governmental instrumentality
having jurisdiction over the Seller or any of its properties.
(g) NO PROCEEDINGS. There are no proceedings or investigations pending or,
to the Seller's knowledge, threatened against the Seller, before any court,
regulatory body, administrative agency or other tribunal or governmental
instrumentality having jurisdiction over the Seller or its properties (A)
asserting the invalidity of this Agreement or any of the Basic Documents, (B)
seeking to prevent the issuance of the Securities or the consummation of any of
the transactions contemplated by this Agreement or any of the Basic Documents,
(C) seeking any determination or ruling that might materially and adversely
affect the performance by the Seller of its obligations under, or the validity
or enforceability of, this Agreement or any of the Basic Documents, or (D)
seeking to adversely affect the federal income tax or other federal, state or
local tax attributes of the Securities.
(h) 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.
(i) CHIEF EXECUTIVE OFFICE. The chief executive office of the Seller is at
000 Xxxxxx Xx., Xxxxx 000 Xxxx, Xxxxxx 00000.
SECTION 7.2. CORPORATE EXISTENCE.
(a) During the term of this Agreement, the Seller will keep in full force
and effect its existence, rights and franchises as a corporation under the laws
of the jurisdiction of its incorporation and will obtain and preserve its
qualification to do business in each jurisdiction in which such qualification is
or shall be necessary to protect the validity and enforceability of this
Agreement, any Subsequent Transfer Agreement, the Basic Documents and each other
instrument or agreement necessary or appropriate to the proper administration of
this Agreement and the transactions contemplated hereby.
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(b) During the term of this Agreement, the Seller shall observe the
applicable legal requirements for the recognition of the Seller as a legal
entity separate and apart from its Affiliates, including as follows:
(i) the Seller shall maintain corporate records and books of account
separate from those of its Affiliates;
(ii) except as otherwise provided in this Agreement, the Seller
shall not commingle its assets and funds with those of its Affiliates;
(iii) the Seller shall hold such appropriate meetings of its Board
of Directors as are necessary to authorize all the Seller's corporate
actions required by law to be authorized by the Board of Directors, shall
keep minutes of such meetings and of meetings of its stockholder(s) and
observe all other customary corporate formalities (and any successor
Seller not a corporation shall observe similar procedures in accordance
with its governing documents and applicable law);
(iv) the Seller shall at all times hold itself out to the public
under the Seller's own name as a legal entity separate and distinct from
its Affiliates; and
(v) all transactions and dealings between the Seller and its
Affiliates will be conducted on an arm's-length basis.
SECTION 7.3. LIABILITY OF SELLER; INDEMNITIES. The Seller shall be liable
in accordance herewith only to the extent of the obligations specifically
undertaken by the Seller under this Agreement.
(a) The Seller shall indemnify, defend and hold harmless the Issuer, the
Owner Trustee, the Trust, the Insurer, the Trustee, Backup Servicer, Collateral
Agent and the Trust Collateral Agent and its officers, directors, employees and
agents from and against any taxes that may at any time be asserted against any
such Person with respect to the transactions contemplated in this Agreement and
any of the Basic Documents (except any income taxes arising out of fees paid to
the Owner Trustee, the Trust Collateral Agent, the Trustee and the Insurer and
except any taxes to which the Owner Trustee, the Trust Collateral Agent or the
Trustee may otherwise be subject to, 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 Issuer, the
Owner Trustee, the Trustee, Backup Servicer, Collateral Agent and the Trust
Collateral Agent and the officers, directors, employees and agents thereof, the
Insurer and the Noteholders from and against any loss, liability or expense
incurred by reason of (i) the Seller's willful misfeasance, bad faith or
negligence in the performance of its duties under this Agreement, or by reason
of reckless disregard of its obligations and duties under this Agreement and
(ii) the Seller's or the Issuer's violation of federal or state securities laws
in connection with the offering and sale of the Notes.
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(c) The Seller shall indemnify, defend and hold harmless the Owner
Trustee, Trustee, Trust Collateral Agent, Collateral Agent and Backup Servicer
and the officers, directors, employees and agents thereof from and against any
and all costs, expenses, losses, claims, damages and liabilities arising out of,
or incurred in connection with the acceptance or performance of the trusts and
duties set forth herein and in the Basic Documents except to the extent that
such cost, expense, loss, claim, damage or liability shall be due to the willful
misfeasance, bad faith or negligence (except for errors in judgment) of the
Owner Trustee, Trustee, Trust Collateral Agent, Collateral Agent and Backup
Servicer respectively.
Indemnification under this Section shall survive the resignation or
removal of the Owner Trustee, the Trustee or the Trust Collateral Agent and the
termination of this Agreement or the Indenture or the Trust Agreement, as
applicable, and shall include reasonable fees and expenses of counsel and other
expenses of litigation. If the Seller shall have made any indemnity payments
pursuant to this Section and the Person to or on behalf of whom such payments
are made thereafter shall collect any of such amounts from others, such Person
shall promptly repay such amounts to the Seller, without interest.
SECTION 7.4. MERGER OR CONSOLIDATION OF, OR ASSUMPTION OF THE OBLIGATIONS
OF, SELLER. Any Person (a) into which the Seller may be merged or consolidated,
(b) which may result from any merger or consolidation to which the Seller shall
be a party or (c) which may succeed to the properties and assets of the Seller
substantially as a whole, which Person in any of the foregoing cases executes an
agreement of assumption to perform every obligation of the Seller under this
Agreement, shall be the successor to the Seller hereunder without the execution
or filing of any document or any further act by any of the parties to this
Agreement; PROVIDED, HOWEVER, that (i) the Seller shall have received the
written consent of the Insurer prior to entering into any such transaction, (ii)
immediately after giving effect to such transaction, no representation or
warranty made pursuant to Section 3.1 shall have been breached and no Servicer
Termination Event, and no event which, after notice or lapse of time, or both,
would become a Servicer Termination Event shall have happened and be continuing,
(iii) the Seller shall have delivered to the Owner Trustee, the Trust Collateral
Agent, the Trustee and the Insurer an Officers' Certificate and an Opinion of
Counsel each stating that such consolidation, merger or succession and such
agreement of assumption comply with this Section and that all conditions
precedent, if any, provided for in this Agreement relating to such transaction
have been complied with, (iv) the Rating Agency Condition shall have been
satisfied with respect to such transaction and (v) the Seller shall have
delivered to the Owner Trustee, the Trust Collateral Agent, the Backup Servicer,
the Collateral Agent, the Trustee and the Insurer an Opinion of Counsel stating
that, in the opinion of such counsel, either (A) all financing statements and
continuation statements and amendments thereto have been executed and filed that
are necessary fully to preserve and protect the interest of the Trust Collateral
Agent, the Owner Trustee and the Trustee, respectively, in the Receivables and
reciting the details of such filings or (B) no such action shall be necessary to
preserve and protect such interest. Notwithstanding anything herein to the
contrary, the execution of the foregoing agreement of assumption and compliance
with clauses (i), (ii), (iii), (iv) and (v) above shall be conditions to the
consummation of the transactions referred to in clauses (a), (b) or (c) above.
SECTION 7.5. LIMITATION ON LIABILITY OF SELLER AND OTHERS. The Seller and
any director or officer or employee or agent of the Seller may rely in good
faith on the advice of
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counsel or on any document of any kind, prima facie properly executed and
submitted by any Person respecting any matters arising under any Basic Document.
The Seller shall not be under any obligation to appear in, prosecute or defend
any legal action that shall not be incidental to its obligations under this
Agreement, and that in its opinion may involve it in any expense or liability.
SECTION 7.6. 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 intends to convey the Certificates to its Affiliate, AFS
Funding Trust, a Delaware business trust. 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 Trustee pursuant to the
Indenture.
(i) REPRESENTATIONS AND WARRANTIES. The representations and
warranties set forth on the Schedule of Representations attached hereto as
Schedule B are true and correct, provided that such representations and
warranties contained therein and herein shall not apply to any entity
other than AmeriCredit;
(ii) ORGANIZATION AND GOOD STANDING. The Servicer has been duly
organized and is validly existing and in good standing under the laws of
its jurisdiction of organization, with power, authority and legal right to
own its properties and to conduct its business as such properties are
currently owned and such business is currently conducted, and had at all
relevant times, and now has, power, authority and legal right to enter
into and perform its obligations under this Agreement;
(iii) DUE QUALIFICATION. The Servicer is duly qualified to do
business as a foreign corporation in good standing and has obtained all
necessary licenses and approvals, in all jurisdictions in which the
ownership or lease of property or the conduct
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of its business (including the servicing of the Receivables as required by
this Agreement) requires or shall require such qualification;
(iv) POWER AND AUTHORITY. The Servicer has the power and authority
to execute and deliver this Agreement and its Basic Documents and to carry
out its terms and their terms, respectively, and the execution, delivery
and performance of this Agreement and the Servicer's Basic Documents have
been duly authorized by the Servicer by all necessary corporate action;
(v) BINDING OBLIGATION. This Agreement and the Servicer's Basic
Documents shall constitute legal, valid and binding obligations of the
Servicer enforceable in accordance with their respective terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization,
or other similar laws affecting the enforcement of creditors' rights
generally and by equitable limitations on the availability of specific
remedies, regardless of whether such enforceability is considered in a
proceeding in equity or at law;
(vi) NO VIOLATION. The consummation of the transactions contemplated
by this Agreement and the Servicer's Basic Documents, and the fulfillment
of the terms of this Agreement and the Servicer's Basic Documents, shall
not conflict with, result in any breach of any of the terms and provisions
of, or constitute (with or without notice or lapse of time) a default
under, the articles of incorporation or bylaws of the Servicer, or any
indenture, agreement, mortgage, deed of trust or other instrument to which
the Servicer is a party or by which it is bound, or result in the creation
or imposition of any Lien upon any of its properties pursuant to the terms
of any such indenture, agreement, mortgage, deed of trust or other
instrument, other than this Agreement, or violate any law, order, rule or
regulation applicable to the Servicer of any court or of any federal or
state regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Servicer or any of its
properties;
(vii) NO PROCEEDINGS. There are no proceedings or investigations
pending or, to the Servicer's knowledge, threatened against the Servicer,
before any court, regulatory body, administrative agency or other tribunal
or governmental instrumentality having jurisdiction over the Servicer or
its properties (A) asserting the invalidity of this Agreement or any of
the Basic Documents, (B) seeking to prevent the issuance of the Securities
or the consummation of any of the transactions contemplated by this
Agreement or any of the Basic Documents, or (C) seeking any determination
or ruling that might materially and adversely affect the performance by
the Servicer of its obligations under, or the validity or enforceability
of, this Agreement or any of the Basic Documents or (D) seeking to
adversely affect the federal income tax or other federal, state or local
tax attributes of the Securities;
(viii) NO CONSENTS. The Servicer is not required to obtain the
consent of any other party or any consent, license, approval or
authorization, or registration or declaration with, any governmental
authority, bureau or agency in connection with the execution, delivery,
performance, validity or enforceability of this Agreement which has not
already been obtained.
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SECTION 8.2. LIABILITY OF SERVICER; INDEMNITIES.
(a) The Servicer (in its capacity as such) shall be liable hereunder only
to the extent of the obligations in this Agreement specifically undertaken by
the Servicer and the representations made by the Servicer.
