Exhibit 10.67
EXECUTIVE COPY
AMERICREDIT FINANCIAL SERVICES OF CANADA LTD.,
as Servicer
and
AMERICREDIT FINANCIAL SERVICES, INC.
as Custodian
and
AMERICREDIT CANADA FUNDING TRUST I,
as Purchaser
by its trustee
CIBC MELLON TRUST COMPANY
and
CONGRESS FINANCIAL CORPORATION (CANADA),
as Collateral Agent
SERVICING AND CUSTODIAN AGREEMENT
Osler, Xxxxxx & Harcourt LLP
Barristers & Solicitors
Toronto, Ontario
TABLE OF CONTENTS
Page
ARTICLE 1
DEFINITIONS .............................................................................................. 1
1.1 Definitions ........................................................................................ 1
1.2 Other Terms ........................................................................................ 2
1.3 References to Sections, Articles and Exhibits ...................................................... 2
1.4 Number and Gender .................................................................................. 2
1.5 Currency ........................................................................................... 2
1.6 Actions on Days Other Than Business Days ........................................................... 2
ARTICLE 2
ADMINISTRATION AND SERVICING OF RECEIVABLES .............................................................. 2
2.1 Duties of the Servicer ............................................................................. 2
2.2 Collection of Receivable Payments; Modifications of Receivables; ................................... 3
2.3 Realization upon Receivables ....................................................................... 5
2.4 Insurance .......................................................................................... 6
2.5 Maintenance of Security Interests in Vehicles ...................................................... 7
2.6 Covenants, Representations, and Warranties of Servicer ............................................. 7
2.7 Purchase of Receivables Upon Breach of Covenant or Representation and Warranty ..................... 12
2.8 Servicing Fee; Payment of Certain Expenses by Servicer ............................................. 13
2.9 Servicer's Certificate ............................................................................. 13
2.10 Annual Statement as to Compliance, Notice of Servicer Termination Event ............................ 13
2.11 Access to Certain Documentation and Information Regarding Receivables .............................. 14
ARTICLE 3
THE SERVICER ............................................................................................ 14
3.1 Liability of Servicer; Indemnities ................................................................. 14
3.2 Merger or Consolidation of, or Assumption of the Obligations of the Servicer ....................... 15
3.3 Limitation on Liability of Servicer and Others ..................................................... 16
3.4 Delegation of Duties ............................................................................... 16
3.5 Servicer Not to Resign ............................................................................. 17
ARTICLE 4
SERVICER TERMINATION ..................................................................................... 17
4.1 Servicer Termination Event ......................................................................... 17
4.2 Consequences of a Servicer Termination Event ....................................................... 18
4.3 Appointment of Successor ........................................................................... 18
4.4 Notification to Secured Parties .................................................................... 19
4.5 Waiver of Past Defaults ............................................................................ 19
ARTICLE 5
THE CUSTODIAN ............................................................................................ 19
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TABLE OF CONTENTS
(continued)
Page
5.1 Appointment of Custodian; Acknowledgement of Receipt ................................................ 19
5.2 Maintenance of Records at Office .................................................................... 20
5.3 Duties of Custodian ................................................................................. 20
5.4 Instructions; Authority to Act ...................................................................... 21
5.5 Indemnification by the Custodian .................................................................... 21
5.6 Advice of Counsel ................................................................................... 21
5.7 Effective Period, Termination, and Amendment; Interpretative and Additional Provisions .............. 22
5.8 Representations, Warranties and Covenants of Custodian .............................................. 22
5.9 Interim and Temporary Custodian Agreements .......................................................... 24
ARTICLE 6
MISCELLANEOUS ............................................................................................. 24
6.1 Waivers; Amendments ................................................................................. 24
6.2 Notices ............................................................................................. 24
6.3 Governing Law; Submission to Jurisdiction ........................................................... 26
6.4 Counterparts ........................................................................................ 27
6.5 Successors and Assigns .............................................................................. 27
6.6 Confidentiality Agreement ........................................................................... 27
6.7 Headings ............................................................................................ 28
6.8 No Recourse ......................................................................................... 28
SCHEDULE A FORM OF CUSTODIAN'S ACKNOWLEDGEMENT
EXHIBIT A FORM OF SERVICER'S CERTIFICATE
EXHIBIT B FORM OF SERVICER GUARANTEE
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THIS SERVICING AND CUSTODIAN AGREEMENT, dated as of April 30, 2002, is among
AMERICREDIT FINANCIAL SERVICES OF CANADA LTD., as servicer (in such capacity,
the "Servicer"), AMERICREDIT FINANCIAL SERVICES, INC. as custodian (in such
capacity, the "Custodian"), AMERICREDIT CANADA FUNDING TRUST I, a trust
established under the laws of the Province of Ontario (the "Trust" and, together
with its successors and permitted assigns, the "Purchaser") by its trustee CIBC
MELLON TRUST COMPANY and CONGRESS FINANCIAL CORPORATION (CANADA) as collateral
agent (in such capacity, the "Collateral Agent").
PRELIMINARY STATEMENTS. AmeriCredit Canada, the Collateral Agent, and the
Purchaser have entered into a Master Receivables Purchase Agreement, dated as of
the date hereof (the "Master Receivables Purchase Agreement"), pursuant to which
the Seller agrees to sell, transfer and assign to the Purchaser all of its
right, title and interest in and to the Receivables on the terms described
therein.
Pursuant to the Master Receivables Purchase Agreement, the Seller and the
Purchaser will enter into Assignments from time to time (each an "Assignment"),
whereby the Seller will sell, transfer and assign to the Purchaser on the
applicable Receivables Purchase Date all of its right, title and interest in and
to Receivables listed on the Schedules of Receivables attached to such
Assignments and the Related Security.
Pursuant to the Security Agreement, the Purchaser will pledge to the Collateral
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 Related Security.
The Servicer is willing to service the Receivables.
The Collateral Agent wishes to appoint the Custodian to hold the Receivable
Files as the custodian on behalf of the Collateral Agent.
In consideration of the mutual agreements, provisions and covenants contained
herein, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
1.1 Definitions
In this Agreement, the following terms shall have the meanings set out below:
"Agreement" means this Agreement, as the same may be amended and supplemented
from time to time.
"AmeriCredit US" means AmeriCredit Financial Services, Inc.
"AmeriCredit Canada" means AmeriCredit Financial Services of Canada Ltd.
"Collateral Insurance" has the meaning specified therefor in Section 2.4(a).
"Servicer Termination Event" has the meaning specified therefor in Section 4.1.
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All other capitalized terms not otherwise defined shall have the respective
meanings set out in the Master Receivables Purchase Agreement and the Loan
Agreement, as the case may be.
1.2 Other Terms
All accounting terms not specifically defined herein shall be construed in
accordance with generally accepted accounting principles. All terms used in the
PPSA of Ontario, and not specifically defined herein, are used herein as defined
in such PPSA. Unless the context otherwise requires, "or" means "and/or," and
"including" (and with correlative meaning "include" and "includes") means
including without limiting the generality of any description preceding such
term.
1.3 References to Sections, Articles and Exhibits
Unless otherwise provided, all references herein to Sections, Articles or
Exhibits are references to Sections, Articles and Exhibits of or to the
Agreement.
1.4 Number and Gender
Words importing the singular include the plural and vice versa, and words
importing gender include all genders.
1.5 Currency
Unless otherwise indicated, all amounts stated herein are in Canadian Dollars.
1.6 Actions on Days Other Than Business Days
Where any payment is required to be made or any other action is required to be
taken on a particular day and such day is not a Business Day and, as a result,
such payment cannot be made or action cannot be taken on such day, then such
payment shall be made or such action shall be taken on the first Business Day
after such day.
ARTICLE 2
ADMINISTRATION AND SERVICING OF RECEIVABLES
2.1 Duties of the Servicer
(a) The Servicer is hereby appointed by and authorized to act as agent
for the Purchaser and in such capacity shall manage, service,
administer and make collections on the Receivables, and perform the
other actions required by the Servicer under this Agreement. The
Servicer agrees that its servicing of the Receivables shall be
carried out in accordance with the Credit and Collection Policy and
with customary and usual procedures of institutions which service
motor vehicle retail installment sales contracts and, to the extent
more exacting, the degree of skill and attention that the Servicer
exercises from time to time with respect to all comparable motor
vehicle receivables that it services for itself or others. 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
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required tax information to Obligors, monitoring the collateral,
accounting for collections and furnishing monthly and annual
statements to the Collateral Agent with respect to distributions,
monitoring the status of Insurance Policies with respect to the
Financed Vehicles and performing the other duties specified herein.
