EXHIBIT 4.3
EXECUTION COPY
SALE AND SERVICING
AGREEMENT
among
AMERICREDIT AUTOMOBILE RECEIVABLES TRUST 2001-A,
Issuer,
AFS FUNDING CORP.,
Seller,
AMERICREDIT FINANCIAL SERVICES, INC.,
Servicer
and
THE CHASE MANHATTAN BANK,
Backup Servicer and Trust Collateral Agent
Dated as of January 25, 2001
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......................27
ARTICLE III The Receivables....................................................28
SECTION 3.1. Representations and Warranties of Seller...................28
SECTION 3.2. Repurchase upon Breach.....................................28
SECTION 3.3. Custody of Receivables Files...............................29
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............................31
SECTION 4.3. Realization upon Receivables...............................34
SECTION 4.4. Insurance..................................................35
SECTION 4.5. Maintenance of Security Interests in Vehicles..............36
SECTION 4.6. Covenants, Representations, and Warranties of Servicer.....37
SECTION 4.7. Purchase of Receivables Upon Breach of Covenant............38
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.....................40
SECTION 4.12. Access to Certain Documentation and Information Regarding
Receivables................................................41
SECTION 4.13. Monthly Tape...............................................41
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...............................45
SECTION 5.3. Certain Reimbursements to the Servicer.....................46
SECTION 5.4. Application of Collections.................................46
SECTION 5.5. Withdrawals from Spread Account............................46
SECTION 5.6. Additional Deposits........................................47
SECTION 5.7. Distributions..............................................47
SECTION 5.8. Note Distribution Account..................................49
SECTION 5.9. Pre-Funding Account........................................51
SECTION 5.10. Statements to Noteholders..................................51
SECTION 5.11. Optional Deposits by the Insurer...........................53
SECTION 5.12. Determination of LIBOR.....................................53
ARTICLE VI The Note Policy and the Swap Provider Policy........................54
SECTION 6.1. Claims Under Note Policy...................................54
SECTION 6.2. Preference Claims Under Note Policy........................55
SECTION 6.3. Surrender of Note Policy...................................56
SECTION 6.4. Claims Under Swap Provider Policy..........................56
SECTION 6.5. Preference Claims Under Swap Provider Policy...............57
SECTION 6.6. Surrender of Swap Provider Policy..........................57
ARTICLE VII The Seller.........................................................57
SECTION 7.1. Representations of Seller..................................58
SECTION 7.2. Corporate Existence........................................59
SECTION 7.3. Liability of Seller; Indemnities...........................60
SECTION 7.4. Merger or Consolidation of, or Assumption of the
Obligations of, Seller.....................................61
SECTION 7.5. Limitation on Liability of Seller and Others...............61
SECTION 7.6. Ownership of the Certificates or Notes.....................61
ARTICLE VIII The Servicer......................................................62
SECTION 8.1. Representations of Servicer................................62
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.............65
SECTION 8.4. Limitation on Liability of Servicer, Backup
Servicer and Others........................................66
SECTION 8.5. Delegation of Duties.......................................67
SECTION 8.6. Servicer and Backup Servicer Not to Resign.................67
ARTICLE IX Default.............................................................68
SECTION 9.1. Servicer Termination Event.................................68
SECTION 9.2. Consequences of a Servicer Termination Event...............69
SECTION 9.3. Appointment of Successor...................................70
SECTION 9.4. Notification to Noteholders................................71
SECTION 9.5. Waiver of Past Defaults....................................71
ARTICLE X Termination..........................................................72
SECTION 10.1. Optional Purchase of All Receivables.......................72
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.....................................................75
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ARTICLE XII Miscellaneous Provisions...........................................75
SECTION 12.1. Amendment..................................................75
SECTION 12.2. Protection of Title to Trust...............................76
SECTION 12.3. Notices....................................................78
SECTION 12.4. Assignment.................................................78
SECTION 12.5. Limitations on Rights of Others............................79
SECTION 12.6. Severability...............................................79
SECTION 12.7. Separate Counterparts......................................79
SECTION 12.8. Headings...................................................79
SECTION 12.9. Governing Law..............................................79
SECTION 12.10. Assignment to Trustee......................................79
SECTION 12.11. Nonpetition Covenants......................................79
SECTION 12.12. Limitation of Liability of Owner Trustee and
Trustee....................................................80
SECTION 12.13. Independence of the Servicer...............................80
SECTION 12.14. No Joint Venture...........................................81
SECTION 12.15. Replacement Swap Agreement.................................81
SCHEDULES
Schedule A Schedules of Receivables
Schedule B Representations and Warranties of the Seller
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 January 25, 2001,
among AMERICREDIT AUTOMOBILE RECEIVABLES TRUST 2001-A, 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 THE CHASE MANHATTAN BANK, a New York banking corporation, 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
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 the Class A-3 Notes or the Class A-4 Notes.
"BACKUP SERVICER" means The Chase Manhattan Bank.
"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 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
$5,063,327.46 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 February 6, 2001.
"COLLATERAL AGENT" means The Chase Manhattan Bank, 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 January
25, 2001 and ending on the close of business on February 28, 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 00xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000-0000, Attention: Capital Markets, Fiduciary Services,
AmeriCredit 2001-A.
"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
5
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 9-105(1)(i) of the UCC and are
susceptible of physical delivery, transfer thereof to the Trust Collateral
Agent or its nominee or custodian by physical delivery to the Trust
Collateral Agent or its nominee or custodian endorsed to, or registered in
the name of, the Trust Collateral Agent or its nominee or custodian or
endorsed in blank, and, with respect to a certificated security (as 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 March 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 P-1;
(c) commercial paper and demand notes investing solely in commercial
paper having, at the time of the investment or contractual commitment to
invest therein, a rating from Standard & Poor's of A-1+ and from Moody's of
P-1;
(d) investments in money market funds (including funds for which the
Trust Collateral Agent or the Owner Trustee in each of their individual
capacities or any of their
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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 February 12, 2002 Insured Distribution Date,
(ii) The Class A-2 Notes, the October 12, 2004 Insured Distribution Date,
(iii) the Class A-3 Notes, the June 13, 2005 Insured Distribution Date and
(iv) the Class A-4 Notes, the December 12, 2007 Insured Distribution Date.
