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SALE AND SERVICING AGREEMENT
among
AMERICREDIT MANHATTAN TRUST,
Borrower,
AMERICREDIT FINANCIAL SERVICES, INC.,
Seller and Servicer,
AMERICREDIT FUNDING CORP. V,
Seller,
THE CHASE MANHATTAN BANK,
Backup Servicer,
and
THE CHASE MANHATTAN BANK,
Administrative Agent
Dated as of September 14, 2000
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TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS.................................................................................2
Section 1.1 Definitions..........................................................................2
Section 1.2 Other Definitional Provisions........................................................2
ARTICLE II SALE OF RECEIVABLES AND ASSET BACKED SECURITIES............................................2
Section 2.1 Sale of Receivables..................................................................2
Section 2.2 The Conveyed Assets; Nature of Transaction...........................................3
Section 2.3 Further Encumbrance of Conveyed Assets; Additional Covenants of the Sellers..........4
ARTICLE III CONDITIONS PRECEDENT......................................................................6
Section 3.1 Conditions Precedent to the Effectiveness of this Agreement..........................6
Section 3.2 Conditions Precedent to each Receivables Sale........................................6
Section 3.3 Conditions Precedent to each Asset Backed Securities Sale...........................10
ARTICLE IV THE RECEIVABLES...........................................................................11
Section 4.1 Representations and Warranties of Sellers...........................................11
Section 4.2 Repurchase Upon Breach..............................................................11
Section 4.3 Custody of Receivables Files........................................................12
Section 4.4 Duties of Servicer With Respect to Receivable Files.................................15
Section 4.5 Instructions; Authority to Act......................................................16
ARTICLE IV-A THE ASSET BACKED SECURITIES............................................................16
ARTICLE V ADMINISTRATION AND SERVICING OF RECEIVABLES................................................17
Section 5.1 Appointment; Standard of Care; Duties of the Servicer...............................17
Section 5.2 Collection of Receivable Payments; Modifications of Receivables; Lockbox Agreement..19
Section 5.3 Realization Upon Receivables........................................................21
Section 5.4 Insurance...........................................................................22
Section 5.5 Maintenance of Security Interests in Financed Vehicles..............................23
Section 5.6 Covenants, Representations, and Warranties of Servicer..............................26
Section 5.7 Purchase of Receivables Upon Breach of Covenant.....................................28
Section 5.8 Total Servicing Fee; Payment of Certain Expenses by Servicer........................28
Section 5.9 Certain Servicer's Certificates.....................................................28
Section 5.10 Annual Statement as to Compliance, Notice of Servicer Termination Event.............29
Section 5.11 Annual Independent Accountants' Report; Quarterly Reviews...........................29
Section 5.12 Access to Certain Documentation and Information Regarding the Receivables...........30
Section 5.13 Monthly Tape........................................................................31
Section 5.14 Retention and Termination of Servicer...............................................31
Section 5.15 Fidelity Bond and Errors and Omissions Policy.......................................32
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ARTICLE VI COLLECTION ACCOUNT; ABS ACCOUNT; DISTRIBUTIONS; STATEMENTS TO SECURED PARTIES.............32
Section 6.1 Establishment of Collection Account and ABS Account.................................32
Section 6.2 Collection Account Reserve..........................................................35
Section 6.3 Certain Reimbursements to the Servicer..............................................36
Section 6.4 Application of Collections..........................................................36
Section 6.5 Servicer Advances...................................................................36
Section 6.6 Application of Funds from the Collection Account Reserve; Special Withdrawals from
the Collection Account............................................................37
Section 6.7 Additional Deposits.................................................................37
Section 6.8 Distributions.......................................................................37
ARTICLE VII THE SELLERS..............................................................................41
Section 7.1 Representations and Warranties of Sellers...........................................41
Section 7.2 Existence...........................................................................43
Section 7.3 Liability of Sellers; Indemnities...................................................43
Section 7.4 Merger or Consolidation of, or Assumption of the Obligations of, Sellers............44
Section 7.5 Limitation on Liability of Sellers and Others.......................................45
ARTICLE VIII THE SERVICER............................................................................45
Section 8.1 Representations and Warranties of AFS, in its capacity as Servicer..................45
Section 8.2 Liability of Servicer; Indemnities..................................................47
Section 8.3 Merger or Consolidation of, or Assumption of the obligations of the Servicer or
Backup Servicer...................................................................48
Section 8.4 Limitation on Liability of the Servicer and the Backup Servicer.....................49
Section 8.5 Delegation of Duties................................................................50
Section 8.6 Servicer and Backup Servicer Not to Resign..........................................50
ARTICLE IX DEFAULT...................................................................................51
Section 9.1 Servicer Termination Event..........................................................51
Section 9.2 Consequences of a Servicer Termination Event........................................52
Section 9.3 Appointment of Successor............................................................53
Section 9.4 Notification to Secured Parties.....................................................54
Section 9.5 Waiver of Past Defaults.............................................................54
ARTICLE X ADMINISTRATIVE DUTIES OF THE SERVICER......................................................54
Section 10.1 Administrative Duties...............................................................54
Section 10.2 Records.............................................................................55
Section 10.3 Additional Information to be Furnished to the Borrower..............................55
ARTICLE XI MISCELLANEOUS PROVISIONS..................................................................55
Section 11.1 Amendment...........................................................................55
Section 11.2 Protection of Title.................................................................56
Section 11.3 Notices.............................................................................57
Section 11.4 Assignment..........................................................................58
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Section 11.5 Limitations on Rights of Others.....................................................58
Section 11.6 Severability........................................................................58
Section 11.7 Separate Counterparts...............................................................58
Section 11.8 Headings............................................................................58
Section 11.9 Assignment to Administrative Agent..................................................59
Section 11.10 Chase Roles; Limitation of Liability................................................59
Section 11.11 Non-petition Covenants..............................................................59
Section 11.12 Independence of the Servicer........................................................60
Section 11.13 No Joint Venture....................................................................60
Section 11.14 Consents to Jurisdiction............................................................60
Section 11.15 Trial by Jury Waived................................................................61
Section 11.16 Governing Law.......................................................................61
Section 11.17 No Recourse.........................................................................61
ANNEXES
Annex A - Defined Terms
SCHEDULES
Schedule A - Intentionally Omitted
Schedule B - Schedule of Representations Relating to Receivables
Schedule C - Schedule of Representations Relating to Asset Backed Securities
Schedule 3.1 - Conditions to Effectiveness of Agreement
EXHIBITS
Exhibit A-1 - Form of Receivables Sale Agreement
Exhibit A-2 - Form of ABS Sale Agreement
Exhibit B-1 - Form of Servicer's Determination Date Certificate
Exhibit B-2 - Form of Servicer's VFN Prepayment Date Certificate
Exhibit C-1 - Form of Receivables Sale Notice
Exhibit C-2 - Form of ABS Sale Notice
Exhibit D-1 - Form of Servicer's Receivables Sale Date Certificate
Exhibit D-2 - Form of Servicer's ABS Sale Date Certificate
Exhibit E - Form of Servicer's Acknowledgment
Exhibit F - Form of Data Integrity Review
Exhibit G - Form of Data Integrity Review
Exhibit H - Form of Schedule of ABS Information
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SALE AND SERVICING AGREEMENT, dated as of September 14, 2000
(this "AGREEMENT"), among AmeriCredit Manhattan Trust, a Delaware business
trust (the "BORROWER"), AMERICREDIT FINANCIAL SERVICES, INC., a Delaware
corporation ("AFS"), as a seller and as servicer (in such capacities, the
"PRIMARY SELLER" and the "SERVICER", respectively), AmeriCredit Funding Corp.
V, a Delaware corporation, as a seller (the "SECONDARY SELLER," and, together
with the Primary Seller, the "SELLERS," and each, a "SELLER"), and THE CHASE
MANHATTAN BANK, a New York banking corporation ("CHASE"), as backup servicer
and as administrative agent (in such capacities, the "BACKUP SERVICER" and the
"ADMINISTRATIVE AGENT," respectively).
WHEREAS, AFS is engaged in the business of originating and
acquiring motor vehicle retail installment sale contracts from motor vehicle
dealers and third party lenders and of servicing such contracts and the related
receivables; and
WHEREAS, the Borrower desires to enter into an agreement with
the Sellers, pursuant to which the Borrower may, at its option, from time to
time purchase from the Sellers contracts and the related receivables and
certain asset-backed securities held by the Sellers; and
WHEREAS, the Borrower desires to retain AFS as servicer of
such purchased contracts and receivables; and
WHEREAS, AFS is willing to sell such contracts and such
securities and is willing to service all such contracts and receivables and to
hold the Receivable Files on behalf of the Administrative Agent;
WHEREAS, the Borrower desires to obtain financing for its
purchase of the contracts and receivables and the securities;
WHEREAS, (i) any Seller and the Borrower will from time to
time, pursuant to this Agreement, enter into a Receivables Sale Agreement,
whereby the Sellers will sell, transfer and assign to the Borrower on the
applicable Receivables Sale Date all of their rights, title and interests in
and to additional Receivables and (ii) the Primary Seller and the Borrower will
from time to time, pursuant to this Agreement, enter into ABS Sale Agreements,
whereby the Primary Seller will sell, transfer and assign to the Borrower on
the applicable ABS Sale Date all of its rights, title and interest in and to
additional Asset Backed Securities; and
WHEREAS, the Borrower, the Administrative Agent, the
Securities Intermediary and several Secured Parties have entered into a
Security and Funding Agreement, dated as of September 14, 2000, (as
supplemented or otherwise modified and in effect from time to time being
referred to hereinafter as the "SECURITY AND FUNDING AGREEMENT"), pursuant to
which, among other things, the Secured Parties party thereto from time to time
will provide funding to the Borrower and the Borrower will pledge to the
Administrative Agent for the benefit of the Secured Parties all of its right,
title and interest in the Collateral, including, but not limited to, the
Receivables, the Other Conveyed Property and the Asset Backed Securities;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 DEFINITIONS. As used herein, "Agreement" shall
mean this Sale and Servicing Agreement, as it may from time to time be amended,
supplemented or otherwise modified in accordance with the terms hereof. Unless
the context otherwise requires, other capitalized terms used herein and not
otherwise defined shall have the meanings assigned to such terms in Annex A
hereto, which Annex A is incorporated by reference herein.
Section 1.2 OTHER DEFINITIONAL PROVISIONS.
(a) All terms defined in Annex A shall have such defined
meanings when used in any instrument governed hereby and in any certificate or
other document made or delivered pursuant hereto unless otherwise defined
therein.
(b) The principles of construction set forth in Annex A shall
apply to this Agreement.
ARTICLE II
SALE OF RECEIVABLES AND ASSET BACKED SECURITIES
Section 2.1 SALE OF RECEIVABLES. Subject to the satisfaction
of the conditions precedent set forth in Article III hereof, in consideration
of the Borrower's delivery to or upon the order of the relevant Seller of the
Receivables Purchase Price therefor, the relevant Seller, on each Receivables
Sale Date, in each case pursuant to a Receivables Sale Agreement, shall sell,
transfer, assign, pledge, set over and otherwise convey to the Borrower,
without recourse (subject to the obligations set forth herein), all right,
title and interest of the relevant Seller in, to and under:
(a) the Receivables sold on each such date, as listed in
Schedule A to the relevant Receivables Sale Agreement, and all moneys received
thereon after the Relevant Cutoff Date;
(b) all security interests in the Financed Vehicles granted
by Obligors pursuant to the Receivables sold and any other interest of the
relevant Seller in such Financed Vehicles;
(c) all proceeds and all rights to receive proceeds with
respect to the Receivables sold from claims on any physical damage, credit life
or disability insurance policies covering Financed Vehicles or Obligors and any
proceeds from the liquidation of such Receivables;
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(d) all rights of the relevant Seller against Dealers
pursuant to Dealer Agreements and/or Dealer Assignments;
(e) all rights of the relevant Seller against Third-Party
Lenders pursuant to Third-Party Loan Purchase Agreements and/or Third-Party
Lender Assignments.
(f) all rights under any Service Contracts on the related
Financed Vehicles;
(g) the related Receivables Files; and
(h) all proceeds of any and all of the foregoing.
Section 2.1A SALE OF ASSET BACKED SECURITIES. Subject to the
satisfaction of the conditions precedent set forth in Article III hereof, in
consideration of the Borrower's delivery to or upon the order of the Primary
Seller of the ABS Purchase Price therefor, the Primary Seller, on each ABS Sale
Date, in each case pursuant to an ABS Sale Agreement, shall sell, transfer,
assign, pledge, set over and otherwise convey to the Borrower, without
recourse, all right, title and interest of the Primary Seller in, to and under
the Asset Backed Securities sold on each such date, as listed in Schedule A to
the relevant ABS Sale Agreement, and all distributions thereon and the security
granted, and the rights and benefits of the holder thereof, under the related
ABS Documents.
Section 2.2 THE CONVEYED ASSETS; NATURE OF TRANSACTION.
(a) Any and all of the property described in the foregoing
Section 2.1 is referred to as the "Conveyed Property." Any and all of the
property described in the foregoing Section 2.1A is referred to as the
"Conveyed Securities." The Conveyed Property and the Conveyed Securities are
collectively referred to as the "Conveyed Assets."
(b) It is the intention of each of the Sellers that each sale
and assignment contemplated by this Agreement shall constitute a sale of the
Receivables, the Asset Backed Securities and other property from the Sellers to
the Borrower and the beneficial interest in and title to the Receivables, the
Asset Backed Securities and the Other Conveyed Property shall not be part of
any Seller's estate in the event of the filing of a bankruptcy petition by or
against such Seller under any bankruptcy law. In the event that,
notwithstanding the intent of each of the Sellers, the sale and assignment
contemplated hereby is held not to be a sale, this Agreement and each
Receivables Sale Agreement and each ABS Sale Agreement shall constitute a
security agreement, and each of the Sellers hereby grants to the Borrower a
security interest in all of the Conveyed Assets, whether now owned or hereafter
acquired and wherever located. At the request of the Borrower or the
Administrative Agent, the Sellers, at their expense, will take all action
necessary or advisable to perfect and protect such security interest, free and
clear of all Liens (other than the Lien of the Administrative Agent).
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Section 2.3 FURTHER ENCUMBRANCE OF CONVEYED ASSETS;
ADDITIONAL COVENANTS OF THE SELLERS.
(a) Immediately upon the conveyance to the Borrower by a
Seller of any item of the Conveyed Assets, all right, title and interest of
such Seller in and to such item of Conveyed Assets shall terminate, and all
such right, title and interest shall vest in the Borrower.
(b) Immediately upon the vesting of the Conveyed Assets in
the Borrower, the Borrower shall have the sole right to transfer, sell, pledge
or otherwise encumber, such Conveyed Assets. The Borrower shall grant a
security interest in the Conveyed Assets to secure the repayment of the Secured
Obligations pursuant to the Security and Funding Agreement.
(c) Without limiting the foregoing, each of the Sellers
covenants as follows with respect to itself and the relevant property:
(i) LIENS IN FORCE. The Financed Vehicle securing
each Receivable shall not be released by such Seller in whole or in
part from the security interest granted under the Receivable, except
upon payment in full of the Receivable or as otherwise contemplated
herein and such Seller shall not take or permit any action inconsistent
with the foregoing;
(ii) NO IMPAIRMENT. Neither Seller shall do
anything to impair the rights of the Borrower or the Secured Parties in
the Receivables, the Dealer Agreements, the Dealer Assignments, the
Third-Party Loan Purchase Agreements, the Third-Party Lender
Assignments, the Insurance Policies or any other property or interest
comprising the Other Conveyed Property or the Asset Backed Securities;
(iii) NO AMENDMENT. Neither Seller shall take or
permit any action to extend or otherwise amend the terms of any
Receivable or Asset Backed Security or amend or waive, or give any
consent or vote under any related Contract or ABS Documents, except in
accordance with Section 5.2 hereof; and
(iv) RESTRICTIONS ON LIENS. Neither Seller shall:
(i) create or incur or agree to create or incur, or consent to cause
(upon the happening of a contingency or otherwise) the creation,
incurrence or existence of any Lien or restriction on transferability
of any Conveyed Assets, except for the Lien in favor of the
Administrative Agent for the benefit of the Secured Parties, and the
restrictions on transferability imposed by this Agreement or (ii) sign
or file under the Uniform Commercial Code of any jurisdiction any
financing statement or sign any security agreement authorizing any
secured party thereunder to file such financing statement, with respect
to any Conveyed Assets, except in each case any such instrument solely
securing the rights and preserving the Lien of the Administrative
Agent, for the benefit of the Secured Parties. Neither Seller will
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take any action to cause any Receivable to be evidenced by an
instrument (as such term is defined in the Relevant UCC).