(b) The Servicer shall also administer and enforce all rights and
responsibilities of the holder of the Receivables and the Related
Security 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. The Servicer shall follow the Credit and
Collection Policy and the Servicer's customary standards, policies,
and procedures and shall have full power and authority, acting
alone, to do any and all things in connection with such managing,
servicing, administration and collection that it may deem necessary
or desirable. Without limiting the generality of the foregoing, the
Servicer is hereby authorized and empowered by the Purchaser to
execute and deliver, on behalf of the Purchaser, 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.
(c) The Servicer is hereby authorized to commence, in its own name or
in the name of the Purchaser or its assignees, a legal proceeding
to enforce a Receivable pursuant to Section 2.3 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 Purchaser shall thereupon be deemed to have automatically
assigned such Receivable (subject to security interests in favour
of the Collateral Agent and the Seller) 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 Purchaser 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 Collateral Agent may, in its reasonable discretion,
furnish the Servicer with any limited powers of attorney and other
documents which the Servicer may reasonably request and which the
Servicer deems necessary or appropriate and take any other steps
which the Servicer may deem necessary or appropriate to enable the
Servicer to carry out its servicing and administrative duties under
this Agreement.
2.2 Collection of Receivable Payments; Modifications of Receivables;
(a) Consistent with the standards, policies and procedures required by
this Agreement and the Credit and Collection Policy, the Servicer
shall make reasonable efforts to collect all payments called for
under the terms and provisions of the Receivables
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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
Related Security in such manner as will, in the reasonable judgment
of the Servicer, maximize the amount to be received by the
Purchaser with respect thereto. The Servicer is authorized in its
reasonable discretion to waive any prepayment charge, late payment
charge or any other similar fees that may be collected in the
ordinary course of servicing any Receivable.
(b) So long as no Servicer Termination Event shall have occurred and be
continuing, and in accordance with the Credit and Collection
Policy, 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 Settlement Period in which
such due date occurs or (ii) re-amortize the Scheduled Receivables
Payments on the Receivable following a partial prepayment of
principal, in accordance with its customary procedures if the
Servicer believes in good faith that such extension, modification
or amendment is necessary to avoid a default on such Receivable,
will maximize Collections with respect to such Receivable, and is
otherwise in the best interests of the Purchaser.
(c) So long as no Servicer Termination Event shall have occurred and be
continuing, and in accordance with the Credit and Collection
Policy, the Servicer may grant payment extensions on, or other
modifications or amendments to, a Receivable (in addition to those
modifications permitted by Section 2.2(b)) in accordance with the
Credit and Collection Policy if the Servicer believes in good faith
that such extension, modification or amendment is necessary to
avoid a default on such Receivable, will maximize Collections with
respect to such Receivable and is otherwise in the best interests
of the Purchaser; provided, that to the extent that documentation
exists for any such amendment, modification or extension, such
documentation shall be delivered by the Servicer to the Custodian
promptly after execution thereof.
The Servicer shall notify or direct Obligors to make all payments
on the Receivables, whether by cheque or by direct debit of the
Obligor's bank account, to be made directly to the following
account held in the name of the Servicer: SWIFT address: XXXXXXXX,
Financial Institution code: 002 Account # 0000000, transit # 80002
(the "Depository Account") held at The Bank of Nova Scotia (the
"Depository Bank"). The Servicer shall notify or direct the
Depository Bank to deposit all payments on the Receivables into the
Depository Account no later than the Business Day after receipt,
and to cause all amounts credited to the Depository 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 Servicer shall be obligated and liable to the Purchaser, the
Collateral Agent and Secured Parties for servicing and
administering the Receivables and the Related Security in
accordance with the provisions of this Agreement without diminution
of such obligation or liability by virtue thereof.
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In the event of a termination of the Servicer, the successor Servicer
shall assume all of the rights and obligations of the outgoing
Servicer under this Agreement. The outgoing Servicer shall, upon
request of the Collateral Agent, but at the expense of the outgoing
Servicer, deliver to the successor Servicer all documents and records
relating to the Depository Account, if any, and an accounting of
amounts collected and held in such account.
(d) Servicer shall remit all payments by or on behalf of the Obligors
received directly by the Servicer to the Depository Bank for further
deposit into the Collection Account, as soon as practicable, but in
no event later than two Business Days after receipt thereof and shall
use its best efforts to ensure that any payments that should have
been deposited to the Collection Account but which, in error, were
deposited to another account are promptly deposited into the
Collection Account.
2.3 Realization upon Receivables
(a) Consistent with the standards, policies and procedures required by
this Agreement and the Credit and Collection Policy, the Servicer
shall use its best efforts to repossess (or otherwise comparably
convert the ownership of) and liquidate any Financed Vehicle securing
a Receivable with respect to which the Servicer has determined that
payments thereunder are not likely to be resumed, as soon as is
practicable after default on such Receivable but in no event later
than the date on which all or any portion of a Scheduled Receivables
Payment has become 91 days delinquent; provided, however, that the
Servicer may elect not to repossess a Financed Vehicle within such
time period if in its good faith judgment it determines that the
proceeds ultimately recoverable with respect to such Receivable would
be increased by forbearance. The Servicer is authorized to follow
such customary practices and procedures as it shall deem necessary or
advisable, consistent with the standard of care required by Section
2.1, which practices and procedures may include reasonable efforts to
realize upon any recourse to Dealers, the sale of the related
Financed Vehicle at public or private sale, the submission of claims
under an Insurance Policy and other actions by the 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 reasonable 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. The Servicer shall be entitled to recover all
reasonable expenses incurred by it in the course of repossessing and
liquidating a Financed Vehicle into cash proceeds, but only out of
the cash proceeds of such Financed Vehicle, any deficiency obtained
from the Obligor with respect to such Financed Vehicle or any amounts
received from the related Dealer with respect to such Financed
Vehicle, which amounts in reimbursement may be retained by the
Servicer to the extent of such expenses. The Servicer shall pay on
behalf of the Purchaser any personal property taxes assessed on
repossessed Financed Vehicles.
(b) If the Servicer elects to commence a legal proceeding to enforce a
Dealer Agreement or Dealer Assignment, the act of commencement shall
be deemed to
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be an automatic assignment (subject to security interests in favour
of the Collateral Agent and the Seller) from the Purchaser 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 Seller, at the
Seller's expense, shall take such steps as the Servicer deems
reasonably necessary to enforce the Dealer Agreement or Dealer
Assignment, including, subject to the provisions of this Section
2.3(b), bringing suit in its name or the name of the Seller or of the
Purchaser or the Purchaser's assignees. All amounts recovered in any
legal proceeding shall be remitted directly by the Servicer to the
Collection Account as provided in Section 2.2(d). Notwithstanding
anything to the contrary contained herein, (i) the Collateral Agent
may, in its reasonable discretion, direct the Servicer (whether the
Servicer is AmeriCredit Canada or any other Person) to commence or
settle any legal action to enforce collection of any Receivable or to
foreclose upon or repossess any Related Security and (ii) the
Servicer shall not make the Collateral Agent, the Purchaser or any
Secured Party a party to any litigation without the prior written
consent of such Person; provided, however, that in the case of
subsection (i) of this sentence, the Servicer may decline or refuse
to act on instructions provided by the Collateral Agent if, in the
reasonable determination of the Servicer, such action is not
consistent with any requirements of law or the Credit and Collection
Policy, or could result in legal or regulatory action against the
Servicer.
2.4 Insurance
(a) Each Receivable requires the Obligor to maintain physical loss and
damage insurance, naming the Servicer and its successors and assigns
as loss payees and permits the holder of such Receivable to obtain
physical loss and damage insurance at the expense of the Obligor if
the Obligor fails to maintain such insurance. The Servicer shall
monitor the status of such physical loss and damage insurance
coverage thereafter, in accordance with its customary servicing
procedures. 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 (including, without
limitation, during the repossession of such Financed Vehicle) the
Servicer may enforce the rights of the holder of the Receivable under
the Receivable to require the Obligor to obtain such physical loss
and damage insurance in accordance with its customary servicing
policies and procedures. The Servicer may maintain a vendor's single
interest or other collateral protection insurance policy with respect
to all Financed Vehicles ("Collateral Insurance") which policy shall
by its terms insure against physical loss and damage in the event any
Obligor fails to maintain physical loss and damage insurance with
respect to the related Financed Vehicle. All policies of Collateral
Insurance shall be endorsed with clauses providing for loss payable
to the Servicer. Costs incurred by the Servicer in maintaining such
Collateral Insurance shall be paid by the Servicer.