"FINANCED VEHICLE" means an automobile or light-duty truck
van or minivan, together with all accessions thereto, securing an Obligor's
indebtedness under the respective Receivable.
"FORCE-PLACED INSURANCE" has the meaning ascribed thereto
in Section 4.4 hereof.
"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, 2001.
"INDENTURE" means the Indenture dated as of January 25,
2001, between the Issuer and The Chase Manhattan Bank, as Trust Collateral
Agent and Trustee, as the same may be amended and supplemented from time to
time.
9
"INITIAL CUTOFF DATE" means January 25, 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 January 25, 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 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.
10
"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 and the Swap
Provider 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 28 days for the Class A-1 Notes, Class A-3 Notes and Class
A-4 Notes and 30 days for the Class A-2 Notes.
"INTEREST RATE" means, with respect to (i) the Class A-1
Notes, 5.5325% per annum (computed on the basis of a 360-day year and the
actual number of days elapsed in the applicable Interest Period), (ii) the
Class A-2 Notes, 5.36% per annum (computed on the basis of a 360-day year
consisting of twelve 30-day months), (iii) the Class A-3 Notes, LIBOR plus
0.20% 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, LIBOR plus 0.24% per
11
annum (computed on the basis of a 360-day year and the actual number of days
elapsed in the applicable Interest Period).
"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-A.
"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 January 25, 2001, by and among AmeriCredit,
Bank One, Texas, N.A. and the Trust Collateral Agent, as such agreement may
be amended or supplemented from time to time, unless the Trust Collateral
Agent shall cease to be a party thereunder, or such agreement shall be
terminated in accordance with its terms, in which event "Lockbox Agreement"
shall mean such 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 March 2001, if the last day of the Funding Period occurs
in February 2001, (ii) the Distribution Date in April 2001, if the last day
of the Funding Period occurs in March 2001 or (iii) the Distribution Date in
May 2001.
12
"MONTHLY CAPITALIZED INTEREST AMOUNT" means in the case of
the March 2001, the April 2001 or the May 2001 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
March 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 or the Swap Provider Policy) net of (i) reasonable expenses
incurred by the Servicer in connection with the collection of such Receivable
and the repossession and disposition of the Financed Vehicle and (ii) amounts
that are required to be refunded to the Obligor on such Receivable; PROVIDED,
HOWEVER, that the Liquidation Proceeds with respect to any Receivable shall
in no event be less than zero.
"NOTE DISTRIBUTION ACCOUNT" means the account designated as
such, established and maintained pursuant to Section 5.1.
"NOTE MAJORITY" means a majority by principal amount of the
Noteholders.
"NOTE POLICY" means the financial guaranty insurance policy
issued by the Insurer to the Trust Collateral Agent, as agent for the
Trustee, for the benefit of the Noteholders.
"NOTE POLICY CLAIM AMOUNT" means, for any Insured
Distribution Date, the sum of (x) the excess, if any (without duplication) of
(i) the sum of the Noteholders' Interest
13
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
A-3 Notes and Class A-4 Notes shall be computed on the basis of a 360-day
year and the actual number of days elapsed in the applicable Interest Period.
Interest on the Class A-2 Notes shall be computed on the basis of a 360-day
year of twelve 30-day months.
14
"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-3 Notes and Class A-4
Notes on the basis of a 360-day year and the actual number of days elapsed in
the applicable Interest Period and (y) for the Class A-2 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 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).
15
"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 March 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) 2.5%, (iii) 60 and (iv) the amount on deposit
in the Pre-Funding Account (excluding Pre-Funding Earnings) at the close of
business on February 28, 2001.
With respect to the April 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) 2.5%, (iii) 30 and (iv) the amount on deposit
in the Pre-Funding Account (excluding Pre-Funding Earnings) at the close of
business on March 31, 2001.
With respect to the May 2001 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.
16
"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 $699,999,188.44.
"PRE-FUNDING ACCOUNT" has the meaning specified in Section 5.1.
"PRE-FUNDING EARNINGS" means any Investment Earnings on
amounts on deposit in the Pre-Funding Account.
"PRELIMINARY DETERMINATION DATE" means, with respect to any
Collection Period, the second Business Day preceding the Distribution Date in
the next calendar month.
"PRELIMINARY SERVICER'S CERTIFICATE" means an Officers'
Certificate of the Servicer delivered pursuant to Section 4.9(a), substantially
in the form of Exhibit C.
"PREPAYMENT AMOUNT" means the amount deposited in the
Collection Account from the Pre-Funding Account on the Mandatory Redemption Date
pursuant to Section 5.7(a)(ii) hereof.
"PRINCIPAL BALANCE" means, with respect to any Receivable, as
of any date, the sum of (x) the Amount Financed minus (i) that portion of all
amounts received on or prior to such date and allocable to principal in
accordance with the terms of the Receivable and (ii) any Cram Down Loss in
respect of such Receivable plus (y) the accrued and unpaid interest on such
Receivable.
"PRINCIPAL DISTRIBUTABLE AMOUNT" means, with respect to any
Distribution Date, the amount equal to the excess, if any, of (x) the sum of (i)
the principal portion of all Collected Funds received during the immediately
preceding Collection Period (other than Liquidated Receivables and Purchased
Receivables), (ii) the Principal Balance of all Receivables that became
Liquidated Receivables during the related Collection Period (other than
Purchased Receivables), (iii) the principal portion of the Purchase Amounts
received with respect to all Receivables that became Purchased Receivables
during the related Collection Period, (iv) in the sole discretion of the
Insurer, the Principal Balance of all the Receivables that were required to be
purchased pursuant to Sections 3.2 and 4.7, during such Collection Period but
were not
17
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 January 25, 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 and Standard & Poor's. If no
such organization or successor maintains a rating on the Securities, "RATING
AGENCY" shall be a nationally recognized statistical rating organization or
other comparable Person designated by the Seller and acceptable to the
Insurer (so long as an Insurer Default shall not have occurred and be
continuing), notice of which designation shall be given to the Trust
Collateral Agent, the Owner Trustee and the Servicer.