(b) The Servicer shall defend, indemnify and hold harmless the Trust, the
Trustee, the Trust Collateral Agent, the Owner Trustee, the Backup Servicer, the
Insurer, their respective officers, directors, agents and employees, and the
Noteholders from and against any and all costs, expenses, losses, damages,
claims and liabilities, including reasonable fees and expenses of counsel and
expenses of litigation arising out of or resulting from the use, ownership or
operation by the Servicer or any Affiliate thereof of any Financed Vehicle;
(c) The Servicer (when the Servicer is AmeriCredit) shall indemnify,
defend and hold harmless the Trust, the Trustee, the Trust Collateral Agent, the
Owner Trustee, the Backup Servicer, the Insurer, their respective officers,
directors, agents and employees and the Noteholders from and against any taxes
that may at any time be asserted against any of such parties with respect to the
transactions contemplated in this Agreement, including, without limitation, any
sales, gross receipts, tangible or intangible personal property, privilege or
license taxes (but not including any federal or other income taxes, including
franchise taxes asserted with respect to, and as of the date of, the sale of the
Receivables and the Other Conveyed Property to the Trust or the issuance and
original sale of the Securities) and costs and expenses in defending against the
same;
The Servicer (when the Servicer is not AmeriCredit) shall indemnify,
defend and hold harmless the Trust, the Trustee, the Trust Collateral Agent, the
Owner Trustee, the Backup Servicer, the Insurer, their respective officers,
directors, agents and employees and the Noteholders from and against any taxes
with respect to the sale of Receivables in connection with servicing hereunder
that may at any time be asserted against any of such parties with respect to the
transactions contemplated in this Agreement, including, without limitation, any
sales, gross receipts, tangible or intangible personal property, privilege or
license taxes (but not including any federal or other income taxes, including
franchise taxes asserted with respect to, and as of the date of, the sale of the
Receivables and the Other Conveyed Property to the Trust or the issuance and
original sale of the Securities) and costs and expenses in defending against the
same; and
(d) The Servicer shall indemnify, defend and hold harmless the Trust, the
Trustee, the Trust Collateral Agent, the Owner Trustee, the Backup Servicer, the
Insurer, their respective officers, directors, agents and employees and the
Noteholders from and against any and all costs, expenses, losses, claims,
damages, and liabilities to the extent that such cost, expense, loss, claim,
damage, or liability arose out of, or was imposed upon the Trust, the Trustee,
the Owner Trustee, the Trust Collateral Agent, the Backup Servicer, the Insurer
or the Noteholders by reason of the breach of this Agreement by the Servicer,
the negligence, misfeasance, or bad faith of the Servicer in the performance of
its duties under this Agreement or by reason of reckless disregard of its
obligations and duties under this Agreement.
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(e) AmeriCredit shall indemnify, defend and hold harmless the Trust, the
Trustee, the Trust Collateral Agent, the Owner Trustee, the Backup Servicer, the
Insurer, their respective officers, directors, agents and employees and the
Noteholders from and against any loss, liability or expense incurred by reason
of the violation by Servicer or Seller of federal or state securities laws in
connection with the registration or the sale of the Securities. This section
shall survive the termination of this Agreement, or the earlier removal or
resignation of the Trustee, Trust Collateral Agent, Backup Servicer or the
Collateral Agent.
(f) AmeriCredit shall indemnify the Trustee, the Owner Trustee, the Trust
Collateral Agent, the Collateral Agent and the Backup Servicer, and the
respective officers, directors, agents and employees thereof against any and all
loss, liability or expense, (other than overhead and expenses incurred in the
normal course of business) incurred by each of them in connection with the
acceptance or administration of the Trust and the performance of their duties
under the Basic Documents other than if such loss, liability or expense was
incurred by the Trustee, the Owner Trustee, the Trust Collateral Agent or the
Collateral Agent as a result of any such entity's willful misconduct, bad faith
or negligence.
(g) Indemnification under this Article shall include, without limitation,
reasonable fees and expenses of counsel and expenses of litigation. If the
Servicer has made any indemnity payments pursuant to this Article and the
recipient thereafter collects any of such amounts from others, the recipient
shall promptly repay such amounts collected to the Servicer, without interest.
SECTION 8.3. MERGEROR CONSOLIDATION OF, OR ASSUMPTION OF THE OBLIGATIONS
OF THE SERVICER OR BACKUP SERVICER.
(a) AmeriCredit shall not merge or consolidate with any other person,
convey, transfer or lease substantially all its assets as an entirety to another
Person, or permit any other Person to become the successor to AmeriCredit's
business unless, after the merger, consolidation, conveyance, transfer, lease or
succession, the successor or surviving entity shall be capable of fulfilling the
duties of AmeriCredit contained in this Agreement and shall be acceptable to the
Controlling Party, and, if an Insurer Default shall have occurred and be
continuing, shall be an Eligible Servicer. Any corporation (i) into which
AmeriCredit may be merged or consolidated, (ii) resulting from any merger or
consolidation to which AmeriCredit shall be a party, (iii) which acquires by
conveyance, transfer, or lease substantially all of the assets of AmeriCredit,
or (iv) succeeding to the business of AmeriCredit, in any of the foregoing cases
shall execute an agreement of assumption to perform every obligation of
AmeriCredit under this Agreement and, whether or not such assumption agreement
is executed, shall be the successor to AmeriCredit under this Agreement without
the execution or filing of any paper or any further act on the part of any of
the parties to this Agreement, anything in this Agreement to the contrary
notwithstanding; PROVIDED, HOWEVER, that nothing contained herein shall be
deemed to release AmeriCredit from any obligation. AmeriCredit shall provide
notice of any merger, consolidation or succession pursuant to this Section to
the Owner Trustee, the Trust Collateral Agent, the Noteholders, the Insurer and
each Rating Agency. Notwithstanding the foregoing, AmeriCredit shall not merge
or consolidate with any other Person or permit any other Person to become a
successor to AmeriCredit's business, unless (x) immediately after giving effect
to such transaction, no representation or warranty made pursuant to Section 4.6
shall have been breached
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(for purposes hereof, such representations and warranties shall speak as of the
date of the consummation of such transaction) and no event that, after notice or
lapse of time, or both, would become an Insurance Agreement Event of Default
shall have occurred and be continuing, (y) AmeriCredit shall have delivered to
the Owner Trustee, the Trust Collateral Agent, Trustee, Backup Servicer and
Collateral Agent, the Rating Agencies and the Insurer an Officer's Certificate
and an Opinion of Counsel each stating that such consolidation, merger or
succession and such agreement of assumption comply with this Section and that
all conditions precedent, if any, provided for in this Agreement relating to
such transaction have been complied with, and (z) AmeriCredit shall have
delivered to the Owner Trustee, the Trust Collateral Agent, the Rating Agencies
and the Insurer an Opinion of Counsel, stating in the opinion of such counsel,
either (A) all financing statements and continuation statements and amendments
thereto have been executed and filed that are necessary to preserve and protect
the interest of the Trust in the Receivables and the Other Conveyed Property and
reciting the details of the filings or (B) no such action shall be necessary to
preserve and protect such interest.
(b) Any corporation (i) into which the Backup Servicer may be merged or
consolidated, (ii) resulting from any merger or consolidation to which the
Backup Servicer shall be a party, (iii) which acquires by conveyance, transfer
or lease substantially all of the assets of the Backup Servicer, or (iv)
succeeding to the business of the Backup Servicer, in any of the foregoing cases
shall execute an agreement of assumption to perform every obligation of the
Backup Servicer under this Agreement and, whether or not such assumption
agreement is executed, shall be the successor to the Backup Servicer under this
Agreement without the execution or filing of any paper or any further act on the
part of any of the parties to this Agreement, anything in this Agreement to the
contrary notwithstanding; provided, however, that nothing contained herein shall
be deemed to release the Backup Servicer from any obligation.
SECTION 8.4. LIMITATION ON LIABILITY OF SERVICER, BACKUP SERVICER AND
OTHERS.
(a) Neither AmeriCredit, the Backup Servicer nor any of the directors or
officers or employees or agents of AmeriCredit or Backup Servicer shall be under
any liability to the Trust or the Noteholders, except as provided in this
Agreement, for any action taken or for refraining from the taking of any action
pursuant to this Agreement; PROVIDED, HOWEVER, that this provision shall not
protect AmeriCredit, the Backup Servicer or any such person against any
liability that would otherwise be imposed by reason of a breach of this
Agreement or willful misfeasance, bad faith or negligence (excluding errors in
judgment) in the performance of duties; provided further that this provision
shall not affect any liability to indemnify the Trust Collateral Agent and the
Owner Trustee for costs, taxes, expenses, claims, liabilities, losses or damages
paid by the Trust Collateral Agent and the Owner Trustee, in their individual
capacities. AmeriCredit, the Backup Servicer and any director, officer, employee
or agent of AmeriCredit or Backup Servicer may rely in good faith on the written
advice of counsel or on any document of any kind prima facie properly executed
and submitted by any Person respecting any matters arising under this Agreement.
(b) The Backup Servicer shall not be liable for any obligation of the
Servicer contained in this Agreement or for any errors of the Servicer contained
in any computer tape, certificate or other data or document delivered to the
Backup Servicer hereunder or on which the Backup Servicer must rely in order to
perform its obligations hereunder, and the Owner Trustee,
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the Trustee, the Trust Collateral Agent, the Collateral Agent, the Backup
Servicer, the Seller and the Insurer and the Noteholders shall look only to the
Servicer to perform such obligations. The Backup Servicer, Trust Collateral
Agent, the Trustee, the Collateral Agent, the Owner Trustee and the Custodian
shall have no responsibility and shall not be in default hereunder or incur any
liability for any failure, error, malfunction or any delay in carrying out any
of their respective duties under this Agreement if such failure or delay results
from the Backup Servicer acting in accordance with information prepared or
supplied by a Person other than the Backup Servicer (or contractual agents) or
the failure of any such other Person to prepare or provide such information. The
Backup Servicer shall have no responsibility, shall not be in default and shall
incur no liability for (i) any act or failure to act of any third party (other
than its contractual agents), including the Servicer or the Controlling Party,
(ii) any inaccuracy or omission in a notice or communication received by the
Backup Servicer from any third party (other than its contractual agents), (iii)
the invalidity or unenforceability of any Receivable under applicable law, (iv)
the breach or inaccuracy of any representation or warranty made with respect to
any Receivable, or (v) the acts or omissions of any successor Backup Servicer.
(c) The parties expressly acknowledge and consent to Bank One, NA acting
in the possible dual capacity of Backup Servicer or successor Servicer and in
the capacity as Trust Collateral Agent. Bank One, NA 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 Bank One, NA of express duties set forth in the this Agreement in
any of such capacities, all of which defenses, claims or assertions are hereby
expressly waived by the other parties hereto and the Noteholders except in the
case of gross negligence and willful misconduct by Bank One, NA.
SECTION 8.6. DELEGATION OF DUTIES. The Servicer may delegate duties under
this Agreement to an Affiliate of AmeriCredit with the prior written consent of
the Insurer (unless an Insurer Default shall have occurred and be continuing),
the Trust Collateral Agent, the Owner Trustee and the Backup Servicer. The
Servicer also may at any time perform through sub-contractors the specific
duties of (i) repossession of Financed Vehicles, (ii) tracking Financed
Vehicles' insurance and (iii) pursuing the collection of deficiency balances on
certain Liquidated Receivables, in each case, without the consent of the Insurer
and may perform other specific duties through such sub-contractors in accordance
with Servicer's customary servicing policies and procedures, with the prior
consent of the Insurer; PROVIDED, HOWEVER, that no such delegation or
sub-contracting duties by the Servicer shall relieve the Servicer of its
responsibility with respect to such duties. So long as no Insurer Default shall
have occurred and be continuing neither AmeriCredit or any party acting as
Servicer hereunder shall appoint any subservicer hereunder without the prior
written consent of the Insurer, the Trustee and the Backup Servicer.