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(b) The Servicer may xxx to enforce or collect upon the Insurance
Policies, in its own name, if possible, or as agent of the Purchaser.
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 (subject to security interests in favour of the
Collateral Agent and the Seller) of the rights of the Purchaser 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 Seller, at the Seller's expense,
shall take such steps as the Servicer deems necessary to enforce such
Insurance Policy, including bringing suit in its name or the name of
the Purchaser.
2.5 Maintenance of Security Interests in Vehicles
Consistent with the policies and procedures required by this Agreement, the
Servicer shall take such steps on behalf of the Purchaser and its assignees as
are necessary to maintain perfection of the security interest created by each
Contract 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 Servicer shall take all necessary action with respect to the notation of
Receivables and the marking of records of the Purchaser. The Collateral Agent
hereby authorizes the Servicer, and the Servicer agrees, to take any and all
steps necessary to re-perfect such security interest on behalf of the Purchaser
as necessary because of the relocation of a Financed Vehicle or for any other
reason.
2.6 Covenants, Representations, and Warranties of Servicer
(a) The Servicer covenants as follows:
(i) Liens in Force. The Financed Vehicle securing each Receivable
shall not be released in whole or in part from the security
interest granted by the related Contract, except upon payment
in full of the Receivable or as otherwise contemplated herein
or by the other Transaction Documents;
(ii) No Impairment. The Servicer shall do nothing to impair the
rights of the Purchaser or the Secured Parties in the
Receivables, the Dealer Agreements, the Dealer Assignments, the
Insurance Policies or the Related Security except as otherwise
expressly provided herein or in the Master Receivables Purchase
Agreement;
(iii) No Amendments. The Servicer shall not take or permit any action
to extend or otherwise amend the terms of any Receivable,
except in accordance with Section 2.2 and the other Transaction
Documents;
(iv) Conduct of Business. The Servicer shall not make any change in
the character of its business except to the extent that such a
change would not have a Material Adverse Effect and shall do
all things necessary to remain duly incorporated, validly
existing and in good standing as a domestic
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corporation in its jurisdiction of incorporation and maintain
all requisite authority to conduct its business in each
jurisdiction in which its business is conducted;
(v) Compliance with Laws. The Servicer shall, and shall cause each
of its Subsidiaries to, comply with all laws, rules,
regulations, orders, writs, judgments, injunctions, decrees or
awards to which it or its respective properties may be subject
where the failure to so comply could reasonably be expected to
have a Material Adverse Effect;
(vi) Furnishing of Information and Inspection of Records. The
Servicer and the Custodian shall furnish to the Administrator
and the Collateral Agent from time to time such information
with respect to the Receivables and the Related Security as the
Administrator or the Collateral Agent may reasonably request
(at the Servicer's or Custodian's expense, respectively),
including, without limitation, listings identifying the Obligor
and the outstanding balance for each Receivable. The Servicer
and the Custodian shall, at any time and from time to time
during regular business hours and on at least five Business
Days' (or if a Termination Event or Potential Termination Event
has occurred, one Business Day's) notice, permit the Collateral
Agent or the Lender, or their agent or representatives, (i) to
examine and make copies of and take abstracts from all Records
and (ii) to visit the offices and properties of the Servicer or
Custodian, respectively, for the purpose of examining such
Records, and to discuss matters relating to Receivables and the
Related Security or its performance hereunder and under the
other Transaction Documents to which it is a party with any of
the officers, directors, employees or chartered accountants of
the Servicer or Custodian, respectively, having knowledge of
such matters;
(vii) Keeping of Records and Books of Account. The Servicer and the
Custodian shall maintain and implement administrative and
operating procedures (including, without limitation, an ability
to recreate records evidencing Receivables in the event of the
destruction of the originals thereof), and keep and maintain,
all documents, books, records and other information reasonably
necessary or advisable for the collection of all Receivables
(including, without limitation, records adequate to permit the
daily identification of each new Receivable and all Collections
of and adjustments to each existing Receivable). The Servicer
shall give the Collateral Agent notice of any material change
in its administrative and operating procedures referred to in
the previous sentence. As soon as practicable and in any event
not later than March 31, 2003 and each annual anniversary
thereof, the Servicer shall deliver or cause to be delivered to
the Collateral Agent a report, prepared by a mutually agreed
upon independent accounting firm, stating that the independent
accountant has performed certain agreed upon procedures
including obtaining the monthly Servicer Reports for three
randomly selected months with respect to the immediately
preceding twelve months and for such monthly
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Servicer Reports the independent accountant shall (i)
reconcile the amounts in the monthly Servicer Reports to the
Servicer's computer, accounting and other records which will
include in such report any amounts not reconciled and (ii)
determine compliance with underwriting guidelines and
documentation requirements;
(viii) Credit and Collection Policy.
(A) The Servicer shall comply in all material respects with
the Credit and Collection Policy with respect to each
Receivable and the related Contract;
(B) Within 10 days after the date of any material change in,
or amendment to, the Credit and Collection Policy, the
Servicer will deliver to the Collateral Agent a copy of
the amended Credit and Collection Policy then in effect
indicating such change or amendment or will deliver a
copy of such change or amendment;
(C) The Servicer shall not change the Credit and Collection
Policy in any way that would have a Material Adverse
Effect; and
(D) On each anniversary of the Initial Commitment Expiry
Date the Servicer shall deliver to the Collateral Agent
a copy of the Credit and Collection Policy.
(ix) Change in Accountants or Accounting Policies. The Servicer
shall promptly notify the Collateral Agent of any change in
its accountants or material change in its accounting policy;
(x) No Sales or Liens. Except as otherwise provided herein and in
the Master Receivables Purchase Agreement, the Servicer shall
not sell, assign (by operation of law or otherwise) or
otherwise dispose of, or create or suffer to exist any Adverse
Claim (or the filing of any financing statements) upon or with
respect to any of the Collateral or any Depository Account;
(xi) Interim Custodian Agreement. The Servicer shall not amend or
terminate the Interim Custodian Agreement without the consent
of the Collateral Agent; provided that such consent shall not
be required following the satisfaction of the Registration
Conditions;
(xii) Interim Custodian. The Servicer shall ensure that the Interim
Custodian maintains continuous possession of the Receivables
in accordance with the terms of the Interim Custodian
Agreement until such agreement is terminated in accordance
with its terms and subject to (xi) above.
(xiii) Temporary Custodian Agreement. The Servicer shall not amend or
terminate the Temporary Custodian Agreement without the
consent of the Collateral Agent; provided that such consent
shall not be required following the satisfaction of the
Registration Conditions;
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(xiv) Temporary Custodian. The Servicer shall ensure that the
Temporary Custodian maintains continuous possession of the
Receivables in accordance with the terms of the Temporary
Custodian Agreement until such agreement is terminated in
accordance with its terms and subject to (xiii) above.
