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AMENDED AND RESTATED
SALE AND SERVICING AGREEMENT
among
CP FUNDING CORP.,
Borrower,
AMERICREDIT FINANCIAL SERVICES, INC.,
Seller and Servicer
THE CHASE MANHATTAN BANK,
Backup Servicer,
and
THE CHASE MANHATTAN BANK,
Administrative Agent
Dated as of September 21, 1999
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TABLE OF CONTENTS
PAGE
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ARTICLE I Definitions
Section 1.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
Section 1.2 Other Definitional Provisions . . . . . . . . . . . . . . . . . . . .2
ARTICLE II Sale of Receivables
Section 2.1 Sale of Receivables . . . . . . . . . . . . . . . . . . . . . . . . .3
Section 2.2 The Conveyed Property; Nature of Transaction. . . . . . . . . . . . .4
Section 2.3 Further Encumbrance of Conveyed Property; Additional Covenants of
the Seller. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
Section 2.4 Prepayment of Purchase Price of Receivables . . . . . . . . . . . . .6
ARTICLE III
Conditions Precedent
Section 3.1 Conditions Precedent to the Effectiveness of this Agreement . . . . .7
Section 3.2 Conditions Precedent to each Receivables Sale . . . . . . . . . . . .7
ARTICLE IV The Receivables
Section 4.1 Representations and Warranties of Seller. . . . . . . . . . . . . . 11
Section 4.2 Repurchase Upon Breach. . . . . . . . . . . . . . . . . . . . . . . 11
Section 4.3 Custody of Receivables Files. . . . . . . . . . . . . . . . . . . . 12
Section 4.4 Duties of Servicer With Respect to Receivable Files . . . . . . . . 16
Section 4.5 Instructions; Authority to Act. . . . . . . . . . . . . . . . . . . 17
ARTICLE V Administration and Servicing of
Receivables
Section 5.1 Appointment; Standard of Care; Duties of the Servicer . . . . . . . 18
Section 5.2 Collection of Receivable Payments; Modifications of Receivables;
Lockbox Agreements. . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 5.3 Realization Upon Receivables. . . . . . . . . . . . . . . . . . . . 23
Section 5.4 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 5.5 Maintenance of Security Interests in Financed Vehicles. . . . . . . 25
Section 5.6 Covenants, Representations, and Warranties of Servicer. . . . . . . 29
Section 5.7 Purchase of Receivables Upon Breach of Covenant . . . . . . . . . . 30
Section 5.8 Total Servicing Fee; Payment of Certain Expenses by
Servicer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 5.9 Certain Servicer's Certificates . . . . . . . . . . . . . . . . . . 31
Section 5.10 Annual Statement as to Compliance, Notice of Servicer Termination
Event . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 5.11 Annual Independent Accountants' Report; Quarterly Reviews . . . . . 33
Section 5.12 Access to Certain Documentation and Information Regarding the
Receivables . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
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Section 5.13 Monthly Tape. . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Section 5.14 Retention and Termination of Servicer . . . . . . . . . . . . . . . 35
Section 5.15 Fidelity Bond and Errors and Omissions Policy . . . . . . . . . . . 35
ARTICLE VI Collection Account; Distributions;
Statements to Secured Parties
Section 6.1 Establishment of Collection Account . . . . . . . . . . . . . . . . 36
Section 6.2 Collection Account Reserve. . . . . . . . . . . . . . . . . . . . . 39
Section 6.3 Certain Reimbursements to the Servicer. . . . . . . . . . . . . . . 41
Section 6.4 Application of Collections. . . . . . . . . . . . . . . . . . . . . 41
Section 6.5 Servicer Advances . . . . . . . . . . . . . . . . . . . . . . . . . 41
Section 6.6 Application of Funds from the Collection Account Reserve; Special
Withdrawals from the Collection Account . . . . . . . . . . . . . . 41
Section 6.7 Additional Deposits . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 6.8 Distributions . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
ARTICLE VII The Seller
Section 7.1 Representations and Warranties of Seller. . . . . . . . . . . . . . 47
Section 7.2 Corporate Existence . . . . . . . . . . . . . . . . . . . . . . . . 49
Section 7.3 Liability of Seller; Indemnities. . . . . . . . . . . . . . . . . . 50
Section 7.4 Merger or Consolidation of, or Assumption of the Obligations of,
Seller. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 7.5 Limitation on Liability of Seller and Others. . . . . . . . . . . . 52
ARTICLE VIII The Servicer
Section 8.1 Representations and Warranties of AFS, in its capacity as
Servicer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Section 8.2 Liability of Servicer; Indemnities. . . . . . . . . . . . . . . . . 56
Section 8.3 Merger or Consolidation of, or Assumption of the obligations of
the Servicer or Backup Servicer . . . . . . . . . . . . . . . . . . 57
Section 8.4 Limitation on Liability of the Servicer and the Backup
Servicer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
Section 8.5 Delegation of Duties. . . . . . . . . . . . . . . . . . . . . . . . 59
Section 8.6 Servicer and Backup Servicer Not to Resign. . . . . . . . . . . . . 60
ARTICLE IX Default
Section 9.1 Servicer Termination Event. . . . . . . . . . . . . . . . . . . . . 61
Section 9.2 Consequences of a Servicer Termination Event. . . . . . . . . . . . 62
Section 9.3 Appointment of Successor. . . . . . . . . . . . . . . . . . . . . . 63
Section 9.4 Notification to Secured Parties . . . . . . . . . . . . . . . . . . 64
Section 9.5 Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . 65
ARTICLE X Administrative Duties of the
Servicer
Section 10.1 Administrative Duties . . . . . . . . . . . . . . . . . . . . . . . 65
Section 10.2 Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
Section 10.3 Additional Information to be Furnished to the Borrower. . . . . . . 66
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ARTICLE XI Miscellaneous Provisions
Section 11.1 Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Section 11.2 Protection of Title . . . . . . . . . . . . . . . . . . . . . . . . 67
Section 11.3 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
Section 11.4 Assignment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
Section 11.5 Limitations on Rights of Others . . . . . . . . . . . . . . . . . . 69
Section 11.6 Severability. . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
Section 11.7 Separate Counterparts . . . . . . . . . . . . . . . . . . . . . . . 70
Section 11.8 Headings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
Section 11.9 Assignment to Administrative Agent. . . . . . . . . . . . . . . . . 70
Section 11.10 Chase Roles; Limitation of Liability. . . . . . . . . . . . . . . . 70
Section 11.11 Non-petition Covenants. . . . . . . . . . . . . . . . . . . . . . . 71
Section 11.12 Independence of the Servicer. . . . . . . . . . . . . . . . . . . . 72
Section 11.13 No Joint Venture. . . . . . . . . . . . . . . . . . . . . . . . . . 72
Section 11.14 Consents to Jurisdiction. . . . . . . . . . . . . . . . . . . . . . 72
Section 11.15 Trial by Jury Waived. . . . . . . . . . . . . . . . . . . . . . . . 73
Section 11.16 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
ANNEXES
Annex A - Defined Terms
SCHEDULES
Schedule A - Intentionally Omitted
Schedule B - Schedule of Representations
Schedule 2.4 - Form of Prepaid Receivables Notice
Schedule 3.1 - Conditions to Effectiveness of Agreement
EXHIBITS
Exhibit A - Form of Receivables Sale Agreement
Exhibit B - Form of Servicer's Determination Date Certificate
Exhibit B-1 - Form of Servicer's VFN Prepayment Date Certificate
Exhibit C - Form of Receivables Sale Notice
Exhibit D - Form of Servicer's Receivables Sale Date Certificate
Exhibit E - Form of Receivables Purchase Note
Exhibit F - Form of Servicer's Acknowledgment
Exhibit G - Form of Data Integrity Review
Exhibit H - Form of Data Integrity Review
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AMENDED AND RESTATED SALE AND SERVICING AGREEMENT, dated as of
September 21, 1999 (as amended, supplemented or otherwise modified and in
effect from time to time, this "AGREEMENT"), among CP Funding Corp., a Nevada
corporation (the "BORROWER"), AMERICREDIT FINANCIAL SERVICES, INC., a
Delaware corporation ("AFS") as seller and as servicer (in such capacities,
the "SELLER" and the "SERVICER", respectively), and THE CHASE MANHATTAN BANK,
a New York banking corporation ("CHASE"), as backup servicer and as
administrative agent (in such capacities, the "BACKUP SERVICER" and the
"ADMINISTRATIVE AGENT", respectively).
WHEREAS, AFS is engaged in the business of acquiring motor vehicle
retail installment sale contracts from motor vehicle dealers and of servicing
such contracts and the related receivables; and
WHEREAS, the Borrower desires to enter into an agreement with AFS,
pursuant to which the Borrower may, at its option, from time to time purchase
from AFS such contracts and the related receivables; and
WHEREAS, the Borrower desires to retain AFS as servicer of such
purchased contracts and receivables; and
WHEREAS, AFS is willing to sell and to service all such contracts
and receivables and to hold the Receivable Files on behalf of the
Administrative Agent;
WHEREAS, the Borrower desires to obtain financing for its purchase
of the contracts and receivables;
WHEREAS, the parties hereto have entered into a Sale and Servicing
Agreement, dated as of October 8, 1997 (as amended, the "ORIGINAL AGREEMENT");
WHEREAS, the parties hereto desire to amend and restate the
Original Agreement on the terms and conditions set forth herein;
WHEREAS, AFS, as Seller and Servicer, the Administrative Agent, and
the Borrower will, pursuant to this Agreement, enter into Receivables Sale
Agreements from time to time, whereby AFS will sell, transfer and assign to
the
Borrower on the applicable Receivables Sale Date all of AFS's right, title
and interest in and to additional Receivables; and
WHEREAS, the Borrower and the Administrative Agent have entered
into an amended and restated Security Agreement, dated as of September 21,
1999 (as amended, supplemented or otherwise modified and in effect from time
to time, the "SECURITY AGREEMENT"), pursuant to which the Borrower will
pledge to the Administrative Agent for the benefit of the Secured Parties all
of its right, title and interest in the Collateral, including, but not
limited to, the Receivables and the Other Conveyed Property;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 DEFINITIONS.
As used herein, "Agreement" shall mean this Amended and Restated
Sale and Servicing Agreement, as it may from time to time be amended,
supplemented or otherwise modified in accordance with the terms hereof.
Unless the context otherwise requires, other capitalized terms used herein
and not otherwise defined shall have the meanings assigned to such terms in
Annex A hereto, which Annex A is incorporated by reference herein.
Section 1.2 OTHER DEFINITIONAL PROVISIONS.
(1) All terms defined in Annex A shall have such 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.
(2) The principles of construction set forth in Annex A shall
apply to this Agreement.
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ARTICLE II
SALE OF RECEIVABLES
Section 1.3 SALE OF RECEIVABLES. Subject to the satisfaction of
the conditions precedent set forth in Article III hereof, in consideration of
the Borrower's delivery to or upon the order of the Seller of the Receivables
Purchase Price therefor, the Seller, on each Receivables Sale Date, in each
case pursuant to a Receivables Sale Agreement, shall sell, transfer, assign,
pledge, set over and otherwise convey to the Borrower, without recourse
(subject to the obligations set forth herein), all right, title and interest
of the Seller in, to and under:
(1) the Receivables sold on each such date, as listed in Schedule
A to the relevant Receivables Sale Agreement, and all moneys received thereon
after the Relevant Cutoff Date;
(2) all security interests in the Financed Vehicles granted by
Obligors pursuant to the Receivables sold and any other interest of the
Seller in such Financed Vehicles;
(3) all proceeds and all rights to receive proceeds with respect
to the Receivables sold from claims on any physical damage, credit life or
disability insurance policies covering Financed Vehicles or Obligors and any
proceeds from the liquidation of such Receivables;
(4) all rights of the Seller against Dealers pursuant to Dealer
Agreements and/or Dealer Assignments;
(5) all rights under any Service Contracts on the related Financed
Vehicles;
(6) the related Receivables Files; and
(7) all proceeds of any and all of the foregoing.
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Section 1.4 THE CONVEYED PROPERTY; NATURE OF TRANSACTION.
(1) Any and all of the property described in the foregoing Section
2.1 is referred to as the "Conveyed Property".
(2) It is the intention of the Seller that each sale and
assignment contemplated by this Agreement shall constitute a sale of the
Receivables and other property from the Seller to the Borrower and the
beneficial interest in and title to the Receivables and the Other Conveyed
Property shall not be part of the Seller's estate in the event of the filing
of a bankruptcy petition by or against the Seller under any bankruptcy law.
In the event that, notwithstanding the intent of the Seller, the sale and
assignment contemplated hereby is held not to be a sale, this Agreement and
each Receivables Sale Agreement shall constitute a security agreement, and
the Seller hereby grants to the Borrower a security interest in all of the
Conveyed Property, whether now owned or hereafter acquired and wherever
located. At the request of the Borrower or the Administrative Agent, the
Seller, at its expense, will take all action necessary or advisable to
perfect and protect such security interest, free and clear of all Liens
(other than the Lien of the Administrative Agent).
Section 1.5 FURTHER ENCUMBRANCE OF CONVEYED PROPERTY; ADDITIONAL
COVENANTS OF THE SELLER.
(1) Immediately upon the conveyance to the Borrower by the Seller
of any item of the Conveyed Property, all right, title and interest of the
Seller in and to such item of Conveyed Property shall terminate, and all such
right, title and interest shall vest in the Borrower.
(2) Immediately upon the vesting of the Conveyed Property in the
Borrower, the Borrower shall have the sole right to transfer, sell, pledge or
otherwise encumber, such Conveyed Property. The Borrower shall grant a
security interest in the Conveyed Property to secure the repayment of the
Secured Obligations pursuant to the Security Agreement.
(3) Without limiting the foregoing, the Seller covenants as
follows:
(1) LIENS IN FORCE. The Financed Vehicle securing
each Receivable shall not be released by the Seller in whole or in part from
the security interest granted under the Receivable, except upon payment in
full of the
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Receivable or as otherwise contemplated herein and the Seller shall not take
or permit any action inconsistent with the foregoing;
(2) NO IMPAIRMENT. The Seller shall do nothing to
impair the rights of the Borrower or the Secured Parties in the Receivables,
the Dealer Agreements, the Dealer Assignments, the Insurance Policies or any
other property or interest comprising the Other Conveyed Property;
(3) NO AMENDMENTS. The Seller shall not take or
permit any action to extend or otherwise amend the terms of any Receivable,
except in accordance with Section 5.2 hereof; and
(4) RESTRICTIONS ON LIENS. The Seller shall not:
(i) create or incur or agree to create or incur, or consent to cause (upon
the happening of a contingency or otherwise) the creation, incurrence or
existence of any Lien or restriction on transferability of the Receivables or
of any Other Conveyed Property except for the Lien in favor of the
Administrative Agent for the benefit of the Secured Parties, 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 or sign any security agreement authorizing any secured party
thereunder to file such financing statement, with respect to the Receivables
or to any Other Conveyed Property, except in each case any such instrument
solely securing the rights and preserving the Lien of the Administrative
Agent, for the benefit of the Secured Parties. The Seller will take no
action to cause any Receivable to be evidenced by an instrument (as such term
is defined in the Relevant UCC).
(4) The Seller will furnish or cause to be furnished to the
Administrative Agent (and the Administrative Agent promptly after receipt
thereof shall forward to each of the Funding Agents):
(1) within 90 days after the end of each fiscal
year of AmeriCredit Corp., the audited consolidated balance sheet and related
statements of operations, shareholders' equity and cash flows of AmeriCredit
Corp. as of the end of and for such year, setting forth in each case in
comparative form the figures for the previous fiscal year, all reported on by
PricewaterhouseCoopers, LLC or other independent public accountants of
recognized national standing (without a "going concern" or like qualification
or exception and without any qualification or exception as to the scope of
such audit) to the effect that such consolidated financial
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statements present fairly in all material respects the financial condition
and results of operations of AmeriCredit Corp. and its consolidated
subsidiaries on a consolidated basis in accordance with GAAP;
(2) within 45 days after the end of each of the
first three fiscal quarters of each fiscal year of AmeriCredit Corp., the
consolidated balance sheet and related statements of operations of
AmeriCredit Corp. as of the end of and for such fiscal quarter and the then
elapsed portion of the fiscal year, and statements of cash flows for
AmeriCredit Corp. for the then elapsed portion of the fiscal year, setting
forth in each case in comparative form the figures for the corresponding
period or periods of (or, in the case of the balance sheet, as of the end of)
the previous fiscal year, all certified by one of the financial officers of
AmeriCredit Corp. as presenting fairly in all material respects the financial
condition and results of its operations and its consolidated subsidiaries on
a consolidated basis in accordance with GAAP consistently applied, subject to
normal year-end audit adjustments and the absence of footnotes;
(3) promptly after the same become publicly
available, copies of all periodic and other reports (excluding the monthly
8-K filed for the securitization trusts for the securitizations of
AmeriCredit Corp. and/or its subsidiaries), proxy statements and other
materials filed by AmeriCredit Corp. or any subsidiary with the Securities
and Exchange Commission, or any governmental authority succeeding to any or
all of the functions of said Commission, or with any national securities
exchange, or distributed by AmeriCredit Corp. to its shareholders generally,
as the case may be; and
(4) promptly following any request therefor, such
other information regarding the operations, business affairs and financial
condition of AmeriCredit Corp. or any subsidiary, or compliance with the
terms of this Agreement, as the Administrative Agent may reasonably request.
Section 1.6 PREPAYMENT OF PURCHASE PRICE OF RECEIVABLES. From
time to time, the Borrower may make a cash payment to the Seller out of funds
available therefor, by way of prepayment for future sales of Receivables
hereunder, which payment shall be accompanied by a notice substantially in
the form of Schedule 2.4 hereto. The Seller's acceptance of any such
prepayment shall constitute its agreement to sell Receivables satisfying the
criteria set forth in Schedule B hereto and otherwise in accordance with the
terms and conditions of this Agreement.
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ARTICLE III
CONDITIONS PRECEDENT
Section 1.7 CONDITIONS PRECEDENT TO THE EFFECTIVENESS OF THIS
AGREEMENT. The effectiveness of this Agreement is subject to the following
conditions precedent (PROVIDED, HOWEVER, that payment by the Borrower of the
amounts referred to in clause (iii) below may be made out of the proceeds of
the Initial Funding):
(1) the Borrower and the Administrative Agent shall
have received, and found satisfactory in form and substance, each of the
Basic Agreements, and each of the other documents, certificates and opinions
set forth in Schedule 3.1;
(2) Chase shall have entered into an intercreditor
agreement, satisfactory to it in form and substance (the "INTERCREDITOR
AGREEMENT"), with Xxxxx Fargo in its capacity as agent bank under the
Restated Revolving Credit Agreement, dated as of October 3, 1997, to which
the Seller is a party; and
(3) the amount of $1,700,000 in immediately
available funds shall have been received by the Administrative Agent from the
Borrower for deposit to the Collection Account (which shall be an amount
sufficient to cause the total amount then on deposit therein to be equal to
1.00% of the Maximum Facility Limit).
Section 1.8 CONDITIONS PRECEDENT TO EACH RECEIVABLES SALE.