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)
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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
Bank One, NA resigns as the Trustee under the Indenture it will no longer be the
Backup Servicer.
ARTICLE IX
DEFAULT
SECTION 9.1. SERVICER TERMINATION EVENT. For purposes of this Agreement,
each of the following shall constitute a "SERVICER TERMINATION EVENT":
(a) Any failure by the Servicer to deliver to the Trust Collateral Agent
for distribution to Noteholders any proceeds or payment required to be so
delivered under the terms of this Agreement that continues unremedied for a
period of two Business Days (one Business Day with respect to payment of
Purchase Amounts) after written notice is received by the Servicer from the
Trust Collateral Agent or (unless an Insurer Default shall have occurred and be
continuing) the Insurer or after discovery of such failure by a Responsible
Officer of the Servicer;
(b) Failure by the Servicer to deliver to the Trust Collateral Agent and
(so long as an Insurer Default shall not have occurred and be continuing) the
Insurer the Servicer's Certificate by the fourth Business Day prior to the
Insured Distribution Date, or failure on the part of the Servicer to observe its
covenants and agreements set forth in Section 8.3(a);
(c) Failure on the part of the Servicer duly to observe or perform any
other covenants or agreements of the Servicer set forth in this Agreement, which
failure (i) materially and adversely affects the rights of Noteholders
(determined without regard to the availability of funds under the Note Policy),
or of the Insurer (unless an Insurer Default shall have occurred and be
continuing), and (ii) continues unremedied for a period of 30 days after
knowledge thereof by the
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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 Trust or the Noteholders and,
within 30 days after knowledge thereof by the Servicer or after written notice
thereof shall have been given to the Servicer by the Trust Collateral Agent or
the Insurer (or, if an Insurer Default shall have occurred and be continuing, a
Noteholder), the circumstances or condition in respect of which such
representation, warranty or statement was incorrect shall not have been
eliminated or otherwise cured; or
(g) So long as an Insurer Default shall not have occurred and be
continuing, the Insurer shall not have delivered a Servicer Extension Notice
pursuant to Section 4.14; or
(h) So long as an Insurer Default shall not have occurred and be
continuing, an Insurance Agreement Event of Default occurs or an Event of
Default under any other Insurance and Indemnity Agreement relating to any other
Series shall have occurred; or
(i) A claim is made under the Note Policy.
SECTION 9.2. CONSEQUENCES OF A SERVICER TERMINATION EVENT. If a Servicer
Termination Event shall occur and be continuing, the Insurer (or, if an Insurer
Default shall have occurred and be continuing either the Trust Collateral Agent,
(to the extent it has knowledge thereof) a Note Majority), by notice given in
writing to the Servicer (and to the Trust Collateral
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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.
SECTION 9.3. APPOINTMENT OF SUCCESSOR.
(a) On and after the time the Servicer receives a notice of termination
pursuant to Section 9.2, upon non-extension of the servicing term as referred to
in Section 4.14, or upon the resignation of the Servicer pursuant to Section
8.6, the Backup Servicer (unless the Insurer shall have exercised its option
pursuant to Section 9.3(b) to appoint an alternate successor Servicer) shall be
the successor in all respects to the Servicer in its capacity as servicer under
this Agreement and the transactions set forth or provided for in this Agreement,
and shall be subject to all the rights, responsibilities, restrictions, duties,
liabilities and termination provisions relating thereto placed on the Servicer
by the terms and provisions of this Agreement except as otherwise stated herein.
The Trust Collateral Agent and such successor shall take such action, consistent
with this Agreement, as shall be necessary to effectuate any such succession. If
a successor Servicer is acting as Servicer hereunder, it shall be subject to
term-to-term servicing as referred
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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, 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. If any successor Servicer is appointed as a result of the
Backup Servicer's refusal (in breach of the terms of this Agreement) to act as
Servicer although it is legally able to do so, the Insurer and such successor
Servicer may agree on reasonable additional compensation to be paid to such
successor Servicer by the Backup Servicer, which additional compensation shall
be paid by such breaching Backup Servicer in its individual capacity and solely
out of its own funds; PROVIDED, HOWEVER, it being understood and agreed that the
Insurer shall give prior notice to the Backup Servicer with respect to the
appointment of such successor and the payment of additional compensation, if
any. If any successor Servicer is appointed for any reason other than the Backup
Servicer's refusal to act as Servicer although legally able to do so, the
Insurer and such successor Servicer may agree on additional compensation to be
paid to such successor Servicer, which additional compensation shall be payable
as provided in the Spread Account Agreement and shall in no event exceed
$150,000 in the aggregate. If, any successor Servicer is appointed for any
reason other than the Backup Servicer's refusal to act as Servicer although
legally able to do so, the 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.
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.
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SECTION 9.5. WAIVER OF PAST DEFAULTS. So long as no Insurer Default shall
have occurred and be continuing, the Insurer (or, if an Insurer Default shall
have occurred and be continuing, the Note Majority) may, on behalf of all
Noteholders, waive any default by the Servicer in the performance of its
obligations hereunder and its consequences. Upon any such waiver of a past
default, such default shall cease to exist, and any Servicer Termination Event
arising therefrom shall be deemed to have been remedied for every purpose of
this Agreement. No such waiver shall extend to any subsequent or other default
or impair any right consequent thereto.
ARTICLE X
TERMINATION
SECTION 10.1. OPTIONAL PURCHASE OF ALL RECEIVABLES.
(a) On the last day of any Collection Period as of which the Pool Balance
shall be less than or equal to 10% of the Original Pool Balance, the Servicer
and the Seller each shall have the option to purchase the Owner Trust Estate,
other than the Trust Accounts (with the consent of the Insurer if such purchase
would result in a claim on the Note Policy or would result in any amount owing
to the Insurer under the Insurance Agreement remaining unpaid); PROVIDED,
HOWEVER, that the amount to be paid for such purchase (as set forth in the
following sentence) shall be sufficient to pay the full amount of principal,
premium, if any, amounts due under the Swap Agreement, 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 Collateral Agent, the Backup Servicer,
the Trust Collateral Agent, the Insurer and the Rating Agencies as soon as
practicable after the Servicer has received notice thereof.
(d) Following the satisfaction and discharge of the Indenture and the
payment in full of the principal of and interest on the Notes, the
Certificateholders will succeed to the rights of the Noteholders hereunder and
the Owner Trustee will succeed to the rights of, and assume the obligations of,
the Trust Collateral Agent pursuant to this Agreement.
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ARTICLE XI
ADMINISTRATIVE DUTIES OF THE SERVICER
SECTION 11.1. ADMINISTRATIVE DUTIES.
(a) DUTIES WITH RESPECT TO THE INDENTURE. The Servicer shall perform all
its duties and the duties of the Issuer under the Indenture. In addition, the
Servicer shall consult with the Owner Trustee as the Servicer deems appropriate
regarding the duties of the Issuer under the Indenture. The Servicer shall
monitor the performance of the Issuer and shall advise the Owner Trustee when
action is necessary to comply with the Issuer's duties under the Indenture. The
Servicer shall prepare for execution by the Issuer or shall cause the
preparation by other appropriate Persons of all such documents, reports,
filings, instruments, certificates and opinions as it shall be the duty of the
Issuer to prepare, file or deliver pursuant to the Indenture. In furtherance of
the foregoing, the Servicer shall take all necessary action that is the duty of
the Issuer to take pursuant to the Indenture, including, without limitation,
pursuant to Sections 2.7, 3.5, 3.6, 3.7, 3.9, 3.10, 3.17, 5.1, 5.4, 7.3, 8.3,
9.2, 9.3, 11.1 and 11.15 of the Indenture.
(b) DUTIES WITH RESPECT TO THE ISSUER.
(i) In addition to the duties of the Servicer set forth in this
Agreement or any of the Basic Documents, the Servicer shall perform such
calculations and shall prepare for execution by the Issuer or the Owner
Trustee or shall cause the preparation by other appropriate Persons of all
such documents, reports, filings, instruments, certificates and opinions
as it shall be the duty of the Issuer or the Owner Trustee to prepare,
file or deliver pursuant to this Agreement or any of the Basic Documents
or under state and federal tax and securities laws, and at the request of
the Owner Trustee shall take all appropriate action that it is the duty of
the Issuer to take pursuant to this Agreement or any of the Basic
Documents, including, without limitation, pursuant to Sections 2.6 and
2.11 of the Trust Agreement. In accordance with the directions of the
Issuer or the Owner Trustee, the Servicer shall administer, perform or
supervise the performance of such other activities in connection with the
Collateral (including the Basic Documents) as are not covered by any of
the foregoing provisions and as are expressly requested by the Issuer or
the Owner Trustee and are reasonably within the capability of the
Servicer.
(ii) Notwithstanding anything in this Agreement or any of the Basic
Documents to the contrary, the Servicer shall be responsible for promptly
notifying the Owner Trustee and the Trust Collateral Agent in the event
that any withholding tax is imposed on the Issuer's payments (or
allocations of income) to an Owner (as defined in the Trust Agreement) as
contemplated this Agreement. Any such notice shall be in writing and
specify the amount of any withholding tax required to be withheld by the
Owner Trustee or the Trust Collateral Agent pursuant to such provision.
(iii) Notwithstanding anything in this Agreement or the Basic
Documents to the contrary, the Servicer shall be responsible for
performance of the duties of the Issuer set forth in Section 5.1(a) and
(b) of the Trust Agreement with respect to, among other things, accounting
and reports to Owners (as defined in the Trust Agreement); PROVIDED,
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HOWEVER, that once prepared by the Servicer the Owner Trustee shall retain
responsibility for the distribution of the Schedule K-1s necessary to
enable the Certificateholder to prepare its federal and state income tax
returns.
(iv) The Servicer shall perform the duties of the Servicer specified
in Section 9.2 of the Trust Agreement required to be performed in
connection with the resignation or removal of the Owner Trustee, and any
other duties expressly required to be performed by the Servicer under this
Agreement or any of the Basic Documents.
(v) In carrying out the foregoing duties or any of its other
obligations under this Agreement, the Servicer may enter into transactions
with or otherwise deal with any of its Affiliates; PROVIDED, HOWEVER, that
the terms of any such transactions or dealings shall be in accordance with
any directions received from the Issuer and shall be, in the Servicer's
opinion, no less favorable to the Issuer in any material respect.
(c) TAX MATTERS. The Servicer shall prepare and file, on behalf of the
Seller, all tax returns, tax elections, financial statements and such annual or
other reports attributable to the activities engaged in by the Issuer as are
necessary for preparation of tax reports, including without limitation forms
1099. All tax returns will be signed by the Seller.
(d) NON-MINISTERIAL MATTERS. With respect to matters that in the
reasonable judgment of the Servicer are non-ministerial, the Servicer shall not
take any action pursuant to this Article unless within a reasonable time before
the taking of such action, the Servicer shall have notified the Owner Trustee
and the Trustee of the proposed action and the Owner Trustee and, with respect
to items (A), (B), (C) and (D) below, the Trustee shall not have withheld
consent or provided an alternative direction. For the purpose of the preceding
sentence, "non-ministerial matters" shall include:
(A) the amendment of or any supplement to the Indenture;
(B) the initiation of any claim or lawsuit by the Issuer and
the compromise of any action, claim or lawsuit brought by or against
the Issuer (other than in connection with the collection of the
Receivables);
(C) the amendment, change or modification of this Agreement or
any of the Basic Documents;
(D) the appointment of successor Note Registrars, successor
Paying Agents and successor Trustees pursuant to the Indenture or
the appointment of Successor Servicers or the consent to the
assignment by the Note Registrar, Paying Agent or Trustee of its
obligations under the Indenture; and
(E) the removal of the Trustee or the Trust Collateral Agent.