(d) The Sellers will furnish or cause to be furnished to the
Administrative Agent (and the Administrative Agent promptly after receipt
thereof shall forward to each of the Funding Agents):
(i) within 90 days after the end of each fiscal
year of AmeriCredit Corp., the audited consolidated balance sheet and
related statements of operations, shareholders' equity and cash flows
of AmeriCredit Corp. as of the end of and for such year, setting forth
in each case in comparative form the figures for the previous fiscal
year, all reported on by PricewaterhouseCoopers, LLC or other
independent public accountants of recognized national standing (without
a "going concern" or like qualification or exception and without any
qualification or exception as to the scope of such audit) to the effect
that such consolidated financial statements present fairly in all
material respects the financial condition and results of operations of
AmeriCredit Corp. and its consolidated subsidiaries on a consolidated
basis in accordance with GAAP;
(ii) within 45 days after the end of each of the
first three fiscal quarters of each fiscal year of AmeriCredit Corp.,
the consolidated balance sheet and related statements of operations of
AmeriCredit Corp. as of the end of and for such fiscal quarter and the
then elapsed portion of the fiscal year, and statements of cash flows
for AmeriCredit Corp. for the then elapsed portion of the fiscal year,
setting forth in each case in comparative form the figures for the
corresponding period or periods of (or, in the case of the balance
sheet, as of the end of) the previous fiscal year, all certified by one
of the financial officers of AmeriCredit Corp. as presenting fairly in
all material respects the financial condition and results of its
operations and its consolidated subsidiaries on a consolidated basis in
accordance with GAAP consistently applied, subject to normal year-end
audit adjustments and the absence of footnotes;
(iii) promptly after the same become publicly
available, copies of all periodic and other reports (excluding the
monthly 8-K filed for the securitization trusts for the securitizations
of AmeriCredit Corp. and/or its subsidiaries), proxy statements and
other materials filed by AmeriCredit Corp. or any subsidiary with the
Securities and Exchange Commission, or any governmental authority
succeeding to any or all of the functions of said Commission, or with
any national securities exchange, or distributed by AmeriCredit Corp.
to its shareholders generally, as the case may be; and
(iv) promptly following any request therefor, such
other information regarding the operations, business affairs and
financial condition of AmeriCredit Corp. or any subsidiary, or
compliance with the terms of this Agreement, as the Administrative
Agent may reasonably request.
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(e) Registration of Asset Backed Securities. The Primary
Seller when conveying Asset Backed Securities to the Borrower shall cause such
conveyed Asset Backed Securities to be credited to the ABS Account and, if in
physical form, indorsed to the Securities Intermediary or indorsed in blank and
delivered to the Securities Intermediary. The Primary Seller shall notify the
Borrower, the Administrative Agent, the Funding Agents and all Lending Groups
of any downgrade of any such Asset Backed Securities or if any such securities
are placed on credit watch.
(f) Monthly Reports Regarding Asset Backed Securities. The
Primary Seller shall cause any servicer certificate regarding the Asset Backed
Securities to be delivered to the Administrative Agent and all monthly reports
regarding payments on Asset Backed Securities to be delivered to the Funding
Agents.
ARTICLE III
CONDITIONS PRECEDENT
Section 3.1 CONDITIONS PRECEDENT TO THE EFFECTIVENESS OF
THIS AGREEMENT. The effectiveness of this Agreement is subject to the following
conditions precedent (PROVIDED, HOWEVER, that payment by the Borrower of the
amounts referred to in clause (ii) below may be made out of the proceeds of the
Initial Funding):
(i) the Borrower and the Administrative Agent shall
have received, and found satisfactory in form and substance, each of
the Basic Agreements, (other than the Hedge Contracts, the Receivables
Sale Agreements and the ABS Sale Agreements which will be delivered in
connection with the sale of Receivables or Asset Backed Securities, as
applicable), and each of the other documents, certificates and opinions
set forth in Schedule 3.1; and
(ii) to the extent necessary, an amount in
immediately available funds shall have been received by the
Administrative Agent from the Borrower for deposit to the Collection
Account to cause the total amount then on deposit therein to be equal
to the Collection Account Reserve Minimum.
Section 3.1 CONDITIONS PRECEDENT TO EACH RECEIVABLES SALE.
The initial sale and each subsequent sale of Receivables shall be subject to
the further conditions precedent that:
(i) the relevant Seller shall have provided the
Borrower and the Administrative Agent with a Receivables Sale Notice
not later than one (1) Business Day prior to the relevant Receivables
Sale Date (or in the case of same day Funding the same Business Day)
and shall have provided any information reasonably requested by the
Borrower and/or the Administrative Agent and the Funding Agents with
respect to the Receivables to be sold to the Borrower on such
Receivables Sale Date;
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(ii) the relevant Seller shall have caused the
Servicer to provide the Borrower and the Administrative Agent with a
Servicer's Receivables Sale Date Certificate not later than 12:30 P.M.
(New York time) one (1) Business Day prior to the Receivables Sale Date
(or in the case of same day Funding, by 11:00 A.M. on the same Business
Day as such same day Funding), which Certificate shall set forth the
Pool Balance as of the Reference Date, the Principal Balance of the
Receivables to be sold, and such additional information as the
Borrower, the Administrative Agent and/or the Funding Agents shall
specify;
(iii) the relevant Seller and the Borrower shall
have executed and delivered to the Administrative Agent a duly executed
Receivables Sale Agreement which shall include a Schedule A listing the
Receivables to be sold on such Receivables Sale Date (and in the case
of same day Funding such schedule to be delivered on the Business Day
of such same day Funding);
(iv) the relevant Seller shall, to the extent
required by Section 5.2, have deposited in the Collection Account all
collections received after the Relevant Cutoff Date with respect to the
Receivables to be sold on such Receivables Sale Date;
(v) as of each Receivables Sale Date, (A) the
relevant Seller shall not be insolvent or become insolvent as a result
of the sale of Receivables on such Receivables Sale Date, (B) such
Seller shall not intend to incur or believe that it shall incur debts
that would be beyond its ability to pay as such debts mature, (C) such
sale shall not have been made with actual intent to hinder, delay or
defraud any Person and (D) the assets of the relevant Seller shall not
constitute unreasonably small capital to carry out its business as
conducted;
(vi) the Termination Date shall not have
occurred;
(vii) after giving effect to the sale of
Receivables proposed to be made on any Receivables Sale Date, no Pool
Limitation shall have been exceeded;
(viii) each of the representations and warranties
made by the relevant Seller pursuant to Section 4.1 with respect to
each of the Receivables to be sold on such Receivables Sale Date shall
be true and correct as of such Receivables Sale Date, and such Seller
shall have performed all obligations to be performed by it hereunder on
or prior to such Receivables Sale Date;
(ix) the relevant Seller shall, at its own
expense, no later than the Business Day following the Receivables Sale
Date, indicate in its computer files that the Receivables identified
in the Receivables Sale Agreement have been sold to the Borrower
pursuant to this Agreement;
(x) the relevant Seller shall have taken any
action (including, but not limited to, the filing of appropriate UCC
financing statements) required to maintain the ownership interest of
the Borrower in the Receivables;
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(xi) no selection procedures adverse to the
interests of the Borrower and/or the Secured Parties shall have been
utilized in selecting the Receivables to be sold on such Receivables
Sale Date;
(xii) without limiting any of the foregoing, no
event shall have occurred and remain continuing, nor would result from
such sale of Receivables, that constitutes a Termination Event or a
Potential Termination Event;
(xiii) on each Receivables Sale Date, the Borrower
shall have transferred to the Administrative Agent for deposit in the
Collection Account for allocation to the Collection Account Reserve,
the amount of the Collection Account Reserve Shortfall Amount, if any,
required to be made in connection with such sale (PROVIDED that such
payment may be made by the Borrower out of the proceeds of the Funding
made on such date);
(xiv) the relevant Seller shall have received a
cash payment in the amount of the entire Receivables Purchase Price of
the Receivables sold on such Receivables Sale Date, except to the
extent that such Seller, at its option, elects to make a capital
contribution to the Borrower;
(xv) to the extent that, after giving effect to
the sale of Receivables made on such date there would be one or more
states of the United States in which Financed Vehicles securing more
than 10% of the Pool Balance were titled and as to which states an
Opinion of Counsel had not been given on the Effective Date or on a
prior Receivables Sale Date as to the perfection, priority and
enforceability of the Administrative Agent's security interest, on
behalf of the Secured Parties, in the relevant Financed Vehicle, for
each such state, the relevant Seller shall have caused to be delivered
to the Borrower and the Administrative Agent such an Opinion of
Counsel satisfactory in form and substance to the Borrower and the
Administrative Agent to be given by in-house counsel to the relevant
Seller with respect to such jurisdiction;
(xvi) without limiting the foregoing, the
Administrative Agent shall have received and found satisfactory in form
and substance the Hedge Contracts to be effective as of the related
Receivables Sale Date and each of which shall, among other things, (A)
be, along with any other Hedge Contracts, in an aggregate notional
amount equal to the portion of the Aggregate Net Investment relating to
Receivables (including any Aggregate Net Investment to be made in
connection with such sale of Receivables); (B) shall have a strike rate
based on one month LIBOR so as not to create an Excess Spread
Deficiency and for which the entire consideration is payable by the
Borrower thereunder on the related Receivables Sale Date; (C) have an
amortization schedule and margin above LIBOR, if any, satisfactory to
the Administrative Agent and the Rating Agencies; and (D) provide for
any payments by the Hedge Counterparty thereunder to be payable on the
last Business Day of each calendar month directly into the Collection
Account;
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(xvii) the Borrower shall have delivered to the
Administrative Agent an Officer's Certificate confirming the
satisfaction of each condition precedent specified in this Section
3.2.;
(xviii) the Servicer, acting as custodian pursuant
to Section 4.3 hereof or any successor custodian acting in such
capacity pursuant to Section 4.3, shall have received the Receivable
File for each Receivable sold on such Receivable Sale Date (except in
the case of same day Funding such Receivable File shall be received on
the Business Day immediately succeeding such Receivable Sale Date);
(xix) the relevant Seller and the Borrower shall
have taken all steps necessary under all applicable law in order to
cause a valid, subsisting and enforceable first priority perfected
security interest to exist in favor of the Borrower in the Financed
Vehicle securing each Receivable being sold (and the proceeds of such
Financed Vehicle) (PROVIDED, HOWEVER, that, prior to (X) the occurrence
of a Servicer Termination Event, a Potential Servicer Termination
Event, a Termination Event or a Potential Termination Event and the
request by the Administrative Agent or, (Y) at any time, the request by
the Required Lending Groups, for the recordation of the Borrower's lien
on such Financed Vehicle's certificate of title, no such recordation
shall be required) and such security interest is and shall be prior to
all other liens upon and security interests in such Financed Vehicle
(and the proceeds thereof) that now exist or may hereafter arise or be
created (except, as to priority, for any tax liens or mechanic's liens
that may arise after the applicable date of sale of such Receivable
hereunder); and
(xx) the relevant Seller and the Borrower shall
have taken all steps necessary under all applicable law in order to
cause to exist in favor of the Administrative Agent, on behalf of the
Secured Parties, a valid, subsisting and enforceable first priority
perfected security interest in the Borrower's first priority perfected
security interest in the Financed Vehicle securing each Receivable
being sold (and the proceeds of such Financed Vehicle) (PROVIDED,
HOWEVER, that, prior to (X) the occurrence of a Servicer Termination
Event, a Potential Servicer Termination Event, a Termination Event or a
Potential Termination Event and the request by the Administrative Agent
or, (Y) at any time, the request by the Required Lending Groups, for
the recordation of the Borrower's and/or the Administrative Agent's
lien on such Financed Vehicle's certificate of title, no such
recordation shall be required), and such security interest is and shall
be prior to all other liens upon and security interests in such
Financed Vehicle that now exist or may hereafter arise or be created.
Section 3.3 CONDITIONS PRECEDENT TO EACH ASSET BACKED
SECURITIES SALE.
(a) The initial sale of Asset Backed Securities shall (i) be
subject to the approval of all of the Funding Agents and all the Lending Groups
and (ii) be subject to the condition precedent to the delivery by the Borrower
of an Opinion of Counsel to the Administrative Agent
9
in form and substance satisfactory to the Administrative Agent and the Funding
Agents regarding Article 8 matters under the UCC with respect to the ABS Account
and the Asset Backed Securities.
(b) The initial sale and each subsequent sale of Asset Backed
Securities shall be subject to the further conditions precedent that:
(i) the Primary Seller shall have provided the
Borrower and the Administrative Agent with an ABS Sale Notice not later
than one (1) Business Day prior to such ABS Sale Date and shall have
provided any information reasonably requested by the Borrower and/or
the Administrative Agent and the Funding Agents with respect to the
Asset Backed Securities to be sold to the Borrower on such ABS Sale
Date;
(ii) the Primary Seller shall have caused the
Servicer to provide the Borrower and the Administrative Agent with a
Servicer's ABS Sale Date Certificate and an ABS Schedule of Information
in the form of Exhibit H not later than 12:30 P.M. (New York time) one
(1) Business Day prior to the ABS Sale Date;
(iii) the Primary Seller and the Borrower shall
have executed and delivered to the Administrative Agent a duly executed
ABS Sale Agreement which shall include a Schedule A listing the Asset
Backed Securities to be sold on such ABS Sale Date;
(iv) the Termination Date shall not have
occurred;
(v) each of the representations and warranties
made by the Primary Seller pursuant to Section 4A.1 with respect to
each of the Asset Backed Securities to be sold on such ABS Sale Date
shall be true and correct as of such ABS Sale Date, and the Primary
Seller shall have performed all of its obligations to be performed by
it hereunder on or prior to such ABS Sale Date;
(vi) the Primary Seller shall have caused the
Asset Backed Securities to be credited to the ABS Account and, if such
Asset Backed Securities are in physical form indorsed to the
Securities Intermediary or indorsed in blank and delivered to the
Securities Intermediary;
(vii) without limiting any of the foregoing, no
event shall have occurred and remain continuing, nor would result from
such sale of such Asset Backed Securities, that constitutes a
Termination Event or a Potential Termination Event;
(viii) on each ABS Sale Date, the Borrower shall
have transferred to the Administrative Agent for deposit in the
Collection Account for allocation to the Collection Account Reserve,
the amount of the Collection Account Reserve Shortfall Amount, if any,
required to be made in connection with such sale (PROVIDED that such
payment may be made by the Borrower out of the proceeds of the Funding
made on such date);
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(ix) the Primary Seller shall have received a cash
payment in the amount of the entire ABS Purchase Price of the Asset
Backed Securities sold on such ABS Sale Date, except to the extent that
the Primary Seller makes a capital contribution into the Borrower;
(x) without limiting the foregoing, the
Administrative Agent shall have received and found satisfactory in form
and substance the Hedge Contracts to be effective as of the related ABS
Sale Date and each of which shall be acceptable to the Funding Agents,
each member in each Lending Group, and the Rating Agencies;
(xi) the Account Control Agreement shall have been
executed; and
(xii) the Borrower shall have delivered to the
Administrative Agent an Officer's Certificate confirming the
satisfaction of each condition precedent specified in this Section 3.3.