The initial sale and each subsequent sale of Receivables shall be
subject to the further conditions precedent that:
(1) the Seller shall have provided the Borrower and
the Administrative Agent with a Receivables Sale Notice not later than one
(1) Business Day prior to such Receivables Sale Date and shall have provided
any information reasonably requested by the Borrower and/or the
Administrative Agent and the Funding Agents with respect to the Receivables
to be sold to the Borrower on such Receivables Sale Date;
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(2) the Seller shall have caused the Servicer to
provide the Borrower and the Administrative Agent with a Servicer's
Receivables Sale Date Certificate not later than 12:30 P.M. (New York time)
one (1) Business Day prior to such Receivables Sale Date, which Certificate
shall set forth the Pool Balance as of the Reference Date, the Principal
Balance of the Receivables to be sold, and such additional information as the
Borrower, the Administrative Agent and/or the Funding Agents shall specify;
(3) the Seller and the Borrower shall have executed
and delivered to the Administrative Agent a duly executed Receivables Sale
Agreement which shall include a Schedule A listing the Receivables to be sold
on such Receivables Sale Date;
(4) the Seller shall, to the extent required by
Section 5.2, have deposited in the Collection Account all collections
received after the Relevant Cutoff Date with respect to the Receivables to be
sold on such Receivables Sale Date;
(5) as of each Receivables Sale Date, (A) the
Seller shall not be insolvent and shall not become insolvent as a result of
the sale of Receivables on such Receivables Sale 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 sale 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;
(6) the Termination Date shall not have occurred;
(7) after giving effect to the sale of Receivables
proposed to be made on any Receivables Sale Date, no Pool Limitation shall
have been exceeded;
(8) each of the representations and warranties made
by the Seller pursuant to Section 4.1 with respect to each of the Receivables
to be sold on such Receivables Sale Date shall be true and correct as of such
Receivables Sale Date, and the Seller shall have performed all obligations to
be performed by it hereunder on or prior to such Receivables Sale Date;
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(9) the Seller shall, at its own expense, on or
prior to the Receivables Sale Date, indicate in its computer files that the
Receivables identified in the Receivables Sale Agreement have been sold to
the Borrower pursuant to this Agreement;
(10) the Seller shall have taken any action
(including, but not limited to, the filing of appropriate UCC financing
statements) required to maintain the ownership interest of the Borrower in
the Receivables;
(11) each of the Administrative Agent and the
Borrower shall have received, duly executed and delivered by Xxxxx Fargo, a
lien release substantially in the form specified in Section 1(b) of the
Intercreditor Agreement;
(12) no selection procedures adverse to the
interests of the Borrower and/or the Secured Parties shall have been utilized
in selecting the Receivables to be sold on such Receivables Sale Date;
(13) without limiting any of the foregoing, no event
shall have occurred and remain continuing, nor would result from such sale of
Receivables, that constitutes a Termination Event or a Potential Termination
Event;
(14) on each Receivables Sale Date, the Borrower
shall have transferred to the Administrative Agent for deposit in the
Collection Account for allocation to the Collection Account Reserve, the
amount of the Collection Account Reserve Shortfall Amount, if any, required
to be made in connection with such sale (PROVIDED that such payment may be
made by the Borrower out of the proceeds of the Funding made on such date);
(15) the Seller shall have received a cash payment
in the amount of the entire Receivables Purchase Price of the Receivables
sold on such Receivables Sale Date, except to the extent that the Seller, at
its option, elects to extend credit to the Borrower under the Receivables
Purchase Note or to make a capital contribution to the Borrower;
(16) to the extent that, after giving effect to the
sale of Receivables made on such date there would be one or more states of
the United States in which Financed Vehicles securing more than 10% of the
Pool Balance were
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titled and as to which states an Opinion of Counsel had not been given on the
Effective Date or on a prior Receivables Sale Date as to the perfection,
priority and enforceability of the Administrative Agent's security interest,
on behalf of the Secured Parties, for each such state, the Seller shall have
caused to be delivered to the Borrower and the Administrative Agent such an
Opinion of Counsel satisfactory in form and substance to the Borrower and the
Administrative Agent to be given by in-house counsel to the Seller with
respect to such jurisdiction;
(17) without limiting the foregoing, the
Administrative Agent shall have received and found satisfactory in form and
substance the Hedge Contracts to be effective as of the related Receivables
Sale Date and each of which shall, among other things, (A) be, along with any
other Hedge Contracts, in an aggregate notional amount equal to the Aggregate
Net Investment (including any Aggregate Net Investment to be made in
connection with such sale of Receivables); (B) be a 5.75% LIBOR cap with the
entire consideration payable by the Borrower thereunder to be paid in full on
the related Receivables Sale Date; (C) have an amortization schedule
satisfactory to the Administrative Agent and the Rating Agencies; and (D)
provide for any payments by the Hedge Counterparty thereunder to be payable
on the last Business Day of each calendar month directly into the Collection
Account;
(18) the Borrower shall have delivered to the
Administrative Agent an Officer's Certificate confirming the satisfaction of
each condition precedent specified in this Section 3.2.;
(19) the Servicer, acting as custodian pursuant to
Section 4.3 hereof or any successor custodian acting in such capacity
pursuant to Section 4.3, shall have received the Receivable File for each
Receivable sold on such Receivable Sale Date;
(20) the Seller and the Borrower shall have taken
all steps necessary under all applicable law in order to cause a valid,
subsisting and enforceable first priority perfected security interest to
exist in favor of the Borrower in the Financed Vehicle securing each
Receivable being sold (and the proceeds of such Financed Vehicle) (PROVIDED,
HOWEVER, that, prior to (X) the occurrence of a Servicer Termination Event, a
Potential Servicer Termination Event, a Termination Event or a Potential
Termination Event and the request by the Administrative Agent or, (Y) at any
time, the request by the Required Lending Groups, for the recordation
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of the Borrower's lien on such Financed Vehicle's certificate of title, no
such recordation shall be required) and such security interest is and shall
be prior to all other liens upon and security interests in such Financed
Vehicle (and the proceeds thereof) that now exist or may hereafter arise or
be created (except, as to priority, for any tax liens or mechanic's liens
that may arise after the applicable date of sale of such Receivable
hereunder); and
(21) the Seller and the Borrower shall have taken
all steps necessary under all applicable law in order to cause to exist in
favor of the Administrative Agent, on behalf of the Secured Parties, a valid,
subsisting and enforceable first priority perfected security interest in the
Borrower's first priority perfected security interest in the Financed Vehicle
securing each Receivable being sold (and the proceeds of such Financed
Vehicle) (PROVIDED, HOWEVER, that, prior to (X) the occurrence of a Servicer
Termination Event, a Potential Servicer Termination Event, a Termination
Event or a Potential Termination Event and the request by the Administrative
Agent or, (Y) at any time, the request by the Required Lending Groups, for
the recordation of the Borrower's and/or the Administrative Agent's lien on
such Financed Vehicle's certificate of title, no such recordation shall be
required), and such security interest is and shall be prior to all other
liens upon and security interests in such Financed Vehicle that now exist or
may hereafter arise or be created.
ARTICLE IV
THE RECEIVABLES
Section 1.9 REPRESENTATIONS AND WARRANTIES OF SELLER. The
Seller makes the representations and warranties, set forth on the Schedule of
Representations attached hereto as Schedule B, as to the Receivables on which
the Borrower is deemed to have relied in acquiring the Receivables and upon
which the Secured Parties shall be deemed to have relied in making any
Advance pursuant to the Security Agreement, as the case may be. Such
representations and warranties speak as of the execution and delivery of this
Agreement and as of each Receivables Sale Date with respect to the
Receivables sold on such date, but shall survive the sale, transfer and
assignment of the Receivables to the Borrower and the pledge thereof to the
Administrative Agent pursuant to the Security Agreement.
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Section 1.10 REPURCHASE UPON BREACH. The Seller, the Servicer or
the Borrower, as the case may be, shall inform the other parties to this
Agreement promptly, in writing, (i) upon the discovery of any breach of the
Seller's representations and warranties made pursuant to Section 4.1, and
(ii) of any Receivable for which the related Lien Certificate has not been
received within 150 days following the Receivables Sale Date with respect
thereto (for purposes of this Section 4.2, each of the foregoing referred to
as a "breach"). As of the last day of the month in which the Seller, the
Servicer or the Borrower, as the case may be, discovers the breach, or in
which the Seller receives notice of such breach, unless such breach is cured
by such date, the Seller shall repurchase any Receivable that is adversely
affected and/or in which the interests of the Borrower or the Secured Parties
are adversely affected by any such breach. In consideration of and
simultaneously with the repurchase of the Receivable, the Seller shall remit,
or cause the Servicer to remit, to the Collection Account the Repurchase
Obligation Amount in the manner specified in Section 6.7 and the Borrower
shall execute such assignments and other documents reasonably requested by
such Person in order to effect such repurchase. The sole remedy of the
Borrower, the Administrative Agent, or the Secured Parties with respect to a
breach of representations and warranties pursuant to Section 4.1 and the
agreement contained in this Section shall be the repurchase of Receivables
and Seller indemnity pursuant to this Section, subject to the conditions
contained herein. Neither the Administrative Agent, the Funding Agents nor
the Borrower 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 Borrower, the Backup Servicer, the Administrative Agent, the
Funding Agents and the Secured Parties 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.
Section 1.11 CUSTODY OF RECEIVABLES FILES. (a) Subject to the
terms and conditions hereof, in connection with the sale, transfer and
assignment of the Receivables and the Other Conveyed Property to the Borrower
pursuant to this Agreement, the Administrative Agent (acting at the direction
of the Required Lending Groups) hereby revocably appoints the Servicer, and
the Servicer hereby
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accepts such appointment, as custodian and bailee on behalf of the
Administrative Agent (for the benefit of the Secured Parties) to maintain
exclusive custody of the Receivable Files relating to the Receivables from
time to time pledged to the Administrative Agent (for the benefit of the
Secured Parties); PROVIDED, HOWEVER, that none of the Administrative Agent,
the Funding Agents or any other Secured Party shall be responsible for the
acts or omissions of the Servicer in such capacity. In performing its duties
hereunder, the Servicer agrees to act with that degree of care, skill and
attention that a commercial bank acting in the capacity of a custodian would
exercise with respect to files relating to comparable automotive or other
receivables that it services or holds for itself or others, and, in any
event, to exercise at least that degree of care, skill and attention that it
exercises with respect to its own assets. The Servicer hereby and as of each
Receivables Sale Date with respect to the Receivables sold on such date,
acknowledges receipt of the Receivable File for each Receivable listed in the
Schedule of Receivables, subject to any exceptions noted on the Servicer's
Acknowledgment. As evidence of its acknowledgment of such receipt of such
Receivables, the Servicer shall execute and deliver on each Receivables Sale
Date with respect to the Receivables sold on such date, the Servicer's
Acknowledgment in the form attached hereto as Exhibit F.
In such capacity, the Servicer shall act as the agent of the
Administrative Agent as custodian of the following documents or instruments
in its possession which shall be delivered to the Servicer as agent of the
Administrative Agent on or before each Receivables Sale Date (with respect to
each Receivable):
(1) the fully executed original of the Receivable
(together with any agreements modifying the Receivable, including without
limitation any extension agreements);
(2) the original credit application (or, if no such
credit application has been completed, other evidence of application being
made or credit evaluation being conducted), or a copy thereof, of each
Obligor, fully executed by each such Obligor on the Servicer's customary
form, or on a form approved by the Servicer, for such application;
(3) (1) for any Contract secured by a Financed Vehicle
registered in any state with the prior consent of the Administrative Agent
(acting in its reasonable discretion) for which the Paperless Title System is
used to evidence title to and any lien in such Financed Vehicle, a computer
printout or similar
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documentary evidence that there is an electronic record in the Paperless
Title System indicating that such Financed Vehicle is owned by the Obligor
and subject to the interest of the Seller as first lienholder or secured
party (when such electronic record becomes available through the Paperless
Title System), PROVIDED that a computer printout sheet listing multiple
Financed Vehicles registered through the Paperless Title System shall be
deemed included in a Receivable File for a Contract if such printout has been
made available to the Administrative Agent, or (2) for any Contract secured
by a Financed Vehicle registered in a state for which the Paperless Title
System is not available to evidence title to and any lien in the Financed
Vehicle, or for any Contract secured by a Financed Vehicle registered in any
state where the Paperless Title System was not used, the original certificate
of title (when received) and otherwise such documents, if any, that the
Servicer 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 the Seller as first lienholder or secured party, or, if such original
certificate of title has not yet been received, a copy of the application
therefor, showing the Seller as secured party;
(4) a true and complete copy of the duly executed
odometer statement with respect to the Financed Vehicle related to such
Receivable (if such Financed Vehicle is a used vehicle);
(5) a true and complete copy of the duly executed Dealer
Assignment; and
(6) a true and complete copy of the duly executed
Insurance Policy.
(2) The Administrative Agent may act as the custodian, in which
case the Administrative Agent shall be deemed to have assumed the obligations
of the Servicer in such capacity as custodian specified herein.
So long as the Servicer is acting as custodian hereunder, the
Servicer shall not resign from such obligations and duties as custodian
imposed on it by this Agreement, except upon a determination that by reason
of a change in legal requirements, the performance of such duties and
obligations 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
it and the Administrative Agent does not elect to waive the obligations of
the Servicer with respect to the performance of the duties
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which render it legally unable to act or to delegate those duties to another
Person. Any such determination permitting the resignation of the Servicer in
such capacity shall be evidenced by an Opinion of Counsel to such effect
delivered and acceptable to the Administrative Agent. Immediately after
receipt of notice of termination of the Servicer as custodian hereunder, the
Servicer shall deliver the Receivable Files to the Administrative Agent on
behalf of the Secured Parties, at such place or places as the Administrative
Agent may designate, and the Administrative Agent, or its agent, as the case
may be, shall act as custodian for such Receivables Files on behalf of the
Secured Parties until such time as a successor custodian has been appointed
by the Administrative Agent. (For the avoidance of doubt, during any such
period, the Administrative Agent shall be acting in its capacity as
Administrative Agent, including the standard of care and liability in such
capacity, and not as a successor "custodian" hereunder.) If, within
seventy-two (72) hours after the termination of the Servicer as custodian
hereunder, the Servicer has not delivered the Receivable Files in accordance
with the preceding sentence, the Administrative Agent may enter the premises
of the custodian and remove the Receivable Files from such premises.
(3) In the event that AFS no longer serves as custodian with
respect to the Receivable Files, upon payment in full of any Receivable, the
Servicer will notify such other party acting as 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 5.1 have been so deposited) and shall request delivery of
the Receivable and Receivable File to the Servicer; PROVIDED, HOWEVER, that
so long as AFS acts in the capacities of Servicer and of custodian, such
notice by the Servicer may be made in such other form and manner as are
consistent with the Servicer's customary operating procedures. From time to
time as appropriate for servicing and enforcing any Receivable, the party
acting as custodian shall, upon written request of an officer of the Servicer
and delivery to such party 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 4.2 or 5.7. The
Servicer, while in possession of the Receivable Files, shall hold such
Receivable Files as custodian and bailee for the Administrative Agent for the
benefit of the Secured Parties.
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(4) The Servicer agrees to maintain the Receivable Files at its
principal office or at such other office as shall from time to time be
identified to the Administrative Agent and the Funding Agents, and the
Servicer will hold the Receivable Files in such office on behalf of the
Administrative Agent, clearly identified on its records as being separate
from any other instruments and files, including other instruments and files
held by the Servicer, and in compliance with Section 4.4(b) hereof.
Section 1.12 DUTIES OF SERVICER WITH RESPECT TO RECEIVABLE FILES.
(1) SAFEKEEPING. The Servicer shall hold the Receivable Files on
behalf of the Administrative Agent, for the benefit of the Secured Parties,
clearly identified as being separate from all other files or records
maintained by the Servicer, whether at the same or any other location, and
shall maintain such accurate and complete accounts, records and computer
systems pertaining to each Receivable File as are required to comply with the
terms and conditions of this Agreement. Each Receivable shall be stamped on
both of the first page and the signature page (if different) in accordance
with the requirements of any Opinion of Counsel or as otherwise is deemed
necessary or desirable by the Secured Parties. Each Receivable shall be
identified on the books and records of the Servicer in a manner that (i) is
consistent with the practices of a commercial bank acting in the capacity of
custodian with respect to similar receivables, (ii) indicates that the
Receivables are held by the Servicer on behalf of the Administrative Agent
and (iii) is otherwise necessary, as reasonably determined by the Servicer,
to comply with the terms of this Agreement. The Servicer shall conduct, or
cause to be conducted, periodic physical inspections of the Receivable Files
held by it under this Agreement, and of the related accounts, records and
computer systems, in such a manner as shall enable the Administrative Agent
and the Servicer to verify the accuracy of the Servicer's inventory and
record keeping. Such inspections shall be conducted at such times, in such
manner and by such persons including, without limitation, independent
accountants, as the Administrative Agent may request and the cost of such
inspections shall be borne by the Servicer. The Servicer shall promptly
report to the Administrative Agent any failure on the Servicer's part to hold
the Receivable Files and maintain its accounts, records and computer systems
as herein provided and the Servicer shall promptly take appropriate action to
remedy any such failure. Notwithstanding the above if reasonably requested
by the Administrative Agent, the Servicer shall promptly make copies or other
electronic file records (e.g. diskettes, CD's, etc.) (the "COPIES") of the
Receivable Files related to any or all of the Receivables and shall deliver
such
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Copies to the Administrative Agent, and the Administrative Agent shall hold
such Copies on behalf of the Secured Parties. Subject to Section 4.4(b)
hereof, the Servicer shall at all times maintain the original of the fully
executed original retail installment sales contract or installment loan
contract and of the Lien Certificate or application therefore, if no such
Lien Certificate has yet been issued, relating to each Receivable in a fire
proof vault.
(2) ACCESS TO RECORDS. The Servicer shall, subject only to the
Servicer's security requirements applicable to its own employees having
access to similar records held by the Servicer, which requirements shall be
consistent with the practices of a commercial bank acting in the capacity of
custodian with respect to similar files or records, and at such times as may
be reasonably imposed by the Servicer, permit only the Secured Parties, the
Funding Agents and the Administrative Agent or their duly authorized
representatives, attorneys or auditors to inspect the Receivable Files and
the related accounts, records, and computer systems maintained by the
Servicer pursuant hereto at such times as the Secured Parties, the
Administrative Agent or the Funding Agents may reasonably request.
(3) RELEASE OF DOCUMENTS. In the event that AFS no longer serves
as custodian with respect to the Receivable Files, such party shall release
any Receivable in the Receivable Files to the Servicer either upon (1)
payment in full of any Receivable or (2) as required from time to time as
appropriate for servicing and enforcing any Receivable, subject to
satisfaction of the conditions set forth in Section 4.3(b) of this Agreement.
(4) ADMINISTRATION; REPORTS. The Servicer shall, in general,
attend to all ministerial matters in connection with maintaining custody of
the Receivable Files on behalf of the Administrative Agent. In addition, the
Servicer generally shall assist the Administrative Agent and each Funding
Agent in the preparation of any routine reports to Secured Parties or to
regulatory bodies, to the extent necessitated by the Servicer's custody of
the Receivable Files.
(5) REVIEW OF LIEN CERTIFICATES. On or before each Determination
Date, the Servicer shall deliver to the Administrative Agent a listing of
each Receivable with respect to which a Lien Certificate, showing AFS as
secured party, was not included in the related Receivable File as of the
sixtieth (60th) day following the date of origination of such Receivable.