(e) EXCEPTIONS. Notwithstanding anything to the contrary in this
Agreement, except as expressly provided herein or in the other Basic Documents,
the Servicer, in its capacity hereunder, shall not be obligated to, and shall
not, (1) make any payments to the Noteholders or Certificateholders under the
Basic Documents, (2) sell the Indenture Trust Property pursuant to
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Section 5.5 of the Indenture, (3) take any other action that the Issuer directs
the Servicer not to take on its behalf or (4) in connection with its duties
hereunder assume any indemnification obligation of any other Person.
(f) The Backup Servicer or any successor Servicer shall not be responsible
for any obligations or duties of the servicer under this Section 11.1.
SECTION 11.2. RECORDS. The Servicer shall maintain appropriate books of
account and records relating to services performed under this Agreement, which
books of account and records shall be accessible for inspection by the Issuer at
any time during normal business hours.
SECTION 11.3. ADDITIONAL INFORMATION TO BE FURNISHED TO THE ISSUER. The
Servicer shall furnish to the Issuer from time to time such additional
information regarding the Collateral as the Issuer shall reasonably request.
ARTICLE XII
MISCELLANEOUS PROVISIONS
SECTION 12.1. AMENDMENT.
(a) This Agreement may be amended from time to time by the parties hereto,
with the consent of the Trustee (which consent may not be unreasonably
withheld), with the prior written consent of the Insurer (so long as no Insurer
Default has occurred and is continuing) but without the consent of any of the
Noteholders, to cure any ambiguity, to correct or supplement any provisions in
this Agreement, to comply with any changes in the Code, or to make any other
provisions with respect to matters or questions arising under this Agreement
which shall not be inconsistent with the provisions of this Agreement or the
Insurance Agreement; PROVIDED, HOWEVER, that such action shall not, as evidenced
by an Opinion of Counsel delivered to Owner Trustee and the Trustee, adversely
affect in any material respect the interests of any Noteholder; provided further
that if an Insurer Default has occurred and is continuing, such action shall not
materially adversely affect the interests of the Insurer.
This Agreement may also be amended from time to time by the parties
hereto, with the consent of the Insurer, the consent of the Trustee, 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 not occurred and is continuing, such action shall not
materially adversely affect the interest of the Insurer.
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Promptly after the execution of any such amendment or consent, the
Trust Collateral Agent shall furnish written notification of the substance of
such amendment or consent to each Noteholder and the Rating Agencies.
It shall not be necessary for the consent of Noteholders pursuant to
this Section to approve the particular form of any proposed amendment or
consent, but it shall be sufficient if such consent shall approve the substance
thereof. The manner of obtaining such consents (and any other consents of
Noteholders provided for in this Agreement) and of evidencing the authorization
of any action by Noteholders shall be subject to such reasonable requirements as
the Trustee or the Owner Trustee, as applicable, may prescribe.
Prior to the execution of any amendment to this Agreement, the Owner
Trustee and the Trustee, Trust Collateral Agent, Collateral Agent and Backup
Servicer shall be entitled to receive and conclusively rely upon an Opinion of
Counsel stating that the execution of such amendment is authorized or permitted
by this Agreement and the Opinion of Counsel referred to in Section 12.2(h)(1)
has been delivered. The Owner Trustee, the Trust Collateral Agent, the Backup
Servicer and the Trustee may, but shall not be obligated to, enter into any such
amendment which affects the Issuer's, the Owner Trustee's, the Trust Collateral
Agent's, the Backup Servicer's or the Trustee's, as applicable, own rights,
duties or immunities under this Agreement or otherwise.
(b) Notwithstanding anything to the contrary contained in Section 12.1(a)
above, the provisions of the Agreement relating to (i) the Spread Account
Agreement Supplement, the Spread Account, the Specified Spread Account
Requirement, a Trigger Event or any component definition of a Trigger Event and
(ii) any additional sources of funds which may be added to the Spread Account or
uses of funds on deposit in the Spread Account may be amended in any respect by
the Seller, the Servicer, the Insurer and the Collateral Agent (the consent of
which shall not be withheld or delayed with respect to any amendment that does
not adversely affect the Collateral Agent) without the consent of, or notice to,
the Noteholders.
SECTION 12.2. PROTECTION OF TITLE TO TRUST.
(a) The Seller shall execute and file such financing statements and cause
to be executed and filed such continuation statements, all in such manner and in
such places as may be required by law fully to preserve, maintain and protect
the interest of the Issuer and the interests of the Trust Collateral Agent in
the Receivables and in the proceeds thereof. The Seller shall deliver (or cause
to be delivered) to the Insurer, the Owner Trustee and the Trust Collateral
Agent file-stamped copies of, or filing receipts for, any document filed as
provided above, as soon as available following such filing.
(b) Neither the Seller nor the Servicer shall change its name, identity or
corporate structure in any manner that would, could or might make any financing
statement or continuation statement filed in accordance with paragraph (a) above
seriously misleading within the meaning of 9-402(7) of the UCC, unless it shall
have given the Insurer, the Owner Trustee, the Trust Collateral Agent and the
Trustee at least five days' prior written notice thereof and shall have promptly
filed appropriate amendments to all previously filed financing statements or
continuation statements. Promptly upon such filing, the Seller or the Servicer,
as the case may
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be, shall deliver an Opinion of Counsel in form and substance reasonably
satisfactory to the Insurer, stating either (A) all financing statements and
continuation statements have been executed and filed that are necessary fully to
preserve and protect the interest of the Trust and the Trust Collateral Agent in
the Receivables, and reciting the details of such filings or referring to prior
Opinions of Counsel in which such details are given, or (B) no such action shall
be necessary to preserve and protect such interest.
(c) Each of the Seller and the Servicer shall have an obligation to give
the Insurer, the Owner Trustee, the Trust Collateral Agent and the Trustee at
least 60 days' prior written notice of any relocation of its principal executive
office if, as a result of such relocation, the applicable provisions of the UCC
would require the filing of any amendment of any previously filed financing or
continuation statement or of any new financing statement and shall promptly file
any such amendment. The Servicer shall at all times maintain each office from
which it shall service Receivables, and its principal executive office, within
the United States of America.
(d) The Servicer shall maintain accounts and records as to each Receivable
accurately and in sufficient detail to permit (i) the reader thereof to know at
any time the status of such Receivable, including payments and recoveries made
and payments owing (and the nature of each) and (ii) reconciliation between
payments or recoveries on (or with respect to) each Receivable and the amounts
from time to time deposited in the Collection Account in respect of such
Receivable.
(e) The Servicer shall maintain its computer systems so that, from and
after the time of sale under this Agreement of the Receivables to the Issuer,
the Servicer's master computer records (including any backup archives) that
refer to a Receivable shall indicate clearly the interest of the Trust in such
Receivable and that such Receivable is owned by the Trust. Indication of the
Trust's interest in a Receivable shall be deleted from or modified on the
Servicer's computer systems when, and only when, the related Receivable shall
have been paid in full or repurchased.
(f) If at any time the Seller or the Servicer shall propose to sell, grant
a security interest in or otherwise transfer any interest in automotive
receivables to any prospective purchaser, lender or other transferee, the
Servicer shall give to such prospective purchaser, lender or other transferee
computer tapes, records or printouts (including any restored from backup
archives) that, if they shall refer in any manner whatsoever to any Receivable,
shall indicate clearly that such Receivable has been sold and is owned by the
Trust.
(g) Upon request, the Servicer shall furnish to the Insurer, the Owner
Trustee or to the Trustee, within five Business Days, a list of all Receivables
(by contract number and name of Obligor) then held as part of the Trust,
together with a reconciliation of such list to the Schedule of Receivables and
to each of the Servicer's Certificates furnished before such request indicating
removal of Receivables from the Trust.
(h) The Servicer shall deliver to the Insurer, the Owner Trustee and the
Trustee:
(1) promptly after the execution and delivery of the Agreement
and, if required pursuant to Section 12.1, of each amendment, an Opinion
of Counsel stating
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that, in the opinion of such Counsel, in form and 6 substance reasonably
satisfactory to the Insurer, either (A) all financing statements and
continuation statements have been executed and filed that are necessary
fully to preserve and protect the interest of the Trust and the Trustee in
the Receivables, and reciting the details of such filings or referring to
prior Opinions of Counsel in which such details are given, or (B) no such
action shall be necessary to preserve and protect such interest; and
(2) within 90 days after the beginning of each calendar year
beginning with the first calendar year beginning more than three months
after the Cutoff Date, an Opinion of Counsel, dated as of a date during
such 90-day period, stating that, in the opinion of such counsel, either
(A) all financing statements and continuation statements have been
executed and filed that are necessary fully to preserve and protect the
interest of the Trust and the Trustee in the Receivables, and reciting the
details of such filings or referring to prior Opinions of Counsel in which
such details are given, or (B) no such action shall be necessary to
preserve and protect such interest.
Each Opinion of Counsel referred to in clause (1) or (2) above shall
specify any action necessary (as of the date of such opinion) to be taken in the
following year to preserve and protect such interest.
SECTION 12.3. NOTICES. All demands, notices and communications upon or to
the Seller, the Servicer, the Owner Trustee, the Trustee or the Rating Agencies
under this Agreement shall be in writing, personally delivered, or mailed by
certified mail, return receipt requested, and shall be deemed to have been duly
given upon receipt (a) in the case of the Seller to AFS Funding Corp., 000
Xxxxxx Xxxx, Xxxxx 000, Xxxx, Xxxxxx 00000, (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,
Bankers Trust (Delaware), E.A. Delle Donne Corporate Center, Xxxxxxxxxx
Building, 0000 Xxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx Xxxxxxxx, 00000-0000,
Attention: Corporate Trust with a copy to Bankers Trust Company, 0 Xxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate Trust Agency, Structured
Finance, 10th floor, (d) in the case of the Trustee, the Trust Collateral Agent
or the Collateral Agent, at the Corporate Trust Office, (e) in the case of the
Insurer, to Financial Security Assurance Inc., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000; Attention: Senior Vice President, Surveillance (in each case in
which notice or other communication to the Insurer refers to a Servicer
Termination Event, a claim on the Note Policy, a Deficiency Notice pursuant to
Section 5.5 of this Agreement or with respect to which failure on the part of
the Insurer to respond shall be deemed to constitute consent or acceptance, then
a copy of such notice or other communication should also be sent to the
attention of each of the General Counsel and the Head-Financial Guaranty Group
and shall be marked to indicate "URGENT MATERIAL ENCLOSED"); (f) in the case of
Moody's, to Xxxxx'x Investors Service, Inc., ABS Monitoring Department, 00
Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000; (g) in the case of Standard & Poor's,
to Standard & Poor's Ratings Group, 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Asset Backed Surveillance Department 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
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within the time prescribed in the Agreement shall be conclusively presumed to
have been duly given, whether or not the Noteholder shall receive such notice.