"RATING AGENCY CONDITION" means, with respect to any
action, that each Rating Agency shall have been given 10 days' (or such
shorter period as shall be acceptable to each Rating Agency) prior notice
thereof and that each of the Rating Agencies shall have notified the Seller,
the Servicer, the Insurer, the Owner Trustee and the Trust Collateral Agent
in writing that such action will not result in a reduction or withdrawal of
the then current rating of any Class of Notes.
"REALIZED LOSSES" means, with respect to any Receivable
that becomes a Liquidated Receivable, the excess of the Principal Balance of
such Liquidated Receivable over Net Liquidation Proceeds to the extent
allocable to principal.
"RECEIVABLE" means any Contract listed on Schedule A, as
such Schedule shall be amended to reflect the transfer of Subsequent
Receivables to the Trust (which Schedule may be in the form of microfiche or
a disk).
"RECEIVABLE FILES" means the documents specified in
Section 3.3.
18
"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.
"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.
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"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 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-A Spread Account Agreement Supplement dated as of January 25, 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 $14,000,016.23).
"STANDARD & POOR'S" means Standard & Poor's, a Division of
The XxXxxx-Xxxx Companies, 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.
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"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, 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
January 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-3 Notes and the Class A-4 Notes, and together
with any replacement swap agreements 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 Credit Suisse First Boston
International, together with any replacement Swap Provider thereafter
approved by the Insurer.
"SWAP PROVIDER POLICY" means the financial guaranty
insurance policy issued by the Insurer to the Swap Provider.
"SWAP PROVIDER POLICY CLAIM AMOUNT" means, for any Insured
Distribution Date, prior to and including the Insured Distribution Date on
which the principal balances of the Class A-3 Notes and Class A-4 Notes are
reduced to zero, an amount equal to the excess, if any, of (i) the net
payment (excluding any hedge termination payments (as defined in the Swap
Agreement)) in respect of the Swap Agreement that is due and payable by the
Issuer to the Swap Provider on such Insured Distribution Date in accordance
with the original terms of the Swap Agreement, the Indenture and the Sale and
Servicing Agreement and without regard to any subsequent amendment or
modification of the Swap Agreement, the Indenture or the Sale and Servicing
Agreement (except amendments or modifications to which the Insurer has given
its prior written consent and which are otherwise permitted pursuant to the
terms of the Swap
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Agreement, the Indenture or the Sale and Servicing Agreement, as applicable)
over (ii) the amount actually deposited into the Collection Account on such
related Distribution Date.
"SWAP PROVIDER POLICY CLAIM NOTICE" shall have the meaning
set forth in Section 6.4(a).
"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
January 9, 2001, between the Seller and the Owner Trustee, as amended and
restated as of January 25, 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.
"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.
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"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 Swap Provider 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 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
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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;
(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
24
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;
(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:
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(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 18%, unless, with the
prior consent of the Rating Agencies and the Insurer, the Seller
increases the Spread Account Initial Deposit with respect to such
Subsequent Receivables by the amount required by the Insurer; (ii) the
weighted average remaining term of the Receivables transferred to the
Trust shall not be greater than 72 months; (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 30% of the
Receivables shall have an original term to maturity of 72 months; and
(v) the 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;
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(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).
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).
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(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.
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
28
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.
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 January 25, 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
29
(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 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
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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 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.
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(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).
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
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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.
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
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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 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
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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
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
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the entire premium to the Servicer. In no event shall the Servicer include
the amount of the premium in the Amount Financed under the Receivable. For
all purposes of this Agreement, the Insurance Add-On Amount with respect to
any Receivable having Force-Placed Insurance will be treated as a separate
obligation of the Obligor and will not be added to the Principal Balance of
such Receivable, and amounts allocable thereto will not be available for
distribution on the Notes and the Certificates. The Servicer shall retain and
separately administer the right to receive payments from Obligors with
respect to Insurance Add-On Amounts or rebates of Forced-Placed Insurance
premiums. If an Obligor makes a payment with respect to a Receivable having
Force-Placed Insurance, but the Servicer is unable to determine whether the
payment is allocable to the Receivable or to the Insurance Add-On Amount, the
payment shall be applied first to any unpaid Scheduled Receivables Payments
and then to the Insurance Add-On Amount. Net Liquidation Proceeds on any
Receivable will be used first to pay the Principal Balance and accrued
interest on such Receivable and then to pay the related Insurance Add-On
Amount. If an Obligor under a Receivable with respect to which the Servicer
has placed Force-Placed Insurance fails to make scheduled payments of such
Insurance Add-On Amount as due, and the Servicer has determined that eventual
payment of the Insurance Add-On Amount is unlikely, the Servicer may, but
shall not be required to, purchase such Receivable from the Trust for the
Purchase Amount on any subsequent Determination Date. Any such Receivable,
and any Receivable with respect to which the Servicer has placed Force-Placed
Insurance which has been paid in full (excluding any Insurance Add-On
Amounts) will be assigned to the Servicer.
(d) The Servicer may xxx to enforce or collect upon the Insurance
Policies, in its own name, if possible, or as agent of the Trust. If the
Servicer elects to commence a legal proceeding to enforce an Insurance
Policy, the act of commencement shall be deemed to be an automatic assignment
of the rights of the Trust under such Insurance Policy to the Servicer for
purposes of collection only. If, however, in any enforcement suit or legal
proceeding it is held that the Servicer may not enforce an Insurance Policy
on the grounds that it is not a real party in interest or a holder entitled
to enforce the Insurance Policy, the Owner Trustee and/or the Trust
Collateral Agent, at the Servicer's expense, or the Seller, at the Seller's
expense, shall take such steps as the Servicer deems necessary to enforce
such Insurance Policy, including bringing suit in its name or the name of the
Trust and the Owner Trustee and/or the Trust Collateral Agent for the benefit
of the Noteholders.