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Section 1.13 INSTRUCTIONS; AUTHORITY TO ACT. The Servicer shall
be deemed to have received proper instructions with respect to the Receivable
Files upon its receipt of written instructions signed by a Responsible
Officer of the Administrative Agent. Such instructions may be general or
specific in terms.
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ARTICLE V
ADMINISTRATION AND SERVICING OF RECEIVABLES
Section 1.14 APPOINTMENT; STANDARD OF CARE; DUTIES OF THE SERVICER.
(1) The Servicer is hereby authorized to act as agent for the
Borrower 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. So long as AFS is the Servicer, the Servicer
agrees that its servicing of the Receivables shall be carried out in
accordance with the Credit and Servicing Procedures and, with respect to any
matters not expressly covered by such Credit and Servicing Procedures, or, in
the event the Servicer is not AFS, in accordance with customary and usual
procedures of institutions that are primarily engaged in the business of
servicing motor vehicle retail installment sales contracts or installment
loan contracts; PROVIDED that in any event the Servicer shall exercise at
least 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 (the foregoing standard of care being referred
to as the "Servicing Standard").
(2) 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 statements to the Borrower and the
Administrative Agent with respect to collections and distributions, as well
as the Servicer statements required in connection with the each sale of
Receivables; monitoring the status of Insurance Policies with respect to the
Financed Vehicles and performing the other duties specified herein. The
Servicer shall also administer and enforce all rights and responsibilities of
the holder of the Receivables provided for in the Dealer Agreements (and
shall maintain possession of the Dealer Agreements, to the extent it is
necessary to do so), the Dealer Assignments and the Insurance Policies, to
the extent that such Dealer Agreements, Dealer Assignments and Insurance
Policies relate to the Receivables, the Financed Vehicles or the Obligors.
To the extent consistent with the standards, policies and procedures
otherwise required hereby, the Servicer shall follow its customary standards,
policies, and procedures and shall have
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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 Borrower to
execute and deliver, on behalf of the Borrower, any and all instruments of
satisfaction or cancellation, or of partial or full release or discharge, and
all other comparable instruments, with respect to the Receivables and with
respect to the Financed Vehicles; PROVIDED, HOWEVER, that notwithstanding the
foregoing, the Servicer shall not, except pursuant to an order from a court
of competent jurisdiction, release an Obligor from payment of any unpaid
amount under any Receivable or waive the right to collect the unpaid balance
of any Receivable from the Obligor. The Servicer is hereby authorized to
commence, in its own name or in the name of the Borrower, a legal proceeding
to enforce a Receivable pursuant to Section 5.3 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 Borrower 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 Borrower 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 Administrative Agent shall furnish the Servicer
with any powers of attorney and other documents which the Servicer may
reasonably request and which the Servicer deems necessary or appropriate and
take any other steps which the Servicer may deem necessary or appropriate to
enable the Servicer to carry out its servicing and administrative duties
under this Agreement.
(3) The provisions of this subsection (c) are applicable only so
long as AFS is the Servicer. On each Determination Date, together with the
Servicer's Determination Date Certificate to be delivered on such date, which
Servicer's Determination Date Certificate shall include a statement that no
modification has been made to the Credit and Servicing Procedures that could
be reasonably expected to have a material adverse effect on the Borrower
and/or the Secured Parties, the Servicer shall deliver to the Administrative
Agent a description of any modification made to the Credit and Servicing
Procedures since the last Determination Date. The Servicer further agrees
that it shall not make any changes to the Credit and Servicing Procedures
that could reasonably be expected to have a material adverse effect on the
Borrower and/or the Secured Parties unless it has given
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the Administrative Agent (for transmittal to the Required Lending Groups and
the Rating Agencies) at least 20 days' prior written notice of such proposed
modification and the Required Lending Groups have not objected in writing
prior to the expiration of such 20 day period.
Section 1.15 COLLECTION OF RECEIVABLE PAYMENTS; MODIFICATIONS OF
RECEIVABLES; LOCKBOX AGREEMENTS.
(1) Consistent with the Servicing Standard, the Servicer shall
make reasonable efforts to collect all payments called for under the terms
and provisions of the Receivables as and when the same shall become due, and
shall follow such collection procedures as it follows with respect to all
comparable automobile receivables that it services for itself or others and
otherwise act with respect to the Receivables, the Dealer Agreements, the
Dealer Assignments, the Insurance Policies and the Other Conveyed Property in
such manner as will, in the reasonable judgment of the Servicer, maximize the
amount to be received by the Borrower 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.
(2) 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) reamortize the Scheduled Payments on the Receivable following a partial
prepayment of principal.
(3) The Servicer may grant payment extensions on, or other
modifications or amendments to, a Receivable (in addition to those
modifications permitted by Section 5.2(b)) in accordance with the Credit and
Servicing Procedures and the Servicing Standard 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 Borrower with respect to such Receivable, and is otherwise in the best
interests of the Borrower; PROVIDED, HOWEVER, that:
(1) The aggregate period of all extensions on a
Receivable shall not exceed six months;
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(2) In no event may a Receivable be extended such that
the final payment scheduled to be made thereunder would be more than 78
months beyond the date of origination; and
(3) the Servicer shall not amend or modify a Receivable
(except as provided in Section 5.2(b) and this Section 5.2(c)) without the
consent of the Administrative Agent (acting at the direction of the Required
Lending Groups).
(4) 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 the
Lockbox Bank. The Servicer shall use its best efforts to notify or direct any
Lockbox Bank to deposit all payments on the Receivables in the Lockbox
Account no later than the Business Day after receipt, and to cause all
amounts credited to the Lockbox Account on account of such payments to be
transferred to the Collection Account no later than the second Business Day
after receipt of such payments. The Lockbox Account shall be a demand
deposit account held by the Lockbox Bank, or at the request of the
Administrative Agent, acting at the direction of the Required Lending Groups,
an Eligible Deposit Account.
On the first day on which a payment coupon is delivered to an
Obligor following the Relevant Cutoff Date, but not to exceed thirty-one (31)
days following such Relevant Cutoff 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 Administrative Agent, acting at the direction of the Required Lending
Groups, 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
Administrative Agent, acting at the direction of the Required Lending Groups,
is sufficient to authorize direct debit by the Lockbox Bank on behalf of the
Borrower. If at any time, the Lockbox Bank is unable to directly debit an
Obligor's bank
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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 Borrower, the Administrative Agent, the Funding
Agents and Secured Parties 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
Administrative Agent (acting at the direction of the Required Lending
Groups), 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 Administrative Agent 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 Administrative Agent to the Administrative
Agent or a successor Lockbox Bank, all documents and records relating to the
Receivables and all amounts held (or thereafter received) by the Lockbox Bank
(together with an accounting of such amounts) and shall otherwise use its
best efforts to effect the orderly and efficient transfer of the lockbox
arrangements and the Servicer shall notify the Obligors to make payments to
the Lockbox established by the successor.
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(5) The Servicer shall remit all payments by or on behalf of the
Obligors received directly by the Servicer (including any such payments
forwarded to the Servicer for special handling pursuant to the Lockbox
Agreement) into the Collection Account as soon as practicable, but in no
event later than the Business Day after receipt thereof (and in the case of a
check, one Business Day after such check has cleared, but in no event later
than the third Business Day after receipt thereof) .
Section 1.16 REALIZATION UPON RECEIVABLES.
(1) Consistent with the Servicing Standard, the Servicer shall use
its best efforts to repossess (or otherwise comparably convert the ownership
of) and liquidate any Financed Vehicle securing a Receivable with respect to
which the Servicer has determined that payments thereunder are not likely to
be resumed, as soon as is practicable after default on such Receivable but in
no event later than the date on which all or any portion of a Scheduled
Payment has become 91 days delinquent; PROVIDED, HOWEVER, that the Servicer
may elect not to repossess a Financed Vehicle within such time period if in
its good faith judgment it determines that the proceeds ultimately
recoverable with respect to such Receivable would be increased by
forbearance. The Servicer is authorized to follow such customary practices
and procedures as it shall deem necessary or advisable, consistent with the
Servicing Standard, which practices and procedures may include reasonable
efforts to realize upon any recourse to Dealers, the sale of the related
Financed Vehicle at public or private sale, the submission of claims under an
Insurance Policy and other actions by the Servicer in order to realize upon
such a Receivable. The foregoing is subject to the provision that, in any
case in which the Financed Vehicle shall have suffered damage, the Servicer
shall not expend funds in connection with any repair or towards the
repossession of such Financed Vehicle unless it shall determine in its
discretion that such repair and/or repossession shall increase the proceeds
of liquidation of the related Receivable by an amount greater than the amount
of such expenses. All amounts received upon liquidation of a Financed
Vehicle shall be remitted directly by the Servicer to the Collection 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 (including, without limitation, any
personal property taxes assessed on such Financed Vehicles). Such expenses,
at the option of the Servicer: (i) shall be reimbursable as Servicer Advances
on the Distribution Date next following the liquidation of the Financed
24
Vehicle (or, if consistent with the Servicing Standard the Servicer shall
have made a determination that the Financed Vehicle cannot be repossessed
and/or liquidated, on the Distribution Date next following the delivery to
the Borrower and the Administraive Agent of an Officer's Certificate of the
Servicer to such effect); or (ii) shall be retained by the Servicer as
deductions from the cash proceeds of such Financed Vehicle, any deficiency
obtained from the Obligor or any amounts received from the related Dealer,
which proceeds and other such cash receipts shall not be required to be
deposited as required by Section 5.2(e) and the foregoing provisions of this
Section 5.3(a) to the extent of such Servicer disbursements. Notwithstanding
anything to the contrary in the foregoing, the Servicer shall not pay any
such reimbursable expense with respect to a Financed Vehicle to the extent
that it does not reasonably expect, after reasonable inquiry, to be
reimbursed for such expenses from the collections on the Receivable relating
to such Financed Vehicle.
(2) If the Servicer elects to commence a legal proceeding to
enforce a Dealer Agreement or Dealer Assignment, the act of commencement
shall be deemed to be an automatic assignment from the Borrower to the
Servicer of the rights under such Dealer Agreement and Dealer Assignment for
purposes of collection only. If, however, in any enforcement suit or legal
proceeding it is held that the Servicer may not enforce a Dealer Agreement or
Dealer Assignment on the grounds that it is not a real party in interest or a
Person entitled to enforce the Dealer Agreement or Dealer Assignment, the
Administrative Agent, at the Borrower's expense, or the Seller, at the
Borrower's expense, shall take such steps as the Servicer deems necessary to
enforce the Dealer Agreement or Dealer Assignment, including bringing suit in
its name or the name of the Seller or of the Borrower and/or the
Administrative Agent for the benefit of the Secured Parties. All amounts
recovered shall be remitted directly by the Servicer as provided in Section
5.2(e).
Section 1.17 INSURANCE.
(1) The Servicer shall require, in accordance with the Servicing
Standard, that each Financed Vehicle be insured by the related Obligor under
the Insurance Policies referred to in Paragraph "n" of the Schedule of
Representations and Warranties and shall monitor the status of such physical
loss and damage insurance coverage thereafter, in accordance with the
Servicing Standard. Each Receivable requires the Obligor to maintain such
physical loss and damage insurance, naming the Seller and its successors and
assigns as additional insureds, and permits the holder of such Receivable to
obtain physical loss and damage
25
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 such
Paragraph "n" (including, without limitation, during the repossession of such
Financed Vehicle), the Servicer shall enforce the rights of the holder of the
Receivable under the Receivable to require the Obligor to obtain such
physical loss and damage insurance. At its sole option, 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. Any such policy of Collateral
Insurance shall be endorsed with clauses providing for loss payable to the
Borrower. Costs incurred by the Servicer in maintaining such Collateral
Insurance shall be paid by the Borrower.
(2) The Servicer may xxx to enforce or collect upon the Insurance
Policies, in its own name, if possible, or as agent of the Borrower and/or
the Secured Parties. 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 Borrower 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 Borrower
and/or the Administrative Agent, at the Borrower's expense, or the Seller, at
the Borrower'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 Borrower and/or the Administrative Agent for the benefit of the
Secured Parties.
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Section 1.18 MAINTENANCE OF SECURITY INTERESTS IN FINANCED VEHICLES.
(1) Consistent with the Servicing Standard, the Servicer shall
take such steps on behalf of the Borrower 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 Administrative
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
Borrower as necessary because of the relocation of a Financed Vehicle or for
any other reason.
(2) The Servicer shall take all steps necessary under all
applicable law in order to cause a valid, subsisting and enforceable first
priority perfected security interest to exist at all times in favor of the
Borrower in the Financed Vehicle securing each Receivable (and the proceeds
of such Financed Vehicle) (PROVIDED, HOWEVER, that, prior to (X) the
occurrence of a Servicer Termination Event, a Potential Servicer Termination
Event, a Termination Event or a Potential Termination Event and the request
by the Administrative Agent or, (Y) at any time, the request by the Required
Lending Groups, for the recordation of the Borrower's lien on such Financed
Vehicle's certificate of title, no such recordation shall be required) and to
cause such security interest to be prior to all other liens upon and security
interests in such Financed Vehicle (and the proceeds thereof) that now exist
or may hereafter arise or be created (except, as to priority, for any tax
liens or mechanic's liens that may arise after the applicable date of sale of
such Receivable hereunder);
(3) The Servicer and the Borrower shall take all steps necessary
under all applicable law in order to cause to exist at all times in favor of
the Administrative Agent, on behalf of the Secured Parties, a valid,
subsisting and enforceable first priority perfected security interest in the
Borrower's first priority perfected security interest in the Financed Vehicle
securing each Receivable being sold (and the proceeds of such Financed
Vehicle) (PROVIDED, HOWEVER, that, prior to (X) the occurrence of a Servicer
Termination Event, a Potential Servicer Termination Event, a Termination
Event or a Potential Termination Event and the request by the Administrative
Agent or, (Y) at any time, the request by the Required Lending
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Groups, for the recordation of the Borrower's and/or the Administrative
Agent's lien on such Financed Vehicle's certificate of title, no such
recordation shall be required) and to cause such security interest to be
prior to all other liens upon and security interests in such Financed Vehicle
that now exist or may hereafter arise or be created.
(4) At any time (X) after the occurrence of a Servicer Termination
Event, a Potential Servicer Termination Event, a Termination Event or a
Potential Termination Event and upon the request of the Administrative Agent
or, (Y) upon the request by the Required Lending Groups, the Servicer shall
at its own expense promptly take all such additional steps, if any, as are
necessary to create and maintain perfection of the security interest in the
Financed Vehicle related to each Receivable (and the proceeds of such
Financed Vehicle) on behalf of the Borrower and to create and maintain
perfection of the security interest in the Borrower's security interest in
the Financed Vehicle related to each Receivable (and the proceeds of such
Financed Vehicle) on behalf of the Administrative Agent, on behalf of the
Secured Parties, including, if required by applicable law, having a notation
of the Borrower's and/or the Administrative Agent's respective security
interest recorded on such Financed Vehicle's certificate of title.
(b (i) In the event that the assignment of a Receivable by the
Seller to the Borrower hereunder and/or the pledge of such Receivable by the
Borrower to the Administrative Agent, on behalf of the Secured Parties, under
the Security Agreement are 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 such
Financed Vehicle is located, to perfect a security interest in the related
Financed Vehicle (and the proceeds thereof) in favor of the Borrower or to
perfect a security interest in the Borrower's security interest in the
related Financed Vehicle (and the proceeds thereof) in favor of the
Administrative Agent, on behalf of the Secured Parties, the parties hereto
(including, without limitation, the Seller) hereby agree that the Seller's
designation as the secured party on the certificate of title with respect to
such Financed Vehicle is in the Seller's capacity as agent of the Borrower
and the Administrative Agent, on behalf of the Secured Parties, as their
interests may appear and the Seller further agrees to hold such certificate
of title or other evidence of such designation in the case of a Paperless
Title System as the agent and custodian of the Borrower and the
Administrative Agent, on behalf of the Secured Parties, as their interests
may appear. In furtherance of the foregoing, the Borrower and the
Administrative Agent hereby appoint the Seller as their nominee lienholder
with respect to the Financed Vehicles
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securing the Receivables and the Seller hereby agrees to serve in such
capacity as described herein. As stated lienholder on the certificates of
title to all of such Financed Vehicles, the Seller agrees to take any and all
actions as the Borrower (with the consent of the Administrative Agent) or the
Administrative Agent may request in writing including, without limitation,
all actions for which the Seller's consent, waiver, release, vote or
signature (or other action of similar nature) is necessary or advisable in
the judgment of the Borrower or the Administrative Agent in order to
maintain, preserve and protect the Borrower's security interest in such
Financed Vehicles and the Administrative Agent's security interest, on behalf
of the Secured Parties, in the Borrower's security interest in such Financed
Vehicles (PROVIDED, HOWEVER, that, prior to (X) the occurrence of a Servicer
Termination Event, a Potential Servicer Termination Event, a Termination
Event or a Potential Termination Event and the request by the Administrative
Agent or, (Y) at any time, the request by the Required Lending Groups, for
the recordation of the Borrower's and/or the Administrative Agent's lien on
such Financed Vehicle's certificate of title, no such recordation shall be
required) and if the Seller fails to take any or all such actions, the
Administrative Agent or any designee of the Administrative Agent, may take
such actions at the sole expense of the Seller, and the Seller hereby grants
to the Administrative Agent and any such designee an irrevocable power of
attorney and license to take any and all such actions in the Seller's name
and on behalf of the Seller. The obligations of the Seller under this
Section are in addition to and in no way limit the obligations of the Seller
in its capacity as Servicer hereunder.
(1) Notwithstanding the fact that the Seller will remain
noted as first lienholder on the certificates of title to the Financed
Vehicles securing the Receivables on and after the date hereof, the Seller,
the Borrower and the Administrative Agent each hereby agrees that, on and
after the date hereof:
(1) subject to the terms of the Security Agreement,
the Borrower is entitled to all incidents, benefits and risks of a holder of
a first priority perfected security interest in and lien on such Financed
Vehicles;
(2) the Administrative Agent, on behalf of the
Secured Parties, is entitled to all incidents, benefits and risks of a holder
of a first priority perfected security interest in and lien on the Borrower's
first priority perfected security interest in and lien on such Financed
Vehicles and has the right to exercise or cause the exercise of all remedies
with respect to such Financed Vehicles provided to it under the terms hereof
and of the Security Agreement;
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(3) the Seller has no direct (or indirect, other
than in connection with the Seller's ownership interest in the Borrower)
security interest or other interest in such Financed Vehicles after giving
effect to the assignment hereunder by the Seller to the Borrower of the
Receivables secured by such Financed Vehicles;
(4) except in its capacity as Servicer hereunder,
the Seller will take no action with respect to the Financed Vehicles securing
Receivables assigned to the Borrower hereunder and pledged to the
Administrative Agent under the Security Agreement unless such action is
consented to by the Administrative Agent; and
(5) the Seller shall not represent to any lender,
financing source or other Person, that it has, or in any other manner hold
itself out as having, a security interest or any other rights or interests in
the Financed Vehicles, except for any rights it may have as nominee
lienholder hereunder or as Servicer hereunder.