ARTICLE IV
THE RECEIVABLES
Section 4.1 REPRESENTATIONS AND WARRANTIES OF SELLERS. Each
of the Sellers makes the representations and warranties, set forth on the
Schedule of Representations attached hereto as Schedule B, as to the
Receivables on which the Borrower is relying in acquiring the Receivables and
upon which the Secured Parties are relying in making any Advance pursuant to
the Security and Funding Agreement. Such representations and warranties speak
as of the execution and delivery of this Agreement and as of each Receivables
Sale Date with respect to the Receivables sold on such date, but shall survive
the sale, transfer and assignment of the Receivables to the Borrower and the
pledge thereof to the Administrative Agent pursuant to the Security and Funding
Agreement.
Section 4.2 REPURCHASE UPON BREACH. Each Seller, the Servicer
or the Borrower, as the case may be, shall inform the other parties to this
Agreement promptly, in writing, (i) upon the discovery of any breach of any
Seller's representations and warranties made pursuant to Section 4.1, and (ii)
of any Receivable for which the related Lien Certificate has not been received
within 150 days following the Receivables Sale Date with respect thereto (for
purposes of this Section 4.2, each of the foregoing referred to as a "breach").
As of the last day of the month in which either Seller, the Servicer or the
Borrower, as the case may be, discovers the breach, or in which the relevant
Seller receives notice of such breach, unless such breach is cured by such
date, the Seller which sold such asset to the Borrower shall repurchase any
Receivable sold by it that is adversely affected and/or in which the interests
of the Borrower or the Secured Parties are adversely affected by any such
breach. In consideration of and simultaneously with the repurchase of the
Receivable, the relevant Seller shall remit, or cause the Servicer to remit, to
the Collection Account the Repurchase Obligation Amount in the manner
11
specified in Section 6.7 and the Borrower shall execute such assignments and
other documents reasonably requested by such Person in order to effect such
repurchase. The sole remedy of the Borrower, the Administrative Agent, or the
Secured Parties with respect to a breach of representations and warranties
pursuant to Section 4.1 and the agreement contained in this Section shall be
the repurchase of Receivables and the applicable Seller indemnity pursuant to
this Section, subject to the conditions contained herein. Neither the
Administrative Agent, the Funding Agents nor the Borrower shall have a duty to
conduct any affirmative investigation as to the occurrence of any conditions
requiring the repurchase of any Receivable pursuant to this Section.
In addition to the foregoing and notwithstanding whether the
related Receivable shall have been purchased by the relevant Seller, the
Sellers jointly and severally shall indemnify the Borrower, the Backup
Servicer, the Administrative Agent, the Funding Agents and the Secured Parties
against all costs, expenses, losses, damages, claims and liabilities, including
reasonable fees and expenses of counsel, which may be asserted against or
incurred by any of them as a result of third party claims arising out of the
events or facts giving rise to such breach.
Section 4.3 CUSTODY OF RECEIVABLES FILES.
(a) Subject to the terms and conditions hereof, in connection
with the sale, transfer and assignment of the Receivables and the Other
Conveyed Property to the Borrower pursuant to this Agreement, the
Administrative Agent (acting at the direction of the Required Lending Groups)
hereby revocably appoints the Servicer, and the Servicer hereby accepts such
appointment, as custodian and bailee on behalf of the Administrative Agent (for
the benefit of the Secured Parties) to maintain exclusive custody of the
Receivable Files relating to the Receivables from time to time pledged to the
Administrative Agent (for the benefit of the Secured Parties); PROVIDED,
HOWEVER, that none of the Administrative Agent, the Funding Agents or any other
Secured Party shall be responsible for the acts or omissions of the Servicer in
such capacity. In performing its duties hereunder, the Servicer agrees to act
with that degree of care, skill and attention that a commercial bank acting in
the capacity of a custodian would exercise with respect to files relating to
comparable automotive or other receivables that it services or holds for itself
or others, and, in any event, to exercise at least that degree of care, skill
and attention that it exercises with respect to its own assets. The Servicer
hereby and as of each Receivables Sale Date with respect to the Receivables
sold on such date, acknowledges receipt of the Receivable File for each
Receivable listed in the Schedule of Receivables, subject to any exceptions
noted on the Servicer's Acknowledgment. As evidence of its acknowledgment of
such receipt of such Receivables, the Servicer shall execute and deliver on
each Receivables Sale Date with respect to the Receivables sold on such date,
the Servicer's Acknowledgment in the form attached hereto as Exhibit E.
In such capacity, the Servicer shall act as the agent of the
Administrative Agent as custodian of the following documents or instruments in
its possession which shall be delivered to the Servicer as agent of the
Administrative Agent on or before each Receivables Sale Date (with respect to
each Receivable):
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(i) the fully executed original of the Receivable
(together with any agreements modifying the Receivable, including
without limitation any extension agreements);
(ii) the original credit application (or, if no
such credit application has been completed, other evidence of
application being made or credit evaluation being conducted), or a copy
thereof, of each Obligor, fully executed by each such Obligor on the
Servicer's customary form, or on a form approved by the Servicer, for
such application;
(iii) (1) for any Contract secured by a Financed
Vehicle registered in any state with the prior consent of the
Administrative Agent (acting in its reasonable discretion) for which
the Paperless Title System is used to evidence title to and any lien in
such Financed Vehicle, a computer printout or similar documentary
evidence that there is an electronic record in the Paperless Title
System indicating that such Financed Vehicle is owned by the Obligor
and subject to the interest of the relevant Seller as first lienholder
or secured party (when such electronic record becomes available through
the Paperless Title System); PROVIDED that a computer printout sheet
listing multiple Financed Vehicles registered through the Paperless
Title System shall be deemed included in a Receivable File for a
Contract if such printout has been made available to the Administrative
Agent, or (2) for any Contract secured by a Financed Vehicle registered
in a state for which the Paperless Title System is not available to
evidence title to and any lien in the Financed Vehicle, or for any
Contract secured by a Financed Vehicle registered in any state where
the Paperless Title System was not used, the original certificate of
title (when received) and otherwise such documents, if any, that the
Servicer keeps on file in accordance with its customary procedures
indicating that the Financed Vehicle is owned by the Obligor and
subject to the interest of the relevant Seller as first lienholder or
secured party, or, if such original certificate of title has not yet
been received, a copy of the application therefor, showing the relevant
Seller as secured party;
(iv) a true and complete copy of the duly executed
Dealer Assignment or Third-Party Lender Assignment; and
(v) a true and complete copy of the duly executed
Insurance Policy.
(b) The Administrative Agent may act as the custodian, in
which case the Administrative Agent shall be deemed to have assumed the
obligations of the Servicer in such capacity as custodian specified herein.
So long as the Servicer is acting as custodian hereunder, the
Servicer shall not resign from such obligations and duties as custodian imposed
on it by this Agreement, except upon a determination that by reason of a change
in legal requirements, the performance of such duties and obligations under
this Agreement would cause it to be in violation of such legal requirements in
a manner which would have a material adverse
13
effect on it and the Administrative Agent does not elect to waive the
obligations of the Servicer with respect to the performance of the duties which
render it legally unable to act or to delegate those duties to another Person.
Any such determination permitting the resignation of the Servicer in such
capacity shall be evidenced by an Opinion of Counsel to such effect delivered
and acceptable to the Administrative Agent. Immediately after receipt of notice
of termination of the Servicer as custodian hereunder, the Servicer shall
deliver the Receivable Files to the Administrative Agent on behalf of the
Secured Parties, at such place or places as the Administrative Agent may
designate, and the Administrative Agent, or its agent, as the case may be,
shall act as custodian for such Receivables Files on behalf of the Secured
Parties until such time as a successor custodian has been appointed by the
Administrative Agent. (For the avoidance of doubt, during any such period, the
Administrative Agent shall be acting in its capacity as Administrative Agent,
including the standard of care and liability in such capacity, and not as a
successor "custodian" hereunder.) If, within seventy-two (72) hours after the
termination of the Servicer as custodian hereunder, the Servicer has not
delivered the Receivable Files in accordance with the preceding sentence, the
Administrative Agent may enter the premises of the custodian and remove the
Receivable Files from such premises.
(c) In the event that AFS no longer serves as custodian with
respect to the Receivable Files, upon payment in full of any Receivable, the
Servicer will notify such other party acting as custodian pursuant to a
certificate of an officer of the Servicer (which certificate shall include a
statement to the effect that all amounts received in connection with such
payments which are required to be deposited in the Collection Account pursuant
to Section 5.1 have been so deposited) and shall request delivery of the
Receivable and Receivable File to the Servicer; PROVIDED, HOWEVER, that so long
as AFS acts in the capacities of Servicer and of custodian, such notice by the
Servicer may be made in such other form and manner as are consistent with the
Servicer's customary operating procedures. From time to time as appropriate for
servicing and enforcing any Receivable, the party acting as custodian shall,
upon written request of an officer of the Servicer and delivery to such party
of a receipt signed by such officer, cause the original Receivable and the
related Receivable File to be released to the Servicer. The Servicer's receipt
of a Receivable and/or Receivable File shall obligate the Servicer to return
the original Receivable and the related Receivable File to the custodian when
its need by the Servicer has ceased unless the Receivable is repurchased as
described in Section 4.2 or 5.7. The Servicer, while in possession of the
Receivable Files, shall hold such Receivable Files as custodian and bailee for
the Administrative Agent for the benefit of the Secured Parties.
(d) The Servicer agrees to maintain the Receivable Files at
its principal office or at such other office as shall from time to time be
identified to the Administrative Agent and the Funding Agents, and the Servicer
will hold the Receivable Files in such office on behalf of the Administrative
Agent, clearly identified on its records as being separate from any other
instruments and files, including other instruments and files held by the
Servicer, and in compliance with Section 4.4(b) hereof.
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Section 4.4 DUTIES OF SERVICER WITH RESPECT TO RECEIVABLE
FILES.
(a) SAFEKEEPING. The Servicer shall hold the Receivable Files
on behalf of the Administrative Agent, for the benefit of the Secured Parties,
clearly identified as being separate from all other files or records maintained
by the Servicer, whether at the same or any other location, and shall maintain
such accurate and complete accounts, records and computer systems pertaining to
each Receivable File as are required to comply with the terms and conditions of
this Agreement. Each Receivable shall be stamped on both of the first page and
the signature page (if different) as is deemed necessary or desirable by the
Secured Parties. Each Receivable shall be identified on the books and records
of the Servicer in a manner that (i) is consistent with the practices of a
commercial bank acting in the capacity of custodian with respect to similar
receivables, (ii) indicates that the Receivables are held by the Servicer on
behalf of the Administrative Agent and (iii) is otherwise necessary, as
reasonably determined by the Servicer, to comply with the terms of this
Agreement. The Servicer shall conduct, or cause to be conducted, periodic
physical inspections of the Receivable Files held by it under this Agreement,
and of the related accounts, records and computer systems, in such a manner as
shall enable the Administrative Agent and the Servicer to verify the accuracy
of the Servicer's inventory and record keeping. Such inspections shall be
conducted at such times, in such manner and by such persons including, without
limitation, independent accountants, as the Administrative Agent may request
and the cost of such inspections shall be borne by the Servicer. The Servicer
shall promptly report to the Administrative Agent any failure on the Servicer's
part to hold the Receivable Files and maintain its accounts, records and
computer systems as herein provided and the Servicer shall promptly take
appropriate action to remedy any such failure. Notwithstanding the above, if
reasonably requested by the Administrative Agent, the Servicer shall promptly
make copies or other electronic file records (e.g. diskettes, CD's, etc.) (the
"COPIES") of the Receivable Files related to any or all of the Receivables and
shall deliver such Copies to the Administrative Agent, and the Administrative
Agent shall hold such Copies on behalf of the Secured Parties. Subject to
Section 4.4(b) hereof, the Servicer shall at all times maintain the original of
the fully executed original retail installment sales contract or installment
loan contract and of the Lien Certificate or application therefore, if no such
Lien Certificate has yet been issued, relating to each Receivable in a fire
proof vault.
(b) ACCESS TO RECORDS. The Servicer shall, subject only to
the Servicer's security requirements applicable to its own employees having
access to similar records held by the Servicer, which requirements shall be
consistent with the practices of a commercial bank acting in the capacity of
custodian with respect to similar files or records, and at such times as may be
reasonably imposed by the Servicer, permit only the Secured Parties, the
Funding Agents and the Administrative Agent or their duly authorized
representatives, attorneys or auditors to inspect the Receivable Files and the
related accounts, records, and computer systems maintained by the Servicer
pursuant hereto at such times as the Secured Parties, the Administrative Agent
or the Funding Agents may reasonably request.
(c) RELEASE OF DOCUMENTS. In the event that AFS no longer
serves as custodian with respect to the Receivable Files, such party shall
release any Receivable in
15
the Receivable Files to the Servicer either upon (1) payment in full of any
Receivable or (2) as required from time to time as appropriate for servicing
and enforcing any Receivable, subject to satisfaction of the conditions set
forth in Section 4.3(b) of this Agreement.
(d) ADMINISTRATION; REPORTS. The Servicer shall, in general,
attend to all ministerial matters in connection with maintaining custody of the
Receivable Files on behalf of the Administrative Agent. In addition, the
Servicer generally shall assist the Administrative Agent and each Funding Agent
in the preparation of any routine reports to Secured Parties or to regulatory
bodies, to the extent necessitated by the Servicer's custody of the Receivable
Files.
(e) REVIEW OF LIEN CERTIFICATES. On or before each
Determination Date, the Servicer shall deliver to the Administrative Agent a
listing of each Receivable with respect to which a Lien Certificate, showing
AFS as secured party, was not included in the related Receivable File as of the
sixtieth (60th) day following the date of origination of such Receivable.
Section 4.5 INSTRUCTIONS; AUTHORITY TO ACT. The Servicer
shall be deemed to have received proper instructions with respect to the
Receivable Files upon its receipt of written instructions signed by a
Responsible Officer of the Administrative Agent. Such instructions may be
general or specific in terms.
ARTICLE IV-A
THE ASSET BACKED SECURITIES
Section 4A.1 REPRESENTATIONS AND WARRANTIES OF THE PRIMARY
SELLER. The Primary Seller makes the representations and warranties, set forth
on the Schedule of Representations attached hereto as Schedule C, as to the
Asset Backed Securities on which the Borrower is relying in acquiring the Asset
Backed Securities and upon which the Secured Parties are relying in making any
Advance pursuant to the Security and Funding Agreement. Such representations
and warranties speak as of the execution and delivery of this Agreement and as
of each ABS Sale Date with respect to the Asset Backed Securities sold on such
date, but shall survive the sale, transfer and assignment of the Asset Backed
Securities to the Borrower and the pledge thereof to the Administrative Agent
pursuant to the Security and Funding Agreement.
Section 4A.2 REPURCHASE UPON BREACH. The Primary Seller, the
Servicer or the Borrower, as the case may be, shall inform the other parties to
this Agreement promptly, in writing, upon the discovery of any breach of the
Primary Seller's representations and warranties made pursuant to Section 4A.1
(for purposes of this Section 4A.2, the foregoing is referred to as a
"breach"). No later than the second Business Day after which the Primary
Seller, the Servicer or the Borrower, as the case may be, discovers the breach,
or in which the Primary Seller receives notice of such breach, unless such
breach is cured by such date, the Primary Seller shall repurchase any Asset
Backed Security sold by it that is adversely affected and/or in which the
interests of
16
the Borrower or the Secured Parties are adversely affected by any such breach.
In consideration of and simultaneously with the repurchase of the Asset Backed
Securities, the Primary Seller shall remit, or cause the Servicer to remit, to
the Collection Account the ABS Repurchase Obligation Amount in the manner
specified in Section 6.7 and the Borrower shall execute such assignments and
other documents reasonably requested by such Person in order to effect such
repurchase. The sole remedy of the Borrower, the Administrative Agent, or the
Secured Parties with respect to a breach of representations and warranties
pursuant to Section 4A.1 and the agreement contained in this Section shall be
the repurchase of relevant Asset Backed Securities and the Primary Sellers'
indemnity pursuant to this Section, subject to the conditions contained herein.