(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
36
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 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:
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(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.
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
38
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 Backup Servicer, the Collateral Agent,
the Lockbox Bank (and any fees under the Lockbox Agreement) and the
Independent Accountants. Notwithstanding the foregoing, if the Servicer shall
not be AmeriCredit, a successor to AmeriCredit as Servicer including the
Backup Servicer permitted by Section 9.3 shall not be liable for taxes levied
or assessed against the Trust or claims against the Trust in respect of
indemnification, or the fees and expenses referred to above.
SECTION 4.9. PRELIMINARY SERVICER'S CERTIFICATE AND SERVICER'S
CERTIFICATE.
(a) No later than 10:00 am. Eastern time on each Preliminary
Determination Date, the Servicer shall deliver (facsimile delivery being
acceptable) to the Trustee, the Owner Trustee, the Trust Collateral Agent, the
Collateral Agent, the Backup Servicer, the Insurer, the Collateral Agent, 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 am. Eastern time on each Determination Date,
the Servicer shall deliver (facsimile delivery being acceptable) to the Trustee,
the Owner Trustee, the Trust Collateral Agent, the Backup Servicer, the Insurer,
the Collateral Agent and each Rating Agency a Servicer's Certificate executed by
a Responsible Officer of the Servicer containing among other things, (i) all
information necessary to enable the Trust Collateral Agent to make any
withdrawal and deposit required by Section 5.5 and to make the distributions
required by Section 5.7(c), (ii) a listing of all Purchased Receivables and
Administrative Receivables purchased as of the related Accounting Date,
identifying the Receivables so purchased, (iii) all information necessary to
enable the Trust Collateral Agent to send the statements to Noteholders and the
Insurer required
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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, 2001, 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.
(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
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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,
2001, 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.
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 (x) withdrawn
from the Spread Account, (y) drawn under the Note Policy or (z) drawn under
the Swap Provider Policy, (D) the outstanding
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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 Closing Date and ending on June 30, 2001,
which term shall be subject to extension by the Controlling Party for
successive quarterly terms ending on each successive September 30, December
31, March 31 and June 30 (or, pursuant to revocable written standing
instructions from time to time to the Servicer and the Trust Collateral Agent
for any specified number of terms greater than one), until the Notes and the
Securities are paid in full. Each such notice (including each notice pursuant
to standing instructions, which shall be deemed delivered at the end of
successive quarterly terms for so long as such instructions are in effect) (a
"SERVICER EXTENSION NOTICE") shall be delivered by the Insurer to the Trust
Collateral Agent and the Servicer. The Servicer hereby agrees that, as of the
date hereof and upon its receipt of any such Servicer Extension Notice, the
Servicer shall become bound, for the initial term beginning on the Closing
Date and for the duration of the term covered by such Servicer Extension
Notice, to continue as the Servicer subject to and in accordance with the
other provisions of this Agreement. Until such time as an Insurer Default
shall have occurred and be continuing the Trust Collateral Agent agrees that
if as of the fifteenth day prior to the last day of any term of the Servicer
the Trust Collateral Agent shall not have received any Servicer Extension
Notice from
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the Insurer, the Trust Collateral Agent will, within five days thereafter,
give written notice of such non-receipt to the Insurer and the Servicer.
SECTION 4.15. FIDELITY BOND AND ERRORS AND OMISSIONS POLICY. The
Servicer has obtained, and shall continue to maintain in full force and
effect, a Fidelity Bond and Errors and Omissions Policy of a type and in such
amount as is customary for servicers engaged in the business of servicing
automobile receivables.
ARTICLE V
TRUST ACCOUNTS; DISTRIBUTIONS;
STATEMENTS TO NOTEHOLDERS
SECTION 5.1. ESTABLISHMENT OF TRUST ACCOUNTS.
(a) (i) The Trust Collateral Agent, on behalf of the Noteholders and
the Insurer, shall establish and maintain in its own name an Eligible Deposit
Account (the "COLLECTION ACCOUNT"), bearing a designation clearly indicating
that the funds deposited therein are held for the benefit of the Trust
Collateral Agent on behalf of the Noteholders and the Insurer. The Collection
Account shall initially be established with the Trust Collateral Agent.
(ii) The Trust Collateral Agent, on behalf of the Noteholders,
shall establish and maintain in its own name an Eligible Deposit Account (the
"NOTE DISTRIBUTION ACCOUNT"), bearing a designation clearly indicating that the
funds deposited therein are held for the benefit of the Trust Collateral Agent
on behalf of the Noteholders and the Insurer. The Note Distribution Account
shall initially be established with the Trust Collateral Agent.
(iii) The Trust Collateral Agent, on behalf of the Noteholders
and the Insurer, shall establish and maintain in its own name an Eligible
Deposit Account (the "PRE-FUNDING ACCOUNT"), bearing a designation clearly
indicating that the funds deposited therein are held for the benefit of the
Trust Collateral Agent on behalf of the Noteholders and the 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.
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(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 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
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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.
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 March 2001, April 2001
and May 2001, 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 March 2001, April 2001 and
May 2001, 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
45
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.
In the event that the Insurer has not received evidence satisfactory to it of
the Servicer's entitlement to reimbursement pursuant to this Section, the
Insurer shall (unless an Insurer Default shall have occurred and be
continuing) give the Trust Collateral Agent notice in writing to such effect,
following receipt of which the Trust Collateral Agent shall not make a
distribution to the Servicer in respect of such amount pursuant to Section
5.7, or if the Servicer prior thereto has been reimbursed pursuant to Section
5.7, the Trust Collateral Agent shall withhold such amounts from amounts
otherwise distributable to the Servicer on the next succeeding Distribution
Date. The Servicer will additionally be entitled to receive from amounts on
deposit in the Collection Account with respect to a Collection Period any
amounts paid by 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.