(5) Upon the occurrence of a Servicer Termination Event, the
Administrative Agent may instruct the Servicer to take or cause to be taken
such action as may be necessary to perfect or re-perfect the security
interests in the Financed Vehicles securing the Receivables in the name of
the Borrower by amending the title documents of such Financed Vehicles or by
such other reasonable means as may, in the opinion of counsel to the Required
Lending Groups, be necessary or prudent. The Servicer hereby agrees to pay
all expenses related to such perfection or re-perfection and to take all
action necessary therefor. In addition, the Required Lending Groups may
instruct the Administrative Agent and the Servicer to take or cause to be
taken such action as may be necessary to perfect or re-perfect the security
interest in the Financed Vehicles underlying the Receivables in the name of
the Borrower, 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 Required Lending Groups, be necessary or prudent. The Servicer hereby
appoints the Administrative Agent as its attorney-in-fact to take any and all
steps required to be performed by AFS pursuant to this Section 5.5(b)
including, but not limited to, execution of certificates of title or any
other documents in the name and stead of the Servicer, and the Administrative
Agent hereby accepts such appointment.
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Section 1.19 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 Borrower
is deemed to have relied in acquiring the Receivables and upon which the
Secured Parties shall be deemed to have relied in making any Advance pursuant
to the Security Agreement, as the case may be.
The Servicer covenants as follows:
(1) LIENS IN FORCE. The Financed Vehicle securing each
Receivable shall not be released by the Servicer in whole or in part from the
security interest granted under the Receivable, except upon payment in full
of the Receivable or as otherwise contemplated herein.
(2) NO IMPAIRMENT. The Servicer shall do nothing to
impair the rights of the Borrower or the Secured Parties in the Receivables,
the Dealer Agreements, the Dealer Assignments, the Insurance Policies or the
Other Conveyed Property.
(3) NO AMENDMENTS. The Servicer shall not extend or
otherwise amend the terms of any Receivable, except in accordance with
Section 5.2.
(4) RESTRICTIONS ON LIENS. The Servicer shall not: (i)
create or incur or agree to create or incur, or consent to cause (upon the
happening of a contingency or otherwise) the creation, incurrence or
existence of any Lien or restriction on transferability of the Receivables or
of any Other Conveyed Property except for the Lien in favor of the
Administrative Agent for the benefit of the Secured Parties, 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 or sign any security agreement authorizing any secured party
thereunder to file such financing statement, with respect to the Receivables
or to any Other Conveyed Property, except in each case any such instrument
solely securing the rights and preserving the Lien of the Administrative
Agent, for the benefit of the Secured Parties. The Servicer will take no
action to cause any Receivable to be evidenced by an instrument (as such term
is defined in the Relevant UCC).
(5) ADVERSE INTERESTS. As of the date of each
Servicer's Acknowledgment: (i) it holds no adverse interest, by way of
security or otherwise, in any Receivable; and (ii) the execution of this
Agreement and the creation of the
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servicing and custodial relationship hereunder does not create any interest,
by way of security or otherwise, of the Servicer in or to any Receivable,
other than the Servicer's rights as servicer and custodian hereunder.
(6) INSURANCE. The Servicer shall, at its own expense,
maintain at all times during the existence of this Agreement and keep in full
force and effect, a Fidelity Bond and Errors and Omissions Policy of a type
and in such amount as is customary for custodians engaged in the business of
acting as custodian of automobile receivables and shall maintain any other
similar insurance policies that are customarily maintained by custodians
engaged in the business of acting as custodian of automobile receivables. A
certificate of the respective insurer as to each such policy or a blanket
policy for such coverage shall be furnished to the Administrative Agent
containing the insurer's statement or endorsement that such insurance shall
not terminate prior to receipt by such party, by certified mail, of 10 days
advance notice thereof.
Section 1.20 PURCHASE OF RECEIVABLES UPON BREACH OF COVENANT.
Upon discovery by any of the Seller, the Servicer, the Borrower, the
Administrative Agent or the Secured Parties of a breach of any of the
covenants set forth in Sections 5.5 or 5.6, the party discovering such breach
shall give prompt written notice to the others; PROVIDED, HOWEVER, that the
failure to give any such notice shall not affect any obligation of the
Servicer under this Section 5.7. As of the last day of the month following
its discovery or receipt of notice of any breach of any covenant set forth in
Sections 5.5 or 5.6 which adversely affects any Receivable(s) (or the related
Financed Vehicle) and/or the interests of the Borrower and/or the Secured
Parties therein (including any Defaulted or Delinquent Receivable), the
Servicer shall, unless such breach shall have been cured in all material
respects, purchase from the Borrower the Receivable affected by such breach
and, on the related Determination Date, the Servicer shall pay the related
Repurchase Obligation Amount by remitting such amount to the Collection
Account. It is understood and agreed that the obligation of the Servicer to
purchase any Receivable (including any Delinquent or Defaulted Receivable)
with respect to which such a breach has occurred and is continuing shall, if
such obligation is fulfilled, constitute the sole remedy against the Servicer
for such breach available to the Borrower, the Secured Parties or the
Administrative Agent; PROVIDED, HOWEVER, that the Servicer shall indemnify
the Borrower, the Backup Servicer, the Administrative Agent and the Secured
Parties against all costs, expenses, losses, damages, claims and liabilities,
including reasonable fees and expenses of counsel, which may be asserted
against or incurred
32
by any of them as a result of third party claims arising out of the events or
facts giving rise to such breach.
Section 1.21 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 pursuant to
Section 6.8 (the "Servicing Fee"). 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 and expenses incurred in
connection with distributions and reports made by the Servicer to the Secured
Parties). The Servicer shall be liable for the fees and expenses of the
Backup Servicer, the Lockbox Bank and the Independent Accountants; PROVIDED,
HOWEVER, that any successor to AFS as Servicer (including the Backup
Servicer) shall not be liable for such fees and expenses which shall, in such
event, be the responsibility of the Borrower.
Section 1.22 CERTAIN SERVICER'S CERTIFICATES.
(1) No later than 1:00 P.M. New York City time two Business Days
prior to a Distribution Date, the Servicer shall deliver to the
Administrative Agent, the Backup Servicer and each Rating Agency a Servicer's
Determination Date Certificate executed by a Responsible Officer of the
Servicer in substantially the form of Exhibit B hereto and including such
credit and other information as the Administrative Agent and the Funding
Agents may reasonably request with respect to the Managed Assets, including
newly originated Managed Assets.
(2) In addition, in connection with any Optional Prepayment
pursuant to the Security Agreement, unless such Optional Prepayment is to be
effected on a Distribution Date (in which case the relevant calculations with
respect to such Optional Prepayment shall be reflected in the applicable
Servicer's Determination Date Certificate), the Servicer shall deliver to
Administrative Agent, the Backup Servicer and each Rating Agency a Servicer's
VFN Prepayment Date Certificate in substantially the form of Exhibit B-1
hereto. Such Servicer's VFN Prepayment Date Certificate shall be delivered
to the Administrative Agent in draft form by 1:00 p.m. two Business Days, and
in final form by 1:00 p.m. one Business Day, prior to the contemplated VFN
Prepayment Date.
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Section 1.23 ANNUAL STATEMENT AS TO COMPLIANCE, NOTICE OF
SERVICER TERMINATION EVENT.
(1) The Servicer shall deliver to the Administrative Agent, the
Backup Servicer and each Rating Agency, on or before April 30 of each year,
beginning on April 30, 2000, an Officer's Certificate, dated as of December
31 of the preceding 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 Effective Date to the date of the first such
certificate) and of its performance under this Agreement has been made under
such officer's supervision, and (ii) to such officer's knowledge, based on
such review, the Servicer has fulfilled all its obligations under this
Agreement throughout such period, or, if there has been a default in the
fulfillment of any such obligation, specifying each such default known to
such officer and the nature and status thereof.
(2) The Servicer shall deliver to the Administrative Agent, the
Backup Servicer 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.
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Section 1.24 ANNUAL INDEPENDENT ACCOUNTANTS' REPORT; QUARTERLY
REVIEWS.
(1) The Servicer shall cause a firm of nationally recognized
independent certified public accountants who shall be selected by the
Servicer and acceptable to the Administrative Agent and the Funding Agents
(the "INDEPENDENT ACCOUNTANTS"), who may also render other services to the
Servicer or to the Seller, to deliver to the Administrative Agent, the Backup
Servicer 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, 2000, 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 Effective Date to the date of such
certificate), a statement (the "ACCOUNTANTS' REPORT") addressed to the Board
of Directors of the Servicer, to the Administrative Agent, and the Backup
Servicer, 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. (such
consolidated financial statements delivered pursuant to Section 2.3(d)
hereof) 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; and (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. With respect to the
fiscal year ended June 30, 1999, the Servicer shall deliver to the
Administrative Agent, the Backup Servicer and each Rating Agency, on or
before October 31, 1999, a copy of each of the foregoing described reports,
as well as a copy of the report on the application of agreed upon procedures
to three randomly selected servicer certificates of AFS as servicer delivered
in connection with the outstanding AmeriCredit securitization transactions
for which it acts as servicer, including the delinquency, default and loss
statistics required to be specified therein and noting whether any exceptions
or errors in the such servicer certificates were found.
(2) Within 30 days following the Distribution Date following the
fourth and tenth months of each calendar year, the Independent Accountants
shall undertake a data integrity review substantially in the form of Exhibit
G hereto, as such Exhibit G may from time to time be amended by agreement of
the Borrower and the Administrative Agent, with the consent of the Required
Lending Groups.
35
Additionally, the Independent Accountants shall undertake a data integrity
review substantially in the form of Exhibit H hereto, as such Exhibit H may
from time to time be amended by agreement of the Borrower and the
Administrative Agent, with the consent of the Required Lending Groups; the
report of the Independent Accountants on the results of each such data
integrity review shall be completed and delivered to the Administrative
Agent, the Borrower and the Servicer within 20 days following the first,
fourth, seventh and tenth months of each calendar year.
Section 1.25 ACCESS TO CERTAIN DOCUMENTATION AND INFORMATION
REGARDING THE RECEIVABLES. The Servicer shall provide to representatives of
the Borrower, the Administrative Agent, the Funding Agents and the Backup
Servicer reasonable access to the Receivable Files and all other
documentation regarding the Receivables. In each case, such access shall be
afforded without charge but only upon reasonable request and during normal
business hours. Nothing in this Section shall derogate from the obligation
of the Servicer to observe any applicable law prohibiting disclosure of
information regarding the Obligors, and the failure of the Servicer to
provide access as provided in this Section as a result of such obligation
shall not constitute a breach of this Section.
Section 1.26 MONTHLY TAPE. On or before the Determination Date,
but in no event later than the eighth (8th) calendar day, of each month, the
Servicer will deliver to the Backup Servicer a computer tape and a diskette
(or any other electronic transmission acceptable to the Administrative Agent
and the Backup Servicer) in a format acceptable to the Backup Servicer
containing the information with respect to the Receivables as of the
preceding Accounting Date necessary for preparation of the Servicer's
Determination Date Certificate relating to the immediately succeeding
Determination Date and necessary to determine the application of collections
as provided in Section 6.4. The Backup Servicer shall use such tape or
diskette (or other electronic transmission acceptable to the Backup Servicer)
to verify the Servicer's Determination Date Certificate delivered by the
Servicer, and the Backup Servicer shall certify to the Administrative Agent
that it has verified the Servicer's Determination Date Certificate in
accordance with this Section 5.13 and shall notify the Servicer and the
Administrative Agent of any discrepancies, in each case, on or before the
second Business Day following the Determination Date. In the event that the
Backup Servicer reports any discrepancies, the Servicer and the Backup
Servicer shall attempt to reconcile such discrepancies prior to the related
Distribution Date, but in the absence of a reconciliation, the Servicer's
Determination Date Certificate shall control for the purpose of calculations
and
36
distributions with respect to the related Distribution Date. In the event
that the Backup Servicer and the Servicer are unable to reconcile
discrepancies with respect to a Servicer's Determination Date Certificate by
the related Distribution Date, the Servicer shall cause the Independent
Accountants, at the Servicer's expense, to audit the Servicer's Determination
Date Certificate and, prior to the next succeeding Determination Date,
reconcile the discrepancies. The effect, if any, of such reconciliation
shall be reflected in the Servicer's Determination Date Certificate for such
next succeeding Deterination Date. In addition, upon the occurrence of a
Servicer Termination Event the Servicer shall, if so requested by the
Administrative Agent, deliver to the Backup Servicer its Collection Records
and its Monthly Records within 5 Business Days after demand therefor and a
computer tape, or other electronic transmission acceptable to the Backup
Servicer, 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 1.27 RETENTION AND TERMINATION OF SERVICER. The Servicer
hereby covenants and agrees to act as such under this Agreement during the
term of the Facility, as such term may be extended pursuant to the Security
Agreement, unless the Servicer is terminated pursuant to Article IX hereof,
or is permitted to resign pursuant to Section 8.6 hereof.
Section 1.28 FIDELITY BOND AND ERRORS AND OMISSIONS POLICY. The
Servicer has obtained, and shall continue to maintain in full force and
effect, a Fidelity Bond and Errors and Omissions Policy of a type and in such
amount as is customary for servicers engaged in the business of servicing
automobile receivables.
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ARTICLE VI
COLLECTION ACCOUNT; DISTRIBUTIONS; STATEMENTS TO SECURED PARTIES
Section 1.29 ESTABLISHMENT OF COLLECTION ACCOUNT.
(1) The Administrative Agent, on behalf of the Secured Parties,
shall establish and maintain in its own name an account that is an Eligible
Deposit Account (the "COLLECTION ACCOUNT") bearing a designation clearly
indicating that the funds deposited therein are held for the benefit of the
Administrative Agent on behalf of the Secured Parties. The Collection
Account shall initially be established with the Administrative Agent, and may
be on a sub-ledger of the Administrative Agent.
(2) Funds on deposit in the Collection Account and/or any other
account established pursuant to Section 6.1(f)(i) (each such account, a
"PLEDGED ACCOUNT"), in excess of $25,000 shall be invested by the
Administrative Agent in Eligible Investments selected by the Administrative
Agent in its discretion among Eligible Investments specified in standing
written instructions of the Borrower, or, in the absence of such
instructions, solely in the discretion of the Administrative Agent. All such
Eligible Investments shall be held by the Administrative Agent for the
benefit of the Secured Parties, and funds on deposit in any Pledged Account
shall be invested in Eligible Investments having maturities that are
determined by the Administrative Agent to be consistent with the cashflow
requirements of the CP Lenders (as notified to the Administrative Agent by
the Funding Agents), including availability of funds for the payment of
maturing Commercial Paper, and that in any event will mature no later than
the close of business on the Business Day immediately preceding the following
Distribution Date. Funds deposited in a Pledged Account on the day
immediately preceding a Distribution Date are required to be invested
overnight. All Eligible Investments made in accordance with this subsection
will be held to maturity, except to the extent otherwise required in
connection with an acceleration of indebtedness pursuant to the terms of the
Security Agreement.
(3) All investment earnings of moneys deposited in the Pledged
Accounts shall be deposited (or caused to be deposited) by the Administrative
Agent in the Collection Account, and any loss resulting from such investments
shall be
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charged to such account. The Borrower will not direct the Administrative
Agent to make any investment of any funds held in any of the Pledged 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
Administrative Agent to make any such investment, if requested by the
Administrative Agent, the Borrower shall deliver to the Administrative Agent
an Opinion of Counsel, acceptable to the Administrative Agent, to such effect.
(4) The Administrative Agent shall not in any way be held liable
by reason of any insufficiency in any of the Pledged Accounts resulting from
any loss on any Eligible Investment included therein except for losses
attributable to the Administrative Agent's gross negligence or willful
misconduct (PROVIDED that the foregoing shall not be deemed to relieve the
Administrative Agent of any liability in its individual capacity as an issuer
of any Eligible Investment for failure to make payments thereon in accordance
with the terms thereof).
(5) It is expressly acknowledged and agreed that the
Administrative Agent is authorized hereby to direct the purchase of
investments constituting Eligible Investments (i) from any Affiliate of the
Administrative Agent, including securities that are underwritten, placed or
dealt in by any such Affiliate and/or from management investment companies of
which the Administrative Agent (in its individual capacity) or any Affiliate
is an investment advisor, administrator, shareholder, servicing agent and/or
custodian, or (ii) that involve the Administrative Agent (in its individual
capacity) or an Affiliate of the Administrative Agent as a participant or
counterparty. It is further acknowledged and agreed that the Administrative
Agent (in its individual capacity) and/or such Affiliates may receive
advisory fees, referral fees and other compensation in connection with such
services that are distinct from the fees, charges and expenses of the
Administrative Agent under or in connection with any of the Basic Agreements.
(6)
(1) The Administrative Agent, on behalf of the Secured
Parties, shall possess all right, title and interest in and to all funds on
deposit from time to time in the Pledged Accounts and in and to all proceeds
thereof and all such funds, investments, proceeds and income shall be part of
the Conveyed Property. Except as otherwise provided herein, the Pledged
Accounts shall be under
39
the sole dominion and control of the Administrative Agent for the benefit of
the Secured Parties. If, at any time, any of the Pledged Accounts ceases to
be an Eligible Deposit Account, the Administrative Agent (or the Servicer on
its behalf) shall within five Business Days (or such longer period as to
which each Rating Agency and the Administrative Agent may consent) establish
a new Pledged Account as an Eligible Deposit Account and shall transfer any
cash and/or any investments to such new Pledged Account. In connection with
the foregoing, the Servicer agrees that, in the event that any of the Pledged
Accounts are not accounts with the Administrative Agent, the Servicer shall
notify the Administrative Agent in writing immediately upon any of such
Pledged Accounts ceasing to be an Eligible Deposit Account.
(2) With respect to the Conveyed Property, the
Administrative Agent agrees and Borrower agrees to cause that:
(1) any Conveyed Property that is held in deposit
accounts (within the meaning of the New York UCC) shall be held solely in
Eligible Deposit Accounts; and, except as otherwise provided herein, each
such Eligible Deposit Account shall be subject to the exclusive custody and
control of the Administrative Agent, and the Administrative Agent shall have
sole signature authority with respect thereto;
(2) prior to "Uniform Commercial Code-Investment
Securities," 1997 N.Y. Laws ch. 566 ("New York Revised Article 8") becoming
effective, any Conveyed Property or Collateral invested in Eligible
Investments that constitutes "instruments" within the meaning of Section
9-105(1)(i) of the New York UCC (other than Certificated Securities),
Certificated Securities, or "uncertificated securities" within the meaning of
Article 8 of the New York UCC shall be delivered to the Administrative Agent
in accordance with the appropriate paragraph of the definition of "Delivery";
(3) with respect to all other Conveyed Property or
Collateral not listed in subparagraph (2) above, and with respect to all
Conveyed Property or Collateral after New York Revised Article 8 becomes
effective, any Conveyed Property or Collateral invested in Eligible
Investments shall be delivered to the Administrative Agent by causing a
financial institution then maintaining a Pledged Account (such institution
being referred to as a "Pledged Accounts Securities Intermediary") to create
a Security Entitlement (or a United States Securities Entitlement, when
applicable) in such Pledged Account in favor of the
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Administrative Agent on behalf of the Secured Parties with respect to such
Eligible Investment by indicating by book-entry that such Eligible Investment
has been credited to such Pledged Account;
(4) the Administrative Agent shall only invest in
Eligible Investments which the applicable Pledged Account Securities
Intermediary agrees to credit to the applicable Pledged Account;
(5) any Conveyed Property or Collateral may be
delivered: (i) upon the instruction of the Administrative Agent, by any
additional or alternative procedures as may hereafter become appropriate, in
the sole judgment of the Administrative Agent, under applicable law or
regulations or the interpretation thereof to obtain and maintain a first
priority perfected security interest in any such Conveyed Property or
Collateral in favor of the Administrative Agent on behalf of the Secured
Parties, or (ii) upon the request of the Borrower or the Servicer and the
consent of the Administrative Agent, by any additional or alternative
procedures that will, in the written opinion of counsel, create and maintain
a first priority perfected security interest in any such Conveyed Property or
Collateral in favor of the Administrative Agent on behalf of the Secured
Parties.