Neither the Administrative Agent, the Funding Agents nor the Borrower shall
have a duty to conduct any affirmative investigation as to the occurrence of
any conditions requiring the repurchase of any Asset Backed Security pursuant
to this Section.
In addition to the foregoing and notwithstanding whether the
related Asset Backed Security shall have been purchased by the Primary Seller,
the Primary Seller shall indemnify the Borrower, the Backup Servicer, the
Administrative Agent, the Funding Agents and the Secured Parties against all
costs, expenses, losses, damages, claims and liabilities, including reasonable
fees and expenses of counsel, which may be asserted against or incurred by any
of them as a result of third party claims arising out of the events or facts
giving rise to such breach.
ARTICLE V
ADMINISTRATION AND SERVICING OF RECEIVABLES
Section 5.1 APPOINTMENT; STANDARD OF CARE; DUTIES OF THE
SERVICER.
(a) The Servicer is hereby authorized to act as agent for the
Borrower and in such capacity shall manage, service, administer and make
collections on the Receivables and perform the other actions required by the
Servicer under this Agreement. So long as AFS is the Servicer, the Servicer
agrees that its servicing of the Receivables shall be carried out in accordance
with the Credit and Servicing Procedures and, with respect to any matters not
expressly covered by such Credit and Servicing Procedures or, in the event the
Servicer is not AFS, in accordance with customary and usual procedures of
institutions that are primarily engaged in the business of servicing motor
vehicle retail installment sales contracts or installment loan contracts;
PROVIDED that in any event the Servicer shall exercise at least the degree of
skill and attention that the Servicer exercises from time to time with respect
to all comparable motor vehicle receivables that it services for itself or
others (the foregoing standard of care being referred to as the "Servicing
Standard").
(b) The Servicer's duties shall include, without limitation:
collection and posting of all payments; responding to inquiries of Obligors on
the Receivables; investigating delinquencies; sending payment coupons to
Obligors; reporting any required tax information to Obligors; monitoring the
Collateral; complying with the terms of the Lockbox Agreement; accounting for
collections and furnishing monthly statements
17
to the Borrower and the Administrative Agent with respect to collections and
distributions, as well as the Servicer statements required in connection with
the each sale of Receivables; monitoring the status of Insurance Policies with
respect to the Financed Vehicles and performing the other duties specified
herein. The Servicer shall also administer and enforce all rights and
responsibilities of the holder of the Receivables provided for in the Dealer
Agreements (and shall maintain possession of the Dealer Agreements, to the
extent it is necessary to do so), the Dealer Assignments and the Insurance
Policies, to the extent that such Dealer Agreements, Dealer Assignments and
Insurance Policies relate to the Receivables, the Financed Vehicles or the
Obligors. To the extent consistent with the standards, policies and procedures
otherwise required hereby, the Servicer shall follow its customary standards,
policies, and procedures and shall have full power and authority, acting alone,
to do any and all things in connection with such managing, servicing,
administration and collection that it may deem necessary or desirable. Without
limiting the generality of the foregoing, the Servicer is hereby authorized and
empowered by the Borrower to execute and deliver, on behalf of the Borrower,
any and all instruments of satisfaction or cancellation, or of partial or full
release or discharge, and all other comparable instruments, with respect to the
Receivables and with respect to the Financed Vehicles; PROVIDED, HOWEVER, that
notwithstanding the foregoing, the Servicer shall not, except pursuant to an
order from a court of competent jurisdiction, release an Obligor from payment
of any unpaid amount under any Receivable or waive the right to collect the
unpaid balance of any Receivable from the Obligor. The Servicer is hereby
authorized to commence, in its own name or in the name of the Borrower, a legal
proceeding to enforce a Receivable pursuant to Section 5.3 or to commence or
participate in any other legal proceeding (including, without limitation, a
bankruptcy proceeding) relating to or involving a Receivable, an Obligor or a
Financed Vehicle. If the Servicer commences or participates in such a legal
proceeding in its own name, the Borrower shall thereupon be deemed to have
automatically assigned such Receivable to the Servicer solely for purposes of
commencing or participating in any such proceeding as a party or claimant, and
the Servicer is authorized and empowered by the Borrower to execute and deliver
in the Servicer's name any notices, demands, claims, complaints, responses,
affidavits or other documents or instruments in connection with any such
proceeding. The Administrative Agent shall furnish the Servicer with any powers
of attorney and other documents which the Servicer may reasonably request and
which the Servicer deems necessary or appropriate and take any other steps
which the Servicer may deem necessary or appropriate to enable the Servicer to
carry out its servicing and administrative duties under this Agreement.
(c) The provisions of this subsection (c) are applicable only
so long as AFS is the Servicer. On each Determination Date, together with the
Servicer's Determination Date Certificate to be delivered on such date, which
Servicer's Determination Date Certificate shall include a statement that no
modification has been made to the Credit and Servicing Procedures that could be
reasonably expected to have a material adverse effect on the Borrower and/or
the Secured Parties, the Servicer shall deliver to the Administrative Agent a
description of any modification made to the Credit and Servicing Procedures
since the last Determination Date. The Servicer further agrees that it shall
not make any changes to the Credit and Servicing Procedures that could
reasonably be expected to have a material adverse effect on the Borrower and/or
the
18
Secured Parties unless it has given the Administrative Agent (for transmittal
to the Required Lending Groups and the Rating Agencies) at least 20 days' prior
written notice of such proposed modification and the Required Lending Groups
have not objected in writing prior to the expiration of such 20 day period.
Section 5.2 COLLECTION OF RECEIVABLE PAYMENTS; MODIFICATIONS
OF RECEIVABLES; LOCKBOX AGREEMENT.
(a) Consistent with the Servicing Standard, the Servicer
shall make reasonable efforts to collect all payments called for under the
terms and provisions of the Receivables as and when the same shall become due,
and shall follow such collection procedures as it follows with respect to all
comparable automobile receivables that it services for itself or others and
otherwise act with respect to the Receivables, the Dealer Agreements, the
Dealer Assignments, the Third-Party Loan Purchase Agreements, the Third-Party
Lender Assignments, the Insurance Policies and the Other Conveyed Property in
such manner as will, in the reasonable judgment of the Servicer, maximize the
amount to be received by the Borrower with respect thereto. The Servicer is
authorized in its discretion to waive any prepayment charge, late payment
charge or any other similar fees that may be collected in the ordinary course
of servicing any Receivable.
(b) The Servicer may at any time agree to a modification or
amendment of a Receivable in order to (i) change the Obligor's regular due date
to a date within the Collection Period in which such due date occurs or (ii)
reamortize the Scheduled Payments on the Receivable following a partial
prepayment of principal.
(c) The Servicer may grant payment extensions on, or other
modifications or amendments to, a Receivable (in addition to those
modifications permitted by Section 5.2(b)) in accordance with the Credit and
Servicing Procedures and the Servicing Standard if the Servicer believes in
good faith that such extension, modification or amendment is necessary to avoid
a default on such Receivable, will maximize the amount to be received by the
Borrower with respect to such Receivable, and is otherwise in the best
interests of the Borrower; PROVIDED, HOWEVER, that:
(i) The aggregate period of all extensions on a
Receivable shall not exceed six months;
(ii) In no event may a Receivable be extended such
that the final payment scheduled to be made thereunder would be more
than 78 months beyond the date of origination; and
(iii) the Servicer shall not amend or modify a
Receivable (except as provided in Section 5.2(b) and this Section
5.2(c)) without the consent of the Administrative Agent (acting at the
direction of the Required Lending Groups).
(d) The Servicer shall use its best efforts to notify or
direct Obligors to make all payments on the Receivables, whether by check or by
direct debit of the Obligor's bank account, to be made directly to the Lockbox
Bank. The Servicer shall use
19
its best efforts to notify or direct any Lockbox Bank to deposit all payments
on the Receivables in the Lockbox Account no later than the Business Day after
receipt, and to cause all amounts credited to the Lockbox Account on account of
such payments to be transferred to the Collection Account no later than the
second Business Day after receipt of such payments. The Lockbox Account shall
be a demand deposit account held by the Lockbox Bank, or at the request of the
Administrative Agent, acting at the direction of the Required Lending Groups,
an Eligible Deposit Account.
On the first day on which a payment coupon is delivered to an
Obligor following the Relevant Cutoff Date, but not to exceed thirty-one (31)
days following such Relevant Cutoff Date, the Servicer shall have notified each
Obligor that makes its payments on the Receivables by check to make such
payments thereafter directly to the Lockbox Bank (except in the case of
Obligors that have already been making such payments to the Lockbox Bank), and
shall have provided each such Obligor with remittance invoices in order to
enable such Obligors to make such payments directly to the Lockbox Bank for
deposit into the Lockbox Account, and the Servicer will continue, not less
often than every three months, to so notify those Obligors who have failed to
make payments to the Lockbox Bank. If and to the extent requested by the
Administrative Agent, acting at the direction of the Required Lending Groups,
the Servicer shall request each Obligor that makes payment on the Receivables
by direct debit of such Obligor's bank account, to execute a new authorization
for automatic payment which in the judgment of the Administrative Agent, acting
at the direction of the Required Lending Groups, is sufficient to authorize
direct debit by the Lockbox Bank on behalf of the Borrower. If at any time, the
Lockbox Bank is unable to directly debit an Obligor's bank account that makes
payment on the Receivables by direct debit and if such inability is not cured
within 15 days or cannot be cured by execution by the Obligor of a new
authorization for automatic payment, the Servicer shall notify such Obligor
that it cannot make payment by direct debit and must thereafter make payment by
check.
Notwithstanding any Lockbox Agreement, or any of the
provisions of this Agreement relating to the Lockbox Agreement, the Servicer
shall remain obligated and liable to the Borrower, the Administrative Agent,
the Funding Agents and Secured Parties for servicing and administering the
Receivables and the other Conveyed Property in accordance with the provisions
of this Agreement without diminution of such obligation or liability by virtue
thereof; PROVIDED, HOWEVER, that the foregoing shall not apply to any Backup
Servicer for so long as a Lockbox Bank is performing its obligations pursuant
to the terms of a Lockbox Agreement.
In the event of a termination of the Servicer, the successor
Servicer shall assume all of the rights and obligations of the outgoing
Servicer under the Lockbox Agreement subject to the terms hereof. In such
event, the successor Servicer shall be deemed to have assumed all of the
outgoing Servicer's interest therein and to have replaced the outgoing Servicer
as a party to each such Lockbox Agreement to the same extent as if such Lockbox
Agreement had been assigned to the successor Servicer, except that the outgoing
Servicer shall not thereby be relieved of any liability or obligations on the
part of the outgoing Servicer to the Lockbox Bank under such Lockbox Agreement.
The outgoing Servicer shall, upon request of the Administrative Agent (acting
at the
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direction of the Required Lending Groups), but at the expense of the outgoing
Servicer, deliver to the successor Servicer all documents and records relating
to each such Lockbox Agreement and an accounting of amounts collected and held
by the Lockbox Bank and otherwise use its best efforts to effect the orderly
and efficient transfer of any Lockbox Agreement to the successor Servicer. In
the event that the Administrative Agent elects to change the identity of the
Lockbox Bank, the outgoing Servicer, at its expense, shall cause the Lockbox
Bank to deliver, at the direction of the Administrative Agent to the
Administrative Agent or a successor Lockbox Bank, all documents and records
relating to the Receivables and all amounts held (or thereafter received) by
the Lockbox Bank (together with an accounting of such amounts) and shall
otherwise use its best efforts to effect the orderly and efficient transfer of
the lockbox arrangements and the Servicer shall notify the Obligors to make
payments to the Lockbox established by the successor.
(e) The Servicer shall remit all payments by or on behalf of
the Obligors received directly by the Servicer (including any such payments
forwarded to the Servicer for special handling pursuant to the Lockbox
Agreement) into the Collection Account as soon as practicable, but in no event
later than the Business Day after receipt thereof (and in the case of a check,
one Business Day after such check has cleared, but in no event later than the
third Business Day after receipt thereof) .
Section 5.3 REALIZATION UPON RECEIVABLES.
(a) Consistent with the Servicing Standard, the Servicer
shall use its best efforts to repossess (or otherwise comparably convert the
ownership of) and liquidate any Financed Vehicle securing a Receivable with
respect to which the Servicer has determined that payments thereunder are not
likely to be resumed, as soon as is practicable after default on such
Receivable but in no event later than the date on which all or any portion of a
Scheduled Payment has become 91 days delinquent; PROVIDED, HOWEVER, that the
Servicer may elect not to repossess a Financed Vehicle within such time period
if in its good faith judgment it determines that the proceeds ultimately
recoverable with respect to such Receivable would be increased by forbearance.
The Servicer is authorized to follow such customary practices and procedures as
it shall deem necessary or advisable, consistent with the Servicing Standard,
which practices and procedures may include reasonable efforts to realize upon
any recourse to Dealers, the sale of the related Financed Vehicle at public or
private sale, the submission of claims under an Insurance Policy and other
actions by the Servicer in order to realize upon such a Receivable. The
foregoing is subject to the provision that, in any case in which the Financed
Vehicle shall have suffered damage, the Servicer shall not expend funds in
connection with any repair or towards the repossession of such Financed Vehicle
unless it shall determine in its discretion that such repair and/or
repossession shall increase the proceeds of liquidation of the related
Receivable by an amount greater than the amount of such expenses. All amounts
received upon liquidation of a Financed Vehicle shall be remitted directly by
the Servicer to the Collection Account as soon as practicable, but in no event
later than the Business Day after receipt thereof. The Servicer shall be
entitled to recover all reasonable expenses incurred by it in the course of
repossessing and liquidating a Financed Vehicle into cash proceeds (including,
without limitation, any personal property taxes assessed on such Financed
Vehicles). Such expenses, at the
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option of the Servicer: (i) shall be reimbursable as Servicer Advances on the
Distribution Date next following the liquidation of the Financed Vehicle (or,
if consistent with the Servicing Standard the Servicer shall have made a
determination that the Financed Vehicle cannot be repossessed and/or
liquidated, on the Distribution Date next following the delivery to the
Borrower and the Administrative Agent of an Officer's Certificate of the
Servicer to such effect); or (ii) shall be retained by the Servicer as
deductions from the cash proceeds of such Financed Vehicle, any deficiency
obtained from the Obligor or any amounts received from the related Dealer,
which proceeds and other such cash receipts shall not be required to be
deposited as required by Section 5.2(e) and the foregoing provisions of this
Section 5.3(a) to the extent of such Servicer disbursements. Notwithstanding
anything to the contrary in the foregoing, the Servicer shall not pay any such
reimbursable expense with respect to a Financed Vehicle to the extent that it
does not reasonably expect, after reasonable inquiry, to be reimbursed for such
expenses from the collections on the Receivable relating to such Financed
Vehicle.
(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 be an automatic assignment from the Borrower to the Servicer of
the rights under such Dealer Agreement and Dealer Assignment for purposes of
collection only. If, however, in any enforcement suit or legal proceeding it is
held that the Servicer may not enforce a Dealer Agreement or Dealer Assignment
on the grounds that it is not a real party in interest or a Person entitled to
enforce the Dealer Agreement or Dealer Assignment, the Administrative Agent, at
the Borrower's expense, or the relevant Seller, at the Borrower's expense,
shall take such steps as the Servicer deems necessary to enforce the Dealer
Agreement or Dealer Assignment, including bringing suit in its name or the name
of the relevant Seller or of the Borrower and/or the Administrative Agent for
the benefit of the Secured Parties. All amounts recovered shall be remitted
directly by the Servicer as provided in Section 5.2(e).
Section 5.4 INSURANCE.