(b) The Servicer represents and warrants as follows:
(i) Receivables. Each Receivable represented by the Servicer to be
an Eligible Receivable (including in any report, document or
instrument delivered hereunder or in connection with the other
Transaction Documents) satisfies at the time of such
representation or inclusion the definition of "Eligible
Receivable" set forth in the Master Receivables Purchase
Agreement;
(ii) Organization and Good Standing. The Servicer has been duly
organized and is validly existing and in good standing under
the laws of its jurisdiction of organization, with power,
authority and legal right to own its properties and to conduct
its business as such properties are currently owned and such
business is currently conducted, and had at all relevant times,
and now has, all power, authority and legal right required to
enter into and perform its obligations under this Agreement and
each of the other Transaction Documents to which it is a party;
(iii) Due Qualification. The Servicer is duly qualified to do
business, is 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 except
to the extent where the failure to have obtained such licenses
and approvals or to be so qualified could not reasonably be
expected to have a Material Adverse Effect;
(iv) Power and Authority. The Servicer has the full power and
authority to execute and deliver this Agreement and the other
Transaction Documents 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
Transaction Documents to which it is a party have been duly
authorized by the Servicer by all necessary corporate action;
(v) Binding Obligation. This Agreement and the other Transaction
Documents to which the Servicer is a party shall constitute
legal, valid and binding obligations of the Servicer
enforceable against it in accordance with their respective
terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization, or other similar laws affecting the
enforcement of creditors' rights generally and by equitable
limitations on the availability of specific remedies,
regardless of whether such enforceability is considered in a
proceeding in equity or at law;
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(vi) No Violation. The consummation of the transactions
contemplated by this Agreement and the other Transaction
Documents to which the Servicer is a party, and the fulfilment
of the terms of this Agreement and the Transaction Documents
to which the Servicer 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 the
Servicer, or any indenture, agreement, mortgage, deed of trust
or other instrument to which the Servicer is a party or by
which it is bound, or result in the creation or imposition of
any Lien upon any of its properties pursuant to the terms of
any such indenture, agreement, mortgage, deed of trust or
other instrument, other than this Agreement, or violate any
law, order, rule or regulation applicable to the Servicer of
any court or of any federal or provincial regulatory body,
administrative agency or other governmental instrumentality
having jurisdiction over the Servicer or any of its properties
and do not require any action by or require the consent of or
the filing of any notice with any Governmental Authority or
other Person;
(vii) No Proceedings. There are no proceedings or investigations
pending or, to the Servicer's knowledge, threatened against
the Servicer, before any court, regulatory body,
administrative agency or other tribunal or governmental
instrumentality having jurisdiction over the Servicer or its
properties (A) asserting the invalidity of this Agreement or
any of the Transaction Documents, (B) seeking to prevent the
consummation of any of the transactions contemplated by this
Agreement or any of the Transaction Documents, or (C) seeking
any determination or ruling that might materially and
adversely affect the performance by the Servicer of its
obligations under, or the validity or enforceability of, this
Agreement or any of the Transaction Documents or (D) that
could be reasonably expected to have a Material Adverse
Effect;
(viii) No Consents. The Servicer is not required to obtain the
consent of any other party or any consent, license, approval
or authorization, or registration or declaration with, any
governmental authority, bureau or agency in connection with
the execution, delivery, performance, validity or
enforceability of this Agreement which has not already been
obtained or where the failure to be so obtained could not
reasonably be expected to have a Material Adverse Effect;
(ix) Accuracy of Information. All information heretofore furnished
by the Servicer to the Borrower, the Lender, the Collateral
Agent or any other Persons for purposes of or in connection
with this Agreement or any transaction contemplated hereby is,
and all such information hereafter furnished by the Servicer
to the Borrower, the Lender, the Collateral Agent or such
other Person will be, true and accurate in every material
respect, and the Servicer has not omitted, and will not omit,
to disclose any information which is material to the
transactions contemplated by this Agreement on the date such
information was or is furnished;
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(x) Chief Executive Office. The Servicer's chief executive office
is located in Ontario;
(xi) Credit and Collection Policy. Since October 10, 2001, there
have been no material changes in the Credit and Collection
Policy other than those made in accordance with the terms of
this Agreement;
(xii) Collections and Servicing. Since October 10, 2001, there has
not been any material adverse change in the ability of the
Servicer to service and collect the Receivables and there has
not been any other change relating to the Servicer that could
reasonably be expected to have a Material Adverse Effect; and
(xiii) Representations and Warranties of the Seller. Each of the
representations and warranties of the Seller set forth in
Section 4.1 of the Master Receivables Purchase Agreement are
true and correct in all material respects as at the time made
and the Seller hereby makes all such representations and
warranties for the benefit of the Collateral Agent and the
Lender.
2.7 Purchase of Receivables Upon Breach of Covenant or Representation and
Warranty
(a) Upon discovery by either of the Servicer or a Responsible Officer of
the Collateral Agent of a breach of any of the representations,
warranties or covenants set forth in Sections 2.5, 2.6(a), 5.1, 5.2,
5.3 or 5.8, the party discovering such breach shall give prompt
written notice to all of the parties hereto; provided, however, that
the failure to give any such notice shall not affect any obligation
of the Servicer under this Section. As of the last day of the Monthly
Period following its discovery or receipt of notice of any breach of
any covenant set forth in Sections 2.5, 2.6(a), 5.1, 5.2, 5.3 or 5.8
which materially and adversely affects the interests of the
Collateral Agent in any Receivable (including any Defaulted
Receivable) or any Related Security (or, at AmeriCredit Canada's
election, the last day of the preceding Monthly Period so following)
or the related Financed Vehicle, AmeriCredit Canada shall, unless
such breach shall have been cured in all material respects by the
last day of the second Monthly Period after such breach, purchase
from the Purchaser the Receivable affected by such breach and, on the
related Determination Date, the Servicer shall pay the related
Outstanding Balance to the Purchaser. It is understood and agreed
that the obligation of the Servicer to purchase any Receivable
(including any 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 Purchaser, the Secured Parties or the
Collateral Agent; provided, however, that the Servicer shall
indemnify the Purchaser, the Collateral Agent and the Secured Parties
from and against all costs, expenses, losses, damages, claims and
liabilities, including reasonable fees and expenses of counsel, which
may be asserted against or incurred by any of them as a result of
third party claims arising out of the events or facts giving rise to
such breach.
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(b) Subject to the netting and setoff provisions in Sections 1.7 and 1.10
of the Master Receivables Purchase Agreement, all Outstanding Balances
payable by the Seller or the Servicer to the Purchaser as a result of
any Repurchase Event or any breach of the representations or
warranties of the Servicer made or contained in this Agreement shall
be deposited by the Seller or the Servicer, as applicable, into the
Collection Account as required by Section 2.7 of this Agreement and
Section 4.7 of the Master Receivables Purchase Agreement, as
applicable, and such Outstanding Balances shall be allocated and
applied by the Servicer as a Collection allocable to the Net Loan
Investment in accordance with this Agreement and the other Transaction
Documents, as applicable. The Net Loan Investment shall be reduced by
the amount of such payment applied to the reduction of the Net Loan
Investment and actually received by the Collateral Agent or the
Servicer on behalf of the Borrower.
2.8 Servicing Fee; Payment of Certain Expenses by Servicer
On each Settlement Date, the Servicer shall to the extent provided in the
Security Agreement be entitled to receive out of the Collection Account the
Servicing Fee for the related Settlement Period. The Servicer shall be required
to pay all expenses incurred by it in connection with its activities under this
Agreement (including taxes imposed on the Servicer, expenses incurred in
connection with distributions and reports made by the Servicer to the Secured
Parties, except taxes levied or assessed against the Purchaser, and claims
against the Purchaser in respect of indemnification, which taxes and claims in
respect of indemnification against the Purchaser are expressly stated to be for
the account of the Servicer subject to the terms of the Master Receivables
Purchase Agreement) without reimbursement pursuant to Section 6.4 of the
Security Agreement.
2.9 Servicer's Certificate
No later than 5:00 p.m. Eastern time on each Determination Date, the Servicer
shall deliver (facsimile delivery being acceptable) to the Purchaser and the
Collateral Agent a Servicer's Certificate executed by a Responsible Officer of
the Servicer in the form attached hereto as Exhibit A.
2.10 Annual Statement as to Compliance, Notice of Servicer Termination Event
(a) The Servicer shall deliver to the Purchaser and the Collateral Agent,
on or before September 30 (or 90 days after the end of the Servicer's
fiscal year, if other than June 30) of each year, beginning on
September 30, 2002, an officer's certificate signed by any Responsible
Officer of the Servicer, dated as of June 30 (or other applicable
date) of such year, stating that (i) a review of the activities of the
Servicer during the preceding 12-month period (or such other period as
shall have elapsed from the Closing Date to the date of the first such
certificate) and of its performance under this Agreement has been made
under such officer's supervision, and (ii) to such officer's
knowledge, based on such review, the Servicer has fulfilled all its
obligations under this Agreement throughout such period, or, if there
has been a default in the fulfillment of any such obligation,
specifying each such default known to such officer and the nature and
status thereof.
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(b) The Servicer shall deliver to the Purchaser and the Collateral Agent,
promptly after the occurrence 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
4.1(a). The Servicer shall, and shall cause the Seller to, deliver to
the Purchaser, the Collateral Agent and the Servicer promptly after
the occurrence thereof, but in no event later than two (2) Business
Days thereafter, written notice in an Officer's Certificate of any
event which with the giving of notice or lapse of time, or both, would
become a Servicer Termination Event under any other clause of Section
4.1.
2.11 Access to Certain Documentation and Information Regarding Receivables
The Servicer shall provide to representatives of the Collateral Agent and of the
Secured Parties reasonable access to the documentation regarding the
Receivables. In each case, such access shall be afforded without charge but only
upon reasonable request and on at least five Business Days' (or if a Termination
Event or Potential Termination Event has occurred, one Business Day's) notice
and during normal business hours. Nothing in this Section shall affect the
obligation of the Servicer to observe any applicable law prohibiting disclosure
of information regarding the Obligors, and the failure of the Servicer to
provide access as provided in this Section as a result of such obligation shall
not constitute a breach of this Section.