(7) The Servicer shall have the power, revocable by the
Administrative Agent, to instruct the Administrative Agent to make
withdrawals and payments from the Pledged Accounts for the purpose of
permitting each of the Servicer and the Administrative Agent to carry out its
respective duties hereunder.
(8) Notwithstanding anything else contained herein, the
Administrative Agent agrees that, with respect to each Pledged Account, it
will cause each Securities Intermediary establishing such Pledged Account to
enter into an agreement pursuant to which the Administrative Agent, for the
benefit of the Secured Parties, shall have "control" (within the meaning of
Section 8-106 of the New York UCC) of such Pledged Account and all
securities, investment property, financial assets, investments and other
property credited thereto from time to time; PROVIDED that each such
agreement entered into between the Administrative Agent and any Securities
Intermediary shall, in the opinion of special counsel to the Secured Parties,
be effective to perfect by "control" (within the meaning of Section 8-106 of
the New York UCC) the security interest of the Administrative Agent for the
benefit of the Secured Parties in such Pledged Account and property credited
thereto.
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Section 1.30 COLLECTION ACCOUNT RESERVE.
(1) At all times during the term of the Facility, the Borrower
shall maintain the Collection Account Reserve Minimum. In the event that the
Collection Account Reserve shall fall below the Collection Account Reserve
Minimum, then, as promptly as possible and in no event later than five
Business Days following such event (or, if sooner, the next contemplated
Funding Date pursuant to the Security Agreement), the Borrower shall pay to
the Administrative Agent, for deposit in the Collection Account and
allocation to the Collection Account Reserve, the amount of any such
shortfall in immediately available funds (such amount, the "COLLECTION
ACCOUNT RESERVE SHORTFALL AMOUNT"; it being understood that the deposit of
any required Collection Account Reserve Shortfall Amount by the Borrower
shall be a condition precedent to the occurrence of any Funding on such
contemplated Funding Date).
(2) Prior to the occurrence of a Termination Event or the
Commitment Expiry Date (or the occurrence and continuation of a Pool
Seasoning Event), on any Distribution Date, after application of Available
Funds as set forth in clauses (i) through (xii) of Section 6.8(a) hereof,
funds on deposit in the Collection Account that are allocated to the
Collection Account Reserve and that are in excess of the higher of (i) the
Collection Account Reserve Minimum and (ii) 6.00% of the VFN Balance, shall
be available for distribution to the Borrower in accordance with Section
6.8(a) hereof. Further, in connection with an Optional Prepayment of the
VFN, and after payment of (i) all obligations to the CP Lenders required in
connection with such prepayment and (ii) all other costs and expenses related
to such prepayment (and PROVIDED that no Termination Event is then in
existence, that no Pool Seasoning Event is or would be in existence after
giving effect to such Optional Prepayment and that the Commitment Expiry Date
has not occurred), then, funds on deposit in the Collection Account that are
allocated to the Collection Account Reserve and that are in excess of the
Collection Account Reserve Minimum may be released to the Borrower in an
amount determined as follows: the product of (A) the Collection Account
Reserve and (B) a fraction, the numerator of which is the Principal Balance
of Receivables released in connection with the prepayment that had been
included in the Pool Balance, and the denominator of which is the Pool
Balance before giving effect to the prepayment; PROVIDED that the Collection
Account Reserve shall be maintained in an amount at least equal to the
Collection Account Reserve Minimum after such distribution.
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Following the occurrence of a Termination Event, all amounts
allocated to the Collection Account Reserve shall be applied in accordance
with Section 6.8(a).
Section 1.31 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 6.8 upon
certification by the Servicer of such amounts and the provision of such
information to the Administrative Agent as may be necessary in the opinion of
the Administrative Agent to verify the accuracy of such certification. In
the event that the Administrative Agent has not received evidence
satisfactory to it of the Servicer's entitlement to reimbursement pursuant to
this Section, the Administrative Agent shall give notice to such effect.
Section 1.32 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 Repurchased
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 5.8.
Section 1.33 SERVICER ADVANCES. In the event that, on any date,
there are not sufficient Available Funds to pay the sum of the amounts
described in Section 6.8(a), clauses (ii)(B), (iv) and (v), due and payable
on such date, the Servicer shall advance an amount equal to such amounts due
and payable on such date (each, a "Servicer Advance"), PROVIDED that the
Servicer shall not make such an advance to the extent that it does not
reasonably expect, after reasonable inquiry, to be reimbursed for such
advance from the collections on the Receivables.
43
Section 1.34 APPLICATION OF FUNDS FROM THE COLLECTION ACCOUNT
RESERVE; SPECIAL WITHDRAWALS FROM THE COLLECTION ACCOUNT.
(1) In the event that the Servicer's Determination Date
Certificate with respect to any Determination Date shall state that the
amount of the Available Funds with respect to such Determination Date is less
than the sum of the amounts payable on the related Distribution Date pursuant
to clauses (i) through (xii) of Section 6.8(a) (such amount, an "AVAILABLE
FUNDS DEFICIENCY"), then, on the Business Day preceding the related
Distribution Date, the Administrative Agent shall allocate to the payment of
such amounts an amount equal to such Available Funds Deficiency, to the
extent that funds are available, from the Collection Account Reserve.
(2) Notwithstanding anything in this Agreement or any other Basic
Agreement to the contrary, to the extent that a CP Lender (or its related
Funding Agent on its behalf) notifies the Administrative Agent with respect
to any date other than a Distribution Date that such CP Lender has
insufficient funds on hand to pay any portion of the Carrying Costs
representing Accrued Discount payable on such date, then the Administrative
Agent may immediately withdraw the necessary amount from the Collection
Account, including, if necessary, from the Collection Account Reserve, and
make available such amounts for distribution to such CP Lender on such date.
The Administrative Agent shall give notice to the Borrower and the Servicer
by telephone as promptly as practicable and in any event no later than the
Business Day following such withdrawal, such notice to be promptly confirmed
in writing.
Section 1.35 ADDITIONAL DEPOSITS. The Servicer or the Seller, as
applicable, shall deposit or cause to be deposited in the Collection Account,
on the Determination Date following the date on which such obligations are
due, the aggregate Repurchase Obligation Amount with respect to Repurchased
Receivables.
Section 1.36 DISTRIBUTIONS.
(1) No later than 11:00 a.m. New York time on each Distribution
Date, the Administrative Agent shall cause to be made the following transfers
and distributions from the Collection Account in accordance with the
following priorities (such transfers and distributions to be based solely on
the information contained in the Servicer's Determination Date Certificate
delivered on the related Determination
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Date, SUBJECT HOWEVER (A) in the case of clause (x) below to the effect of
any intervening Funding, in which case the relevant information shall be as
updated in the relevant Servicer's Receivables Sale Date Certificate, and (B)
to the occurrence of an intervening Termination Event):
(1) to the Servicer, to repay any outstanding Servicer
Advances;
(2) on a PARI PASSU basis (A) to each of the Lockbox
Bank, the Servicer and the Independent Accountants, its respective accrued
and unpaid fees and expenses (in each case, only to the extent such fees and
expenses have not been previously paid when due by the Servicer and PROVIDED
that, so long as the Servicer is also the custodian, such fees shall not
exceed $200,000 in the aggregate in any calendar year) and (B) any amounts
owing to the Lockbox Bank as reimbursement for checks that have been credited
to the Lockbox Account and are not collectible in accordance with the
procedures specified in the Lockbox Agreement;
(3) to the Servicer, the Base Servicing Fee and any
Supplemental Servicing Fees for the related Collection Period (as well as any
amounts specified in Section 6.3, to the extent the Servicer has not
reimbursed itself in respect of such amounts pursuant to Section 6.3 and to
the extent not retained by the Servicer), but LESS the total of any fees and
expenses to be paid to the Lockbox Bank(s), the Servicer, the Independent
Accountants or the Backup Servicer pursuant to clauses (ii)(A) or (iv);
(4) to the Backup Servicer (or any successor Servicer)
to pay servicing fees (in the case of the Backup Servicer, only to the extent
such fees have not been previously paid when due by the Servicer);
(5) to the Administrative Agent for the benefit of the
Secured Parties, the following amounts in the following priority:
(1) Accrued Discount and Accrued Interest with
respect to such Collection Period not to exceed the Capped Amount (after
giving effect, in the case of Accrued Discount, to any portion thereof paid
since the previous Distribution Date, whether from the proceeds of newly
issued Commercial Paper, or as contemplated by Section 6.6(b) hereof);
45
(2) all dealer fees due and owing with respect to
Commercial Paper issued by such CP Lenders to fund the Aggregate Net
Investment during such Collection Period;
(3) any past due Discount and any past due interest
due and owing to the APA Banks under the Security Agreement (in each case,
together with interest at the default rate specified therein) with respect to
prior Collection Periods not to exceed the Capped Amount; and
(4) in accordance with the terms of the Fee Letter,
the Utilization Fee and the Unused Fee accrued from the first day through the
last day of such Collection Period, whether or not such amounts are payable
during such Collection Period;
(6) to the Administrative Agent for the benefit of the
Secured Parties, the Targeted Monthly Principal Payment;
(7) following any replacement of the Servicer, to the
Backup Servicer to pay the reasonable costs of transition, including any
required re-xxxxxxx of the Financed Vehicles, to the extent such costs have
not been paid by the terminated Servicer;
(8) the costs of the Secured Parties with respect to the
operation of the Yield Protection Provision, on a PARI PASSU basis;
(9) after the occurrence of the first to occur of the
Commitment Expiry Date or a Termination Event, or the occurrence and
continuation of a Pool Seasoning Event, the remainder to reduce the VFN
Balance;
(10) prior to the occurrence of the Commitment Expiry
Date, a Termination Event, or the occurrence and continuation of a Pool
Seasoning Event, the balance, if any, will first be allocated to the
Collection Account Reserve, until the Collection Account Reserve is equal to
the greater of (i) 6.00% of the VFN Balance and (ii) the Collection Account
Reserve Minimum;
(11) to the Administrative Agent for the benefit of the
Secured Parties, in the following order of priority, (A) all Accrued Discount
and
46
Accrued Interest in excess of the Capped Amount and (B) any indemnity amounts
owing by the Borrower to the Secured Parties pursuant hereto (other than
those described in clause (viii) above) or pursuant to Section 3.4 of the
Security Agreement;
(12) without duplication, any other costs, expenses and
other amounts due and owing to the Secured Parties and the Administrative
Agent pursuant to this Agreement and the other Basic Agreements that are
accrued and unpaid during such Collection Period, together with any unpaid
costs and expenses due and owing to the Secured Parties and the
Administrative Agent from prior Collection Periods; and
(13) any remaining funds will then be paid to the
Borrower; PROVIDED, HOWEVER, that following the occurrence of a Termination
Event no such distribution shall be made to the Borrower until after payment
of any and all other amounts owed by the Borrower to the Secured Parties
under or in connection with any Basic Agreement, including, without
limitation, any costs and expenses incurred in connection with such
Termination Event.
If funds in the Collection Account are insufficient to pay in full
any of the amounts due and owing to the Secured Parties in clauses (i)
through (xii) of this Section 6.8(a), the Administrative Agent shall
distribute amounts then on deposit in the Collection Account on a PRO RATA
basis based upon the Net Investment of each Lending Group and the Aggregate
Net Investment of all Lending Groups.
(2) In the event that the Collection Account is maintained with an
institution other than the Administrative Agent, the Servicer shall instruct
and cause such institution to make all deposits and distributions pursuant to
Section 6.8(a) on the related Distribution Date.
(3) on each Distribution Date, the Administrative Agent shall send
to each Funding Agent the statement provided to the Administrative Agent by
the Servicer pursuant to Section 5.9 hereof with respect to such Distribution
Date.
(4) In the event that any withholding tax is imposed on the
Borrower's payment (or allocations of income) to a Secured Party, the
Borrower shall be obligated to indemnify such Secured Party (or Parties) for
such taxes pursuant to the Security Agreement. Without limiting the
obligations of the Borrower under the
47
Security Agreement, or the rights of the Secured Parties in the event of the
Borrower's failure to make full and timely payment of any amounts owing
pursuant to Article IV thereof, the Administrative Agent is hereby authorized
and directed to retain from amounts otherwise distributable to the Secured
Parties sufficient funds for the payment of any tax that is legally owed by
the Borrower. The amount of any withholding tax imposed with respect to a
Secured Party shall be treated as cash distributed to such Secured Party at
the time it is withheld by the Borrower or the Administrative Agent 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 Secured Party), the Administrative Agent may in its
sole discretion withhold such amounts in accordance with this clause (d). In
the event that a Secured Party wishes to apply for a refund of any such
withholding tax, the Administrative Agent shall reasonably cooperate with
such Secured Party in making such claim so long as such Secured Party agrees
to reimburse the Administrative Agent for any out-of-pocket expenses incurred.
(5) Distributions required to be made to Secured Parties on any
Distribution Date shall be made in immediately available funds, to the
account of the Administrative Agent for distribution to such Secured Party at
a bank or other entity having appropriate facilities therefor.
(6) Subject to Section 6.1 and this Section, monies received by
the Administrative 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 Administrative Agent shall
not be liable for any interest thereon.
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ARTICLE VII
THE SELLER
Section 1.37 REPRESENTATIONS AND WARRANTIES OF SELLER. The
Seller makes the following representations on which the Borrower is deemed to
have relied in acquiring the Receivables and on which the Secured Parties
have relied in advancing funds to the Borrower under the Security Agreement.
The representations speak as of the execution and delivery of this Agreement
and as of each Receivables Sale Date with respect to the Receivables sold on
such date, and shall survive the sale of the Receivables to the Borrower and
the pledge thereof to the Administrative Agent on behalf of the Secured
Parties.
(1) ORGANIZATION AND GOOD STANDING. The Seller has been duly
organized and is validly existing as a corporation in good standing under the
laws of the State of Delaware, with power and authority to own its properties
and to conduct its business as such properties are currently owned and such
business is currently conducted, and had at all relevant times, and now has,
power, authority and legal right to acquire, own and sell the Receivables and
the Other Conveyed Property sold to the Borrower.
(2) 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 sell the
Receivables and the Other Conveyed Property to the Borrower 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
other Basic Agreements.
(3) POWER AND AUTHORITY. The Seller has the power and authority
to execute and deliver this Agreement and the other Basic Agreements to which
it is a party 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
Borrower by it and has duly authorized such sale and assignment to the
Borrower by all necessary corporate action; and the execution, delivery and
performance of this Agreement and the other
49
Basic Agreements to which the Seller is a party have been duly authorized by
the Seller by all necessary corporate action.
(4) 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 other Basic Agreements to which the
Seller is a party, 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.
(5) ERISA. The Seller is in compliance in all material respects
with ERISA and there is no lien of the Pension Benefit Guaranty Corporation
on any of the Receivables or Other Conveyed Property.
(6) NOT AN INVESTMENT COMPANY. The Seller is not an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended, or is exempt from all provisions of such Act.
(c) NO VIOLATION. The consummation of the transactions
contemplated by this Agreement and the other Basic Agreements to which the
Seller is a party and the fulfillment of the terms of this Agreement and the
other Basic Agreements to which the Seller is a party 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.
(7) NO PROCEEDINGS. There are no proceedings or investigations
pending or, to the Seller's knowledge, threatened, against the Seller, before
any court,
50
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 other Basic
Agreements, (B) seeking to prevent the consummation of any of the
transactions contemplated by this Agreement or any of the other Basic
Agreements, (C) seeking any determination or ruling that might materially and
adversely affect the Receivables or the performance by the Seller of its
obligations under, or the validity or enforceability of, this Agreement or
any of the other Basic Agreements, (D) seeking to adversely affect the
federal income tax or other federal, state or local tax attributes of the
transactions contemplated by the Basic Agreements, or (E) involving any
Receivable.
(8) CHIEF EXECUTIVE OFFICE. The chief executive office of the
Seller is at 000 Xxxxxx Xxxxxx, Xxxxx 0000, Xxxx Xxxxx, Xxxxx.
(9) NO CONSENTS. The Seller is not required to obtain the consent
of any other party or any consent, license, approval or authorization, or
registration or declaration with, any governmental authority, bureau or
agency in connection with the execution, delivery, performance, validity or
enforceability of this Agreement which has not already been obtained.
Section 1.38 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
Receivables Sale Agreement, the other Basic Agreements and each other
instrument or agreement necessary or appropriate to the proper administration
of this Agreement and the transactions contemplated hereby.
(1) 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:
(1) the Seller shall maintain corporate records and
books of account separate from those of its Affiliates;
(2) except as otherwise provided in this Agreement, the
Seller shall not commingle its assets and funds with those of its Affiliates;
51
(3) 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 stockholders) 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);
(4) 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
(5) all transactions and dealings between the Seller and
its Affiliates will be conducted on an arm's length basis.
(2) During the term of this Agreement, the Seller shall take no
action that would cause the Borrower to violate any of its covenants under
the Basic Agreements or that otherwise would be likely to have a material
adverse effect on the Borrower and/or the Secured Parties.
Section 1.39 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.
(1) The Seller shall indemnify, defend and hold harmless the
Borrower, the Administrative Agent, the Secured Parties, the Backup Servicer
and the Servicer (if other than the Seller) from and against any taxes that
may at any time be asserted against any such Person with respect to, and as
of the date of, each sale of Receivables to the Borrower including any sales,
gross receipts, general corporation, tangible or intangible personal
property, privilege or license taxes (but not including any taxes asserted
with respect to ownership of the Receivables or federal or other income
taxes, including franchise taxes measured by net income) and all costs and
expenses in defending against the same.
(2) The Seller shall indemnify, defend and hold harmless the
Borrower, the Administrative Agent, the Secured Parties, the Backup Servicer
and the Servicer (if other than the Seller) from and against any loss,
liability or expense incurred by reason of the Seller's willful malfeasance,
bad faith or negligence in the
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performance of its duties under this Agreement, or by reason of reckless
disregard of its obligations and duties under this Agreement.
Indemnification under this Section shall survive the resignation or
removal of the Administrative Agent and the termination of this Agreement and
shall include all 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 1.40 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 Borrower and
the Required Lending Groups prior to entering into any such transaction, (ii)
immediately after giving effect to such transaction, no representation or
warranty made pursuant to Section 4.1 shall have been breached and (if AFS is
the Servicer) 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
Administrative Agent and the Rating Agencies 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 Administrative Agent an Opinion of Counsel stating
that, in the opinion of such counsel, either (A) all financing statements and
continuation statements and amendments thereto relating to the sale of the
Receivables from the Seller to the Borrower have been executed and filed that
are necessary fully to preserve and protect the interest of the Borrower in
the Receivables and reciting the details of such filings or (B) no such
action shall be necessary to preserve and protect such interest. For the
avoidance of doubt, it is understood that the execution of the foregoing
agreement of assumption and
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compliance with clauses (i) through (v) above shall be conditions to the
consummation of the transactions referred to in clauses (a), (b) or (c) above.