(a) The Servicer shall require, in accordance with the
Servicing Standard, that each Financed Vehicle be insured by the related
Obligor under the Insurance Policies referred to in Paragraph "n" of the
Schedule of Representations and Warranties and shall monitor the status of such
physical loss and damage insurance coverage thereafter, in accordance with the
Servicing Standard. Each Receivable requires the Obligor to maintain such
physical loss and damage insurance, naming the relevant Seller and its
successors and assigns as additional insureds, and permits the holder of such
Receivable to obtain physical loss and damage insurance at the expense of the
Obligor if the Obligor fails to maintain such insurance. If the Servicer shall
determine that an Obligor has failed to obtain or maintain a physical loss and
damage Insurance Policy covering the related Financed Vehicle which satisfies
the conditions set forth in such Paragraph "n" (including, without limitation,
during the repossession of such Financed Vehicle), the Servicer, to the extent
required by its Servicing Standard, shall enforce the rights of the holder of
the Receivable under the Receivable to require the Obligor to obtain such
physical loss and damage insurance. At its sole option, the Servicer may
maintain a vendor's single interest or other collateral protection insurance
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policy with respect to all Financed Vehicles ("COLLATERAL INSURANCE") which
policy shall by its terms insure against physical loss and damage in the event
any Obligor fails to maintain physical loss and damage insurance with respect
to the related Financed Vehicle. Any such policy of Collateral Insurance shall
be indorsed with clauses providing for loss payable to the Borrower. Costs
incurred by the Servicer in maintaining such Collateral Insurance shall be paid
by the Borrower.
(b) The Servicer may xxx to enforce or collect upon the
Insurance Policies, in its own name, if possible, or as agent of the Borrower
and/or the Secured Parties. If the Servicer elects to commence a legal
proceeding to enforce an Insurance Policy, the act of commencement shall be
deemed to be an automatic assignment of the rights of the Borrower under such
Insurance Policy to the Servicer for purposes of collection only. If, however,
in any enforcement suit or legal proceeding it is held that the Servicer may
not enforce an Insurance Policy on the grounds that it is not a real party in
interest or a holder entitled to enforce the Insurance Policy, the Borrower
and/or the Administrative Agent, at the Borrower's expense, or the relevant
Seller, at the Borrower's expense, shall take such steps as the Servicer deems
necessary to enforce such Insurance Policy, including bringing suit in its name
or the name of the Borrower and/or the Administrative Agent for the benefit of
the Secured Parties.
Section 5.5 MAINTENANCE OF SECURITY INTERESTS IN FINANCED
VEHICLES.
(a) Consistent with the Servicing Standard, the Servicer
shall take such steps on behalf of the Borrower as are necessary to maintain
perfection of the security interest created by each Receivable in the related
Financed Vehicle, including but not limited to obtaining the execution by the
Obligors and the recording, registering, filing, re-recording, re-filing, and
re-registering of all security agreements, financing statements and
continuation statements as are necessary to maintain the security interest
granted by the Obligors under the respective Receivables. The Administrative
Agent hereby authorizes the Servicer, and the Servicer agrees, to take any and
all steps necessary to re-perfect such security interest on behalf of the
Borrower as necessary because of the relocation of a Financed Vehicle or for
any other reason.
(b) The Servicer shall take all steps necessary under all
applicable law in order to cause a valid, subsisting and enforceable first
priority perfected security interest to exist at all times in favor of the
Borrower in the Financed Vehicle securing each Receivable (and the proceeds of
such Financed Vehicle) (PROVIDED, HOWEVER, that, prior to (X) the occurrence of
a Servicer Termination Event, a Potential Servicer Termination Event, a
Termination Event or a Potential Termination Event and the request by the
Administrative Agent or, (Y) at any time, the request by the Required Lending
Groups, for the recordation of the Borrower's lien on such Financed Vehicle's
certificate of title, no such recordation shall be required) and to cause such
security interest to be prior to all other liens upon and security interests in
such Financed Vehicle (and the proceeds thereof) that now exist or may
hereafter arise or be created (except, as to priority, for any tax liens or
mechanic's liens that may arise after the applicable date of sale of such
Receivable hereunder);
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(c) The Servicer and the Borrower shall take all steps
necessary under all applicable law in order to cause to exist at all times in
favor of the Administrative Agent, on behalf of the Secured Parties, a valid,
subsisting and enforceable first priority perfected security interest in the
Borrower's first priority perfected security interest in the Financed Vehicle
securing each Receivable being sold (and the proceeds of such Financed Vehicle)
(PROVIDED, HOWEVER, that, prior to (X) the occurrence of a Servicer Termination
Event, a Potential Servicer Termination Event, a Termination Event or a
Potential Termination Event and the request by the Administrative Agent or, (Y)
at any time, the request by the Required Lending Groups, for the recordation of
the Borrower's and/or the Administrative Agent's lien on such Financed
Vehicle's certificate of title, no such recordation shall be required) and to
cause such security interest to be prior to all other liens upon and security
interests in such Financed Vehicle that now exist or may hereafter arise or be
created.
(d) At any time (X) after the occurrence of a Servicer
Termination Event, a Potential Servicer Termination Event, a Termination Event
or a Potential Termination Event and upon the request of the Administrative
Agent or, (Y) upon the request by the Required Lending Groups, the Servicer
shall at its own expense promptly take all such additional steps, if any, as
are necessary to create and maintain perfection of the security interest in the
Financed Vehicle related to each Receivable (and the proceeds of such Financed
Vehicle) on behalf of the Borrower and to create and maintain perfection of the
security interest in the Borrower's security interest in the Financed Vehicle
related to each Receivable (and the proceeds of such Financed Vehicle) on
behalf of the Administrative Agent, on behalf of the Secured Parties,
including, if required by applicable law, having a notation of the Borrower's
and/or the Administrative Agent's respective security interest recorded on such
Financed Vehicle's certificate of title.
(e) (i) In the event that the assignment of a Receivable by
the relevant Seller to the Borrower hereunder and/or the pledge of such
Receivable by the Borrower to the Administrative Agent, on behalf of the
Secured Parties, under the Security and Funding Agreement are insufficient,
without a notation on the related Financed Vehicle's certificate of title, or
without fulfilling any additional administrative requirements under the laws of
the state in which such Financed Vehicle is located, to perfect a security
interest in the related Financed Vehicle (and the proceeds thereof) in favor of
the Borrower or to perfect a security interest in the Borrower's security
interest in the related Financed Vehicle (and the proceeds thereof) in favor of
the Administrative Agent, on behalf of the Secured Parties, the parties hereto
(including, without limitation, the relevant Seller) hereby agree that such
Seller's designation as the secured party on the certificate of title with
respect to such Financed Vehicle is in the relevant Seller's capacity as agent
of the Borrower and the Administrative Agent, on behalf of the Secured Parties,
as their interests may appear and the relevant Seller further agrees to hold
such certificate of title or other evidence of such designation in the case of
a Paperless Title System as the agent and custodian of the Borrower and the
Administrative Agent, on behalf of the Secured Parties, as their interests may
appear. In furtherance of the foregoing, the Borrower and the Administrative
Agent hereby appoint each of the Sellers as their nominee lienholder with
respect to the applicable Financed Vehicles securing the Receivables and each
of the Sellers hereby agrees to serve in such capacity as described
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herein. As stated lienholder on the certificates of title to all of such
Financed Vehicles, the each of the Sellers agrees to take any and all actions
as the Borrower (with the consent of the Administrative Agent) or the
Administrative Agent may request in writing including, without limitation, all
actions for which the relevant Seller's consent, waiver, release, vote or
signature (or other action of similar nature) is necessary or advisable in the
judgment of the Borrower or the Administrative Agent in order to maintain,
preserve and protect the Borrower's security interest in such Financed Vehicles
and the Administrative Agent's security interest, on behalf of the Secured
Parties, in the Borrower's security interest in such Financed Vehicles
(PROVIDED, HOWEVER, that, prior to (X) the occurrence of a Servicer Termination
Event, a Potential Servicer Termination Event, a Termination Event or a
Potential Termination Event and the request by the Administrative Agent or, (Y)
at any time, the request by the Required Lending Groups, for the recordation of
the Borrower's and/or the Administrative Agent's lien on such Financed
Vehicle's certificate of title, no such recordation shall be required) and if
the relevant Seller fails to take any or all such actions, the Administrative
Agent or any designee of the Administrative Agent, may take such actions at the
sole expense of such Seller, and each of the Sellers hereby grants to the
Administrative Agent and any such designee an irrevocable power of attorney and
license to take any and all such actions in such Seller's name and on behalf of
such Seller. The obligations of the Primary Seller under this Section are in
addition to and in no way limit the obligations of the Primary Seller in its
capacity as Servicer hereunder.
(ii) Notwithstanding the fact that the Primary
Seller will remain noted as first lienholder on the applicable certificates of
title to the Financed Vehicles securing the Receivables on and after the date
hereof, the Sellers, the Borrower and the Administrative Agent each hereby
agrees that, on and after the date hereof:
(1) subject to the terms of the Security and
Funding Agreement, the Borrower is entitled to all incidents,
benefits and risks of a holder of a first priority perfected
security interest in and lien on such Financed Vehicles;
(2) the Administrative Agent, on behalf of
the Secured Parties, is entitled to all incidents, benefits
and risks of a holder of a first priority perfected security
interest in and lien on the Borrower's first priority
perfected security interest in and lien on such Financed
Vehicles and has the right to exercise or cause the exercise
of all remedies with respect to such Financed Vehicles
provided to it under the terms hereof and of the Security and
Funding Agreement;
(3) the Sellers have no direct (or indirect,
other than in connection with the Seller's ownership interest
in the Borrower) security interest or other interest in such
Financed Vehicles after giving effect to the assignment
hereunder by the Sellers to the Borrower of the Receivables
secured by such Financed Vehicles;
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(4) the Secondary Seller and the Primary
Seller, except in its capacity as Servicer hereunder, will
take no action with respect to the Financed Vehicles securing
Receivables assigned to the Borrower hereunder and pledged to
the Administrative Agent under the Security and Funding
Agreement unless such action is consented to by the
Administrative Agent; and
(5) neither Seller shall represent to any
lender, financing source or other Person, that it has, or in
any other manner hold itself out as having, a security
interest or any other rights or interests in the Financed
Vehicles, except for any rights it may have as nominee
lienholder hereunder or as Servicer hereunder.
(f) Upon the occurrence of a Servicer Termination Event, the
Administrative Agent may instruct the Servicer to take or cause to be taken
such action as may be necessary to perfect or re-perfect the security interests
in the Financed Vehicles securing the Receivables in the name of the Borrower
by amending the title documents of such Financed Vehicles or by such other
reasonable means as may, in the opinion of counsel to the Required Lending
Groups, be necessary or prudent. The Servicer hereby agrees to pay all expenses
related to such perfection or re-perfection and to take all action necessary
therefor. In addition, the Required Lending Groups may instruct the
Administrative Agent and the Servicer to take or cause to be taken such action
as may be necessary to perfect or re-perfect the security interest in the
Financed Vehicles underlying the Receivables in the name of the Borrower,
including by amending the title documents of such Financed Vehicles or by such
other reasonable means as may, in the opinion of counsel to the Required
Lending Groups, be necessary or prudent. The Servicer hereby appoints the
Administrative Agent as its attorney-in-fact to take any and all steps required
to be performed by AFS pursuant to this Section 5.5(b) including, but not
limited to, execution of certificates of title or any other documents in the
name and stead of the Servicer, and the Administrative Agent hereby accepts
such appointment.
Section 5.6 COVENANTS, REPRESENTATIONS, AND WARRANTIES OF
SERVICER. By its execution and delivery of this Agreement, the Servicer makes
the following representations, warranties and covenants on which the Borrower
is deemed to have relied in acquiring the Receivables and upon which the
Secured Parties shall be deemed to have relied in making any Advance pursuant
to the Security and Funding Agreement, as the case may be.
The Servicer covenants as follows:
(i) LIENS IN FORCE. The Financed Vehicle securing
each Receivable shall not be released by the Servicer in whole or in
part from the security interest granted under the Receivable, except
upon payment in full of the Receivable or as otherwise contemplated
herein.
(ii) NO IMPAIRMENT. The Servicer shall do nothing
to impair the rights of the Borrower or the Secured Parties in the
Receivables, the Dealer
26
Agreements, the Dealer Assignments, the Insurance Policies or the
Other Conveyed Property.
(iii) NO AMENDMENTS. The Servicer shall not extend
or otherwise amend the terms of any Receivable, except in accordance
with Section 5.2.
(iv) RESTRICTIONS ON LIENS. The Servicer shall
not: (i) create or incur or agree to create or incur, or consent to
cause (upon the happening of a contingency or otherwise) the creation,
incurrence or existence of any Lien or restriction on transferability
of the Receivables or of any Other Conveyed Property except for the
Lien in favor of the Administrative Agent for the benefit of the
Secured Parties, and the restrictions on transferability imposed by
this Agreement or (ii) sign or file under the Uniform Commercial Code
of any jurisdiction any financing statement or sign any security
agreement authorizing any secured party thereunder to file such
financing statement, with respect to the Receivables or to any Other
Conveyed Property, except in each case any such instrument solely
securing the rights and preserving the Lien of the Administrative
Agent, for the benefit of the Secured Parties. The Servicer will take
no action to cause any Receivable to be evidenced by an instrument (as
such term is defined in the Relevant UCC).
(v) ADVERSE INTERESTS. As of the date of each
Servicer's Acknowledgment: (i) it holds no adverse interest, by way of
security or otherwise, in any Receivable; and (ii) the execution of
this Agreement and the creation of the servicing and custodial
relationship hereunder does not create any interest, by way of security
or otherwise, of the Servicer in or to any Receivable, other than the
Servicer's rights as servicer and custodian hereunder.
(vi) INSURANCE. The Servicer shall, at its own
expense, maintain at all times during the existence of this Agreement
and keep in full force and effect, a Fidelity Bond and Errors and
Omissions Policy of a type and in such amount as is customary for
custodians engaged in the business of acting as custodian of automobile
receivables and shall maintain any other similar insurance policies
that are customarily maintained by custodians engaged in the business
of acting as custodian of automobile receivables. A certificate of the
respective insurer as to each such policy or a blanket policy for such
coverage shall be furnished to the Administrative Agent containing the
insurer's statement or indorsement that such insurance shall not
terminate prior to receipt by such party, by certified mail, of 10 days
advance notice thereof.
Section 5.7 PURCHASE OF RECEIVABLES UPON BREACH OF COVENANT.
Upon discovery by any of the Sellers, the Servicer, the Borrower, the
Administrative Agent or the Secured Parties of a breach of any of the covenants
set forth in Sections 5.5 or 5.6, the party discovering such breach shall give
prompt written notice to the others; PROVIDED, HOWEVER, that the failure to
give any such notice shall not affect any obligation of the Servicer under this
Section 5.7. As of the last day of the month following its discovery or receipt
of notice of any breach of any covenant set forth in Sections 5.5 or 5.6 which
27
adversely affects any Receivable(s) (or the related Financed Vehicle) and/or
the interests of the Borrower and/or the Secured Parties therein (including any
Defaulted or Delinquent Receivable), the Servicer shall, unless such breach
shall have been cured in all material respects, purchase from the Borrower the
Receivable affected by such breach and, on the related Determination Date, the
Servicer shall pay the related Repurchase Obligation Amount by remitting such
amount to the Collection Account. It is understood and agreed that the
obligation of the Servicer to purchase any Receivable (including any Delinquent
or Defaulted Receivable) with respect to which such a breach has occurred and
is continuing shall, if such obligation is fulfilled, constitute the sole
remedy against the Servicer for such breach available to the Borrower, the
Secured Parties or the Administrative Agent; PROVIDED, HOWEVER, that the
Servicer shall indemnify the Borrower, the Backup Servicer, the Administrative
Agent and the Secured Parties against all costs, expenses, losses, damages,
claims and liabilities, including reasonable fees and expenses of counsel,
which may be asserted against or incurred by any of them as a result of third
party claims arising out of the events or facts giving rise to such breach.