ARTICLE 3
THE SERVICER
3.1 Liability of Servicer; Indemnities
(a) The Servicer (in its capacity as such) shall be liable hereunder only
to the extent of the obligations in this Agreement and the other
Transaction Documents to which it is a party specifically undertaken
by the Servicer and the representations made by the Servicer herein
and the other Transaction Documents to which it is a party.
(b) The Servicer shall defend, indemnify and hold harmless the Purchaser,
the Collateral Agent, the Secured Parties and their respective
officers, directors, agents and employees, from and against any and
all costs, expenses, losses, damages, claims and liabilities,
including reasonable fees and expenses of counsel and expenses of
litigation arising out of or resulting from the use, ownership or
operation by the Servicer or any Affiliate thereof of any Financed
Vehicle;
(c) The Servicer shall indemnify, defend and hold harmless the Purchaser,
the Collateral Agent, the Secured Parties and their respective
officers, directors, agents and employees from and against any taxes
that may at any time be asserted against any of such parties with
respect to the transactions contemplated in this Agreement, including,
without limitation, any sales, gross receipts, tangible or intangible
personal property, privilege or license taxes (but not including any
capital taxes, federal or other income taxes, including franchise
taxes asserted with respect to, and as of the date of, the sale of the
Receivables and the Related
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Security to the Purchaser and withholding taxes) and costs and
expenses in defending against the same;
(d) The Servicer shall be liable to the Purchaser, the Collateral Agent
and the Secured Parties (collectively, the "Indemnified Parties") to
the extent of the following, without limiting any other rights which
the Indemnified Parties may have hereunder or under applicable law,
the Servicer hereby agrees to indemnify the Indemnified Parties from
and against any and all costs, expenses, losses, claims, damages or
liabilities suffered by or imposed upon any Indemnified Party arising
out of or resulting from (whether directly or indirectly) (a) the
failure of any information contained in any Servicer's Certificate to
be true and correct in any material respect, or the failure of any
other information provided to any Indemnified Party by, or on behalf
of, the Servicer to be true and correct in any material respect, (b)
the failure of any representation, warranty or statement made or
deemed made by the Servicer (or any of their officers) under or in
connection with this Agreement to have been true and correct in any
material respect as of the date made or deemed made, (c) the failure
by the Servicer to comply with any applicable Law with respect to any
Receivable or the related Contract, (d) any dispute, claim, offset or
defense of the Obligor to the payment of any Receivable resulting from
or related to the collection activities in respect of such Receivable,
or (e) any failure of the Servicer to materially perform its duties or
obligations in accordance with the provisions hereof or the other
Transaction Documents;
(e) The Servicer shall indemnify the Collateral Agent, the Purchaser and
their officers, directors, agents and employees thereof against any
and all loss, liability or expense, (other than overhead and expenses
incurred in the normal course of business) incurred by each of them in
connection with the acceptance or administration of the Purchaser and
the performance of their duties under the Transaction Documents other
than if such loss, liability or expense is conclusively determined by
a judicial proceeding to have been incurred by the Collateral Agent as
a result of any such entity's wilful misconduct, bad faith or
negligence; and
(f) Indemnification under this Article shall survive the termination of
the Transaction Documents or the resignation and removal of the
Servicer and 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.
3.2 Merger or Consolidation of, or Assumption of the Obligations of the
Servicer
Any corporation (i) into which AmeriCredit Canada may be merged or consolidated,
(ii) resulting from any amalgamation, merger or consolidation to which
AmeriCredit Canada shall be a party, (iii) which acquires by conveyance,
transfer, or lease substantially all of the assets of AmeriCredit Canada, or
(iv) succeeding to the business of AmeriCredit Canada, in any of the foregoing
cases shall execute an agreement of assumption to perform every obligation of
AmeriCredit Canada under this Agreement and, whether or not such assumption
agreement is executed, shall be the successor to AmeriCredit Canada under this
Agreement without the
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execution or filing of any document or any further act on the part of any of the
parties to this Agreement, anything in this Agreement to the contrary
notwithstanding; provided, however, that nothing contained herein shall be
deemed to release AmeriCredit Canada from any obligation as initial Servicer
hereunder. AmeriCredit Canada shall provide notice of any amalgamation, merger,
consolidation, acquisition or succession pursuant to this Section to the
Collateral Agent and the Secured Parties. Notwithstanding the foregoing,
AmeriCredit Canada shall not amalgamate, merge or consolidate with any other
Person or permit any other Person to become a successor to AmeriCredit Canada's
business, unless (x) immediately after giving effect to such transaction, no
representation, warranty or covenant made pursuant to Section 2.6 shall have
been breached (for purposes hereof, such representations and warranties shall
speak as of the date of the consummation of such transaction) there is no
Material Adverse Effect as a result of such succession, amalgamation, merger or
consolidation and no Termination Event or Potential Termination Event shall have
occurred and be continuing, (y) AmeriCredit Canada shall have delivered to the
Collateral Agent and the Purchaser an Officer's Certificate and an Opinion of
Counsel each stating that such amalgamation, consolidation, merger or succession
and such agreement of assumption comply with this Section and that all
conditions precedent, if any, provided for in this Agreement relating to such
transaction have been complied with, and (z) AmeriCredit Canada shall have
delivered to the Collateral Agent and the Purchaser an Opinion of Counsel,
stating in the opinion of such counsel, either (A) all financing statements and
continuation statements and amendments thereto have been executed and filed that
are necessary to preserve and protect the interest of the Purchaser in the
Receivables and the Related Security and reciting the details of the filings or
(B) no such action shall be necessary to preserve and protect such interest.
3.3 Limitation on Liability of Servicer and Others
None of the directors or officers or employees or agents of AmeriCredit Canada
or, subject to Section 3.1 hereof, AmeriCredit Canada (to the extent AmeriCredit
Canada or any Subsidiary or Affiliate of AmeriCredit Canada is the Servicer),
shall be under any liability to the Purchaser, the Collateral Agent 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 AmeriCredit Canada or
any such person against any liability that would otherwise be imposed by reason
of their breach of this Agreement or wilful misfeasance, bad faith or negligence
in the performance of duties; provided further that this provision shall not
affect any liability to indemnify the Collateral Agent for costs, taxes,
expenses, claims, liabilities, losses or damages paid by the Collateral Agent,
in its individual capacity. AmeriCredit Canada and any director, officer,
employee or agent of AmeriCredit Canada 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.
3.4 Delegation of Duties
The Servicer may delegate duties under this Agreement to an Affiliate of
AmeriCredit Canada. 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 Defaulted Receivables, in each case, without the
consent of the Collateral Agent and may perform other specific duties through
such sub-contractors in accordance with Servicer's customary servicing policies
and procedures, with the
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prior consent of the Collateral Agent. No delegation or sub-contracting duties
by the Servicer shall relieve the Servicer of its responsibility with respect to
such duties. Neither AmeriCredit Canada nor any party acting as Servicer
hereunder shall appoint any subservicer (other than an Affiliate) hereunder
without the prior written consent of the Collateral Agent.
3.5 Servicer Not to Resign
Subject to the provisions of Section 3.2, the Servicer shall not resign from the
obligations and duties imposed on it by this Agreement as 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 and the Collateral Agent does not elect to waive the obligations of the
Servicer 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 shall be evidenced by an Opinion of Counsel to such
effect delivered and acceptable to the Collateral Agent. No resignation of the
Servicer shall become effective until a successor Servicer that is an eligible
servicer as approved by the Collateral Agent, shall have assumed the
responsibilities and obligations of the Servicer.
ARTICLE 4
SERVICER TERMINATION
4.1 Servicer Termination Event
For purposes of this Agreement, each of the following shall constitute a
"Servicer Termination Event":
(a) Any failure by the Servicer or the Custodian to make any payment or
deposit to be made by it when required under the terms of the
Transaction Documents;
(b) Failure on the part of the Servicer or the Custodian to duly observe
or perform in any material respect any covenant or agreement set forth
in this Agreement or any other Transaction Document to which it is a
party, which failure continues unremedied for a period of 3 Business
Days after the occurrence thereof;
(c) Any representation, warranty, certification or statement made by the
Servicer (including AmeriCredit Canada, if it is the Servicer), the
Custodian, or the Purchaser, any Seller or any Affiliate of the
Purchaser or any Seller (in the event that the Purchaser, any Seller
or such Affiliate is then acting as the Servicer) in this Agreement,
the Master Receivables Purchase Agreement or in any of the other
Transaction Documents or in any certificate or report delivered by it
pursuant to any of the foregoing shall prove to have been incorrect or
misleading in any material respect when made or deemed made and such
incorrectness, if capable of being remedied or cured, is not remedied
or cured within three (3) Business Days after the date when it was
made or deemed made;
(d) The occurrence of a Termination Event listed in Section 3.1 of the
Master Receivables Purchase Agreement other than items (o), (p), (q),
(r) and (s); and
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(e) Any Insolvency Event shall occur with respect to the Servicer, any of
its Subsidiaries or the Custodian.