Section 1.41 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 Agreement. 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.
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ARTICLE VIII
THE SERVICER
Section 1.42 REPRESENTATIONS AND WARRANTIES OF AFS, IN ITS
CAPACITY AS SERVICER. AFS makes the following representations and warranties
on which the Borrower is deemed to have relied in acquiring the Receivables
and on which the Secured Parties have relied in advancing funds to the
Borrower under the Security Agreement. The representations speak as of the
execution and delivery of this Agreement and as of each Receivables Sale Date
with respect to the Receivables sold on such date, and shall survive the sale
of the Receivables to the Borrower and the pledge thereof to the
Administrative Agent on behalf of the Secured Parties.
(1) ORGANIZATION AND GOOD STANDING. AFS 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;
(2) DUE QUALIFICATION. AFS 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;
(3) POWER AND AUTHORITY. AFS has the full power and
authority to hold each Receivable on behalf of the Administrative Agent and
has the power and authority to execute and deliver this Agreement and the
other Basic Agreements to which it is a party and to carry out its terms and
their terms, respectively, and the execution, delivery and performance of
this Agreement and the other Basic Agreements to which it is a party have
been duly authorized by the Servicer by all necessary corporate action;
(4) BINDING OBLIGATION. This Agreement and the other
Basic Agreements to which AFS is a party shall constitute legal, valid and
binding
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obligations of AFS 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;
(5) ERISA. AFS is in compliance in all material
respects with ERISA and there is no lien of the Pension Benefit Guaranty
Corporation on any of the Receivables or Other Conveyed Property;
(6) NOT AN INVESTMENT COMPANY. AFS is not an
"investment company" within the meaning of the Investment Company Act of
1940, as amended, or is exempt from all provisions of such Act;
(7) NO VIOLATION. The consummation of the transactions
contemplated by this Agreement and the other Basic Agreements to which AFS is
a party, the delivery of Receivables to AFS as Servicer and the fulfillment
of the terms of this Agreement and the other Basic Agreements to which AFS is
a party, 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 AFS, or any
indenture, agreement, mortgage, deed of trust or other instrument to which
AFS 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 AFS of any court or of any federal or state regulatory body,
administrative agency or other governmental instrumentality having
jurisdiction over AFS or any of its properties;
(8) NO PROCEEDINGS. There are no proceedings or
investigations pending or, to the knowledge of AFS threatened, against AFS,
before any court, regulatory body, administrative agency or other tribunal or
governmental instrumentality having jurisdiction over AFS or its properties
(A) asserting the invalidity of this Agreement or any of the other Basic
Agreements, (B) seeking to prevent the consummation of any of the
transactions contemplated by this Agreement or any of the other Basic
Agreements, (C) seeking any determination or ruling that might materially and
adversely affect the performance by AFS of its obligations under, or the
validity or enforceability of, this Agreement or any of the Basic
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Agreements or (D) seeking to adversely affect the federal income tax or other
federal, state or local tax attributes of the transactions contemplated by
the Basic Agreements;
(9) NO CONSENTS. AFS 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;
(10) MAINTENANCE OF INTEREST IN RECEIVABLES. Upon
written request of the Administrative Agent, AFS shall take such steps as
requested by the Administrative Agent to protect or maintain any interest in
any Receivable;
(11) THIRD PARTY CLAIMS. AFS has not been notified by
any party that any third party claims an interest in the Receivables or is
requesting AFS to act as a bailee with respect to the Receivables, except
such interests are created under the Basic Agreements; and
(12) YEAR 2000 COMPLIANCE. The Servicer has (i)
initiated a review and assessment of all areas within its and each of its
subsidiaries' business and operations (including those affected by suppliers,
vendors and customers) that could be adversely affected by the "YEAR 2000
PROBLEM" (that is, the risk that computer applications used by the Servicer
or any of its subsidiaries (or suppliers, vendors and customers) may be
unable to recognize and perform properly date-sensitive functions involving
certain dates prior to and any date after December 31, 1999), (ii) developed
a plan and timeline for addressing the Year 2000 Problem on a timely basis,
and (iii) to date, implemented that plan in accordance with that timetable.
Based on the foregoing, the Servicer believes that all computer applications
(including those of its suppliers, vendors and customers) that are material
to its or any of its subsidiaries' business and operations are reasonably
expected on a timely basis to be able to perform properly date-sensitive
functions for all dates before and after January 1, 2000 (that is, be "YEAR
2000 COMPLIANT"), except to the extent that a failure to do so could not
reasonably be expected (a) to have a material adverse effect on the Servicer
or on the transaction documented under this Agreement, or (b) to result in a
Termination Event.
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The Servicer (i) has completed a review and assessment of all
computer applications (including, but not limited to those of its
suppliers, vendors, customers and any third party servicers), which are
related to or involved in the origination, collection, management or
servicing of the Receivables and (ii) has determined that such origination,
collection, management or servicing applications are Year 2000 Compliant.
The costs of all assessment, remediation, testing and integration
related to the Servicer's plan for becoming Year 2000 Compliant will not
have a material adverse effect on the financial condition or operations of
the Servicer.
Section 1.43 LIABILITY OF SERVICER; INDEMNITIES.
(1) 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.
(2) The Servicer agrees to indemnify and hold harmless the
Borrower, the Administrative Agent, the Secured Parties, the Backup Servicer,
their respective officers, directors, agents and employees for any and all
claims, liabilities, obligations, losses, damage, payments, costs or expenses
of any kind whatsoever (including the fees and expenses of counsel) that may
be imposed on, incurred or asserted against any of such parties as the result
of any act or omission in any way relating to
(1) the use, ownership or operation by the Servicer or
any Affiliate thereof of any Financed Vehicle or
(2) the maintenance and custody by the Servicer of the
Receivable Files; PROVIDED, HOWEVER, that the Servicer shall not be liable
for any portion of any such liabilities, obligations, losses, damages,
payments or costs or expenses as are due to the willful misfeasance, bad
faith or gross negligence of the Secured Parties or the Administrative Agent.
(3) The Servicer shall indemnify, defend and hold harmless the
Borrower, the Administrative Agent, the Secured Parties, the Backup Servicer,
their respective officers, directors, agents and employees from and against
any and all
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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 Borrower, the Administrative Agent, the Backup Servicer or
the Secured Parties 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.
(4) 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. The indemnification obligations of the Servicer
set forth in this Section 8.2 shall survive the termination of this Agreement
and, with respect to any Servicer, shall survive the termination of such
Servicer with respect to any act or omission that occurs prior to such
Servicer's termination.
Section 1.44 MERGER OR CONSOLIDATION OF, OR ASSUMPTION OF THE
OBLIGATIONS OF THE SERVICER OR BACKUP SERVICER.
(1) For so long as AFS is the Seller and the Servicer, in the
event of any conflict between this Section 8.3 and Section 7.4, this Section
8.3 shall control. Any Person (A) into which the Servicer may be merged or
consolidated, (B) which may result from any merger or consolidation to which
the Servicer shall be a party or (C) which may succeed to the properties and
assets of the Servicer substantially as a whole, which Person in any of the
foregoing cases executes an agreement of assumption to perform every
obligation of the Servicer under this Agreement, shall be the successor to
the Servicer hereunder without the execution or filing of any document or any
further act by any of the parties to this Agreement; PROVIDED, HOWEVER, that
the Servicer 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 the Servicer's
business except as expressly provided in this Section 8.3.
(2) The Servicer shall be permitted to merge or consolidate with
any other person, convey, transfer or lease substantially all its assets as
an entirety to another Person, or permit another Person to become the
successor to the Servicer's business; PROVIDED (i) that such Person is a
direct or indirect wholly-owned
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subsidiary of AmeriCredit Corp.; and (ii) that, after giving effect to such
merger, consolidation, conveyance, transfer, lease or succession, the
successor or surviving entity shall be capable of fulfilling the duties of
the Servicer contained in this Agreement in the reasonable judgment of the
Administrative Agent.
(3) Except as described in clause (b) above, the Servicer 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 the Servicer's business unless: (i)
the Servicer shall have received the written consent of the Administrative
Agent (acting at the direction of the Required Lending Groups) and the
Borrower prior to entering into any such transaction, (ii) immediately after
giving effect to such transaction, no representation or warranty made
pursuant to Section 5.6 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 Servicer shall have delivered to the Administrative Agent and the
Rating Agencies 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, (iv) the Rating Agency Condition shall have been satisfied
with respect to such transaction and (v) the Servicer shall have delivered to
the Administrative Agent an Opinion of Counsel stating that, in the opinion
of such counsel, either (A) all financing statements and continuation
statements and amendments thereto that are otherwise required hereunder to be
filed by the Servicer have been executed and filed that are necessary fully
to preserve and protect the interest of the Borrower and the Administrative
Agent, 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 coditions to the consummation of the
transactions referred to in clauses (a) or (c) above.
(4) 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
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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 1.45 LIMITATION ON LIABILITY OF THE SERVICER AND THE
BACKUP SERVICER. (a) Neither the Servicer, the Backup Servicer nor any of
the directors or officers or employees or agents of the Servicer or Backup
Servicer shall be under any liability to the Borrower or the Secured Parties,
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 the Servicer, 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 in the performance of duties; PROVIDED FURTHER that this provision
shall not affect any liability to indemnify the Administrative Agent, the
Secured Parties and the Borrower for costs, taxes, expenses, claims,
liabilities, losses or damages paid by the Administrative Agent, the Secured
Parties and the Borrower. The Servicer, the Backup Servicer and any
director, officer, employee or agent of the Servicer 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.
(1) Notwithstanding anything herein to the contrary, the Backup
Servicer shall not be liable for any obligation of the Servicer contained in
this Agreement, and the Administrative Agent, the Funding Agents, the
Borrower, the Seller, and the Secured Parties shall look only to the Servicer
to perform such obligations.
Section 1.46 DELEGATION OF DUTIES. The Servicer may delegate
duties under this Agreement to an Affiliate of the Servicer with the prior
written consent of the Borrower, the Administrative Agent (acting at the
direction of the Required Lending Groups) 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 Delinquent and Defaulted Receivables, in each
61
case, without the consent of the Administrative Agent or the Borrower 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 Administrative Agent and the Borrower; 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. Neither AFS
or any party acting as Servicer hereunder shall appoint any subservicer
hereunder without the prior written consent of the Administrative Agent
(acting at the direction of the Required Lending Groups), the Borrower, and
the Backup Servicer.
Section 1.47 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 Required Lending Groups and the
Borrower do 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 Administrative Agent and the Borrower. No resignation of
the Servicer shall become effective until the Backup Servicer or an entity
acceptable to the Administrative Agent (at the direction of the Required
Lending Groups) and the Borrower shall have assumed the responsibilities and
obligations of the Servicer. No resignation of the Backup Servicer shall
become effective until an entity acceptable to the Administrative Agent (at
the direction of the Required Lending Groups) and the Borrower shall have
assumed the responsibilities and obligations of the Backup Servicer;
PROVIDED, HOWEVER, that in the event a successor Backup Servicer is not
appointed within 60 days after the Backup Servicer has given notice of its
resignation and has provided the Opinion of Counsel required by this Section
8.6, the Backup Servicer may petition a court for its removal.
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ARTICLE IX
DEFAULT
Section 1.48 SERVICER TERMINATION EVENT. For purposes of this
Agreement, each of the following shall constitute a "Servicer Termination
Event":
(1) Any failure by the Servicer to deliver to the Administrative
Agent for distribution to the Secured Parties 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 Repurchase Obligation Amounts) after written notice is received
by the Servicer from the Administrative Agent or a Funding Agent or after
discovery of such failure by a Responsible Officer of the Servicer;
(2) Failure by the Servicer (i) to deliver to the Administrative
Agent the Servicer's Determination Date Certificate in draft form three
Business Days, and in final form two Business Days, prior to the Distribution
Date, which failure continues unremedied as of the close of business on the
first to occur of the next Business Day after written notice is received by
the Servicer from the Administrative Agent or the second Business Day prior
to the Distribution Date, or (ii) to observe its covenants and agreements set
forth in Section 8.3(a), (b) or (c);
(3) 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
or any other Basic Agreement, which failure 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 shall have been given to the Servicer by the
Administrative Agent (acting at the direction of the Required Lending Groups)
or the Borrower;
(4) Any representation, warranty or statement of the Servicer made
in this Agreement or any other Basic Agreement or in any certificate, report
or other writing delivered pursuant hereto or thereto shall prove to be
incorrect in any material respect as of the time when the same shall have
been made, and, within 30 days after knowledge thereof by the Servicer or
after written notice thereof shall have been given to the Servicer by the
Administrative Agent or the Borrower, the
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circumstances or condition in respect of which such representation, warranty
or statement was incorrect shall not have been eliminated or otherwise cured;
(5) The occurrence of an Insolvency Event with respect to the
Servicer; or
(6) Without duplication of any of the foregoing, a Termination
Event shall have occurred and be continuing.
Section 1.49 CONSEQUENCES OF A SERVICER TERMINATION EVENT. If a
Servicer Termination Event shall occur and be continuing, the Administrative
Agent or the Required Lending Groups or the Borrower (so long as no other
Termination Event shall have then occurred and remain continuing), by notice
given in writing to the Servicer (and to the Administrative Agent if given by
the Required Lending Groups), 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, all authority, power, obligations and
responsibilities of the Servicer under this Agreement automatically shall
pass to, be vested in and become obligations and responsibilities of the
Backup Servicer (or such other successor Servicer appointed by the
Administrative Agent at the direction of the Required Lending Groups, or by
the Borrower with the consent of the Required Lending Groups); PROVIDED,
HOWEVER, that the successor Servicer shall have no liability with respect to
any obligation which was required to be performed by the terminated Servicer
prior to the date that the successor Servicer becomes the Servicer or any
claim of a third party based on any alleged action or inaction of the
terminated Servicer. The successor Servicer is authorized and empowered by
this Agreement to execute and deliver, on behalf of the terminated Servicer,
as attorney-in-fact or otherwise, any and all documents and other instruments
and to do or accomplish all other acts or things necessary or appropriate to
effect the purposes of such notice of termination, whether to complete the
sale and endorsement of the Receivables and the Other Conveyed Property and
related documents to show the Borrower 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,
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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
Administrative Agent or by the Borrower with the consent of the
Administrative Agent (acting at the direction of the Required Lending
Groups), 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 Administrative Agent or by
the Borrower with the consent of the Administrative Agent, at the successor
Servicer's expense. The terminated Servicer shall grant the Administrative
Agent, the Borrower, the successor Servicer and the Required Lending Groups
reasonable access to the terminated Sericer's premises and to its equipment,
systems and personnel, at the terminated Servicer's expense.
Section 1.50 APPOINTMENT OF SUCCESSOR. (a) On and after the
time the Servicer receives a notice of termination pursuant to Section 9.2,
or upon the resignation of the Servicer pursuant to Section 8.6, the Backup
Servicer (unless the Administrative Agent, at the direction of the Required
Lending Groups or the Borrower with the consent of the Required Lending
Groups, 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 Administrative Agent and such successor shall take such
action, consistent with this Agreement, as shall be necessary to effect any
such succession. If a successor Servicer is acting as Servicer hereunder, it
shall be subject to termination under Section 9.2 upon the occurrence of any
Servicer Termination Event applicable to it as Servicer.
(1) The Administrative Agent, at the direction of the Required
Lending Groups, may exercise at any time its right to appoint as successor to
the Servicer a Person other than the Person serving as Backup Servicer at the
time, and shall have no liability to AFS, the Seller, the Person then serving
as Backup Servicer, any Secured Party or any other Person if it does so.
Notwithstanding the above, if the Backup Servicer shall be legally unable or
unwilling to act as Servicer, the
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Backup Servicer, the Administrative Agent, acting at the direction of the
Required Lending Groups, or the Borrower with the consent of the Required
Lending Groups may petition a court of competent jurisdiction to appoint any
Eligible Servicer as the successor to the Servicer. Pending appointment
pursuant to the preceding sentence, the Backup Servicer shall act as
successor Servicer unless it is legally unable to do so, in which event the
outgoing Servicer shall continue to act as Servicer until a successor has
been appointed and accepted such appointment. Subject to Section 8.6, no
provision of this Agreement shall be construed as relieving the Backup
Servicer of its obligation to succeed as successor Servicer upon the
termination of the Servicer pursuant to Section 9.2 or the resignation of the
Servicer pursuant to Section 8.6. If upon the termination of the Servicer
pursuant to Section 9.2 or the resignation of the Servicer pursuant to
Section 8.6, the Administrative Agent, acting at the direction of the
Required Lending Groups, or the Borrower with the consent of the Required
Lending Groups appoints a successor Servicer other than the Backup Servicer,
the Backup Servicer shall not be relieved of its duties as Backup Servicer
hereunder.
(2) Any successor Servicer shall be entitled to such compensation
(whether payable out of the Collection Account or otherwise, including,
without limitation, any Supplemental Servicing Fee) 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
Administrative Agent, the Borrower, and such successor Servicer may agree on
reasonable additional compensation to be paid to such successor Servicer by
the Backup Servicer, which additional compensation shall be paid by such
breaching Backup Servicer in its individual capacity and solely out of its
own funds. If any successor Servicer is appointed for any reason other than
the Backup Servicer's refusal to act as Servicer although legally able to do
so, the Administrative Agent, the Borrower (so long as no Termination Event
other than a Servicer Termination Event shall have then occurred and remain
continuing), and such successor Servicer may agree on additional compensation
to be paid to such successor Servicer, subject to satisfaction of the Rating
Agency Condition, which additional compensation shall be payable as provided
in the Section 6.8 hereof. In addition, any successor Servicer shall be
entitled to reasonable transition expenses incurred in acting as successor
Servicer.
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Section 1.51 NOTIFICATION TO SECURED PARTIES. Upon any
termination of, or appointment of a successor to, the Servicer, the
Administrative Agent shall give prompt written notice thereof to each Secured
Party, to the Borrower, and to the Rating Agencies.
Section 1.52 WAIVER OF PAST DEFAULTS. The Required Lending
Groups, or the Borrower with the consent of the Required Lending Groups may
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; PROVIDED, HOWEVER, that no such waiver shall extend to any
subsequent or other default or impair any right consequent thereto.
ARTICLE X
ADMINISTRATIVE DUTIES OF THE SERVICER
Section 1.53 ADMINISTRATIVE DUTIES.
(1) DUTIES WITH RESPECT TO THE BORROWER.
(1) Notwithstanding anything in this Agreement or any of
the Basic Agreements to the contrary, the Servicer shall be responsible for
promptly notifying, in writing, the Borrower, the Administrative Agent and
the Funding Agents in the event that any withholding tax is imposed on the
Borrower's payments (or allocations of income) to any Secured Party. Any
such notice shall be in writing and specify the amount of any withholding tax
required to be withheld by the Administrative Agent pursuant to such
provision.