Section 5.8 TOTAL SERVICING FEE; PAYMENT OF CERTAIN EXPENSES
BY SERVICER. On each Distribution Date, the Servicer shall be entitled to
receive out of the Collection Account the Base Servicing Fee and any
Supplemental Servicing Fee for the related Collection Period pursuant to
Section 6.8 (the "Servicing Fee"). The Servicer shall be required to pay all
expenses incurred by it in connection with its activities under this Agreement
(including taxes imposed on the Servicer and expenses incurred in connection
with distributions and reports made by the Servicer to the Secured Parties).
The Servicer shall be liable for the fees and expenses of the Backup Servicer,
the Lockbox Bank and the Independent Accountants; PROVIDED, HOWEVER, that any
successor to AFS as Servicer (including the Backup Servicer) shall not be
liable for such fees and expenses which shall, in such event, be the
responsibility of the Borrower.
Section 5.9 CERTAIN SERVICER'S CERTIFICATES.
(a) No later than 1:00 P.M. New York City time two Business
Days prior to a Distribution Date, the Servicer shall deliver to the
Administrative Agent, the Backup Servicer and each Rating Agency a Servicer's
Determination Date Certificate executed by a Responsible Officer of the
Servicer in substantially the form of Exhibit B-1 hereto and including such
credit and other information as the Administrative Agent and the Funding Agents
may reasonably request with respect to the Managed Assets, including newly
originated Managed Assets.
(b) In addition, in connection with any Optional Prepayment
pursuant to the Security and Funding Agreement, unless such Optional Prepayment
is to be effected on a Distribution Date (in which case the relevant
calculations with respect to such Optional Prepayment shall be reflected in the
applicable Servicer's Determination Date Certificate), the Servicer shall
deliver to Administrative Agent, the Backup Servicer and each Rating Agency a
Servicer's VFN Prepayment Date Certificate in substantially the form of Exhibit
B-2 hereto. Such Servicer's VFN Prepayment Date Certificate shall be delivered
to the Administrative Agent in draft form by 1:00 p.m. two Business Days,
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and in final form by 1:00 p.m. one Business Day, prior to the contemplated VFN
Prepayment Date.
Section 5.10 ANNUAL STATEMENT AS TO COMPLIANCE, NOTICE OF
SERVICER TERMINATION EVENT.
(a) The Servicer shall deliver to the Administrative Agent,
the Backup Servicer and each Rating Agency, on or before April 30 of each year,
beginning on April 30, 2001, an Officer's Certificate, dated as of December 31
of the preceding year, stating that (i) a review of the activities of the
Servicer during the preceding 12-month period (or such other period as shall
have elapsed from the Effective Date to the date of the first such certificate)
and of its performance under this Agreement has been made under such officer's
supervision, and (ii) to such officer's knowledge, based on such review, the
Servicer has fulfilled all its obligations under this Agreement throughout such
period, or, if there has been a default in the fulfillment of any such
obligation, specifying each such default known to such officer and the nature
and status thereof.
(b) The Servicer shall deliver to the Administrative Agent,
the Backup Servicer and each Rating Agency, promptly after having obtained
knowledge thereof, but in no event later than two (2) Business Days thereafter,
written notice in an Officer's Certificate of any event which with the giving
of notice or lapse of time, or both, would become a Servicer Termination Event
under Section 9.1.
Section 5.11 ANNUAL INDEPENDENT ACCOUNTANTS' REPORT;
QUARTERLY REVIEWS.
(a) The Servicer shall cause a firm of nationally recognized
independent certified public accountants who shall be selected by the Servicer
and acceptable to the Administrative Agent and the Funding Agents (the
"INDEPENDENT ACCOUNTANTS"), who may also render other services to the Servicer
or to either Seller, to deliver to the Administrative Agent, the Backup
Servicer and each Rating Agency, on or before October 31 (or 120 days after the
end of the Servicer's fiscal year, if other than June 30) of each year,
beginning on October 31, 2001, with respect to the twelve months ended the
immediately preceding June 30 (or other applicable date) (or such other period
as shall have elapsed from the Effective Date to the date of such certificate),
a statement (the "ACCOUNTANTS' REPORT") addressed to the Board of Directors of
the Servicer, to the Administrative Agent, and the Backup Servicer, to the
effect that such firm has audited the books and records of AmeriCredit Corp.,
in which the Servicer is included as a consolidated subsidiary, and issued its
report thereon in connection with the audit report on the consolidated
financial statements of AmeriCredit Corp. (such consolidated financial
statements delivered pursuant to Section 2.3(d) hereof) and that (1) such audit
was made in accordance with generally accepted auditing standards, and
accordingly included such tests of the accounting records and such other
auditing procedures as such firm considered necessary in the circumstances; and
(2) the firm is independent of the Sellers and the Servicer within the meaning
of the Code of Professional Ethics of the American Institute of Certified
Public Accountants.
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(b) Within 30 days following the Distribution Date following
the fourth and tenth months of each calendar year, the Independent Accountants
shall undertake a data integrity review substantially in the form of Exhibit F
hereto, as such Exhibit F may from time to time be amended by agreement of the
Borrower and the Administrative Agent, with the consent of the Required Lending
Groups. Additionally, the Independent Accountants shall undertake a data
integrity review substantially in the form of Exhibit G hereto, as such Exhibit
G may from time to time be amended by agreement of the Borrower and the
Administrative Agent, with the consent of the Required Lending Groups; the
report of the Independent Accountants on the results of each such data
integrity review shall be completed and delivered to the Administrative Agent,
the Borrower and the Servicer within 20 days following the first, fourth,
seventh and tenth months of each calendar year. If Receivables constituting
Collateral are less than 5% of the aggregate principal amount of assets
constituting any asset backed transaction each such data integrity review shall
include an examination of (i) 30 Receivable Files with respect to Receivables
which are included in the Collateral, if as of the last day of any such
calendar quarter the daily average Aggregate Net Investment for such quarter
attributable to Receivables is 50% or less of the daily average Maximum
Facility Limit for such quarter and (ii) 75 Receivable Files with respect to
Receivables which are included in the Collateral, if as of the last day of any
such calendar quarter the daily average Aggregate Net Investment for such
quarter attributable to Receivables is more than 50% of the daily average
Maximum Facility Limit for such quarter. If Receivables constituting Collateral
are equal to or greater than 5% of the aggregate principal amount of assets
constituting any asset backed transaction each such data integrity review shall
include the examination of at least "X" Receivables Files with respect to
Receivables which are included in the Collateral, where "X" is the number equal
to the product of (i) the number of receivables included in such data integrity
review and (ii) a fraction the numerator of which is the number of Receivables
included in the Collateral and the denominator of which is the total number of
receivables (including Receivables) included in the pool of receivables subject
to any such asset backed transaction.
Section 5.12 ACCESS TO CERTAIN DOCUMENTATION AND INFORMATION
REGARDING THE RECEIVABLES. The Servicer shall provide to representatives of the
Borrower, the Administrative Agent, the Funding Agents and the Backup Servicer
reasonable access to the Receivable Files and all other documentation regarding
the Receivables. In each case, such access shall be afforded without charge but
only upon reasonable request and during normal business hours. Nothing in this
Section shall derogate from the obligation of the Servicer to observe any
applicable law prohibiting disclosure of information regarding the Obligors,
and the failure of the Servicer to provide access as provided in this Section
as a result of such obligation shall not constitute a breach of this Section.
Section 5.13 MONTHLY TAPE. On or before the Determination
Date, but in no event later than the eighth (8th) calendar day, of each month,
the Servicer will deliver to the Backup Servicer a computer tape or a diskette
(or any other electronic transmission acceptable to the Administrative Agent
and the Backup Servicer) in a format acceptable to the Backup Servicer
containing the information with respect to the Receivables as of
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the preceding Accounting Date necessary for preparation of the Servicer's
Determination Date Certificate relating to the immediately succeeding
Determination Date and necessary to determine the application of collections as
provided in Section 6.4. The Backup Servicer shall use such tape or diskette
(or other electronic transmission acceptable to the Backup Servicer) to verify
the Servicer's Determination Date Certificate delivered by the Servicer, and
the Backup Servicer shall certify to the Administrative Agent that it has
verified the Servicer's Determination Date Certificate in accordance with this
Section 5.13 and shall notify the Servicer and the Administrative Agent of any
discrepancies, in each case, on or before the second Business Day following the
Determination Date. In the event that the Backup Servicer reports any
discrepancies, the Servicer and the Backup Servicer shall attempt to reconcile
such discrepancies prior to the related Distribution Date, but in the absence
of a reconciliation, the Servicer's Determination Date Certificate shall
control for the purpose of calculations and distributions with respect to the
related Distribution Date. In the event that the Backup Servicer and the
Servicer are unable to reconcile discrepancies with respect to a Servicer's
Determination Date Certificate by the related Distribution Date, the Servicer
shall cause the Independent Accountants, at the Servicer's expense, to audit
the Servicer's Determination Date Certificate and, prior to the next succeeding
Determination Date, reconcile the discrepancies. The effect, if any, of such
reconciliation shall be reflected in the Servicer's Determination Date
Certificate for such next succeeding Determination Date. In addition, upon the
occurrence of a Servicer Termination Event the Servicer shall, if so requested
by the Administrative Agent, deliver to the Backup Servicer its Collection
Records and its Monthly Records within 5 Business Days after demand therefor
and a computer tape, or other electronic transmission acceptable to the Backup
Servicer, containing as of the close of business on the date of demand all of
the data maintained by the Servicer in computer format in connection with
servicing the Receivables. Other than the duties specifically set forth in this
Agreement, the Backup Servicer shall have no obligations hereunder, including,
without limitation, to supervise, verify, monitor or administer the performance
of the Servicer. The Backup Servicer shall have no liability for any actions
taken or omitted by the Servicer.
Section 5.14 RETENTION AND TERMINATION OF SERVICER. The
Servicer hereby covenants and agrees to act as such under this Agreement during
the term of the Facility, as such term may be extended pursuant to the Security
and Funding Agreement, unless the Servicer is terminated pursuant to Article IX
hereof, or is permitted to resign pursuant to Section 8.6 hereof.
Section 5.15 FIDELITY BOND AND ERRORS AND OMISSIONS POLICY.
The Servicer has obtained, and shall continue to maintain in full force and
effect, a Fidelity Bond and Errors and Omissions Policy of a type and in such
amount as is customary for servicers engaged in the business of servicing
automobile receivables.
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ARTICLE VI
COLLECTION ACCOUNT; ABS ACCOUNT; DISTRIBUTIONS;
STATEMENTS TO SECURED PARTIES
Section 6.1 ESTABLISHMENT OF COLLECTION ACCOUNT AND ABS
ACCOUNT.
(a) The Administrative Agent, on behalf of the Secured
Parties, shall establish, at the Securities Intermediary, and maintain in its
own name an account that is an Eligible Account (the "COLLECTION ACCOUNT")
bearing a designation clearly indicating that the funds deposited therein are
held for the benefit of the Administrative Agent on behalf of the Secured
Parties. The Administrative Agent, on behalf of the Secured Parties, shall
also establish, at the Securities Intermediary, and maintain in its own name
an account that is an Eligible Account (the "ABS ACCOUNT") bearing a
designation clearly indicating that any certificates representing the Asset
Backed Securities deposited therein are held for the benefit of the
Administrative Agent on behalf of the Secured Parties. The Collection Account
and the ABS Account shall initially be established with The Chase Manhattan
Bank in its capacity as a Securities Intermediary.
(b) Funds on deposit in the Collection Account and/or any
other account established pursuant to Section 6.1(f)(i) (each such account, a
"PLEDGED ACCOUNT"), in excess of $25,000 shall be invested by the
Administrative Agent in Eligible Investments selected by the Administrative
Agent in its discretion among Eligible Investments specified in standing
written instructions of the Borrower, or, in the absence of such
instructions, solely in the discretion of the Administrative Agent. All such
Eligible Investments shall be held by Administrative Agent for the benefit of
the Secured Parties, and funds on deposit in any Pledged Account shall be
invested in Eligible Investments having maturities that are determined by the
Administrative Agent to be consistent with the cashflow requirements of the
CP Lenders (as notified to the Administrative Agent and the Borrower by the
Funding Agents), including availability of funds for the payment of maturing
Commercial Paper, and that in any event will mature no later than the close
of business on the Business Day immediately preceding the following
Distribution Date. Funds deposited in a Pledged Account on the day
immediately preceding a Distribution Date are required to be invested
overnight. All Eligible Investments made in accordance with this subsection
will be held to maturity, except to the extent otherwise required in
connection with an acceleration of indebtedness pursuant to the terms of the
Security and Funding Agreement.
(c) All investment earnings of moneys deposited in the
Pledged Accounts shall be deposited (or caused to be deposited) by the
Administrative Agent in the Collection Account, and any loss resulting from
such investments shall be charged to such account. The Borrower will not
direct the Administrative Agent to make any investment of any funds held in
any of the Pledged Accounts unless the security interest granted and
perfected in such account will continue to be perfected in such investment,
in either case without any further action by any Person, and, in connection
with any direction to the Administrative Agent to make any such investment,
if requested by the Administrative Agent, the Borrower shall deliver to the
Administrative Agent an Opinion
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of Counsel, acceptable to the Administrative Agent, to such effect. Any such
direction shall be subject to the requirements of Section (f)(ii)(3) below.
(d) Neither the Administrative Agent nor any Securities
Intermediary shall in any way be held liable by reason of any insufficiency
in any of the Pledged Accounts resulting from any loss on any Eligible
Investment included therein except for losses attributable to the
Administrative Agent's or the Securities Intermediary's gross negligence or
willful misconduct (PROVIDED that the foregoing shall not be deemed to
relieve the Administrative Agent or the Securities Intermediary of any
liability in its individual capacity as an issuer of any Eligible Investment
for failure to make payments thereon in accordance with the terms thereof).
(e) It is expressly acknowledged and agreed that the
Administrative Agent is authorized hereby to direct the purchase of
investments constituting Eligible Investments (i) from any Affiliate of the
Administrative Agent, including securities that are underwritten, placed or
dealt in by any such Affiliate and/or from management investment companies of
which the Administrative Agent (in its individual capacity) or any Affiliate
is an investment advisor, administrator, shareholder, servicing agent and/or
custodian, or (ii) that involve the Administrative Agent (in its individual
capacity) or an Affiliate of the Administrative Agent as a participant or
counterparty. It is further acknowledged and agreed that the Administrative
Agent (in its individual capacity) and/or such Affiliates may receive
advisory fees, referral fees and other compensation in connection with such
services that are distinct from the fees, charges and expenses of the
Administrative Agent under or in connection with any of the Basic Agreements.
(f) (i) The Administrative Agent on behalf of the Secured
Parties, shall possess all right, title and interest in and to all funds on
deposit from time to time in the Pledged Accounts and in and to all proceeds
thereof and all such funds, investments, proceeds and income shall be part of
the Conveyed Assets. Except as otherwise provided herein, the Pledged
Accounts shall be under the sole dominion and control and the "control"
(within the meaning of the New York UCC) of the Administrative Agent for the
benefit of the Secured Parties; PROVIDED, HOWEVER, that the Administrative
Agent and the Borrower hereby agree that pursuant to that certain Securities
Account Control Agreement dated as of September 14, 2000 between the
Administrative Agent and the Borrower, the Administrative Agent will not
issue any "entitlement order" (as such term is used in such agreement) unless
a Termination Event has occurred hereunder. If, at any time, any of the
Pledged Accounts ceases to be an Eligible Account, the Administrative Agent
(or the Servicer on its behalf) shall within five Business Days (or such
longer period as to which each Rating Agency and the Administrative Agent may
consent) establish a new Pledged Account as an Eligible Account and shall
transfer any cash and/or any investments to such new Pledged Account. In
connection with the foregoing, the Servicer agrees that, in the event that
any of the Pledged Accounts are not accounts with the Administrative Agent,
the Servicer shall notify the Administrative Agent in writing immediately
upon any of such Pledged Accounts ceasing to be an Eligible Account.