4.2 Consequences of a Servicer Termination Event
If a Servicer Termination Event shall occur and be continuing, the Collateral
Agent, by notice given in writing to the Servicer and the Custodian may
terminate all of the rights and obligations of AmeriCredit Canada as Servicer
and AmeriCredit US as Custodian under this Agreement. On or after the receipt by
such Servicer and such Custodian of such written notice or upon termination of
the term of such Servicer and such Custodian, all authority, power, obligations
and responsibilities of such Servicer and such Custodian under this Agreement,
whether with respect to the Receivables or the Related Security or otherwise,
automatically shall pass to, be vested in and become obligations and
responsibilities of a successor Servicer and a successor Custodian appointed by
the Collateral Agent); provided, however, that the successor Servicer and the
successor Custodian, respectively, shall have no liability with respect to any
obligation which was required to be performed by the terminated Servicer and
Custodian prior to the date that the successor Servicer and the successor
Custodian become the Servicer and the Custodian or any claim of a third party
based on any alleged action or inaction of the terminated Servicer and
Custodian. The successor Servicer and the successor Custodian are authorized and
empowered by this Agreement to execute and deliver, on behalf of the terminated
Servicer and terminated Custodian, 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.
The terminated Servicer and terminated Custodian agree to cooperate with the
successor Servicer and successor Custodian in effecting the termination of the
responsibilities and rights of the terminated Servicer and terminated Custodian
under this Agreement, including, without limitation, the transfer to the
successor Servicer for administration by it of all cash amounts that shall at
the time be held by the terminated Servicer for deposit, or have been deposited
by the terminated Servicer, in the Collection Account or thereafter received
with respect to the Receivables and the delivery to the successor Servicer of
all Receivable Files, Monthly Records and Collection Records and a computer tape
in readable form as of the most recent Business Day containing all information
necessary to enable the successor Servicer and successor Custodian to service
the Receivables and the Related Security. The terminated Servicer and terminated
Custodian shall grant the Collateral Agent, the successor Servicer, the
successor Custodian and the Purchaser reasonable access to the terminated
Servicer's and terminated Custodian's premises at the terminated Servicer's and
Custodian's expense provided that at least one Business Day's notice has been
given.
4.3 Appointment of Successor.
(a) On and after the time the Servicer receives a notice of termination
pursuant to Section 4.2, or upon the resignation of the Servicer, the
Collateral Agent shall appoint an alternate successor Servicer who
shall be a resident of Canada for purposes of the Income Tax Act
(Canada) 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 Collateral Agent and
such successor shall take such action, consistent with this Agreement,
as shall be necessary to effectuate any such succession. If a
successor Servicer is acting as Servicer
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hereunder, it shall be subject to termination under Section 4.2 upon
the occurrence of any Servicer Termination Event applicable to it as
Servicer.
(b) Any successor Servicer shall be entitled to such compensation (whether
payable out of the Collection Account or otherwise) as the Servicer
would have been entitled to under this Agreement if the Servicer had
not resigned or been terminated hereunder. The Collateral Agent and
such successor Servicer may agree on additional compensation to be
paid to such successor Servicer. In addition, any successor Servicer
shall be entitled to reasonable transition expenses incurred in acting
as successor Servicer.
4.4 Notification to Secured Parties
Upon any termination of, or appointment of a successor to, the Servicer, the
Collateral Agent shall give prompt written notice thereof to the Purchaser and
each Secured Party.
4.5 Waiver of Past Defaults
The Collateral Agent may, on behalf of all Secured Parties, waive any default by
the Servicer or the Custodian in the performance of its obligations hereunder
and its consequences. Upon any such waiver of a past default, such default shall
cease to exist, and any Servicer Termination Event arising therefrom shall be
deemed to have been remedied for every purpose of this Agreement. No such waiver
shall extend to any subsequent or other default or impair any right consequent
thereto.
ARTICLE 5
THE CUSTODIAN
5.1 Appointment of Custodian; Acknowledgement of Receipt
Subject to the terms and conditions hereof (including Section 5.9 hereof), the
Collateral Agent hereby revocably appoints the Custodian and the Custodian
hereby accepts such appointment, as custodian and bailee on behalf of the
Collateral Agent (for the benefit of the Secured Parties) to maintain exclusive
custody of the Receivable Files relating to the Receivables from time to time
held as part of the Collateral; provided, however, that neither the Collateral
Agent nor any Secured Party shall be responsible for the acts or omissions of
the Custodian. In performing its duties hereunder, the Custodian 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 Custodian,
as of each Receivables Purchase Date with respect to the Receivables sold on
such date, hereby acknowledges receipt of the Receivable File for each
Receivable listed in the Schedules of Receivables attached to the related
Assignment, subject to any exceptions noted on the applicable Custodian's
Acknowledgement. As evidence of its acknowledgement of such receipt of such
Records, the Custodian shall execute and deliver on each Receivables Purchase
Date with respect to the Receivables sold on such date, the Custodian's
Acknowledgement in the form attached hereto as Schedule A.
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5.2 Maintenance of Records at Office
The Custodian agrees to maintain the Receivable Files at 0000 Xxxxxxxxxxx Xxxxx,
Xxxxxxxxx, Xxxxx 00000 or at such other office as shall from time to time be
identified to the Collateral Agent and the Purchaser, and the Custodian will
hold the Receivable Files in such office on behalf of the Collateral Agent (for
the benefit of the Secured Parties), clearly identified on its records as being
separate from any other instruments and files, including other instruments and
files held by the Custodian, and in compliance with Section 5.3(b) hereof.
5.3 Duties of Custodian
(a) Safekeeping. The Custodian shall hold the Receivable Files on behalf
of the Collateral Agent (for the benefit of the Secured Parties),
whether at the same or any other location, and shall maintain such
accurate and complete accounts, records or computer systems pertaining
to each Receivable File as are required to comply with the terms and
conditions of the Loan Agreement and the Security Agreement. Each
Contract shall be stamped to indicate that: "All right, title and
interest in the foregoing finance contract has been assigned to a
financial institution in its capacity as agent or collateral agent for
the secured parties in connection with a credit facility." Each
Receivable shall be identified on the books and records of the
Custodian 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 Custodian on behalf of the Collateral Agent and (iii) is otherwise
necessary, as reasonably determined by the Custodian, to comply with
the terms of this Agreement. The Custodian 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 Collateral
Agent and the Custodian to verify the accuracy of the Custodian's
inventory and recordkeeping. Such inspections shall be conducted at
such times, in such manner and by such persons, including, without
limitation, Independent Accountants, as the Collateral Agent may
request and the cost of such inspections shall be borne by the
Custodian. The Custodian shall promptly report to the Collateral Agent
any failure on the Custodian's part to hold the Receivable Files and
maintain its accounts, records and computer systems as herein provided
and the Custodian shall promptly take appropriate action to remedy any
such failure. Notwithstanding the above, upon a Servicer Termination
Event, on or prior to each Receivables Purchase Date, with respect to
the Receivables sold on such dates, the Custodian shall make copies or
other electronic file records (e.g., diskettes, CD's, etc.) (the
"Copies") of the Receivable Files and shall deliver such Copies to the
Collateral Agent and the Collateral Agent shall hold such Copies on
behalf of the Secured Parties. Subject to Section 5.3(c) hereof, the
Custodian shall at all times maintain the original of the fully
executed original Contract relating to each Receivable in a fire proof
vault.
(b) Access to Records. The Custodian shall, subject only to the
Custodian's security requirements applicable to its own employees
having access to similar records held by the Custodian, which
requirements shall be consistent with the practices of a commercial
bank acting in the capacity of custodian with respect to similar
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files or records, and at such times as may be reasonably imposed by
the Custodian, permit only the Secured Parties and the Collateral
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 Custodian pursuant hereto at such
times as any of the Secured Parties or the Collateral Agent may
reasonably request provided that at least five Business Days' (or if a
Termination Event or Potential Termination Event has occurred, one
Business Day's) notice has been provided to the Custodian.
(c) Release of Documents. The Custodian shall release such Receivable
Files to the Servicer only (1) upon payment in full of such Receivable
or (2) as required from time to time as appropriate for servicing and
enforcing any Receivable but, in the case of clause (1) or (2), only
as is consistent with the terms of the Transaction Documents.