(2) The Servicer shall perform the duties of the
Servicer specified herein and any other duties expressly required to be
performed by the Servicer under any other Basic Agreement.
(3) Notwithstanding anything to the contrary in this
Agreement, except as expressly provided herein or in the other Basic
Agreements, the Servicer, in its capacity hereunder, shall not be obligated
to, and shall not, (1)
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take any action that the Borrower directs the Servicer not to take on its
behalf or (2) in connection with its duties hereunder assume any
indemnification obligation of any other Person.
Section 1.54 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 Borrower at any time during normal business hours.
Section 1.55 ADDITIONAL INFORMATION TO BE FURNISHED TO THE
BORROWER. The Servicer shall furnish to the Borrower from time to time such
additional information regarding the Collateral as the Borrower shall
reasonably request.
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 1.56 AMENDMENT. This Agreement may be amended from time
to time by the parties hereto, with the consent of the Administrative Agent
(such consent not to be unreasonably withheld), but without the consent of
any of the Secured Parties, to cure any ambiguity, to correct or supplement
any provisions in this Agreement, to comply with any changes in the Uniform
Commercial Code, or to amend 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 other Basic Agreements or the
transactions contemplated hereby or thereby; PROVIDED, HOWEVER, that such
action shall not, as evidenced by an Opinion of Counsel delivered to the
Administrative Agent, adversely affect in any material respect the interests
of any Secured Party.
This Agreement may also be amended from time to time by the parties
hereto, with the consent of the Administrative Agent (as directed by the
Required Lending Groups) 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 Secured Parties; 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 Secured Parties,
69
(b) reduce the aforesaid percentage of the outstanding principal amount of
the VFN, the Holders of which are required to consent to any such amendment,
(c) amend this Section, or (d) increase the funding amount of the VFN,
without the consent of all the Secured Parties.
Promptly after the execution of any such amendment or consent, the
Administrative Agent shall furnish written notification of the substance of
such amendment or consent to each Secured Party and the Rating Agencies.
It shall not be necessary for the consent of Secured Parties
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 Secured Parties provided for in this Agreement) and of
evidencing the authorization of any action by Secured Parties shall be
subject to such reasonable requirements as the Administrative Agent may
prescribe.
Prior to the execution of any amendment to this Agreement, the
Administrative Agent shall be entitled to receive and rely upon an Opinion of
Counsel stating that the execution of such amendment is authorized or
permitted by this Agreement and the Opinion of Counsel referred to in the
first paragraph of this Section 11.1 has been delivered. The Administrative
Agent, the Funding Agents, the Borrower, and the Backup Servicer may, but
shall not be obligated to, enter into any such amendment which affects the
Borrower's, the Administrative Agent's, the Funding Agents' or the Backup
Servicer's, as applicable, own rights, duties or immunities under this
Agreement or otherwise.
Section 1.57 PROTECTION OF TITLE. (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
Borrower in the Conveyed Property and in the proceeds thereof. The Seller
shall deliver (or cause to be delivered) to the Borrower and the
Administrative Agent file-stamped copies of, or filing receipts for, any
document filed as provided above, as soon as available following such filing.
(b) Without limiting any other provision of this Agreement,
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
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continuation statement filed in accordance with paragraph (a) above seriously
misleading within the meaning of Section 9-402 (7) of the Relevant UCC,
unless it shall have given the Administrative Agent and the Borrower at least
15 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 Administrative Agent, stating either
(A) all financing statements and continuation statements have been executed
and filed that are otherwise required hereunder to be filed by the Seller or
the Servicer, as applicable, that are necessary fully to preserve and protect
the interest of the Borrower 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.
(1) Each of the Seller and the Servicer shall have an obligation
to give the Administrative Agent and the Borrower 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 Relevant UCC
would require the filing of any amendment of any previously filed financing
or continuation statement or of any new financing statement and shall
promptly file any such amendment. The Servicer shall at all times maintain
each office from which it shall service Receivables, and its principal
executive office, within the United States of America.
(2) 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.
(3) The Servicer shall maintain its computer systems so that, from
and after the time of sale under this Agreement of the Receivables to the
Borrower, the Servicer's master computer records (including any backup
archives) that refer to a Receivable shall indicate clearly that the Borrower
owns such Receivable and that such Receivable has been pledged by the
Borrower to the Administrative Agent for the benefit of the Secured Parties.
Indication of the Borrower's ownership of a Receivable shall be deleted from
or modified on the Servicer's computer systems
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when, and only when, the related Receivable shall have been paid in full or
repurchased.
(4) 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 Seller or the Servicer, as applicable, 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 Borrower and has been
pledged by the Borrower to the Administrative Agent for the benefit of the
Secured Parties.
(5) Upon request, the Servicer shall furnish to the Administrative
Agent, within five Business Days, a list of all Receivables (by contract
number and name of Obligor) then held as part of the Conveyed Property,
together with a reconciliation of such list to the Schedule of Receivables
and to each of the Servicer's Determination Date Certificates furnished
before such request.
Section 1.58 NOTICES. All demands, notices and communications
upon or to the Seller, the Servicer, the Borrower, the Administrative Agent,
the Funding Agents, the Secured Parties or the Rating Agencies under this
Agreement shall be in writing, personally delivered, or mailed by overnight
courier, express mail or certified mail, return receipt requested, and shall
be deemed to have been duly given upon receipt by such Person at its address
specified in Annex A hereto.
Section 1.59 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 Administrative Agent (acting at the
direction of the Required Lending Groups), the Borrower, and the Backup
Servicer.
Section 1.60 LIMITATIONS ON RIGHTS OF OTHERS. The provisions of
this Agreement are solely for the benefit of the parties hereto and their
respective successors and permitted assigns. Except as expressly stated
otherwise herein, any
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right of the Administrative Agent to direct, appoint, consent to, approve of,
or take any action under this Agreement, shall be a right exercised by the
Administrative Agent in its sole and absolute discretion. The Administrative
Agent may disclaim any of its rights and powers under this Agreement.
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
Property or under or in respect of this Agreement or any covenants,
conditions or provisions contained herein.
Section 1.61 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 1.62 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 1.63 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 1.64 ASSIGNMENT TO ADMINISTRATIVE AGENT. The Seller
hereby acknowledges and consents to any mortgage, pledge, assignment and
grant of a security interest by the Borrower to the Administrative Agent for
the benefit of the Secured Parties of or in all right, title and interest of
the Borrower in, to and under the Receivables and Other Conveyed Property,
and/or the assignment of any or all of the Borrower's rights and obligations
hereunder to the Administrative Agent. All rights of the Borrower hereunder
may be exercised by the Administrative Agent for the benefit of the Secured
Parties or their assignees to the extent of their respective rights pursuant
to such assignments. Any assignee (including, but not limited to, any Secured
Party) is hereby intended by the parties hereto to be a third-party
beneficiary of this Agreement.
Section 1.65 CHASE ROLES; LIMITATION OF LIABILITY. The parties
expressly acknowledge and consent to The Chase Manhattan Bank acting in the
72
capacities of Administrative Agent, Backup Servicer, PARCO Funding Agent and
PARCO APA Bank. The Chase Manhattan Bank may, in any such or other
capacities, 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 this Agreement or in any other Basic Agreement in any of
such capacities, all of which defenses, claims or assertions are hereby
expressly waived by the other parties hereto and the Secured Parties except
in the case of gross negligence and willful misconduct by The Chase Manhattan
Bank. Without limiting any other provision hereof, the parties further
expressly acknowledge and agree that in no event shall The Chase Manhattan
Bank be liable under or in connection with this Agreement or any other Basic
Agreement for indirect, special or consequential losses or damages of any
kind, including lost profits, even if advised of the possibility thereof and
regardless of the form of action by which such losses or damages may be
claimed.
Section 1.66 NON-PETITION COVENANTS. (a) Notwithstanding any
prior termination of this Agreement, the Servicer, the Seller, the
Administrative Agent, the Funding Agents and each Secured Party shall not,
prior to the date which is one year and one day after the later of (i)
termination of this Agreement with respect to the Borrower and (ii) the
payment in full of all obligation due and owing by the Borrower to the
Administrative Agent, the Funding Agents and the Secured Parties under the
Basic Agreements, acquiesce, petition or otherwise invoke or cause the
Borrower to invoke the process of any court or government authority for the
purpose of commencing or sustaining a case by or against the Borrower under
any federal or state bankruptcy, insolvency or similar law or appointing a
receiver, liquidator, assignee, trustee, custodian, sequestrator or other
similar official of the Borrower or any substantial part of its property, or
ordering the winding up or liquidation of the affairs of the Borrower.
(1) Notwithstanding any prior termination of this Agreement, the
Servicer, the Administrative Agent, the Funding Agents and each Secured Party
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 by or 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
73
Seller or any substantial part of its property, or ordering the winding up or
liquidation of the affairs of the Seller.
(2) 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 in its capacities as Administrative
Agent and as 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 Borrower 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 Borrower.
Section 1.67 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 Borrower, the Administrative Agent or
the Backup Servicer 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
Borrower in any way and shall not otherwise be deemed an agent of the
Borrower.
Section 1.68 NO JOINT VENTURE. Nothing contained in this
Agreement (i) shall constitute the Servicer or the Borrower 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 and
express, implied or apparent authority to incur any obligation or liability
on behalf of the others.
Section 1.69 CONSENTS TO JURISDICTION. Each of the parties
hereto irrevocably submits to the jurisdiction of the United States District
Court for the Southern District of New York, any court in the State of New
York located in the city and county of New York, and any appellate court from
any thereof, in any action, suit or proceeding brought against it and related
to or in connection with this Security Agreement, the other Basic Agreements
or the transactions contemplated hereunder or thereunder or for recognition
or enforcement of any judgment and each of the parties hereto irrevocably and
unconditionally agrees that all claims in respect of any such suit or action
or proceeding may be heard or determined in such New York State court or, to
the extent permitted by law, in such federal court. Each of the parties
hereto agrees that a final judgment in any such action, suit or proceeding
shall
74
be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. To the extent permitted by
applicable law, each of the parties hereby waives and agrees not to assert by
way of motion, as a defense or otherwise in any such suit, action or
proceeding, any claim that it is not personally subject to the jurisdiction
of such courts, that the suit, action or proceeding is brought in an
inconvenient forum, that the venue of the suit, action or proceeding is
improper or that this Security Agreement or any of the other Basic Agreements
or the subject matter hereof or thereof may not be litigated in or by such
courts. The Borrower hereby irrevocably appoints and designates The
Xxxxxxxx-Xxxx Corporation System, 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxx Xxxx
00000-0000 as its true and lawful attorney and duly authorized agent for
acceptance of service of legal process. The Borrower agrees that service of
such process upon such Person shall constitute personal service of such
process upon it. Nothing contained in this Security Agreement shall limit or
affect the rights of any party hereto to serve process in any other manner
permitted by law or to start legal proceedings relating to any of the Basic
Agreements against the Seller, the Servicer, the Borrower or their respective
property in the courts of any jurisdiction.
Section 1.70 TRIAL BY JURY WAIVED. Each of the parties hereto
waives, to the fullest extent permitted by law, any right it may have to a
trial by jury in respect of any litigation arising directly or indirectly out
of, under or in connection with this Security Agreement, any of the other
Basic Agreements or any of the transactions contemplated hereunder or
thereunder. Each of the parties hereto (a) certifies that no representative,
agent or attorney of any other party has represented, expressly or otherwise,
that such other party would not, in the event of litigation, seek to enforce
the foregoing waiver and (b) acknowledges that it has been induced to enter
into this Security Agreement and the other Basic Agreements to which it is a
party, by among other things, this waiver.
Section 1.71 GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AND THE OBLIGATIONS,
RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
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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.
CP FUNDING CORP., Borrower
By
----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President
and Treasurer
AMERICREDIT FINANCIAL SERVICES, INC.,
Seller
By
----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President
and Treasurer
AMERICREDIT FINANCIAL SERVICES, INC.,
Servicer
By
----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President
and Treasurer
THE CHASE MANHATTAN BANK,
not in its individual capacity but
solely as Backup Servicer
By
----------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK, as
Administrative Agent on behalf of the
Secured Parties
By
----------------------------------
Name:
Title:
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SCHEDULE A
SCHEDULE OF RECEIVABLES
THIS SCHEDULE INTENTIONALLY OMITTED
78
SCHEDULE B
REPRESENTATIONS AND WARRANTIES OF THE SELLER
(a) GENERAL CHARACTERISTICS.
Each Receivable:
(i) has been originated in the United States by the Seller directly or by a
dealer for the retail sale or refinancing of a Financed Vehicle in the
ordinary course of its business and such Seller or dealer (as the case may
be) has all necessary licenses and permits to originate Receivables in the
state where either such dealer or the related consumer is located, has been
fully and properly executed by the parties thereto, and, if originated by a
dealer, has been purchased from such dealer by the Seller under an existing
Dealer Agreement or validly assigned by such dealer to the Seller or, with
respect to any Receivable sold to the Borrower by the Seller, was purchased
by the Seller (and, if originated by the Seller, is an eligible Receivable
under any term securitization documents of the Seller at the time of
purchase by the Borrower);
(ii) has created a valid, subsisting and enforceable first priority
perfected security interest in favor of the Seller in the related Financed
Vehicle (which security interest has been validly assigned to the Borrower
and has been validly assigned by the Borrower to the Administrative Agent
on behalf of the Secured Parties), except as enforceability may be limited
by bankruptcy, insolvency, reorganization or similar laws affecting the
enforcement of creditors' rights generally;
(iii) contains customary and enforceable provisions (except as
enforceability may be limited by bankruptcy, insolvency, reorganization or
similar laws affecting the enforcement of creditors' rights generally) such
that the rights and remedies of the holder thereof shall be adequate for
realization against the collateral of the benefits of the security;
(iv) provides for level monthly payments (PROVIDED that the payment in the
first or last month in the life of the Receivable may be minimally
different
79
from the level payment) that fully amortize the amount financed over the
original contractual term and yield interest at the annual percentage rate;
(v) provides for, in the event that the related Contract is prepaid, a
prepayment that fully pays the principal balance and includes accrued but
unpaid interest through the date of prepayment in an amount at least equal
to the annual percentage rate; and
(vi) has not been amended, or rewritten or collections with respect thereto
deferred or waived except in accordance with the Credit and Servicing
Procedures.
(b) COMPLIANCE WITH LAW. Each Receivable and the sale or refinancing of
the related Financed Vehicle complied at the time it was originated or
made, and at the date such Receivable is sold by the Seller to the
Borrower, complies, in all material respects, with 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 Federal Trade Commission Act,
the Fair Credit Billing Act, the Fair Credit Reporting Act, the Fair Debt
Collection Practices Act, the Xxxxxxxx-Xxxx Warranty Act, the Federal
Reserve Board's Regulations B and Z, the Federal Trade Commission Credit
Practices Rule, state unfair and deceptive trade practice laws, and state
adaptations of the National Consumer Act and of the Uniform Consumer Credit
Code, and any other applicable consumer credit, equal credit opportunity
and disclosure laws.
(c) NO FRAUD. Each Receivable was originated by (i) a dealer and was sold
by the dealer to the Seller without any fraud or misrepresentation by the
dealer or (ii) the Seller in connection with a refinancing or direct loan.
(d) BINDING OBLIGATION. Each Receivable represents the genuine, legal,
valid and binding payment obligation in writing of the Obligor, enforceable
by the holder thereof in accordance with its terms (except as
enforceability may be limited by bankruptcy, insolvency, reorganization or
similar laws affecting the enforcement of creditors' rights generally) 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.
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(e) NO GOVERNMENT OBLIGOR. No Receivable is due from the United States of
America or any state or local government or from any agency, department or
instrumentality of the United States of America, any state or local
government.
(f) NO OBLIGOR BANKRUPTCY. At the Relevant Cutoff Date no Obligor had
been identified on the records of the Seller as being the subject of a
current bankruptcy proceeding.
(g) SCHEDULE OF RECEIVABLES. The information set forth in the Schedule of
Receivables has been produced from the Seller's electronic ledger and was
true and correct in all material respects on the Relevant Cutoff Date, and
is a complete and accurate description, on the relevant Receivables Sale
Date, of the Receivables sold to the Borrower on such date; and on or prior
to the relevant Receivables Sale Date, the Seller has appropriately marked
its computer records to indicate the sale to the Borrower of the
Receivables sold on such date.
(h) CERTAIN CHARACTERISTICS OF RECEIVABLES.
Each Receivable:
(i) has a remaining maturity, as of the Relevant Cutoff Date, of not
more than 72 months;
(ii) each Receivable has an original maturity of not more than 72 months;
(iii) each Receivable has a remaining Principal Balance as of the Relevant
Cutoff Date of not more than $60,000;
(iv) no Receivable is more than 30 days past due as of the Relevant
Cutoff Date; and
(v) no funds have been advanced by the Seller, any dealer, or anyone
acting on behalf of any of them in order to cause any Receivable to
qualify under clause (iv) above.
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(i) RECEIVABLES IN FORCE. No Receivable has been satisfied, subordinated
or rescinded, nor shall any Financed Vehicle have been released from the
security interests granted by the related Contract in whole or in part.
(j) NO WAIVER. No provision of any Receivable has been waived, except in
accordance with the Credit and Servicing Procedures.
(k) NO DEFENSES. Except for the security interests in favor of the Seller
and the Borrower, the Receivables are free and clear of all security
interests, liens, charges, and encumbrances and to the best knowledge of
the Seller no right of rescission, setoff, counterclaim or defense has been
asserted or threatened with respect to any Receivable.
(l) NO LIENS. No liens or claims have been filed for work, labor or
materials relating to a Financed Vehicle that are liens prior to or equal
or coordinate with, the security interest in the Financed Vehicle granted
by the Receivable.
(m) NO DEFAULT. No default, breach, violation or event permitting
acceleration under the terms of any Receivable has occurred, and the Seller
has not waived any of the foregoing, except in accordance with the Credit
and Servicing Procedures.
(n) INSURANCE. The Obligor under each Receivable has obtained physical
damage and theft insurance covering the Financed Vehicle, and is required
under the terms of the Receivable to maintain such insurance.
(o) TITLE. (i) Immediately prior to the sale of the subject Receivables,
the Seller had, and has conveyed to the Borrower, good and marketable title
to each Receivable free and clear of all liens, encumbrances, security
interests and rights of others, and (ii) the sale and assignment of the
Receivables to the Borrower has been perfected under the Relevant UCC.
(p) RECEIVABLE FILES COMPLETE. There exists a Receivable File pertaining
to each Receivable and such Receivable File contains (1) where applicable,
a fully executed original of the Contract, (2) the original executed credit
application (or, if no such credit application has been completed, other
evidence of application being made or credit evaluation being conducted),
or a copy thereof, together with all applicable amendments and addenda and
(3)
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the original Lien Certificate or application therefor or, for any Contract
secured by a Financed Vehicle registered in any state for which the
Paperless Title System is used to evidence title to and any lien in the
Financed Vehicle, a computer printout or similar documentary evidence that
there is an electronic record in the Paperless Title System indicating that
the Financed Vehicle is owned by the Obligor and subject to the interest of
the Seller as first lienholder or secured party (when such electronic
record becomes available through the Paperless Title System). Each of such
documents which is required to be signed by the Obligor has been signed by
the Obligor in the appropriate spaces. All blanks on any form have been
properly filled in and each form has otherwise been correctly prepared.