SECTION 12.4. ASSIGNMENT. This Agreement shall inure to the benefit of and
be binding upon the parties hereto and their respective successors and permitted
assigns. Notwithstanding anything to the contrary contained herein, except as
provided in Sections 7.4 and 8.3 and as provided in the provisions of this
Agreement concerning the resignation of the Servicer, this Agreement may not be
assigned by the Seller or the Servicer without the prior written consent of the
Owner Trustee, the Trust Collateral Agent, the Backup Servicer, the Trustee and
the Insurer (or if an Insurer Default shall have occurred and be continuing the
Holders of Notes evidencing not less than 662/3% 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
Swap Provider 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 THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
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SECTION 12.10. ASSIGNMENT TO TRUSTEE. The Seller hereby acknowledges and
consents to any mortgage, pledge, assignment and grant of a security interest by
the Issuer to the Trustee pursuant to the Indenture for the benefit of the
Noteholders of all right, title and interest of the Issuer in, to and under the
Receivables and/or the assignment of any or all of the Issuer's rights and
obligations hereunder to the Trustee.
SECTION 12.11. NONPETITION COVENANTS.
(a) Notwithstanding any prior termination of this Agreement, the Servicer
and the Seller shall not, prior to the date which is one year and one day after
the termination of this Agreement with respect to the Issuer, acquiesce,
petition or otherwise invoke or cause the Issuer to invoke the process of any
court or government authority for the purpose of commencing or sustaining a case
against the Issuer under any federal or state bankruptcy, insolvency or similar
law or appointing a receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of the Issuer or any substantial part of
its property, or ordering the winding up or liquidation of the affairs of the
Issuer.
(b) Notwithstanding any prior termination of this Agreement, the Servicer
shall not, prior to the date that is one year and one day after the termination
of this Agreement with respect to the Seller, acquiesce to, petition or
otherwise invoke or cause the Seller to invoke the process of any court or
government authority for the purpose of commencing or sustaining a case against
the Seller under any federal or state bankruptcy, insolvency or similar law,
appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator,
or other similar official of the Seller or any substantial part of its property,
or ordering the winding up or liquidation of the affairs of the Seller.
SECTION 12.12. LIMITATION OF LIABILITY OF OWNER TRUSTEE AND TRUSTEE.
(a) Notwithstanding anything contained herein to the contrary, this
Agreement has been countersigned by Bankers Trust (Delaware) not in its
individual capacity but solely in its capacity as Owner Trustee of the Issuer
and in no event shall Bankers Trust (Delaware) in its individual capacity or,
except as expressly provided in the Trust Agreement, as Owner Trustee have any
liability for the representations, warranties, covenants, agreements or other
obligations of the Issuer hereunder or in any of the certificates, notices or
agreements delivered pursuant hereto, as to all of which recourse shall be had
solely to the assets of the Issuer. For all purposes of this Agreement, in the
performance of its duties or obligations hereunder or in the performance of any
duties or obligations of the Issuer hereunder, the Owner Trustee shall be
subject to, and entitled to the benefits of, the terms and provisions of
Articles V, VI and VII of the Trust Agreement.
(b) Notwithstanding anything contained herein to the contrary, this
Agreement has been executed and delivered by Bank One, NA, not in its individual
capacity but solely as Trust Collateral Agent and Backup Servicer and in no
event shall Bank One, NA, 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.
79
(c) In no event shall Bank One, NA, in any of its capacities hereunder, be
deemed to have assumed any duties of the Owner Trustee under the Delaware
Business Trust Statute, common law, or the Trust Agreement.
SECTION 12.13. INDEPENDENCE OF THE SERVICER. For all purposes of this
Agreement, the Servicer shall be an independent contractor and shall not be
subject to the supervision of the Issuer, the Trust Collateral Agent and Backup
Servicer or the Owner Trustee with respect to the manner in which it
accomplishes the performance of its obligations hereunder. Unless expressly
authorized by this Agreement, the Servicer shall have no authority to act for or
represent the Issuer or the Owner Trustee in any way and shall not otherwise be
deemed an agent of the Issuer or the Owner Trustee.
SECTION 12.14. NO JOINT VENTURE. Nothing contained in this Agreement (i)
shall constitute the Servicer and either of the Issuer or the Owner Trustee as
members of any partnership, joint venture, association, syndicate,
unincorporated business or other separate entity, (ii) shall be construed to
impose any liability as such on any of them or (iii) shall be deemed to confer
on any of them any express, implied or apparent authority to incur any
obligation or liability on behalf of the others.
SECTION 12.15. REPLACEMENT SWAP AGREEMENT. Upon a request by the Insurer
pursuant to Section 4.5 of the Insurance Agreement, the Trust Collateral Agent
shall enter into a Replacement Swap Agreement (as such term is defined in
Section 4.05 of the Insurance Agreement) with a replacement Swap Provider or
providers in form and substance satisfactory to the Insurer.
80
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
2001-D
By: BANKERS TRUST (DELAWARE), not in its
individual capacity but solely as Owner
Trustee on behalf of the Trust.
By: /s/ Xxxxx Xxxx
--------------------------------
Name: Xxxxx Xxxx
Title: Attorney in Fact
AFS FUNDING CORP., Seller,
By: /s/ Xxxxx Xxxxx
--------------------------------
Name: Xxxxx Xxxxx
Title: Vice President, Structured
Finance
AMERICREDIT FINANCIAL SERVICES, INC.,
Servicer,
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President and
Treasurer
[Sale and Servicing Agreement]
BANK ONE, NA,
not in its individual capacity but solely
as Backup Servicer
By: /s/ Xxxx X. Xxxxxxxx
--------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Authorized Signer
Acknowledged and accepted by
BANK ONE, NA,
not in its individual capacity
but solely as Trust Collateral
Agent
By: /s/ Xxxx X. Xxxxxxxx
--------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Authorized Signer
[Sale and Servicing Agreement]
SCHEDULE A
SCHEDULE OF RECEIVABLES
[On File with AmeriCredit, the Trustee and Xxxxx Xxxxxxxxxx LLP]
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 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 (iii) 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 Dealer or
such Third-Party Lender for the retail sale of a Financed Vehicle in the
ordinary course of AmeriCredit'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 Dealer and each Third-Party Lender had all necessary licenses
and permits to originate Receivables in the state where AmeriCredit, 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 relating thereto.
2. FRAUD OR MISREPRESENTATION. Each Receivable was originated (i) by
AmeriCredit, (ii) by a Dealer and was sold by the Dealer to AmeriCredit, or
(iii) 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 Dealer or Third-Party Lender 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 Soldiers' and Sailors' Civil
Relief Act of 1940, each applicable state Motor Vehicle Retail Installment Sales
Act, and state adaptations of the National Consumer Act and of the Uniform
Consumer Credit Code and other consumer credit laws and equal credit opportunity
and disclosure laws) in respect of the Receivables and the Financed Vehicles,
have been complied with in all material respects, and each Receivable and the
sale of the Financed Vehicle evidenced by each Receivable complied at the time
it was originated or made and now complies in all material respects with all
applicable legal requirements.
SCH-B-1
4. ORIGINATION. Each Receivable was originated in the United States.
5. BINDING OBLIGATION. Each Receivable represents the genuine, legal,
valid and binding payment obligation of the Obligor thereon, enforceable by the
holder thereof in accordance with its terms, except (A) as enforceability may be
limited by bankruptcy, insolvency, reorganization or similar laws affecting the
enforcement of creditors' rights generally and by equitable limitations on the
availability of specific remedies, regardless of whether such enforceability is
considered in a proceeding in equity or at law and (B) as such Receivable may be
modified by the application after the Cutoff Date of the Soldiers' and Sailors'
Civil Relief Act of 1940, as amended; and all parties to each Receivable had
full legal capacity to execute and deliver such Receivable and all other
documents related thereto and to grant the security interest purported to be
granted thereby.
6. NO GOVERNMENT OBLIGOR. No Obligor is the United States of America or
any State or any agency, department, subdivision or instrumentality thereof.
7. OBLIGOR BANKRUPTCY. At the related Cutoff Date no Obligor had been
identified on the records of AmeriCredit as being the subject of a current
bankruptcy proceeding.
8. SCHEDULE OF RECEIVABLES. The information set forth in the Schedule of
Receivables has been produced from the Electronic Ledger and was true and
correct in all material respects as of the close of business on the related
Cutoff Date.
9. MARKING RECORDS. By the Closing Date or Subsequent Transfer Date, as
applicable, the Seller will have caused the portions of the Electronic Ledger
relating to the Receivables to be clearly and unambiguously marked to show that
the Receivables have been sold to the Seller by the Servicer and resold by the
Seller to the Trust in accordance with the terms of the Sale and Servicing
Agreement.
10. COMPUTER TAPE. The Computer Tape made available by the Seller to the
Trust on the Closing Date or Subsequent Transfer Date, as applicable, was
complete and accurate as of the related Cutoff Date and includes a description
of the same Receivables that are described in the Schedule of Receivables.
11. ADVERSE SELECTION. No selection procedures adverse to the Noteholders
or the Insurer were utilized in selecting the Receivables from those receivables
owned by the Seller which met the selection criteria contained in the Sale and
Servicing Agreement.
12. CHATTEL PAPER. The Receivables constitute chattel paper within the
meaning of the UCC as in effect in the States of Texas, New York, Ohio and
Delaware.
13. ONE ORIGINAL. There is only one original executed copy of each
Receivable.
14. RECEIVABLE FILES COMPLETE. There exists a Receivable File pertaining
to each Receivable and such Receivable File contains (a) a fully executed
original of the Receivable, (b) the original executed credit application, or a
paper or electronic copy thereof and (c) the original Lien Certificate or
application therefor. Each of such documents which is required to be signed by
the Obligor has been signed by the Obligor in the appropriate spaces. All blanks
on any form
SCH-B-2
have been properly filled in and each form has otherwise been correctly
prepared. The complete Receivable File for each Receivable currently is in the
possession of the Custodian.
15. RECEIVABLES IN FORCE. No Receivable has been satisfied, subordinated
or rescinded, and the Financed Vehicle securing each such Receivable has not
been released from the lien of the related Receivable in whole or in part. No
terms of any Receivable have been waived, altered or modified in any respect
since its origination, except by instruments or documents identified in the
Receivable File. No Receivable has been modified as a result of application of
the Soldiers' and Sailors' Civil Relief Act of 1940, as amended.
16. LAWFUL ASSIGNMENT. No Receivable was originated in, or is subject to
the laws of, any jurisdiction the laws of which would make unlawful, void or
voidable the sale, transfer and assignment of such Receivable under this
Agreement or pursuant to transfers of the Securities.
17. GOOD TITLE. Immediately prior to the conveyance of the Receivables to
the Trust pursuant to this Agreement or Subsequent Transfer Agreement, as
applicable, the Seller was the sole owner thereof and had good and indefeasible
title thereto, free of any Lien and, upon execution and delivery of this
Agreement by the Seller, the Trust shall have good and indefeasible title to and
will be the sole owner of such Receivables, free of any Lien. No Dealer 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 the Seller in the Financed Vehicle. The Lien Certificate and
original certificate of title for each Financed Vehicle show, or if a new or
replacement Lien Certificate is being applied for with respect to such Financed
Vehicle the Lien Certificate will be received within 180 days of the Closing
Date or Subsequent Transfer Date, as applicable, and will show the Seller named
as the original secured party under each Receivable as the holder of a first
priority security interest in such Financed Vehicle. With respect to each
Receivable for which the Lien Certificate has not yet been returned from the
Registrar of Titles, the Seller has applied for or received written evidence
from the related Dealer or Third-Party Lender that such Lien Certificate showing
the Seller as first lienholder has been applied for and the Seller's security
interest has been validly assigned by the Seller to the Trust pursuant to this
Agreement. Immediately after the sale, transfer and assignment thereof by the
Seller to the Trust, each Receivable will be secured by an enforceable and
perfected first priority security interest in the Financed Vehicle in favor of
the Trustee as secured party, which security interest is prior to all other
Liens upon and security interests in such Financed Vehicle which now exist or
may hereafter arise or be created (except, as to priority, for any lien for
taxes, labor or materials affecting a Financed Vehicle). As of the related
Cutoff Date there were no Liens or claims for taxes, work, labor or materials
affecting a Financed Vehicle which are or may be Liens prior or equal to the
Liens of the related Receivable.