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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 related
Distribution Date. Any Accelerated Payment Shortfall Notice shall be delivered
by 2:00 p.m. Eastern time, on the Business Day preceding such Distribution Date.
(c) The amounts distributed by the Collateral Agent to the Trust
Collateral Agent pursuant to a Deficiency Notice or Accelerated Payment
Shortfall Notice shall be deposited by the Trust Collateral Agent into the
Collection Account pursuant to Section 5.6.
SECTION 5.6. ADDITIONAL DEPOSITS.
(a) The Servicer and the Seller, as applicable, shall deposit or cause
to be deposited in the Collection Account on the Preliminary Determination Date
on which such obligations are due the aggregate Purchase Amount with respect to
Purchased Receivables. On or before each Draw Date, the Trust Collateral Agent
shall remit to the Collection Account any amounts delivered to the Trust
Collateral Agent by the Collateral Agent.
(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-
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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; PROVIDED,
that any payments made to the Swap Provider under the Swap Provider
Policy on a Distribution Date shall be deemed to be payments made to
the Swap Provider pursuant to this clause (i) on such Distribution
Date;
(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
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 to the Insurer, to the extent of
any amounts owing to the Insurer under the Insurance Agreement and not
paid;
(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;
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(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 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
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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;
(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.
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(d) Distributions required to be made to Noteholders on any
Distribution Date or any Insured Distribution Date shall be made to each
Noteholder of record on the preceding Record Date either by (i) wire transfer,
in immediately available funds, to the account of such Holder at a bank or other
entity having appropriate facilities therefore, if such Noteholder shall have
provided to the Note Registrar appropriate written instructions at least five
Business Days prior to such Distribution Date and such Holder's Notes in the
aggregate evidence a denomination of not less than $1,000,000 or (ii) by check
mailed to such Noteholder at the address of such holder appearing in the Note
Register. Notwithstanding the foregoing, the final distribution in respect of
any Note (whether on the Final Scheduled Distribution Date or otherwise) will be
payable only upon presentation and surrender of such Note at the office or
agency maintained for that purpose by the Note Registrar pursuant to Section 2.4
of the Indenture.
(e) Subject to Section 5.1 and this section, monies received by the
Trust Collateral Agent hereunder need not be segregated in any manner except to
the extent required by law and may be deposited under such general conditions as
may be prescribed by law, and the Trust Collateral Agent shall not be liable for
any interest thereon.
SECTION 5.9. PRE-FUNDING ACCOUNT.
(a) On the Closing Date, the Trust Collateral Agent will deposit, on
behalf of and at the written direction of the Seller, in the Pre-Funding Account
$699,999,188.44 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;
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(ii) the amount of such distribution allocable to interest on
or with respect to each Class of Notes;
(iii) the amount of such distribution payable out of amounts
withdrawn from the Spread Account or pursuant to a claim on the Note
Policy;
(iv) the Pool Balance as of the close of business on the last
day of the preceding Collection Period;
(v) the aggregate outstanding principal amount of each Class
of the Notes and the Note Pool Factor for each such Class after giving
effect to payments allocated to principal reported under (i) above;
(vi) the amount of the Servicing Fee paid to the Servicer with
respect to the related Collection Period and/or due but unpaid with
respect to such Collection Period or prior Collection Periods, as the
case may be;
(vii) the Noteholders' Interest Carryover Amount and the
Noteholders' Principal Carryover Amount;
(viii) the amount of the aggregate Realized Losses, if any,
for the second preceding Collection Period;
(ix) the aggregate Purchase Amounts for Receivables, if any,
that were repurchased in such period;
(x) for Distribution Dates during the Funding Period, if any,
the remaining Pre-Funded Amount; and
(xi) for the final Subsequent Transfer Date, the amount of any
remaining Pre-Funded Amount that has not been used to fund the purchase
of Subsequent Receivables and is passed through as principal to
Noteholders.
Each amount set forth pursuant to paragraph (i), (ii), (iii), (vi) and (vii)
above shall be expressed as a dollar amount per $1,000 of the initial principal
balance of the Notes (or Class thereof).
(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.xxxxx.xxx/xxxxxx. 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 (212)
946-3651. 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.
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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-3 Notes and Class A-4 Notes on February 2, 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 business day means a Business Day and a day on which
banking institutions in the City of London, England are not required or
authorized by law to be closed.
"LIBOR" means, with respect to any Interest Period, the London
interbank offered rate for deposits in U.S. dollars having a maturity of one
month commencing on the related LIBOR Determination Date (the "INDEX MATURITY")
which appears on Telerate Page 3750 as of 11:00 a.m., London time, on such LIBOR
Determination Date. If the rates used to determine LIBOR 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.
"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 AND THE SWAP PROVIDER 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.
SECTION 6.4. CLAIMS UNDER SWAP PROVIDER POLICY.
(a) In the event that the Servicer's Certificate with respect to any
Determination Date shall state that there is a Swap Provider Policy Claim
Amount then, on the Deficiency Claim Date immediately preceding the related
Insured Distribution Date, the Swap Provider shall deliver to the Collateral
Agent, the Owner Trustee, the Insurer and the Servicer, by hand delivery or
facsimile transmission, a written notice (a "SWAP PROVIDER POLICY CLAIM
NOTICE") specifying the Swap Provider Policy Claim Amount for such Insured
Distribution Date.
Any Swap Provider Policy Claim Notice shall be delivered by
12:00 noon, Eastern time, on the fourth Business Day preceding such Insured
Distribution Date.