The complete Receivable File for each Receivable currently is in the
possession of the Servicer, as custodian.
(q) LAWFUL ASSIGNMENT. No Receivable has been originated in, or is
subject to the laws of, any jurisdiction under which the sale, transfer and
assignment of such Receivable shall be unlawful, void or voidable.
(r) ALL FILINGS MADE. All filings (including, without limitation, UCC
filings) necessary in any jurisdiction to give the Borrower a first
priority perfected security interest in the Receivables have been made.
(s) ONE ORIGINAL. There is in existence one, and only one, original
executed copy of each Receivable.
(t) LOCKBOX. The Obligor of each Receivable is required to make payments
to a lockbox that is subject to a Lockbox Agreement.
(u) UCC CHARACTERIZATION. The contract evidencing such Receivable
constitutes "chattel paper" under the Relevant UCC.
(v) NO ADVERSE SELECTION. No selection procedures adverse to the Secured
Parties or the Borrower were used in selecting the Receivables from the
receivables owned by the Seller and/or otherwise constituting Managed
Assets, that met the selection criteria contained in the Sale and Servicing
Agreement and set forth above in this Schedule B.
83
Schedule 2.4 to
SALE AND SERVICING AGREEMENT
FORM OF PREPAID RECEIVABLES NOTICE
Reference is made to the Amended and Restated Sale and Servicing
Agreement, dated as of September 21, 1999 (as amended, the "Sale and
Servicing Agreement"), by and among CP FUNDING CORP., a Nevada corporation
("CP Funding"), AMERICREDIT FINANCIAL SERVICES, INC., a Delaware corporation,
as Seller and as Servicer (the "Seller"), and THE CHASE MANHATTAN BANK, a New
York banking corporation, as Backup Servicer and as Administrative Agent.
Capitalized terms used herein and not otherwise defined shall have the
meanings assigned in the Sale and Servicing Agreement.
CP Funding has, on the date hereof, made a payment to the Seller in the
amount of $[___________________] (the "Prepaid Amount") representing
prepayment for Receivables that, in the aggregate, will have a fair market
value (determined to be the price that would be obtained in an arm's-length
transaction between a seller under no compulsion to sell and a buyer under no
compulsion to buy, and taking into account such relevant factors as the
prepayment of such purchase price and the anticipated sale date(s) of such
Receivables) equal to the Prepaid Amount and meeting all of the necessary
conditions for a sale and purchase pursuant to the Sale and Servicing
Agreement. CP Funding understands that the Seller's acceptance of such amount
constitutes its agreement: (i) to sell Receivables meeting such requirements
on one or more Receivables Sale Dates occurring within [____] days following
the date hereof; (ii) that the aggregate Principal Balance of the Receivables
to be sold pursuant to this Prepaid Receivables Notice shall be not less than
$[____________________]; and (iii) that the application of amounts paid
hereunder toward the Receivables Purchase Price on such Receivables Sale
Date(s) shall be reflected in the Seller's Receivables Sale Notice for each
such date.
CP FUNDING CORP.
By:
----------------------
Name:
Title:
Schedule 3.1 to
SALE AND SERVICING AGREEMENT
CONDITIONS PRECEDENT
In addition to the receipt of documents and satisfaction of other
conditions set forth in Section 3.1 of the Sale and Servicing Agreement, the
following shall have been delivered, and shall be satisfactory in form and
substance, to the Administrative Agent and the Borrower:
1. Certified copy of the Credit and Servicing Procedures.
2. A Borrower Officer's Certificate, including as attachments thereto:
a. Resolutions of the Board of Directors of the Borrower duly
authorizing the execution, delivery and performance by the Borrower of each
of the Basic Agreements to which it is a party and any other documents
executed by or on behalf of the Borrower in connection with the
transactions contemplated thereby;
b. Certified Certificate of Incorporation of the Borrower; and
c. By-laws of the Borrower.
3. An Incumbency Certificate of the Borrower setting forth the names, titles
and signatures of the officers of the Borrower who are authorized to
execute documents, give instructions and otherwise to take actions in
connection with the contemplated transactions.
4. A Borrower Good Standing Certificate.
5. AFS Officer's Certificate, including as attachments thereto:
a. Resolutions of the Board of Directors duly authorizing the
execution, delivery and performance by the Seller and the Servicer
of each of the Basic Agreements to which each is a party and any
other documents executed by or on behalf of the
Seller and the Servicer in connection with the transactions
contemplated thereby;
b. Certified Certificate of Incorporation; and
c. By-laws.
6. An Incumbency Certificate of AFS setting forth the names, titles and
signatures of the officers of AFS who are authorized to execute documents,
give instructions and otherwise take actions on behalf of AFS in connection
with the contemplated transactions, in its roles as Seller and as Servicer.
7. A Good Standing Certificate of AFS.
8. An Opinion of special counsel to the Borrower as to true sale and
nonconsolidation matters.
9. An Opinion of special counsel to the Borrower with respect to the validity
and enforceability of certain transaction documents.
10. Opinion of local counsel to the Borrower, as to the formation of and other
corporate matters relating to the Borrower, as to the enforceability of
certain transaction documents and as to the enforceability, perfection and
priority of the security interests in the Collateral.
11. The Opinion of Xxxxx X. Xxxxxx, General Counsel to AmeriCredit Corp., AFSI,
and Borrower, with respect to corporate matters for each of the Seller, the
Servicer and the Borrower.
12. Acknowledgment copy of amendment to financing statement naming AFSI, as
debtor, the Borrower, as secured party, and the Administrative Agent, as
assignee, filed with the Office of the Secretary of State of the State of
Texas.
13. Acknowledgment copy of amendment to financing statement naming the
Borrower, as debtor, and the Administrative Agent, as secured
3.1-2
party, filed with the Secretaries of State of the States of Nevada and
Texas.
14. Letter(s) re: Wire Instructions.
15. Rating Letters:
a. Letters from Standard & Poor's and Xxxxx'x confirming PARCO's
A-1/P-1 commercial paper ratings;
b. Letters from Xxxxx'x and Fitch confirming Autobahn's [ / ]
commercial paper ratings;
c. Letters from Standard & Poor's and Fitch confirming HLS's [ / ]
commercial paper ratings; and
d. VFN rating letter from Xxxxx'x.
3.1-3
Exhibit A to
SALE AND SERVICING AGREEMENT
RECEIVABLES SALE AGREEMENT
SALE No. [____] of Receivables made this ___ day of ____________, ______,
pursuant to the Amended and Restated Sale and Servicing Agreement, dated as
of September 21, 1999 (the "Sale and Servicing Agreement"), among CP FUNDING
CORP., a Nevada corporation ("CP Funding"), AMERICREDIT FINANCIAL SERVICES,
INC., a Delaware corporation as Seller and as Servicer (the "Seller"), and
The Chase Manhattan Bank, a New York banking corporation, as Backup Servicer
and as Administrative Agent.
W I T N E S S E T H:
WHEREAS pursuant to the Sale and Servicing Agreement, the Seller wishes
to sell Receivables to CP Funding; and
WHEREAS, CP Funding is willing to purchase such Receivables subject to
the terms and conditions hereof.
NOW, THEREFORE, CP Funding and the Seller hereby agree as follows:
1. DEFINED TERMS. Capitalized terms used herein shall have the
meanings ascribed to them in Annex A to the Sale and Servicing Agreement,
unless otherwise defined herein.
"Relevant Cutoff Date" shall mean, with respect to the Receivables sold
hereby, ___________ ___, ______,.
"Receivables Sale Date" shall mean, with respect to the Receivables sold
hereby, the date hereof.
2. SCHEDULE OF RECEIVABLES. Annexed hereto is a Schedule A listing
the Receivables sold pursuant to this Receivables Sale Agreement on the
Receivables Sale Date.
3. SALE OF RECEIVABLES. In consideration of CP Funding's delivery
to or upon the order of the Seller of $________, the Seller does hereby sell,
transfer, assign, set over and otherwise convey to CP Funding, 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 Receivables listed in Schedule A and all moneys received
thereon, on and after the Relevant Cutoff Date;
(b) all security interests in the Financed Vehicles granted by
Obligors pursuant to the Receivables and any other interest of the Seller
in such Financed Vehicles;
(c) all proceeds and all rights to receive proceeds with respect
to the Receivables from claims on any physical damage, credit life or
disability insurance policies covering Financed Vehicles or Obligors;
(d) all rights of the Seller against Dealers pursuant to Dealer
Agreements and/or Dealer Assignments;
(e) all rights under any Service Contracts on the related
Financed Vehicles;
(f) the related Receivables Files;
(g) all proceeds of any and all of the foregoing.
4. REPRESENTATIONS AND WARRANTIES OF THE SELLER. The Seller hereby
represents and warrants to CP Funding as of the Receivables Sale Date that:
(a) SALE AND SERVICING AGREEMENT. The representations and warranties
set forth in Sections 4.1 and 7.1 of the Sale and Servicing Agreement are
true and correct with respect to the property sold pursuant to Section 3
hereof.
(b) PRINCIPAL BALANCE. As of the Relevant Cutoff Date, the aggregate
Principal Balance of the Receivables listed on Schedule A annexed hereto
A-2
and sold to CP Funding pursuant to this Receivables Sale Agreement is
$_______________.
5. CONDITIONS PRECEDENT. The obligation of CP Funding to acquire
the Receivables hereunder is subject to the satisfaction, on or prior to the
Receivables Sale Date, of the following conditions precedent:
(a) REPRESENTATIONS AND WARRANTIES. Each of the representations and
warranties made by the Seller in Section 4 of this Receivables Sale Agreement
and in Sections 4.1 and 7.1 of the Sale and Servicing Agreement shall be true
and correct with respect to the property sold pursuant to Section 3 hereof as
of the Receivables Sale Date.
(b) SALE AND SERVICING AGREEMENT CONDITIONS. Each of the conditions
set forth in Section 3.2 of the Sale and Servicing Agreement shall have been
satisfied with respect to the property sold pursuant to Section 3 hereof.
(c) ADDITIONAL INFORMATION. The Seller shall have delivered to CP
Funding such information as was reasonably requested by CP Funding to satisfy
itself as to the satisfaction of the conditions set forth in this Section 5.
6. RATIFICATION OF AGREEMENT. As supplemented by this Receivables
Sale Agreement, the Sale and Servicing Agreement, including without
limitation Section 2.2(b) thereof, is in all respects ratified and confirmed
and the Sale and Servicing Agreement as so supplemented by this Receivables
Sale Agreement shall be read, taken and construed as one and the same
instrument.
7. COUNTERPARTS. This Receivables Sale 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.
8. GOVERNING LAW. THIS RECEIVABLES SALE AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
A-3
IN WITNESS WHEREOF, CP Funding and the Seller have caused this
Receivables Sale Agreement to be duly executed and delivered by their
respective duly authorized officers as of the day and the year first above
written.
CP FUNDING CORP.
By
-----------------------------
Title:
AMERICREDIT FINANCIAL SERVICES, INC.,
Seller
By
-----------------------------
Title:
Acknowledged:
THE CHASE MANHATTAN BANK,
as Administrative Agent
by
------------------------------
Title:
Exhibit B to
SALE AND SERVICING AGREEMENT
FORM OF SERVICER'S DETERMINATION DATE CERTIFICATE
Exhibit B-1 to
SALE AND SERVICING AGREEMENT
FORM OF SERVICER'S VFN PREPAYMENT DATE CERTIFICATE
Exhibit C to
SALE AND SERVICING AGREEMENT
FORM OF RECEIVABLES SALE NOTICE
Exhibit D to
SALE AND SERVICING AGREEMENT
FORM OF SERVICER'S RECEIVABLES SALE DATE CERTIFICATE
Exhibit E to
SALE AND SERVICING AGREEMENT
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
NOR UNDER THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE
TRANSFERRED EXCEPT IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER
THE SECURITIES ACT OF 1933 AND APPLICABLE STATE SECURITIES LAWS.
September , 1999
RECEIVABLES PURCHASE NOTE
Capitalized terms used and not otherwise defined in this Receivables
Purchase Note (this "Note") shall have the respective meanings assigned in
the Amended and Restated Sale and Servicing Agreement, dated as of September
21, 1999, among the AmeriCredit Financial Services Inc., as Seller, the
Obligor (as defined below), as Purchaser, The Chase Manhattan Bank, as
Administrative Agent, and the other parties thereto (as amended, the "Sale
and Servicing Agreement"). This Note is the Receivables Purchase Note
referred to in the Sale and Servicing Agreement.
CP FUNDING CORP., a Nevada corporation (the "Obligor"), for value
received, hereby promises to pay to AMERICREDIT FINANCIAL SERVICES, INC., a
Delaware corporation (together with any other permitted holder hereof the
"Holder"), the principal amount hereof as set forth in Schedule I attached
hereto together with any and all accrued and unpaid interest thereon in
accordance with the terms set forth herein. Subject to the terms and
conditions hereof, the principal amount then outstanding on this Note,
together with any accrued and unpaid interest thereon, shall be due and
payable on the Termination Date. Interest on the unpaid principal balance
hereof from time to time outstanding shall accrue at a rate per annum equal
to the Applicable Rate in effect during the relevant Collection
Period, plus 2.5%, but not to exceed a rate per annum of 8.5%, computed on
the basis of a 360-day year consisting of 30-day months and shall be payable
on each Distribution Date.
Principal and interest shall be payable in lawful money of the United
States of America at the principal office of the Holder.
The Obligor also shall pay interest at the rate referred to above on any
overdue principal and (to the extent permitted by applicable law) on any
overdue interest, from the date on which payment thereof is due until the
obligation of the Obligor with respect to the payment thereof shall be
discharged.
The principal amount hereof shall be increased from time to time by the
amount of advances made to the Obligor by AmeriCredit Financial Services Inc.
in its discretion pursuant to the Sale and Servicing Agreement; PROVIDED,
HOWEVER, that the principal amount hereof after giving effect to any
particular sale of Receivables and any related advance hereunder, shall not
exceed 7% of the Pool Balance.
Subject to the restrictions set forth below, this Note may be prepaid in
whole or in part, at any time or from time to time, without premium or
penalty.
The rights of the Holder to receive payment with respect to this Note
shall not be subject to any offset by Obligor.
No delay or omission on the part of the Holder in exercising any rights
hereunder shall operate as a waiver of such right or any other right of such
Holder, nor shall any delay, omission or waiver on any one occasion be deemed
a bar to or waiver of the same or any other right on any future occasion.
The Obligor hereby waives presentment, demand, protest and notice of
every kind, and the Obligor assents to any extension or postponement of the
time of payment or any other indulgence, to the addition of any collateral
that at any time may be security for payment of this Note and to the
substitution, release, or addition of any party that may, from time to time,
be primarily or secondarily obligated for the payment of this Note.
E-2
The Obligor shall pay on demand all costs, including court costs and
reasonable attorneys' fees paid or incurred by the holder hereof in enforcing
this Note upon default.
If any payment or distribution of any kind is collected or received by
the Holder under this Note when pursuant hereto such payment should not have
been made to or received by the Holder, the Holder forthwith shall deliver
the same to the Administrative Agent for the benefit of the Secured Parties.
Until so delivered, such payment or distribution shall be held in trust by
the Holder as the property of the Secured Parties, segregated from other
funds and property held by the Holder.
PAYMENT OF PRINCIPAL AND INTEREST ON THIS NOTE IS SUBJECT TO THE
FOLLOWING TERMS, CONDITIONS AND RESTRICTIONS, TO WHICH EACH HOLDER OF THIS
NOTE SHALL BE DEEMED TO HAVE AGREED BY ITS ACCEPTANCE HEREOF:
(1) PAYMENT OF ANY AMOUNTS DUE HEREUNDER SHALL BE SUBJECT AND SUBORDINATE
TO THE PAYMENT OF THE VFN AND OTHER SECURED OBLIGATIONS PURSUANT TO THE
SECURITY AGREEMENT, AND SHALL BE MADE ONLY OUT OF AVAILABLE FUNDS OF THE
OBLIGOR THAT ARE NOT REQUIRED TO BE USED TO MAKE ANY PAYMENTS THEN DUE AND
OWING TO THE SECURED PARTIES;
(2) IN NO EVENT SHALL ANY PAYMENT BE MADE (OR BE CLAIMED) ON ANY DATE IF A
TERMINATION EVENT OR POTENTIAL TERMINATION EVENT HAS OCCURRED AND IS
CONTINUING ON SUCH DATE (OR WOULD OCCUR AS A RESULT OF SUCH PAYMENT); AND
(3) PRIOR TO THE DATE THAT IS ONE YEAR AND ONE DAY AFTER THE DATE OF
TERMINATION OF THE SECURITY AGREEMENT PURSUANT TO Section 4.5 THEREOF, IT
WILL NOT INSTITUTE AGAINST, OR JOIN ANY OTHER PERSON IN INSTITUTING AGAINST
THE OBLIGOR, ANY BANKRUPTCY, REORGANIZATION, ARRANGEMENT, INSOLVENCY, OR
LIQUIDATION PROCEEDINGS, OR OTHER PROCEEDINGS UNDER ANY FEDERAL OR STATE
BANKRUPTCY OR SIMILAR LAW.
E-3
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK. THE OBLIGOR AGREES THAT ANY ACTION ON THIS NOTE
MAY BE BROUGHT IN THE FEDERAL OR STATE COURTS IN THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the Obligor has caused this Note to be signed as of
the date above written.
FUNDING CORP.
-----------------------
Name:
Title:
E-4
EXHIBIT F
SERVICER'S ACKNOWLEDGMENT
AmeriCredit Financial Services, Inc. (the "Servicer"), acting as
Servicer under an Amended and Restated Sale and Servicing Agreement (as
amended, the "Sale and Servicing Agreement"), dated as of September 21, 1999,
among CP Funding Corp., AmeriCredit Financial Services, Inc., as Seller and
Servicer, and The Chase Manhattan Bank, as Administrative Agent and Backup
Servicer, pursuant to which, among other things, the Servicer holds on behalf
of the Secured Parties certain "Receivable Files," as described in such Sale
and Servicing Agreement, hereby acknowledges receipt of the Receivable File
for each Receivable listed in the Schedule of Receivables attached as Exhibit
A to the Receivables Sale Agreement, dated __________, between AmeriCredit
Financial Services, Inc. and CP Funding Corp., except as noted in the
Exception List attached as Schedule I hereto.
IN WITNESS WHEREOF, AmeriCredit Financial Services, Inc. has caused this
acknowledgment to be executed by its duly authorized officer as of this ___
day of ______, 1999.
AMERICREDIT FINANCIAL SERVICES, INC.
as Servicer
By:
---------------------------------
Name:
Title:
E-5
Schedule I to
RECEIVABLES PURCHASE NOTE
RECEIVABLES PURCHASE ADVANCES AND PAYMENTS OF PRINCIPAL
Amount of Unpaid
Amount of Principal Principal
Notation
DATE ADVANCES REPAID BALANCE
---- -------- ------ -------
MADE BY
-------
Exhibit G to
SALE AND SERVICING AGREEMENT
FORM OF SEMI-ANNUAL DATA INTEGRITY REVIEW
Exhibit H to
SALE AND SERVICING AGREEMENT
FORM OF QUARTERLY DATA INTEGRITY REVIEW