(d) Administration; Reports. The Custodian shall, in general, attend to
all ministerial matters in connection with maintaining custody of the
Receivable Files on behalf of the Collateral Agent. In addition, the
Custodian shall assist the Collateral Agent or the Servicer, as the
case may be, in the preparation of any routine reports to the Secured
Parties or to regulatory bodies, to the extent necessitated by the
Custodian's custody of the Receivable Files.
5.4 Instructions; Authority to Act
The Custodian 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 Collateral Agent. Such instructions may be general or
specific in terms.
5.5 Indemnification by the Custodian
The Custodian agrees to indemnify the Secured Parties, the Purchaser and the
Collateral Agent for any and all 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
the Purchaser, the Secured Parties and/or the Collateral Agent as the result of
any act or omission in any way relating to the maintenance and custody by the
Custodian of the Receivable Files or any default by the Custodian of its
obligations hereunder; provided, however, that the Custodian shall not be liable
to any party indemnified hereunder for any portion of any such liabilities,
obligations, losses, damages, payments or costs or expenses as are due to the
wilful misfeasance, bad faith or gross negligence of such indemnified party.
5.6 Advice of Counsel
The Custodian shall be entitled to rely and act upon advice of counsel with
respect to its performance hereunder as custodian and shall be without liability
for any action reasonably taken in good faith pursuant to such advice, provided
that such action is not in violation of applicable federal or state law.
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5.7 Effective Period, Termination, and Amendment; Interpretative and Additional
Provisions
The provisions of Article 5 of this Agreement shall become effective as of the
date hereof and shall continue in full force and effect until terminated as
hereinafter provided. The provisions of Article 5 of this Agreement may be
amended at any time by agreement of the Collateral Agent, the Purchaser and the
Custodian and may be terminated by either the Collateral Agent or the Custodian
by giving written notice to the other parties, such termination to take effect
no sooner than thirty (30) days after the date of such notice in the case of a
termination by the Collateral Agent (which 30 day period may be shorter as set
forth in the notice of termination in the case of a Termination Event) or ninety
(90) days after the date of such notice in the case of a termination by the
Custodian; provided so long as AmeriCredit US is Custodian, the Custodian shall
not resign from the obligations and duties imposed on it by this Agreement,
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 it and the Collateral Agent does not elect to waive the
obligations of the Custodian to perform the duties which render it legally
unable to act or to delegate those duties to another Person; provided, further,
that any such determination permitting the resignation of the Custodian shall be
evidenced by an Opinion of Counsel to such effect delivered to the Collateral
Agent that is acceptable to the Collateral Agent. So long as AmeriCredit US is
serving as Custodian, any termination of AmeriCredit Canada as Servicer under
this Agreement shall terminate AmeriCredit US as Custodian under this Agreement.
Immediately after receipt of notice of termination of this Agreement, the
Custodian shall deliver the Receivable Files to the Collateral Agent on behalf
of the Secured Parties, at such place or places as the Collateral Agent may
designate, and the Collateral Agent, or its agent, as the case may be, shall act
as custodian for such Records on behalf of the Secured Parties until such times
as a successor custodian has been appointed by the Collateral Agent. (For the
avoidance of doubt, during any such period, the Collateral Agent shall be acting
in its capacity as Collateral Agent, including the standard of care and
liability in such capacity, and not as a successor "Custodian" hereunder.) If,
within forty-eight (48) hours after the termination of this Agreement, the
Custodian has not delivered the Receivable Files in accordance with the
preceding sentence, the Collateral Agent may enter the premises of the Custodian
and remove the Receivable Files from such premises. In connection with the
administration of this Agreement, the parties may agree from time to time upon
the interpretation of the provisions of this Agreement as may in their joint
opinion be consistent with the general tenor and purposes of this Agreement, any
such interpretation to be signed by all parties and annexed hereto.
5.8 Representations, Warranties and Covenants of Custodian
(a) The Custodian hereby represents and warrants to, and covenants with,
the Collateral Agent that as of the date hereof and as of each
Receivable Purchase Date:
(i) The Custodian is duly organized, validly existing and in good
standing under the laws of the state of its incorporation;
(ii) The Custodian has the full power and authority to hold each
Receivable File on behalf of the Collateral Agent, and to
execute, deliver and perform, and to enter into and consummate
all transactions contemplated by this
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Agreement, has duly authorized the execution, delivery and
performance of this Agreement, has duly executed and delivered
this Agreement, and this Agreement constitutes a legal, valid
and binding obligation of the Custodian, enforceable against it
in accordance with its terms, except as enforcement of such
terms may be limited by bankruptcy, insolvency or similar laws
affecting the enforcement of creditors' rights generally and by
the availability of equitable remedies;
(iii) The consummation of the transactions contemplated by this
Agreement and the Transaction Documents to which the Custodian
is a party, and the fulfilment of the terms of this Agreement
and the Transaction Documents to which the Custodian 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 the Custodian, or any indenture, agreement,
mortgage, deed of trust or other instrument to which the
Custodian 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 Custodian of any court or of any federal or
state regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over the
Custodian or any of its properties and do not require any action
by or require the consent of or the filing of any notice with
any Governmental Authority or other Person;
(iv) There is no litigation pending or, to the Custodian's knowledge,
threatened, which if determined adversely to the Custodian,
would adversely affect the execution, delivery or enforceability
of this Agreement, or any of the duties or obligations of the
Custodian thereunder, or which would have a material adverse
effect on the financial condition of the Custodian;
(v) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution,
delivery and performance by the Custodian of or compliance by
the Custodian with this Agreement or the consummation of the
transactions contemplated hereby or thereby;
(vi) Upon written request of the Collateral Agent, the Custodian
shall take such steps as requested by the Collateral Agent to
protect or maintain any interest in any Receivable; and
(vii) The Custodian has not been notified by any party that any third
party claims an interest in the Receivables or is requesting the
Custodian to act as a bailee with respect to the Records, except
such interests that are created under the Master Receivables
Purchase Agreement, any Assignments and the Security Agreement.
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(b) The Custodian covenants and warrants to the Collateral Agent and
each of the Secured Parties that as of the date of each
Custodian's Acknowledgement: (i) it holds no Adverse Claim, by
way of security or otherwise, in any Receivable or Receivable
File; and (ii) the execution of this Agreement and the creation
of the custodial relationship hereunder does not create any
Adverse Claim or any other interest, by way of security or
otherwise, of the Custodian in or to any Receivable or Receivable
File, other than the Custodian's rights as custodian hereunder.
5.9 Interim and Temporary Custodian Agreements
Notwithstanding any other provision contained in this Agreement, the rights and
obligations of the Custodian under this Agreement shall be suspended until the
Interim Custodian Agreement and the Temporary Custodian Agreement are terminated
in accordance with their terms and the terms of the Master Receivables Purchase
Agreement; provided that this Section 5.9 shall only apply if such agreements
are executed prior to the satisfaction of the Registration Conditions.
ARTICLE 6
MISCELLANEOUS
6.1 Waivers; Amendments
(a) No failure or delay on the part of the Collateral Agent in
exercising any power, right or remedy under this Agreement shall
operate as a waiver thereof, nor shall any single or partial
exercise of any such power, right or remedy preclude any other
further exercise thereof or the exercise of any other power,
right or remedy. The rights and remedies herein provided shall be
cumulative and nonexclusive of any rights or remedies provided by
law.
(b) Subject to Section 5.7 hereof, the following steps may only be
taken by or with the written consent of the Collateral Agent and
the Lender:
(i) an amendment to, or waiver under, this Agreement or any
other Transaction Document;
(ii) the waiver of any Termination Event or Servicer Termination
Event; and
(iii) replacing AmeriCredit Canada as Servicer and AmeriCredit US
as Custodian after the occurrence of a Servicer Termination
Event.
6.2 Notices
Except as provided below, all communications and notices provided for hereunder
shall be in writing (including telecopy or electronic facsimile transmission or
similar writing) and shall be given to the other party at its address or
telecopy number set forth below or at such other address or telecopy number as
such party may hereafter specify for the purposes of notice to such party. Each
such notice or other communication shall be effective (i) if given by telecopy,
when such telecopy is transmitted to the telecopy number specified in this
Section 6.2 and confirmation is received, (ii) if given by mail, three (3)
Business Days following such posting, if postage prepaid, or if sent via U.S.
certified or registered mail, (iii) if given by overnight courier, one (1)
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Business Day after deposit thereof with a national overnight courier service, or
(iv) if given by any other means, when received at the address specified in this
Section 6.2.