(b) If the Swap Provider Policy Claim Amount for such Insured
Distribution Date is greater than zero, the Swap Provider 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 (c) below) in the amount of the
Swap Provider Policy Claim Amount. Amounts paid by the Insurer pursuant to a
claim submitted under this Section shall be held in trust and applied
directly to, payment of Scheduled Payments as defined in the Swap Provider
Policy.
(c) Any notice delivered by the Swap Provider to the Insurer
pursuant to subsection 6.4(a) shall specify the Swap Policy Claim Amount
claimed under the Swap Provider Policy and shall constitute a "NOTICE OF
CLAIM" under the Swap Provider Policy. In accordance with the provisions of
the Swap Provider Policy, the Insurer is required to pay to the Swap Provider
the Swap Provider 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 Swap
Provider Policy shall be applied solely to the payment of the amounts due to
the Swap Provider, and for no other purpose.
(d) Any and all Swap Provider Policy Claim Amounts from claims made
under the Swap Provider Policy shall not be considered payment by the Trust,
and shall not discharge the obligations of the Trust with respect thereto.
The Insurer shall, to the extent it makes any payment to the Swap Provider,
become subrogated to the rights of the Swap Provider of such payments to the
extent of such payments. The foregoing subrogation shall in all cases be
subject to the rights of the Swap Provider to receive all Scheduled Payments
(as defined in the Swap Provider Policy).
(e) The Swap Provider shall keep a complete and accurate record of
all funds disbursed by the Insurer with respect to the Swap Provider Policy.
The Insurer shall have the right to inspect such records at reasonable times
upon one Business Day's prior notice to the Swap Provider.
(f) The Swap Provider shall be entitled to enforce the obligations
of the Insurer under the Swap Provider Policy.
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SECTION 6.5. PREFERENCE CLAIMS UNDER SWAP PROVIDER POLICY.
(a) In the event that the Swap Provider has received a certified copy
of an order of the appropriate court that any Scheduled Payment (as defined in
the Swap Provider Policy) paid to the Swap Provider has been avoided in whole or
in part as a preference payment under applicable bankruptcy law, the Swap
Provider shall so notify the Insurer, shall comply with the provisions of the
Swap Provider Policy to obtain payment by the Insurer of such avoided payment,
and shall notify the Insurer by mail that, in the event that any payment to the
Swap Provider is so recoverable, the Swap Provider will be entitled to payment
pursuant to the terms of the Swap Provider Policy. The Swap Provider shall
furnish to the Insurer its records evidencing the payments which have been made
by the Insurer to the Swap Provider pursuant to the Swap Provider Policy and
subsequently recovered from the Swap Provider, and the dates on which such
payments were made. Pursuant to the terms of the Swap Provider Policy, the
Insurer will make such payment on behalf of the Swap Provider to the receiver,
conservator, debtor-in-possession or trustee in bankruptcy named in the Order
(as defined in the Swap Provider Policy) and not to the Swap Provider directly
(unless the Swap Provider 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 Swap Provider upon proof of such payment
reasonably satisfactory to the Insurer).
(b) The Swap Provider shall promptly notify the Insurer of any
proceeding or the institution of any action (of which a Responsible Officer of
the Swap Provider has actual knowledge) seeking the avoidance as a preferential
transfer under applicable bankruptcy, insolvency, receivership, rehabilitation
or similar law (a " SWAP PROVIDER PREFERENCE CLAIM") of any distribution made
with respect to payments made to the Swap Provider. The Swap Provider hereby
agrees 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 Swap Provider Preference Claim direct all matters
relating to such Swap Provider Preference Claim, including, without limitation,
(i) the direction of any appeal of any order relating to any Swap Provider
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 the Swap Provider hereby delegates and
assigns, to the fullest extent permitted by law, the rights of the trustee and
the Swap Provider in the conduct of any proceeding with respect to a Swap
Provider 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 Swap Provider Preference Claim.
SECTION 6.6. SURRENDER OF SWAP PROVIDER POLICY. The Swap Provider
shall surrender the Swap Provider Policy to the Insurer for cancellation upon
the expiration of such policy in accordance with the terms thereof.
ARTICLE VII
THE SELLER
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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
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
58
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.
(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;
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(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.
(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.
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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 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,
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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 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;
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(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.
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
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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.
(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.
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(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. MERGER OR CONSOLIDATION OF, OR ASSUMPTION OF THE
OBLIGATIONS OF THE SERVICER OR BACKUP SERVICER.
(a) AmeriCredit shall not merge or consolidate with any other person,
convey, transfer or lease substantially all its assets as an entirety to another
Person, or permit any other Person to become the successor to AmeriCredit's
business unless, after the merger, consolidation, conveyance, transfer, lease or
succession, the successor or surviving entity shall be capable of fulfilling the
duties of AmeriCredit contained in this Agreement and shall be acceptable to the
Controlling Party, and, if an Insurer Default shall have occurred and be
continuing, shall be an Eligible Servicer. Any corporation (i) into which
AmeriCredit may be merged or consolidated, (ii) resulting from any merger or
consolidation to which AmeriCredit shall be a party, (iii) which acquires by
conveyance, transfer, or lease substantially all of the assets of AmeriCredit,
or (iv) succeeding to the business of AmeriCredit, in any of the foregoing cases
shall execute an agreement of assumption to perform every obligation of
AmeriCredit under this Agreement and, whether or not such assumption agreement
is executed, shall be the successor to AmeriCredit under this Agreement without
the execution or filing of any paper or any further act on the part of any of
the parties to this Agreement, anything in this Agreement to the contrary
notwithstanding; PROVIDED, HOWEVER, that nothing contained herein shall be
deemed to release AmeriCredit from any obligation. AmeriCredit shall provide
notice of any merger, consolidation or succession pursuant to this Section to
the Owner Trustee, the Trust Collateral Agent, the Noteholders, the Insurer and
each Rating Agency. Notwithstanding the foregoing, AmeriCredit shall not merge
or consolidate with any other Person or permit any other Person to become a
successor to AmeriCredit's business, unless (x) immediately after giving effect
to such transaction, no representation or warranty made pursuant to Section 4.6
shall have been breached (for purposes hereof, such representations and
warranties shall speak as of the date of the consummation of such transaction)
and no event that, after notice or lapse of time, or both, would become an
Insurance Agreement Event of Default shall have occurred and be continuing, (y)
AmeriCredit shall have delivered to the Owner Trustee, the Trust Collateral
Agent, Trustee, Backup Servicer and Collateral Agent, the Rating Agencies and
the Insurer an Officer's Certificate and an Opinion of Counsel each stating that
such consolidation, merger or succession and such agreement of assumption comply
with this Section and that all conditions precedent, if any, provided for in
this Agreement relating to such transaction have been complied with, and (z)
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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, 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
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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 The Chase
Manhattan Bank acting in the possible dual capacity of Backup Servicer or
successor Servicer and in the capacity as Trust Collateral Agent. The Chase
Manhattan Bank 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 The Chase
Manhattan Bank 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 The Chase Manhattan Bank.