19. ALL FILINGS MADE. All filings (including, without limitation, UCC
filings) required to be made by any Person and actions required to be taken or
performed by any Person in any
SCH-B-3
jurisdiction to give the Trust a first priority perfected lien on, or ownership
interest in, the Receivables and the proceeds thereof and the Other Conveyed
Property have been made, taken or performed.
20. NO IMPAIRMENT. The Seller has not done anything to convey any right to
any Person that would result in such Person having a right to payments due under
the Receivable or otherwise to impair the rights of the Trust, the Insurer, the
Trustee, the Trust Collateral Agent and the Noteholders in any Receivable or the
proceeds thereof.
21. RECEIVABLE NOT ASSUMABLE. No Receivable is assumable by another Person
in a manner which would release the Obligor thereof from such Obligor's
obligations to AmeriCredit with respect to such Receivable.
22. NO DEFENSES. No Receivable is subject to any right of rescission,
setoff, counterclaim or defense and no such right has been asserted or
threatened with respect to any Receivable.
23. NO DEFAULT. There has been no default, breach, violation or event
permitting acceleration under the terms of any Receivable (other than payment
delinquencies of not more than 30 days), and no condition exists or event has
occurred and is continuing that with notice, the lapse of time or both would
constitute a default, breach, violation or event permitting acceleration under
the terms of any Receivable, and there has been no waiver of any of the
foregoing. As of the related Cutoff Date no Financed Vehicle had been
repossessed.
24. INSURANCE. At the time of an origination of a Receivable by
AmeriCredit or a purchase of a Receivable by AmeriCredit from 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 as loss
payee and (iii) insuring against loss and damage due to fire, theft,
transportation, collision and other risks generally covered by comprehensive and
collision coverage. Each Receivable requires the Obligor to maintain physical
loss and damage insurance, naming AmeriCredit and its successors and assigns as
additional insured parties, and each Receivable permits the holder thereof to
obtain physical loss and damage insurance at the expense of the Obligor if the
Obligor fails to do so. No Financed Vehicle is insured under a policy of
Force-Placed Insurance on the related Cutoff Date.
25. PAST DUE. At the related Cutoff Date no Receivable was more than 30
days past due.
26. REMAINING PRINCIPAL BALANCE. At the related Cutoff Date the Principal
Balance of each Receivable set forth in the Schedule of Receivables is true and
accurate in all material respects.
27. CERTAIN CHARACTERISTICS OF INITIAL RECEIVABLES. (A) Each Initial
Receivable had a remaining maturity, as of the Initial Cutoff Date, of not more
than 72 months; (B) each Receivable had an original maturity of not more than 72
months; (C) not more than 40% of Receivables (calculated by Aggregate Principal
Balance) shall have an original term to maturity
SCH-B-4
of 72 months; (D) each Initial Receivable had a remaining Principal Balance as
of the Initial Cutoff Date of at least $250 and not more than $60,000; (E) each
Initial Receivable has an Annual Percentage Rate of at least 8% and not more
than 30%; (F) no Initial Receivable was more than 30 days past due as of the
Initial Cutoff Date and (G) no funds have been advanced by AmeriCredit, any
Dealer, any Third-Party Lender, or anyone acting on behalf of any of them in
order to cause any Initial Receivable to qualify under clause (F) above.
SCH-B-5
SCHEDULE C
SERVICING POLICIES AND PROCEDURES
NOTE: APPLICABLE TIME PERIODS WILL VARY BY STATE
COMPLIANCE WITH STATE COLLECTION LAWS IS REQUIRED OF ALL AMERICREDIT COLLECTION
PERSONNEL. ADDITIONALLY, AMERICREDIT HAS CHOSEN TO FOLLOW THE GUIDELINES OF THE
FEDERAL FAIR DEBT COLLECTION PRACTICES ACT (FDCPA).
THE COLLECTION PROCESS
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 groups: loans less than 30 days
delinquent and those over 30 days delinquent.
C. Loans delinquent for less than 30 days are then further segregated into
two groups: accounts that have good phone numbers and those that do not.
D. Loans with good phone numbers are transferred to the Davox system
(AmeriCredit's predictive dialing system). The system automatically dials
the phone number related to a delinquent account. When a connection is
made, the account is then routed to the next available account
representative.
E. Loans without good phone numbers are assigned to front-end collectors.
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 15th 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 61 days delinquent, the loan is assigned to a
hard-core collector who will continue the collection effort. If the
account cannot be resolved through normal collection efforts (I.E.,
satisfactory payment arrangements) then the account may be submitted for
repossession approval. 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 15 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 nine 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
Accounts are assigned to third party collection agencies for deficiency
collections.
SCH-C-3
EXHIBIT A
SUBSEQUENT TRANSFER AGREEMENT
Transfer No. ______________ of Subsequent Receivables pursuant to a
Sale and Servicing Agreement dated as of October 17, 2001, among AMERICREDIT
AUTOMOBILE RECEIVABLES TRUST 2001-D, a Delaware business trust (the "ISSUER"),
AFS FUNDING CORP., a Nevada corporation (the "SELLER"), AMERICREDIT FINANCIAL
SERVICES, INC. a Delaware corporation (the "SERVICER"), and BANK ONE, NA, a
national banking association (the "TRUST COLLATERAL AGENT").
W I T N E S S E T H:
WHEREAS pursuant to the Sale and Servicing Agreement, the Seller
wishes to convey the Subsequent Receivables to the Issuer; and
WHEREAS, the Issuer is willing to accept such conveyance subject to
the terms and conditions hereof.
NOW, THEREFORE, the Issuer, the Seller, the Servicer and the Trust
Collateral Agent hereby agree as follows:
1. DEFINED TERMS. Capitalized terms used herein shall have the meanings
ascribed to them in the Sale and Servicing Agreement unless otherwise defined
herein.
"SUBSEQUENT CUTOFF DATE" shall mean, with respect to the Subsequent
Receivables conveyed hereby, _______________, 200_.
"SUBSEQUENT TRANSFER DATE" shall mean, with respect to the
Subsequent Receivables conveyed hereby, _____________, 200_.
2. SCHEDULE OF RECEIVABLES. Annexed hereto is a supplement to Schedule A
to the Sale and Servicing Agreement listing the Receivables that constitute the
Subsequent Receivables to be conveyed pursuant to this Agreement on the
Subsequent Transfer Date.
3. CONVEYANCE OF SUBSEQUENT RECEIVABLES. In consideration of the Issuer's
delivery to or upon the order of the Seller of $_________ the Seller does hereby
sell, transfer, assign, set over and otherwise convey to the Issuer, without
recourse (except as expressly provided in the Sale and Servicing Agreement), all
right, title and interest of the Seller in and to:
(a) the Subsequent Receivables and all moneys received thereon, on and
after the related Subsequent Cutoff Date;
(b) the security interests in the Financed Vehicles granted by Obligors
pursuant to the Subsequent Receivables and any other interest of the Seller in
such Financed Vehicles;
(c) any proceeds and the right to receive proceeds with respect to the
Subsequent Receivables from claim and the right to receive proceeds on any
physical damage, credit life or
EX-A-1
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 Thrid-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 Agreement and Sale
Agreement;
(e) all rights under any Service Contracts on the related Finance
Vehicles;
(f) the related Receivables 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; and
(h) the proceeds of any and all of the foregoing.
4. REPRESENTATIONS AND WARRANTIES OF THE SELLER. The Seller hereby
represents and warrants to the Issuer as of the date of this Agreement and as of
the Subsequent Transfer Date that:
(a) SCHEDULE OF REPRESENTATIONS. The representations and warranties set
forth on the Schedule of Representations attached hereto as Schedule B are true
and correct.
(b) ORGANIZATION AND GOOD STANDING. The Seller has been duly organized and
is validly existing as a corporation in good standing under the laws of the
State of Nevada, with power and authority to own its properties and to conduct
its business as such properties are currently owned and such business is
currently conducted, and had at all relevant times, and now has, power,
authority and legal right to acquire, own and sell the Receivables and the Other
Conveyed Property transferred to the Trust.
(c) DUE QUALIFICATION. The Seller is duly qualified to do business as a
foreign corporation in good standing and has obtained all necessary licenses and
approvals in all jurisdictions where the failure to do so would materially and
adversely affect Seller's ability to transfer the Receivables and the Other
Conveyed Property to the Trust pursuant to this Agreement, or the validity or
enforceability of the Receivables and the Other Conveyed Property or to perform
Seller's obligations hereunder and under the Seller's Basic Documents.
(d) POWER AND AUTHORITY. The Seller has the power and authority to execute
and deliver this Agreement and its Basic Documents and to carry out its terms
and their terms, respectively; the Seller has full power and authority to sell
and assign the Receivables and the Other Conveyed Property to be sold and
assigned to and deposited with the Trust by it and has duly authorized such sale
and assignment to the Trust by all necessary corporate action; and the
execution, delivery and performance of this Agreement and the Seller's Basic
Documents have been duly authorized by the Seller by all necessary corporate
action.
EX-A-2
(e) VALID SALE, BINDING OBLIGATIONS. This Agreement effects a valid sale,
transfer and assignment of the Receivables and the Other Conveyed Property,
enforceable against the Seller and creditors of and purchasers from the Seller;
and this Agreement and the Seller's Basic Documents, when duly executed and
delivered, shall constitute legal, valid and binding obligations of the Seller
enforceable in accordance with their respective terms, except as enforceability
may be limited by bankruptcy, insolvency, reorganization or other similar laws
affecting the enforcement of creditors' rights generally and by equitable
limitations on the availability of specific remedies, regardless of whether such
enforceability is considered in a proceeding in equity or at law.
(f) NO VIOLATION. The consummation of the transactions contemplated by
this Agreement and the Basic Documents and the fulfillment of the terms of this
Agreement and the Basic Documents shall not conflict with, result in any breach
of any of the terms and provisions of or constitute (with or without notice,
lapse of time or both) a default under the certificate of incorporation or
by-laws of the Seller, or any indenture, agreement, mortgage, deed of trust or
other instrument to which the Seller is a party or by which it is bound, or
result in the creation or imposition of any Lien upon any of its properties
pursuant to the terms of any such indenture, agreement, mortgage, deed of trust
or other instrument, other than this Agreement, or violate any law, order, rule
or regulation applicable to the Seller of any court or of any federal or state
regulatory body, administrative agency or other governmental instrumentality
having jurisdiction over the Seller or any of its properties.
(g) NO PROCEEDINGS. There are no proceedings or investigations pending or,
to the Seller's knowledge, threatened against the Seller, before any court,
regulatory body, administrative agency or other tribunal or governmental
instrumentality having jurisdiction over the Seller or its properties (A)
asserting the invalidity of this Agreement or any of the Basic Documents, (B)
seeking to prevent the issuance of the Securities or the consummation of any of
the transactions contemplated by this Agreement or any of the Basic Documents,
(C) seeking any determination or ruling that might materially and adversely
affect the performance by the Seller of its obligations under, or the validity
or enforceability of, this Agreement or any of the Basic Documents, or (D)
seeking to adversely affect the federal income tax or other federal, state or
local tax attributes of the Securities.