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(ii) With respect to the Conveyed Assets, the
Administrative Agent agrees and Borrower agrees to cause that:
(1) any Conveyed Asset that is held in
deposit accounts (within the meaning of the New York UCC)
shall be held solely in Eligible Deposit Accounts; and, except
as otherwise provided herein, each such Eligible Deposit
Account shall be subject to the exclusive custody and control
of the Administrative Agent, and the Administrative Agent
shall have sole signature authority with respect thereto;
(2) with respect to all other Conveyed
Property, Conveyed Securities or Collateral not listed in
subparagraph (1) above, any Conveyed Property, Conveyed
Securities or Collateral invested in Eligible Investments
shall be delivered to the Administrative Agent by (x) causing
such Eligible Investments to be either (A) physically
delivered to the financial institution then maintaining a
Pledged Account (such institution being referred to as a
"Pledged Accounts Securities Intermediary") together with any
necessary indorsements, (B) causing such Eligible Investments
to be credited to a securities account in the name of the
Pledged Accounts Securities Intermediary or (C) taking such
other actions as the Securities Intermediary may request to
make the Securities Intermediary the owner thereof and (y)
causing the Pledged Account Securities Intermediary to create
a Security Entitlement (or a United States Securities
Entitlement, when applicable) in such Pledged Account with
respect to such Eligible Investment by indicating by
book-entry that such Eligible Investment has been credited to
such Pledged Account;
(3) the Administrative Agent shall only
invest in Eligible Investments which the applicable Pledged
Account Securities Intermediary agrees to credit to the
applicable Pledged Account and agrees to treat as a "financial
asset" within the meaning of the Relevant UCC;
(4) any Conveyed Property, Conveyed Security
or Collateral may be delivered: (i) upon the instruction of
the Administrative Agent, by any additional or alternative
procedures as may hereafter become appropriate, in the sole
judgment of the Administrative Agent, under applicable law or
regulations or the interpretation thereof to obtain and
maintain a first priority perfected security interest in any
such Conveyed Property, Conveyed Security or Collateral in
favor of the Administrative Agent on behalf of the Secured
Parties, or (ii) upon the request of the Borrower or the
Servicer and the consent of the Administrative Agent, by any
additional or alternative procedures that will, in the written
opinion of counsel, create and maintain a first priority
perfected security interest in any such Conveyed Property,
Conveyed Security or Collateral in favor of the Administrative
Agent on behalf of the Secured Parties.
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(g) The Servicer shall have the power, revocable by the
Administrative Agent, to instruct the Administrative Agent to make
withdrawals and payments from the Collection Accounts for the purpose of
permitting each of the Servicer and the Administrative Agent to carry out its
respective duties hereunder.
(h) Notwithstanding anything else contained herein, the
Administrative Agent agrees that, with respect to each Pledged Account, it
will cause each Securities Intermediary establishing such Pledged Account to
enter into an agreement pursuant to which the Administrative Agent, for the
benefit of the Secured Parties, shall have "control" (within the meaning of
Section 8-106 of the New York UCC) of such Pledged Account and all
securities, investment property, financial assets, investments and other
property credited thereto from time to time; PROVIDED that each such
agreement entered into between the Administrative Agent and any Securities
Intermediary shall, in the opinion of special counsel to the Secured Parties,
be effective to perfect by "control" (within the meaning of Section 8-106 of
the New York UCC) the security interest of the Administrative Agent for the
benefit of the Secured Parties in such Pledged Account and property credited
thereto.
Section 6.2 COLLECTION ACCOUNT RESERVE.
(a) At all times during the term of the Facility, the
Borrower shall maintain the Collection Account Reserve Minimum. In the event
that the Collection Account Reserve shall fall below the Collection Account
Reserve Minimum, then, as promptly as possible and in no event later than
five Business Days following such event (or, if sooner, the next contemplated
Funding Date pursuant to the Security and Funding Agreement), the Borrower
shall pay to the Administrative Agent, for deposit in the Collection Account
and allocation to the Collection Account Reserve, the amount of any such
shortfall in immediately available funds (such amount, the "COLLECTION
ACCOUNT RESERVE SHORTFALL AMOUNT"; it being understood that the deposit of
any required Collection Account Reserve Shortfall Amount by the Borrower
shall be a condition precedent to the occurrence of any Funding on such
contemplated Funding Date).
(b) Prior to the occurrence of a Termination Event or the
Commitment Expiry Date, on any Distribution Date, after application of
Available Funds as set forth in clauses (i) through (xii) of Section 6.8(a)
hereof, funds on deposit in the Collection Account that are allocated to the
Collection Account Reserve and that are in excess of the higher of (i) the
Collection Account Reserve Minimum and (ii) 6.00% of the VFN Balance, shall
be available for distribution to the Borrower in accordance with Section
6.8(a) hereof. Further, in connection with an Optional Prepayment of the VFN,
and after payment of (i) all obligations to the CP Lenders required in
connection with such prepayment and (ii) all other costs and expenses related
to such prepayment (and PROVIDED that no Termination Event is then in
existence and that the Commitment Expiry Date has not occurred), then, funds
on deposit in the Collection Account that are allocated to the Collection
Account Reserve and that are in excess of the Collection Account Reserve
Minimum may be released to the Borrower in an amount determined as follows:
the product of (A) the Collection Account Reserve and (B) a fraction, the
numerator of which is the Principal Balance of Receivables released in
connection with
35
the prepayment that had been included in the Pool Balance, and the
denominator of which is the Pool Balance before giving effect to the
prepayment; PROVIDED that the Collection Account Reserve shall be maintained
in an amount at least equal to the Collection Account Reserve Minimum after
such distribution.
Following the occurrence of a Termination Event, all
amounts allocated to the Collection Account Reserve shall be applied in
accordance with Section 6.8(a).
Section 6.3 CERTAIN REIMBURSEMENTS TO THE SERVICER. The
Servicer will be entitled to be reimbursed from amounts on deposit in the
Collection Account with respect to a Collection Period for amounts previously
deposited in the Collection Account but later determined by the Servicer to
have resulted from mistaken deposits or postings or checks returned for
insufficient funds. The amount to be reimbursed hereunder shall be paid to
the Servicer on the related Distribution Date pursuant to Section 6.8 upon
certification by the Servicer of such amounts and the provision of such
information to the Administrative Agent as may be necessary in the opinion of
the Administrative Agent to verify the accuracy of such certification. In the
event that the Administrative Agent has not received evidence satisfactory to
it of the Servicer's entitlement to reimbursement pursuant to this Section,
the Administrative Agent shall give notice to such effect.
Section 6.4 APPLICATION OF COLLECTIONS. All collections for
the Collection Period shall be applied by the Servicer as follows:
With respect to each Receivable (other than a Repurchased
Receivable), payments by or on behalf of the Obligor, (other than
Supplemental Servicing Fees with respect to such Receivable, to the extent
collected) shall be applied to interest and principal in accordance with the
Simple Interest Method.
All amounts collected that are payable to the Servicer as
Supplemental Servicing Fees hereunder shall be deposited in the Collection
Account and paid to the Servicer in accordance with Section 5.8.
Section 6.5 SERVICER ADVANCES. In the event that, on any
date, there are not sufficient Available Funds to pay the sum of the amounts
described in Section 6.8(a), clauses (ii)(B), (iv) and (v), due and payable
on such date, the Servicer shall advance an amount equal to such amounts due
and payable on such date (each, a "SERVICER ADVANCE"), PROVIDED that the
Servicer shall not make such an advance to the extent that it does not
reasonably expect, after reasonable inquiry, to be reimbursed for such
advance from the collections on the Receivables and the Asset Backed
Securities.
Section 6.6 APPLICATION OF FUNDS FROM THE COLLECTION
ACCOUNT RESERVE; SPECIAL WITHDRAWALS FROM THE COLLECTION ACCOUNT.
(a) In the event that the Servicer's Determination Date
Certificate with respect to any Determination Date shall state that the
amount of the Available Funds with respect to such Determination Date is less
than the sum of the amounts payable on the related Distribution Date pursuant
to clauses (i) through (xii) of Section 6.8(a) (such amount, an "AVAILABLE
FUNDS DEFICIENCY"), then, on the Business Day preceding the
36
related Distribution Date, the Administrative Agent shall allocate to the
payment of such amounts an amount equal to such Available Funds Deficiency,
to the extent that funds are available, from the Collection Account Reserve.
(b) Notwithstanding anything in this Agreement or any other
Basic Agreement to the contrary, to the extent that a CP Lender (or its
related Funding Agent on its behalf) notifies the Administrative Agent with
respect to any date other than a Distribution Date that such CP Lender has
insufficient funds on hand to pay any portion of the Carrying Costs
representing Accrued Discount payable on such date, then the Administrative
Agent may immediately withdraw the necessary amount from the Collection
Account, including, if necessary, from the Collection Account Reserve, and
make available such amounts for distribution to such CP Lender on such date.
The Administrative Agent shall give notice to the Borrower and the Servicer
by telephone as promptly as practicable and in any event no later than the
Business Day following such withdrawal, such notice to be promptly confirmed
in writing.
Section 6.7 ADDITIONAL DEPOSITS. The Servicer or the
relevant Seller, as applicable, shall deposit or cause to be deposited in the
Collection Account, on the Determination Date following the date on which
such obligations are due, the aggregate Repurchase Obligation Amount or the
aggregate ABS Repurchase Obligation Amount, as applicable, with respect to
Repurchased Receivables or Repurchased Asset Backed Securities, as applicable.
Section 6.8 DISTRIBUTIONS.
(a) No later than 11:00 a.m. New York time on each
Distribution Date, the Administrative Agent shall cause to be made the
following transfers and distributions from the Collection Account in
accordance with the following priorities (such transfers and distributions to
be based solely on the information contained in the Servicer's Determination
Date Certificate delivered on the related Determination Date; SUBJECT,
HOWEVER, (A) in the case of clause (x) below to the effect of any intervening
Funding, in which case the relevant information shall be as updated in the
relevant Servicer's Receivables Sale Date Certificate or the relevant
Servicer's ABS Sale Date Certificate, as the case may be, and (B) to the
occurrence of an intervening Termination Event):
(i) to the Servicer, to repay any outstanding
Servicer Advances;
(ii) on a PARI PASSU basis (A) to each of the
Lockbox Bank, the Servicer and the Independent Accountants, its
respective accrued and unpaid fees and expenses (in each case, only to
the extent such fees and expenses have not been previously paid when
due by the Servicer and provided that, so long as the Servicer is also
the custodian, such fees shall not exceed $200,000 in the aggregate in
any calendar year) and (B) any amounts owing to the Lockbox Bank as
reimbursement for checks that have been credited to the Lockbox Account
and are not collectible in accordance with the procedures specified in
the Lockbox Agreement;
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(iii) to the Servicer, the Base Servicing Fee and
any Supplemental Servicing Fees for the related Collection Period (as
well as any amounts specified in Section 6.3, to the extent the
Servicer has not reimbursed itself in respect of such amounts pursuant
to Section 6.3 and to the extent not retained by the Servicer), but
LESS the total of any fees and expenses to be paid to the Lockbox
Bank(s), the Servicer, the Independent Accountants or the Backup
Servicer pursuant to clauses (ii)(A) or (iv) to the extent that such
amounts have not been previously paid by the Servicer;
(iv) to the Backup Servicer (or any successor
Servicer) to pay servicing fees (in the case of the Backup Servicer,
only to the extent such fees have not been previously paid when due by
the Servicer);
(v) to the Administrative Agent for the benefit of
the Secured Parties, the following amounts in the following priority:
(1) Accrued Discount and Accrued Interest
with respect to such Collection Period not to exceed the
Capped Amount (after giving effect, in the case of Accrued
Discount, to any portion thereof paid since the previous
Distribution Date, whether from the proceeds of newly issued
Commercial Paper, or as contemplated by Section 6.6(b)
hereof);
(2) all dealer fees due and owing with
respect to Commercial Paper issued by such CP Lenders to fund
the Aggregate Net Investment during such Collection Period;
(3) any past due Discount and any past due
interest due and owing to the APA Banks under the Security and
Funding Agreement (in each case, together with interest at the
default rate specified therein) with respect to prior
Collection Periods not to exceed the Capped Amount; and
(4) in accordance with the terms of the Fee
Letter, the Utilization Fee and the Unused Fee accrued from
the first day through the last day of such Collection Period,
whether or not such amounts are payable during such Collection
Period;
(vi) to the Administrative Agent for the benefit of
the Secured Parties, the Targeted Monthly Principal Payment;
(vii) following any replacement of the Servicer, to
the Backup Servicer to pay the reasonable costs of transition,
including any required re-xxxxxxx of the Financed Vehicles, to the
extent such costs have not been paid by the terminated Servicer;
(viii) the costs of the Secured Parties with
respect to the operation of the Yield Protection Provision, on a PARI
PASSU basis;
38
(ix) after the occurrence of the first to occur of
the Commitment Expiry Date or a Termination Event, the remainder to the
Administrative Agent for the benefit of the Secured Parties to reduce
the VFN Balance;
(x) prior to the occurrence of the Commitment
Expiry Date or a Termination Event, the balance, if any, to the
Collection Account Reserve, until the Collection Account Reserve is
equal to the greater of (i) 6.00% of the VFN Balance and (ii) the
Collection Account Reserve Minimum;
(xi) to the Administrative Agent for the benefit of
the Secured Parties, in the following order of priority, (A) all
Accrued Discount and Accrued Interest in excess of the Capped Amount
and (B) any indemnity amounts owing by the Borrower to the Secured
Parties pursuant hereto (other than those described in clause (viii)
above) or pursuant to Section 3.4 of the Security and Funding
Agreement;
(xii) without duplication, to the Administrative
Agent for payment of any other costs, expenses and other amounts due
and owing to the Secured Parties and the Administrative Agent pursuant
to this Agreement and the other Basic Agreements that are accrued and
unpaid during such Collection Period, together with any unpaid costs
and expenses due and owing to the Secured Parties and the
Administrative Agent from prior Collection Periods; and
(xiii) any remaining funds will then be paid to the
Borrower; PROVIDED, HOWEVER, that following the occurrence of a
Termination Event no such distribution shall be made to the Borrower
until after payment of any and all other amounts owed by the Borrower
to the Secured Parties under or in connection with any Basic Agreement,
including, without limitation, any costs and expenses incurred in
connection with such Termination Event.
If funds in the Collection Account are insufficient to pay in
full any of the amounts due and owing to the Secured Parties in clauses (i)
through (xii) of this Section 6.8(a), the Administrative Agent shall distribute
amounts then on deposit in the Collection Account on a PRO RATA basis based upon
the Net Investment of each Lending Group and the Aggregate Net Investment of all
Lending Groups.
(b) In the event that the Collection Account is maintained
with an institution other than the Administrative Agent, the Servicer shall
instruct and cause such institution to make all deposits and distributions
pursuant to Section 6.8(a) on the related Distribution Date.
(c) On each Distribution Date, the Administrative Agent shall
send to each Funding Agent the statement provided to the Administrative Agent by
the Servicer pursuant to Section 5.9 hereof with respect to such Distribution
Date.