SECTION 8.5. DELEGATION OF DUTIES. The Servicer may delegate duties
under this Agreement to an Affiliate of AmeriCredit with the prior written
consent of the Insurer (unless an Insurer Default shall have occurred and be
continuing), the Trust Collateral Agent, the Owner Trustee and the Backup
Servicer. The Servicer also may at any time perform through sub-contractors
the specific duties of (i) repossession of Financed Vehicles, (ii) tracking
Financed Vehicles' insurance and (iii) pursuing the collection of deficiency
balances on certain Liquidated Receivables, in each case, without the consent
of the Insurer and may perform other specific duties through such
sub-contractors in accordance with Servicer's customary servicing policies
and procedures, with the prior consent of the Insurer; PROVIDED, HOWEVER,
that no such delegation or sub-contracting duties by the Servicer shall
relieve the Servicer of its responsibility with respect to such duties. So
long as no Insurer Default shall have occurred and be continuing neither
AmeriCredit or any party acting as Servicer hereunder shall appoint any
subservicer hereunder without the prior written consent of the Insurer, the
Trustee and the Backup Servicer.
SECTION 8.6. SERVICER AND BACKUP SERVICER NOT TO RESIGN. Subject to
the provisions of Section 8.3, neither the Servicer nor the Backup Servicer
shall resign from the obligations and duties imposed on it by this Agreement
as Servicer or Backup Servicer except upon a determination that by reason of
a change in legal requirements the performance of its duties under this
Agreement would cause it to be in violation of such legal requirements in a
manner which would have a material adverse effect on the Servicer or the
Backup Servicer, as the case may be, and the Insurer (so long as an Insurer
Default shall not have occurred and be continuing) or a Note Majority (if an
Insurer Default shall have occurred and be continuing) does not elect to
waive the obligations of the Servicer or the Backup Servicer, as the case may
be, to perform the duties which render it legally unable to act or to
delegate those duties to another Person. Any such determination permitting
the resignation of the Servicer or Backup Servicer shall be evidenced by an
Opinion of Counsel to such effect delivered and acceptable to the Trust
Collateral Agent, the Owner Trustee and the Insurer (unless an Insurer
Default shall have occurred and be continuing). No resignation of the
Servicer shall become effective until, so long as no Insurer Default shall
have occurred and be continuing the Backup Servicer or an entity
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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 The Chase Manhattan Bank resigns as
the Trustee under the Indenture it will no longer be the Backup Servicer.
ARTICLE IX
DEFAULT
SECTION 9.1. SERVICER TERMINATION EVENT. For purposes of this
Agreement, each of the following shall constitute a "SERVICER TERMINATION
EVENT":
(a) Any failure by the Servicer to deliver to the Trust Collateral
Agent for distribution to Noteholders any proceeds or payment required to be so
delivered under the terms of this Agreement that continues unremedied for a
period of two Business Days (one Business Day with respect to payment of
Purchase Amounts) after written notice is received by the Servicer from the
Trust Collateral Agent or (unless an Insurer Default shall have occurred and be
continuing) the Insurer or after discovery of such failure by a Responsible
Officer of the Servicer;
(b) Failure by the Servicer to deliver to the Trust Collateral Agent
and (so long as an Insurer Default shall not have occurred and be continuing)
the Insurer the Servicer's Certificate by the fourth Business Day prior to the
Insured Distribution Date, or failure on the part of the Servicer to observe its
covenants and agreements set forth in Section 8.3(a);
(c) Failure on the part of the Servicer duly to observe or perform any
other covenants or agreements of the Servicer set forth in this Agreement, which
failure (i) materially and adversely affects the rights of Noteholders
(determined without regard to the availability of funds under the Note Policy),
or of the Insurer (unless an Insurer Default shall have occurred and be
continuing), and (ii) continues unremedied for a period of 30 days after
knowledge thereof by the Servicer or after the date on which written notice of
such failure, requiring the same to be remedied, shall have been given to the
Servicer by the Trust Collateral Agent or the Insurer (or, if an Insurer Default
shall have occurred and be continuing by any Noteholder);
(d) The entry of a decree or order for relief by a court or regulatory
authority having jurisdiction in respect of the Servicer in an involuntary case
under the federal bankruptcy laws, as now or hereafter in effect, or another
present or future, federal bankruptcy, insolvency or similar law, or appointing
a receiver, liquidator, assignee, trustee, custodian, sequestrator or other
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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 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
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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 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
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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.
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.
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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 and the Certificates. 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.
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
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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, 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
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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 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.
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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.
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.