(h) CHIEF EXECUTIVE OFFICE. The chief executive office of the Seller is at
000 Xxxxxx Xxxx, Xxxxx 000, Xxxx, Xxxxxx 00000.
(i) PRINCIPAL BALANCE. The aggregate Principal Balance of the Receivables
listed on the supplement to Schedule A annexed hereto and conveyed to the Issuer
pursuant to this Agreement as of the Subsequent Cutoff Date is $_____________.
(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
Receivables hereunder is subject to the satisfaction, on or prior to the
Subsequent Transfer Date, of the following conditions precedent:
EX-A-3
(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.
7. COUNTERPARTS. This Agreement may be executed in two or more
counterparts (and by different parties in separate counterparts), each of which
shall be an original but all of which together shall constitute one and the same
instrument.
GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW
PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
EX-A-4
IN WITNESS WHEREOF, the Issuer, the Seller and the Servicer have
caused this Agreement to be duly executed and delivered by their respective duly
authorized officers as of day and the year first above written.
AMERICREDIT AUTOMOBILE RECEIVABLES TRUST
2001-D,
By: BANKERS TRUST (DELAWARE), not in its
individual capacity but solely as Owner
Trustee on behalf of the Trust.
By: _______________________
Name:
Title:
AFS FUNDING CORP., Seller,
By: ___________________________
Name:
Title:
AMERICREDIT FINANCIAL SERVICES, INC.,
Servicer,
By:___________________________
Name:
Title:
Acknowledged and Accepted:
BANK ONE, NA,
not in its individual
capacity but solely as
Trust Collateral Agent
By: ________________________________
Name:
Title:
EXHIBIT B
SERVICER'S CERTIFICATE
AmeriCredit Automobile Receivables Trust 2001-D
Class A-1 2.39125 % Asset Backed Notes
Class A-2 Floating Rate Asset Backed Notes
Class A-3 Floating Rate Asset Backed Notes
Class A-4 4.4100 % Asset Backed Notes
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
2001-D, as Issuer, AmeriCredit Financial Services, Inc., as Servicer, AFS
Funding Corp., as Seller, and Bank One N.A., as the Backup Servicer and Trust
Collateral Agent, dated as of October 24, 2001. 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:
{1} Original Note Balance
----------------------------------------------------------------------------------------------------------------------------
{2} Preliminary End of period Note Balance
{3} Deficiency Claim Amount
{4} End of period Note Balance
{5} Note Pool Factors {4} / {1}
----------------------------------------------------------------------------------------------------------------------------
II. RECONCILIATION OF SPREAD ACCOUNT:
----------------------------------------------------------------------------------------------------------------------------
{6} Preliminary End of period Spread Account balance
{7} Priority First - Deficiency Claim Amount from preliminary certificate
{8} End of period Spread Account balance
----------------------------------------------------------------------------------------------------------------------------
III. MONTHLY PERIOD AND CUMULATIVE NUMBER OF RECEIVABLES CALCULATION:
----------------------------------------------------------------------------------------------------------------------------
{9} Original Number of Receivables
{10} Beginning of period number of Receivables
{11} Number of Subsequent Receivables Purchased
{12} Number of Receivables becoming Liquidated Receivables during period
{13} Number of Receivables becoming Purchased Receivables during period
{14} Number of Receivables paid off during period
{15} End of period number of Receivables
----------------------------------------------------------------------------------------------------------------------------
IV. STATISTICAL DATA: (CURRENT AND HISTORICAL)
----------------------------------------------------------------------------------------------------------------------------
{16} Weighted Average APR of the Receivables
{17} Weighted Average Remaining Term of the Receivables
{18} Weighted Average Original Term of Receivables
{19} Average Receivable Balance
{20} Aggregate Realized Losses
----------------------------------------------------------------------------------------------------------------------------
V. DELINQUENCY:
----------------------------------------------------------------------------------------------------------------------------
Receivables with Scheduled Payment delinquent
{21} 31-60 days
{22} 61-90 days
{23} over 90 days
{24} Receivables with Scheduled Payment delinquent more than 30
days at end of period
-----------------------------------------------------------------------------------------------------------------------------------
I. CLASS A-1 CLASS A-2 CLASS A-3 CLASS A-4 TOTAL
--------- --------- --------- --------- -----
{1}
-----------------------------------------------------------------------------------------------------------------------------------
{2}
--------------------------------------------------------------------------------------------------------------------------
{3}
{4}
=========================================================================================================================-
{5}
=========================================================================================================================-
-----------------------------------------------------------------------------------------------------------------------------------
II.
-----------------------------------------------------------------------------------------------------------------------------------
{6}
------------------------
{7}
------------------------
{8}
------------------------
-----------------------------------------------------------------------------------------------------------------------------------
III.
-----------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------
CUMULATIVE MONTHLY
------------------------------------------------
{9}
------------------------------------------------
{10}
{11}
{12}
{13}
{14}
------------------------------------------------
{15}
------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
IV.
-----------------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------
ORIGINAL PREV. MONTH CURRENT
-------------------------------------------------------------------------
{16}
{17}
{18}
{19}
{20}
-------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
V.
-----------------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------
UNITS DOLLARS PERCENTAGE
-------------------------------------------------------------------------
{21}
{22}
{23}
-------------------------------------------------------------------------
{24}
-------------------------------------------------------------------------
1
------------------------------------------------------------------------------------------------------------------------------------
VI. PERFORMANCE TESTS:
------------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------
DELINQUENCY RATIO
{25} Receivables with Scheduled Payment delinquent more than 60 days at end of period ({22} + {23})
{26} Purchased Receivables with Scheduled Payment delinquent more than 60 days at end of period
{27} Beginning of period Principal Balance
{28} Delinquency Ratio {25} + {26} divided by {27}
{29} Previous Monthly Period Delinquency Ratio
{30} Second previous Monthly Period Delinquency Ratio
{31} Average Delinquency Ratio ({28} + {29} + {30}) / 3
{32} Compliance (Delinquency Test Failure is a Delinquency Ratio equal to or greater than 5.00%.)
---------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------
CUMULATIVE DEFAULT RATE
{33} Defaulted Receivables in Current Period
{34} Cumulative Defaulted Receivables from last month
{35} Cumulative Defaulted Receivables {33} + {34}
{36} Original Pool Balance
{37} Cumulative Default Rate {35} divided by {36}
{38} Compliance (Default Test Failure is a Cumulative Default Rate equal to or greater than 3.53%.)
---------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------
CUMULATIVE NET LOSS RATE
{39} Receivables becoming Liquidated Receivables during period
{40} Purchased Receivables with Scheduled Payment delinquent more than 30 days at end of period
{41} Liquidation Proceeds collected during period
{42} Net Losses during period {39} + {40} + {41}
{43} Net Losses since Initial Cut-off Date (Beginning of Period)
{44} CUMULATIVE NET LOSS RATE BEFORE 50% OF 90 DAY DELINQUENCIES ({42} + {43}) / {46}
{45} 50% of Receivables with Scheduled Payment delinquent more than 90 days at end of period
{46} Original Aggregate Principal Balance plus Pre-Funded Amount as of the Closing Date
{47} Cumulative Net Loss Rate ({42} + {43} + {45}) / {46}
{48} Compliance (Net Loss Test Failure is a Net Loss Rate equal to or greater than 2.13%.)
---------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------
EXTENSION RATE
{49} Principal Balance of Receivables extended during current period
{50} Beginning of Period Aggregate Principal Balance
{51} Extension Rate {49} divided by {50}
{52} Previous Monthly Extension Rate
{53} Second previous Monthly Extension Rate
{54} Average Extension Rate ({51} +{52} +{53}) / 3
{55} Compliance (Extension Test Failure is an Extension Rate equal to or greater than 4%.)
---------------------------------------------------------------------------------------------------------------------
By:
----------------------------------------------
Name:
----------------------------------------------
Title:
----------------------------------------------
Date:
----------------------------------------------
--------------------------------------------------------------------
VI.
--------------------------------------------------------------------
-----------------------------------------------------
{25}
------------------------
{26}
------------------------
{27}
------------------------
{28}
------------------------
{29}
------------------------
{30}
------------------------
{31}
------------------------
{32}
------------------------
-----------------------------------------------------
-----------------------------------------------------
{33}
------------------------
{34}
------------------------
{35}
------------------------
{36}
------------------------
{37}
------------------------
{38}
------------------------
-----------------------------------------------------
-----------------------------------------------------
{39}
------------------------
{40}
------------------------
{41}
------------------------
{42}
------------------------
{43}
------------------------
{44}
------------------------
{45}
------------------------
{46}
------------------------
{47}
------------------------
{48}
------------------------
-----------------------------------------------------
-----------------------------------------------------
{49}
------------------------
{50}
------------------------
{51}
------------------------
{52}
------------------------
{53}
------------------------
{54}
------------------------
{55}
------------------------
-----------------------------------------------------
2
EXHIBIT C
PRELIMINARY SERVICER'S CERTIFICATE
AmeriCredit Automobile Receivables Trust 2001-D
Class A-1 2.39125 % Asset Backed Notes
Class A-2 Floating Rate Asset Backed Notes
Class A-3 Floating Rate Asset Backed Notes
Class A-4 4.4100 % 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
2001-D, as Issuer, AmeriCredit Financial Services, Inc., as Servicer, AFS
Funding Corp., as Seller, and Bank One N.A., as the Backup Servicer and Trust
Collateral Agent, dated as of October 24, 2001. 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 RECEIVABLES PRINCIPAL BALANCE CALCULATION:
------------------------------------------------------------------------------------------------------------
{1} Beginning of period Aggregate Principal Balance
{2} Purchase of Subsequent Receivables
Monthly Principal Amounts
{3} Collections on Receivables outstanding at end of period
{4} Collections on Receivables paid off during period
{5} Receivables becoming Liquidated Receivables during period
{6} Receivables becoming Purchased Receivables during period
{7} Other Receivables adjustments
{8} Less amounts allocable to Interest
{9} Total Monthly Principal Amounts
{10} End of period Aggregate Principal Balance
{11} Pool Factor ( {10} / Original Pool Balance)
------------------------------------------------------------------------------------------------------------
II. MONTHLY PERIOD NOTE BALANCE CALCULATION:
------------------------------------------------------------------------------------------------------------
{12} Original Note Balance
------------------------------------------------------------------------------------------------------------
{13} Beginning of period Note Balance
{14} Noteholders' Principal Distributable Amount
{15} Noteholders' Accelerated Principal Amount
{16} Accelerated Payment Amount Shortfall
{17} Deficiency Claim Amount
{18} End of period Note Balance
{19} Note Pool Factors ( {18} / {12} )
-------------------------------------------------------------------------------------------------------------------------------
ORIGINAL
PURCHASES UNITS CUT-OFF DATE CLOSING DATE POOL BALANCE
-------------------------------------------------------------------------------------------------------------------------------
INITIAL PURCHASE
SUB. PURCHASE #1
SUB. PURCHASE #2
SUB. PURCHASE #3
-----------------------------------------------------------------------------------------
TOTAL
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
I.