If to the Collateral Agent:
Congress Financial Corporation (Canada)
000 Xxxxxxxx Xxxxxx Xxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx
X0X 0X0
Attention: Enza Augusta
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to:
Wachovia Securities
Asset-Backed Finance - Investment Management
000 X. Xxxxxxx Xx.
Xxxxxxxxx, XX 00000-0000
Attention: Xxx XxxXxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to the Purchaser:
AmeriCredit Canada Funding Trust I
c/o AmeriCredit Financial Services of Canada Ltd., as Administrator
1 Xxxxxx Xxxxx Parkway, Suite 1420
Xxxxxxxxxxx, Xxxxxxx X0X 0X0
Attention: Treasurer
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to:
CIBC Mellon Trust Company, as Trustee
000 Xxx Xxxxxx
X.X. Xxx 0
Xxxxxxx, Xxxxxxx
X0X 0X0
Attention: Manager, Corporate Trust Services
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Telecopy: (000) 000-0000
If to AmeriCredit Canada:
AmeriCredit Financial Services of Canada Ltd.
0 Xxxxxx Xxxxx Xxxxxxx
Xxxxx 0000
Xxxxxxxxxxx, Xxxxxxx
X0X 0X0
Attention: Treasurer
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to:
AmeriCredit Financial Services of Canada Ltd.
000 Xxxxxx Xxxxxx
Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000
Attention: Treasurer
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to the Custodian:
AmeriCredit Financial Services, Inc.
000 Xxxxxx Xxxxxx
Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
6.3 Governing Law; Submission to Jurisdiction
(a) This Agreement shall be governed by, and construed in accordance
with, the law of the Province of Ontario (without giving effect
to the conflict of laws principles thereof).
(b) Any legal action or proceeding with respect to this agreement may
be brought in the courts of the Province of Ontario and by
execution and delivery of this Agreement, each of the Purchaser,
the Collateral Agent, AmeriCredit US, the Seller, the Servicer
and the Administrator consents, for itself and in respect of its
property, to the non-exclusive jurisdiction of those courts. Each
of the Purchaser,
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the Collateral Agent, AmeriCredit US, the Seller, the Servicer
and the Administrator irrevocably waives, to the maximum
extent permitted by law, any objection, including any
objection to the laying of venue or based on the grounds of
forum non convenience, which it may now or hereafter have to
the bringing of any action or proceeding in such jurisdiction
in respect of this Agreement or any document related hereto.
The Purchaser, the Collateral Agent, AmeriCredit US, the
Seller, the Servicer and the Administrator each waive personal
service of any claim, notice of motion or application,
summons, complaint or other process, which may be made by any
other means permitted by Ontario law.
6.4 Counterparts
This Agreement may be executed in any number of counterparts and by different
parties hereto in separate counterparts, each of which when so executed shall be
deemed to be an original and all of which when taken together shall constitute
one and the same Agreement.
6.5 Successors and Assigns
(a) This Agreement shall be binding on, and inure to the benefit
of the Purchaser and AmeriCredit US, AmeriCredit Canada, and
their respective successors and assigns; provided, however,
that none of AmeriCredit US, the Seller, the Servicer,
AmeriCredit Canada, or the Purchaser may assign any of its
rights or delegate any of its duties hereunder or under the
Master Receivables Purchase Agreement or under any of the
other Transaction Documents to which it is a party without the
prior written consent of the Collateral Agent except as may be
otherwise expressly provided in the Master Receivables
Purchase Agreement or the other Transaction Documents.
(b) The Collateral Agent may not assign its rights and obligations
under or in this Agreement or the other Transaction Documents
to any Person other than an Eligible Institution without the
prior written consent of the Purchaser, AmeriCredit US, the
Seller, the Servicer and AmeriCredit Canada provided, however
that after the occurrence of a Termination Event, the assignee
may be any Person and no such consent shall be required.
6.6 Confidentiality Agreement
(a) Each of the Purchaser, AmeriCredit US and AmeriCredit Canada
hereby agrees that it will not disclose the contents of this
Agreement or any other proprietary or confidential information
of the Collateral Agent to any other Person except (i) its
auditors and attorneys, employees or financial advisors (other
than any commercial bank which is not an Affiliate of the
Lender) and any nationally recognized rating agency, provided
such auditors, attorneys, employees, financial advisors or
rating agencies are informed of the highly confidential nature
of such information or (ii) as otherwise required (x) by
applicable law, (y) under any applicable securities
legislation, in connection with an offering of securities
issued by the Purchaser or an Affiliate thereof, or (z) by
order of a court of competent jurisdiction.
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(b) The Collateral Agent hereby agrees that it will not disclose
the contents of this Agreement or any other proprietary or
confidential information of the Purchaser, AmeriCredit US or
AmeriCredit Canada to any other Person except (i) its auditors
and attorneys, employees or financial advisors (other than any
commercial bank which is not an Affiliate of the Lender) and
any nationally recognized rating agency, provided such
auditors, attorneys, employees, financial advisors or rating
agencies are informed of the highly confidential nature of
such information or (ii) as otherwise required (x) by
applicable law or (y) by order of a court of competent
jurisdiction.
6.7 Headings
Section headings used in this Agreement are for convenience of reference only
and shall not affect the construction or interpretation of this Agreement.
6.8 No Recourse
It is expressly understood and agreed by the parties hereto that this Agreement
will be conclusively deemed to have been executed by the Trustee only in its
capacity as trustee of the Purchaser and that (i) any and all of the
representations, warranties, undertakings, covenants, indemnities, agreements
and other obligations made on the part of the Trustee herein are made and
intended not as personal representations, warranties, undertakings, covenants,
indemnities, agreements and other obligations by the Trustee or for the purpose
or with the intention of binding the Trustee in its personal capacity, but are
made and intended for the purpose of binding only the property and assets of the
Purchaser or a specific portion thereof; (ii) no property or assets of the
Trustee, whether owned beneficially by it in its personal capacity or otherwise
(other than the Trust Fund, as such term is defined in the Trust Declaration),
will be subject to levy, execution or other enforcement procedures with regard
to any of the representations, warranties, undertakings, covenants, indemnities,
agreements and other obligations of the Purchaser or the Trustee hereunder; and
(iii) no recourse may be had or taken, directly or indirectly against the
Trustee in its personal capacity, any beneficiary of the Purchaser or any
incorporator, Affiliate, shareholder, director, officer, representative,
employee or agent of the Trustee or any predecessor or successor of the Trustee
with regard to the representations, warranties, undertakings, covenants,
indemnities, agreements and other obligations of the Purchaser or the Trustee
hereunder.
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IN WITNESS OF WHICH each of the parties hereto has caused this
Agreement to be executed in its name and on its behalf by a duly authorized
officer on the day and year first above written.
AMERICREDIT CANADA FUNDING
TRUST I, by its Trustee,
CIBC MELLON TRUST COMPANY,
by AMERICREDIT FINANCIAL
SERVICES OF CANADA LTD. as
Administrator
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
AMERICREDIT FINANCIAL
SERVICES OF CANADA LTD.,
as Servicer
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
AMERICREDIT FINANCIAL
SERVICES, INC., as
Custodian
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
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CONGRESS FINANCIAL
CORPORATION (CANADA), as
Collateral Agent
By: __________________________
Name:
Title:
By: __________________________
Name:
Title:
SCHEDULE A
FORM OF CUSTODIAN'S ACKNOWLEDGEMENT
AmeriCredit Financial Services, Inc. (the "Custodian"), acting as Custodian
under a Servicing and Custodian Agreement, dated as of April 30, 2002 (the
"Servicing and Custodian Agreement"), between the Custodian, AmeriCredit
Financial Services of Canada Ltd., as Servicer, AmeriCredit Canada Funding Trust
I, as Purchaser and Congress Financial Corporation (Canada), as Collateral
Agent, pursuant to which the Custodian holds on behalf of the Secured Parties
certain Receivable Files (as defined in the Servicing and Custodian Agreement),
hereby acknowledges receipt of the Receivable File for each Receivable listed in
the Schedules of Receivables attached as Exhibits to the Assignments to the
Master Receivables Purchase Agreement, dated [insert date of the relevant
Assignment].
IN WITNESS WHEREOF, AmeriCredit Financial Services, Inc., has caused this
acknowledgement to be executed by its duly authorized officer as of this [ ] day
of [ ], [_____].
AMERICREDIT FINANCIAL SERVICES,
INC., as Custodian
By:_____________________________
Name:
Title:
By:_____________________________
Name:
Title:
EXHIBIT A
FORM OF SERVICER'S CERTIFICATE
EXHIBIT B
FORM OF SERVICER GUARANTEE