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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 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
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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 that, in the opinion of such Counsel, in
form and substance reasonably satisfactory to the Insurer, either (A)
all financing statements and continuation statements have been executed
and filed that are necessary fully to preserve and protect the interest
of the Trust and the Trustee in the Receivables, and reciting the
details of such filings or referring to prior Opinions of Counsel in
which such details are given, or (B) no such action shall be necessary
to preserve and protect such interest; and
(2) within 90 days after the beginning of each
calendar year beginning with the first calendar year beginning more
than three months after the Cutoff Date, an Opinion of Counsel, dated
as of a date during such 90-day period, stating that, in the opinion of
such counsel, either (A) all financing statements and continuation
statements
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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 claim on the Swap Provider Policy, a Deficiency Notice
pursuant to Section 5.5 of this Agreement or with respect to which failure on
the part of the Insurer to respond shall be deemed to constitute consent or
acceptance, then a copy of such notice or other communication should also be
sent to the attention of each of the General Counsel and the Head-Financial
Guaranty Group and shall be marked to indicate "URGENT MATERIAL ENCLOSED");
(f) in the case of Moody's, to Xxxxx'x Investors Service, Inc., ABS
Monitoring Department, 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000; and (g) in
the case of Standard & Poor's, to Standard & Poor's Ratings Group, 00 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Asset Backed Surveillance
Department. Any notice required or permitted to be mailed to a Noteholder
shall be given by first class mail, postage prepaid, at the address of such
Holder as shown in the Note Register. Any notice so mailed within the time
prescribed in the Agreement shall be conclusively presumed to have been duly
given, whether or not the Noteholder shall receive such notice.
SECTION 12.4. ASSIGNMENT. This Agreement shall inure to the benefit
of and be binding upon the parties hereto and their respective successors and
permitted assigns. Notwithstanding anything to the contrary contained herein,
except as provided in Sections 7.4 and 8.3 and as provided in the provisions
of this Agreement concerning the resignation of the Servicer, this Agreement
may not be assigned by the Seller or the Servicer without the prior written
consent of the Owner Trustee, the Trust Collateral Agent, the Backup
Servicer, the Trustee and the Insurer (or if an Insurer Default shall have
occurred and be continuing the Holders of Notes evidencing not less than 66%
of the principal amount of the outstanding Notes).
78
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 or the Swap Provider 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.
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
79
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 The Chase Manhattan Bank, not in
its individual capacity but solely as Trust Collateral Agent and Backup Servicer
and in no event shall The Chase Manhattan Bank, have any liability for the
representations, warranties, covenants, agreements or other obligations of the
Issuer hereunder or in any of the certificates, notices or agreements delivered
pursuant hereto, as to all of which recourse shall be had solely to the assets
of the Issuer.
(c) In no event shall The Chase Manhattan Bank, 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.
80
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.
81
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-A
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: Vice President
AFS FUNDING CORP., Seller,
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President and Treasurer
AMERICREDIT FINANCIAL SERVICES, INC.,
Servicer,
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President and Treasurer
[Sale and Servicing Agreement]
THE CHASE MANHATTAN BANK,
not in its individual capacity but solely as Backup Servicer
By: /s/ Xxxxx X. Xxxxxx
--------------------------------------------------
Name: Xxxxx X. Xxxxxx
Title:Vice President
Acknowledged and accepted by
THE CHASE MANHATTAN BANK,
not in its individual capacity but solely as
Trust Collateral Agent
By: /s/ Xxxxx X. Xxxxxx
----------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
[Sale and Servicing Agreement]
SCHEDULE A
SCHEDULE OF RECEIVABLES
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 and New York.
13. ONE ORIGINAL. There is only one original executed copy of each
Receivable.
14. RECEIVABLE FILES COMPLETE. There exists a Receivable File pertaining
to each Receivable and such Receivable File contains (a) a fully executed
original of the Receivable, (b) the original executed credit application, or
a 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 30% 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 33%; (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 January 25, 2001, among AMERICREDIT
AUTOMOBILE RECEIVABLES TRUST 2001-A, a Delaware business trust (the "ISSUER"),
AFS FUNDING CORP., a Nevada corporation (the "SELLER"), AMERICREDIT FINANCIAL
SERVICES, INC. a Delaware corporation (the "SERVICER"), and THE CHASE MANHATTAN
BANK, a New York banking corporation (the "TRUST COLLATERAL AGENT").
W I T N E S S E T H:
WHEREAS pursuant to the Sale and Servicing Agreement, the Seller wishes to
convey the Subsequent Receivables to the Issuer; and
WHEREAS, the Issuer is willing to accept such conveyance subject to the
terms and conditions hereof.
NOW, THEREFORE, the Issuer, the Seller, the Servicer and the Trust
Collateral Agent hereby agree as follows:
1. DEFINED TERMS. Capitalized terms used herein shall have the meanings
ascribed to them in the Sale and Servicing Agreement unless otherwise defined
herein.
"SUBSEQUENT CUTOFF DATE" shall mean, with respect to the Subsequent
Receivables conveyed hereby, _______________, 2001.
"SUBSEQUENT TRANSFER DATE" shall mean, with respect to the Subsequent
Receivables conveyed hereby, _____________, 2001.
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;
EX-A-1
(c) any proceeds and the right to receive proceeds with respect to the
Subsequent Receivables from claim and the right to receive proceeds on any
physical damage, credit life or disability insurance policies covering
Financed Vehicles or Obligors;
(d) all rights of the Seller against the Dealers and Third-Party
Lenders;
(e) any proceeds with respect to the Subsequent Receivables from
recourse to Dealers and Third-Party Lenders in respect to which the
Servicer has determined in accordance with its customary servicing
procedures that eventual payment in full is unlikely;
(f) the related Receivables Files;
(g) its rights and benefits, but none of its obligations or burdens,
under the Subsequent Transfer Agreement, including the delivery
requirements, representations and warranties and the cure and repurchase
obligations of AmeriCredit 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-A,
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:
THE CHASE MANHATTAN BANK,
not in its individual
capacity but solely as
Trust Collateral Agent
By: ___________________________
Name:
Title:
EXHIBIT B
SERVICER'S CERTIFICATE
EXHIBIT C
PRELIMINARY SERVICER'S CERTIFICATE