------------------------------------------------------------------------------------------------------------------------------------
{1}
------------------
{2}
------------------
{3}
------------------------
{4}
------------------------
{5}
------------------------
{6}
------------------------
{7}
------------------------
{8}
------------------------
{9}
------------------
{10}
==================
{11}
==================
------------------------------------------------------------------------------------------------------------------------------------
II. CLASS A-1 CLASS A-2 CLASS A-3 CLASS A-4 TOTAL
--------- --------- --------- --------- -----
------------------------------------------------------------------------------------------------------------------------------------
{12}
------------------------------------------------------------------------------------------------------------------------------------
{13}
----------------------------------------------------------------------------------------------------------------------
{14}
{15}
{16}
{17}
----------------------------------------------------------------------------------------------------------------------
{18}
======================================================================================================================
{19}
======================================================================================================================
1
------------------------------------------------------------------------------------------------------------------------------------
III. RECONCILIATION OF PRE-FUNDING ACCOUNT:
------------------------------------------------------------------------------------------------------------------------------------
{20} Beginning of period Pre-Funding Account balance
{21} Purchase of Subsequent Receivables
{22} Investment Earnings
{23} Investment Earnings Transfer to Collections Account
{24} Payment of Mandatory Prepayment Amount
{25} Total Month Activity
{26} End of period Pre-Funding Account balance
------------------------------------------------------------------------------------------------------------------------------------
IV. CALCULATION OF PRINCIPAL DISTRIBUTABLE AMOUNT
------------------------------------------------------------------------------------------------------------------------------------
{27} Total Monthly Principal Amounts
{28} Required Pro-forma Note Balance
{29} Pro-forma Note Balance
{30} Step-down Amount (Max of 0 or ({28} - {29}))
{31} Principal Distributable Amount ({27} - {30})
------------------------------------------------------------------------------------------------------------------------------------
V. RECONCILIATION OF CAPITALIZED INTEREST ACCOUNT:
------------------------------------------------------------------------------------------------------------------------------------
{32} Beginning of period Capitalized Interest Account balance
{33} Monthly Capitalized Interest Amount
{34} Investment Earnings
{35} Investment Earnings Transfer to Collections Account
{36} Payment of Overfunded Capitalized Interest Amount
{37} Payment of Remaining Capitalized Interest Account
{38} Total Monthly Activity
{39} End of period Capitalized Interest Account balance
------------------------------------------------------------------------------------------------------------------------------------
VI. RECONCILIATION OF COLLECTION ACCOUNT:
------------------------------------------------------------------------------------------------------------------------------------
AVAILABLE FUNDS:
{40} Collections on Receivables during period (net of Liquidation Proceeds)
{41} Liquidation Proceeds collected during period
{42} Purchase Amounts deposited in Collection
{43} Investment Earnings - Collection Account
{44} Investment Earnings - Transfer From Prefunding Account
{45} Investment Earnings - Transfer From Capitalized Interest Account
{46} Collection of Supplemental Servicing - Extension Fees
{47} Collection of Supplemental Servicing - Repo and Recovery Fees Advanced
{48} Collection of Supplemental Servicing - Late Fees
{49} Monthly Capitalized Interest Amount
{50} Mandatory Note Prepayment Amount
{51} Proceeds from Swap Agreement
{52} Total Available Funds
DISTRIBUTIONS:
{53} Swap Payments to Swap Provider
{54} Base Servicing Fee - to Servicer
{55} Repo and Recovery Fees - reimbursed to Servicer
{56} Bank Service Charges - reimbursed to Servicer
{57} Late Fees - to Servicer
{58} Agent fees - to Trustee
NOTEHOLDERS' INTEREST
DISTRIBUTABLE AMOUNT
----------------------------------------------------------------------------------------------------------
BEGINNING INTEREST INTEREST CALCULATED
CLASS NOTE BALANCE CARRYOVER RATE DAYS DAYS BASIS INTEREST
----------------------------------------------------------------------------------------------------------
{59} Class A - 1 2.39125% Actual days/360
{61} Class A - 2 Libor + .23% Actual days/360
{61} Class A - 3 Libor + .30% Actual days/360
{62} Class A - 4 4.41000% 30/360
----------------------------------------------------------------------------------------------------------
NOTEHOLDERS' PRINCIPAL
DISTRIBUTABLE AMOUNT
----------------------------------------------------------------------------------------------------------
PRINCIPAL PRINCIPAL EXCESS MANDATORY TOTAL
CLASS DISTRIBUTABLE CARRYOVER PRINCIPAL DUE NOTE PREPAYMENT PRINCIPAL
----------------------------------------------------------------------------------------------------------
{63} Class A - 1
{64} Class A - 2
{65} Class A - 3
{66} Class A - 4
----------------------------------------------------------------------------------------------------------
{67} Security Insurer Premiums - to FSA
{68} Security Insurer Premiums - to RCCA
{69} Total distributions
{70} Excess Available Funds (or Deficiency Claim Amount )
{71} Deposit to Spread Account to Increase to Required Level
{72} Noteholders' Accelerated Principal Amount
{73} Deposit to Spread Account
---------------------------------------------------------
III.
---------------------------------------------------------
{20}
------------------------
{21}
------------------------
{22}
------------------------
{23}
------------------------
{24}
------------------------
{25}
------------------------
{26}
========================
---------------------------------------------------------
IV.
--------------------------------------------------------
{27}
------------------------
{28}
------------------------
{29}
------------------------
{30}
------------------------
{31}
========================
--------------------------------------------------------
V.
--------------------------------------------------------
{32}
------------------------
{33}
------------------------
{34}
------------------------
{35}
------------------------
{36}
------------------------
{37}
------------------------
{38}
------------------------
{39}
========================
--------------------------------------------------------
VI.
--------------------------------------------------------
{40}
------------------------
{41}
------------------------
{42}
------------------------
{43}
------------------------
{44}
------------------------
{45}
------------------------
{46}
------------------------
{47}
------------------------
{48}
------------------------
{49}
------------------------
{50}
------------------------
{51}
------------------------
{52}
------------------------
{53}
------------------------
{54}
------------------------
{55}
------------------------
{56}
------------------------
{57}
------------------------
{58}
------------------------
{59}
------------------------
{60}
------------------------
{61}
------------------------
{62}
------------------------
{63}
------------------------
{64}
------------------------
{65}
------------------------
{66}
------------------------
{67}
------------------------
{68}
------------------------
{69}
------------------------
{70}
------------------------
{71}
------------------------
{72}
------------------------
{73}
========================
2
------------------------------------------------------------------------------------------------------------------------------------
VII. CALCULATION OF ACCELERATED PRINCIPAL AMOUNT
------------------------------------------------------------------------------------------------------------------------------------
{74} Excess Available Funds After Amount to Increase Spread to Required Level ({70})
{75} Pro Forma Note Balance ({13} - {9})
{76} Required Pro Forma Note Balance (91.0% x ({10} + {26}))
{77} Excess of Pro Forma Balance over Required Balance ({75} - {76})
{78} End of Period Class A-1 Note Balance
{79} Lesser of {77} or {78}
{80} Accelerated Principal Amount (lesser of {74} or {79})
------------------------------------------------------------------------------------------------------------------------------------
VIII. CALCULATION OF ACCELERATED PAYMENT AMOUNT SHORTFALL
------------------------------------------------------------------------------------------------------------------------------------
{81} Pro Forma Note Balance ({13} - {9})
{82} Required Pro Forma Note Balance (91.0% x ({10} + {26}))
{83} Excess of Pro Forma Balance over Required Balance ({81} - {82})
{84} End of Period Class A-1 Note Balance
{85} Greater of {83} or {84}
{86} Excess Available Funds ({70})
{87} Investment Earnings on Collection Account ({43})
{88} Accelerated Payment Amount Shortfall ({85} - {86} + {87})
------------------------------------------------------------------------------------------------------------------------------------
IX. RECONCILIATION OF SPREAD ACCOUNT:
------------------------------------------------------------------------------------------------------------------------------------
{89} INITIAL OR SUBSEQUENT SPREAD ACCOUNT DEPOSITS
------------------------------------------------------------------------------------------------------------------------------------
{90} BEGINNING OF PERIOD SPREAD ACCOUNT BALANCE
ADDITIONS TO SPREAD ACCOUNT
{91} Deposits from Collections Account ({73})
{92} Investment Earnings
{93} Deposits Related to Subsequent Receivables Purchases
{94} Total Additions
{95} SPREAD ACCOUNT BALANCE AVAILABLE FOR WITHDRAWALS
REQUISITE AMOUNT OF SPREAD ACCOUNT
DURING FUNDING PERIOD (THE AMOUNT BELOW WILL BE ZERO AFTER
THE FUNDING PERIOD.)
{96} 3% of the Aggregate Principal Balance and the Pre-Funded Amount
AFTER FUNDING PERIOD (ALL AMOUNTS BELOW WILL BE ZERO IF NOT
APPLICABLE OR DURING FUNDING PERIOD.)
---------------
Floor Amount (Calculation Below) =
---------------
----------------------------------------------------------------------------------------------------------
{97} (Max of (1.)$100,000 or (2.) Lesser of Note Balance and 1.5% Original Pool Balance)
{98} Recourse Reduction Amount (if any)
{99} If OC percentage is less than 12%, then 3% of Aggregate Pincipal Ending Balance
{100} If OC percentage is equal to or greater than 12.00%,
then((12.00% - OC Level) *Aggregate Principal Ending Balance)
{101} If Trigger Event exists then 16% of the Aggregate Principal Balance
{102} If an Insurance Agreement Event of Default exists then an unlimited amount (as specified by FSA)
{103} Requisite Amount of Spread Account
WITHDRAWALS FROM SPREAD ACCOUNT
{104} Priority First - Deficiency Claim Amount
---------------
Priority Second - Accelerated Payment Amount Shortfall =
---------------
{105} Accelerated Payment Amount Shortfall in Excess of Requisite Amount
{106} Priority Third through Fourth
{107} Priority Fifth through Sixth
{108} Priority Seventh - to Servicer
{109} Total withdrawals
{110} END OF PERIOD SPREAD ACCOUNT BALANCE
------------------------------------------------------------------------------------------------------------------------------------
X. CALCULATION OF OC LEVEL AND OC PERCENTAGE
------------------------------------------------------------------------------------------------------------------------------------
{111} Aggregate Principal Balance
{112} End of period Note Balance
{113} Line {111} less line {112} (During Funding Period amount equal to zero)
{114} OC level {113} / {111}
{115} Ending Spread Ending Balance as a percentage of Aggregate Principal Balance ({110}/{111})
{116} OC Percentage ({114} + {115})
By:
-------------------------------------------
Name:
-------------------------------------------
Title:
-------------------------------------------
Date:
-------------------------------------------
---------------------------------------------------------
VlI.
---------------------------------------------------------
{74}
------------------------
{75}
------------------------
{76}
------------------------
{77}
------------------------
{78}
------------------------
{79}
------------------------
{80}
------------------------
---------------------------------------------------------
VIII.
---------------------------------------------------------
{81}
------------------------
{82}
------------------------
{83}
------------------------
{84}
------------------------
{85}
------------------------
{86}
------------------------
{87}
------------------------
{88}
------------------------
---------------------------------------------------------
IX.
---------------------------------------------------------
{89}
---------------------------------------------------------
{90}
------------------------
{91}
------------------------
{92}
------------------------
{93}
------------------------
{94}
------------------------
{95}
------------------------
{96}
------------------------
{97}
------------------------
{98}
------------------------
{99}
------------------------
{100}
------------------------
{101}
------------------------
{102}
------------------------
{103}
------------------------
{104}
------------------------
{105}
------------------------
{106}
------------------------
{107}
------------------------
{108}
------------------------
{109}
------------------------
{110}
------------------------
----------------------------------------------------------
X.
----------------------------------------------------------
{111}
------------------------
{112}
------------------------
{113}
------------------------
{114}
------------------------
{115}
------------------------
{116}
------------------------
3