(d) In the event that any withholding tax is imposed on any
payment by the Borrower (or allocations of income) to a Secured Party, the
Borrower shall be obligated to indemnify such Secured Party (or Parties) for
such taxes pursuant to the
39
Security and Funding Agreement. Without limiting the obligations of the
Borrower under the Security and Funding Agreement, or the rights of the
Secured Parties in the event of the Borrower's failure to make full and
timely payment of any amounts owing pursuant to Article IV thereof, the
Administrative Agent is hereby authorized and directed to retain from amounts
otherwise distributable to the Secured Parties sufficient funds for the
payment of any tax that is legally owed by the Borrower. The amount of any
withholding tax imposed with respect to a Secured Party shall be treated as
cash distributed to such Secured Party at the time it is withheld by the
Borrower or the Administrative Agent and remitted to the appropriate taxing
authority. If there is a possibility that withholding tax is payable with
respect to a distribution (such as a distribution to a non-US Secured Party),
the Administrative Agent may in its sole discretion withhold such amounts in
accordance with this clause (d). In the event that a Secured Party wishes to
apply for a refund of any such withholding tax, the Administrative Agent
shall reasonably cooperate with such Secured Party in making such claim so
long as such Secured Party agrees to reimburse the Administrative Agent for
any out-of-pocket expenses incurred.
(e) Distributions required to be made to Secured Parties on
any Distribution Date shall be made in immediately available funds, to the
account of the Administrative Agent for distribution to such Secured Party at
a bank or other entity having appropriate facilities therefor.
(f) Subject to Section 6.1 and this section, monies
received by the Administrative Agent hereunder need not be segregated in any
manner except to the extent required by law and may be deposited under such
general conditions as may be prescribed by law, and the Administrative Agent
shall not be liable for any interest thereon.
ARTICLE VII
THE SELLERS
Section 7.1 REPRESENTATIONS AND WARRANTIES OF SELLERS.
Each of the Sellers makes the following representations as to itself and the
relevant property conveyed by it on which the Borrower is deemed to have
relied in acquiring the Receivables and the Asset Backed Securities and on
which the Secured Parties have relied in advancing funds to the Borrower
under the Security and Funding Agreement. The representations speak as of the
execution and delivery of this Agreement and as of each Receivables Sale Date
and each ABS Sale Date, as applicable, with respect to the Receivables or the
Asset Backed Securities, as applicable, sold on such date, and shall survive
the sale of the Receivables or the Asset Backed Securities, as applicable, to
the Borrower and the pledge thereof to the Administrative Agent on behalf of
the Secured Parties.
(a) ORGANIZATION AND GOOD STANDING. The Sellers have been
duly organized and are validly existing as corporations in good standing
under the laws of the State of Delaware. Each Seller has the power and
authority to own its properties and to
40
conduct its business as such properties are currently owned and such business
is currently conducted, and had at all relevant times, and now has, power,
authority and legal right to acquire, own and sell the Receivables, and in
the case of the Primary Seller, the Asset Backed Securities and the Other
Conveyed Property sold to the Borrower.
(b) DUE QUALIFICATION. The Primary Seller is duly qualified
to do business as a foreign corporation in good standing and has obtained all
necessary licenses and approvals in all jurisdictions where the failure to do
so would materially and adversely affect the Primary Seller's ability to sell
the Receivables, the Asset Backed Securities, as applicable, and the Other
Conveyed Property to the Borrower pursuant to this Agreement, or the validity
or enforceability of the Receivables, the Asset Backed Securities, as
applicable, and the Other Conveyed Property or to perform the Seller's
obligations hereunder and under the other Basic Agreements.
(c) POWER AND AUTHORITY. Each Seller has the power and
authority to execute and deliver this Agreement and the other Basic
Agreements to which it is a party and to carry out its terms and their terms,
respectively; each Seller has full power and authority to sell and assign the
Receivables, the Asset Backed Securities, as applicable, and the Other
Conveyed Property to be sold and assigned to and deposited with the Borrower
by it and has duly authorized such sale and assignment to the Borrower by all
necessary corporate action; and the execution, delivery and performance of
this Agreement and the other Basic Agreements to which such Seller is a party
have been duly authorized by such Seller by all necessary corporate action.
(d) VALID SALE, BINDING OBLIGATIONS. This Agreement effects
a valid sale, transfer and assignment of the Receivables, the Asset Backed
Securities, as applicable, and the Other Conveyed Property, enforceable
against the relevant Seller and creditors of and purchasers from such Seller;
and this Agreement and the other Basic Agreements to which each Seller is a
party, when duly executed and delivered, shall constitute legal, valid and
binding obligations of such Seller enforceable in accordance with their
respective terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization or other similar laws affecting the enforcement of
creditors' rights generally and by equitable limitations on the availability
of specific remedies, regardless of whether such enforceability is considered
in a proceeding in equity or at law.
(e) ERISA. Each Seller is in compliance in all material
respects with ERISA and there is no lien of the Pension Benefit Guaranty
Corporation on any of the Receivables, the Asset Backed Securities, as
applicable, or Other Conveyed Property.
(f) NOT AN INVESTMENT COMPANY. Neither Seller is an
"investment company" within the meaning of the Investment Company Act of
1940, as amended, or is exempt from all provisions of such Act.
(g) NO VIOLATION. The consummation of the transactions
contemplated by this Agreement and the other Basic Agreements to which a
Seller is a party and the fulfillment of the terms of this Agreement and the
other Basic Agreements to which a
41
Seller is a party shall not conflict with, result in any breach of any of the
terms and provisions of or constitute (with or without notice, lapse of time
or both) a default under the organizational documents or by-laws of such
Seller, or any indenture, agreement, mortgage, deed of trust or other
instrument to which such Seller is a party or by which it is bound, or result
in the creation or imposition of any Lien upon any of its properties pursuant
to the terms of any such indenture, agreement, mortgage, deed of trust or
other instrument, other than this Agreement, or violate any law, order, rule
or regulation applicable to such Seller of any court or of any federal or
state regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over such Seller or any of its properties.
(h) NO PROCEEDINGS. There are no proceedings or
investigations pending or, to the relevant Seller's knowledge, threatened,
against such Seller, before any court, regulatory body, administrative agency
or other tribunal or governmental instrumentality having jurisdiction over
such Seller or its properties (A) asserting the invalidity of this Agreement
or any of the other Basic Agreements, (B) seeking to prevent the consummation
of any of the transactions contemplated by this Agreement or any of the other
Basic Agreements, (C) seeking any determination or ruling that might
materially and adversely affect the Receivables, the Asset Backed Securities,
as applicable, or the performance by such Seller of its obligations under, or
the validity or enforceability of, this Agreement or any of the other Basic
Agreements, (D) seeking to adversely affect the federal income tax or other
federal, state or local tax attributes of the transactions contemplated by
the Basic Agreements, or (E) involving any Receivable.
(i) CHIEF EXECUTIVE OFFICE. The chief executive office of
the Primary Seller is at 000 Xxxxxx Xxxxxx, Xxxxx 0000, Xxxx Xxxxx, Xxxxx.
The chief executive office of the Secondary Seller is at its Corporate Trust
Office.
(j) NO CONSENTS. Neither Seller is required to obtain the
consent of any other party or any consent, license, approval or
authorization, or registration or declaration with, any governmental
authority, bureau or agency in connection with the execution, delivery,
performance, validity or enforceability of this Agreement which has not
already been obtained.
Section 7.2 EXISTENCE.
(a) During the term of this Agreement, the Sellers will
keep in full force and effect its existence, rights and franchises as a
corporation under the laws of the jurisdiction of its incorporation and will
obtain and preserve its qualification to do business in each jurisdiction in
which such qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, any Receivables Sale Agreements, any ABS
Sale Agreement (in the case of the Primary Seller), the other Basic
Agreements and each other instrument or agreement necessary or appropriate to
the proper administration of this Agreement and the transactions contemplated
hereby.
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(b) During the term of this Agreement, each Seller shall
observe the applicable legal requirements for the recognition of such Seller
as a legal entity separate and apart from its Affiliates, including as
follows:
(i) each Seller shall maintain corporate records
and books of account separate from those of its Affiliates;
(ii) except as otherwise provided in this
Agreement, each Seller shall not commingle its assets and funds with
those of its Affiliates;
(iii) each Seller shall hold such appropriate
meetings of its Board of Directors as are necessary to authorize all
such Seller's corporate actions required by law to be authorized by the
Board of Directors, shall keep minutes of such meetings and of meetings
of its stockholders) and observe all other customary corporate
formalities (and if such Seller or any successor Seller is not a
corporation shall observe similar procedures in accordance with its
governing documents and applicable law);
(iv) each Seller shall at all times hold itself out
to the public under such Seller's own name as a legal entity separate
and distinct from its Affiliates; and
(v) all transactions and dealings between a Seller
and its Affiliates will be conducted on an arm's length basis.
(c) During the term of this Agreement, no Seller shall take
any action that would cause the Borrower to violate any of its covenants under
the Basic Agreements or that otherwise would be likely to have a material
adverse effect on the Borrower and/or the Secured Parties.
Section 7.3 LIABILITY OF SELLERS; INDEMNITIES. The Sellers
shall be liable in accordance herewith only to the extent of the
obligations specifically undertaken by the Sellers under this Agreement.
(a) The Sellers jointly and severally shall indemnify,
defend and hold harmless the Borrower, the Administrative Agent, the Secured
Parties, the Backup Servicer and the Servicer (if other than the Primary
Seller) from and against any taxes that may at any time be asserted against
any such Person with respect to, and as of the date of, each sale of
Receivables or the Asset Backed Securities, in the case of the Primary Seller
only, to the Borrower including any sales, gross receipts, general
corporation, tangible or intangible personal property, privilege or license
taxes (but not including any taxes asserted with respect to ownership of the
Receivables or the Asset Backed Securities, in the case of the Primary Seller
only, or federal or other income taxes, including franchise taxes measured by
net income) and all costs and expenses in defending against the same.
(b) The Sellers jointly and severally shall indemnify,
defend and hold harmless the Borrower, the Administrative Agent, the Secured
Parties, the Backup
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Servicer and the Servicer (if other than the Primary Seller) from and against
any loss, liability or expense incurred by reason of any Seller's willful
malfeasance, bad faith or negligence in the performance of its duties under
this Agreement, or by reason of reckless disregard of its obligations and
duties under this Agreement.
Indemnification under this Section shall survive the
resignation or removal of the Administrative Agent and the termination of
this Agreement and shall include all reasonable fees and expenses of counsel
and other expenses of litigation. If the Sellers shall have made any
indemnity payments pursuant to this Section and the Person to or on behalf of
whom such payments are made thereafter shall collect any of such amounts from
others, such Person shall promptly repay such amounts to the Sellers, without
interest.
Section 7.4 MERGER OR CONSOLIDATION OF, OR ASSUMPTION OF
THE OBLIGATIONS OF, SELLERS. Any Person (a) into which any Seller may be
merged or consolidated, (b) which may result from any merger or consolidation
to which a Seller shall be a party or (c) which may succeed to the properties
and assets of any Seller substantially as a whole, which Person in any of the
foregoing cases executes an agreement of assumption to perform every
obligation of such Seller under this Agreement, shall be the successor to
such Seller hereunder without the execution or filing of any document or any
further act by any of the parties to this Agreement; PROVIDED, HOWEVER, that
(i) such Seller shall have received the written consent of the Borrower and
the Required Lending Groups prior to entering into any such transaction, (ii)
immediately after giving effect to such transaction, no representation or
warranty made pursuant to Section 4.1 shall have been breached and (if AFS is
the Servicer) no Servicer Termination Event, and no event which, after notice
or lapse of time, or both, would become a Servicer Termination Event shall
have happened and be continuing, (iii) such Seller shall have delivered to
the Administrative Agent and the Rating Agencies an Officers' Certificate and
an Opinion of Counsel each stating that such consolidation, merger or
succession and such agreement of assumption comply with this Section and that
all conditions precedent, if any, provided for in this Agreement relating to
such transaction have been complied with, (iv) the Rating Agency Condition
shall have been satisfied with respect to such transaction and (v) such
Seller shall have delivered to the Administrative Agent an Opinion of Counsel
stating that, in the opinion of such counsel, either (A) all financing
statements and continuation statements and amendments thereto relating to the
sale of the Receivables from the Sellers to the Borrower have been executed
and filed that are necessary fully to preserve and protect the interest of
the Borrower in the Receivables and reciting the details of such filings or
(B) no such action shall be necessary to preserve and protect such interest.
For the avoidance of doubt, it is understood that the execution of the
foregoing agreement of assumption and compliance with clauses (i) through (v)
above shall be conditions to the consummation of the transactions referred to
in clauses (a), (b) or (c) above.
Section 7.5 LIMITATION ON LIABILITY OF SELLERS AND OTHERS.
The Sellers and any director or officer or employee or agent of the Sellers
may rely in good faith on the advice of counsel or on any document of any
kind, PRIMA FACIE properly executed and submitted by any Person respecting
any matters arising under any Basic Agreement.
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Neither Seller shall be under any obligation to appear in, prosecute or
defend any legal action that shall not be incidental to its obligations under
this Agreement, and that in its opinion may involve it in any expense or
liability.
ARTICLE VIII
THE SERVICER
Section 8.1 REPRESENTATIONS AND WARRANTIES OF AFS, IN ITS
CAPACITY AS SERVICER. AFS makes the following representations and warranties
on which the Borrower is deemed to have relied in acquiring the Receivables
and on which the Secured Parties have relied in advancing funds to the
Borrower under the Security and Funding Agreement. The representations speak
as of the execution and delivery of this Agreement and as of each Receivables
Sale Date with respect to the Receivables sold on such date, and shall
survive the sale of the Receivables to the Borrower and the pledge thereof to
the Administrative Agent on behalf of the Secured Parties.
(i) ORGANIZATION AND GOOD STANDING. AFS has been
duly organized and is validly existing and in good standing under the
laws of its jurisdiction of organization, with power, authority and
legal right to own its properties and to conduct its business as such
properties are currently owned and such business is currently
conducted, and had at all relevant times, and now has, power, authority
and legal right to enter into and perform its obligations under this
Agreement;
(ii) DUE QUALIFICATION. AFS is duly qualified to do
business as a foreign corporation in good standing and has obtained all
necessary licenses and approvals, in all jurisdictions in which the
ownership or lease of property or the conduct of its business
(including the servicing of the Receivables as required by this
Agreement) requires or shall require such qualification;
(iii) POWER AND AUTHORITY. AFS has the full power
and authority to hold each Receivable on behalf of the Administrative
Agent and has the power and authority to execute and deliver this
Agreement and the other Basic Agreements to which it is a party and to
carry out its terms and their terms, respectively, and the execution,
delivery and performance of this Agreement and the other Basic
Agreements to which it is a party have been duly authorized by the
Servicer by all necessary corporate action;
(iv) BINDING OBLIGATION. This Agreement and the
other Basic Agreements to which AFS is a party shall constitute legal,
valid and binding obligations of AFS enforceable in accordance with
their respective terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization, or other similar laws affecting
the enforcement of creditors' rights generally and by equitable
limitations on the availability of specific remedies, regardless of
whether such enforceability is considered in a proceeding in equity or
at law;
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(v) ERISA. AFS is in compliance in all material
respects with ERISA and there is no lien of the Pension Benefit
Guaranty Corporation on any of the Receivables or Other Conveyed
Property;
(vi) NOT AN INVESTMENT COMPANY. AFS is not an
"investment company" within the meaning of the Investment Company Act
of 1940, as amended, or is exempt from all provisions of such Act;
(vii) NO VIOLATION. The consummation of the
transactions contemplated by this Agreement and the other Basic
Agreements to which AFS is a party, the delivery of Receivables to AFS
as Servicer and the fulfillment of the terms of this Agreement and the
other Basic Agreements to which AFS is a party, shall not conflict
with, result in any breach of any of the terms and provisions of, or
constitute (with or without notice or lapse of time) a default under,
the articles of incorporation or bylaws of AFS, or any indenture,
agreement, mortgage, deed of trust or other instrument to which AFS is
a party or by which it is bound, or result in the creation or
imposition of any Lien upon any of its properties pursuant to the terms
of any such indenture, agreement, mortgage, deed of trust or other
instrument, other than this Agreement, or violate any law, order, rule
or regulation applicable to AFS of any court or of any federal or state
regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over AFS or any of its properties;
(viii) NO PROCEEDINGS. There are no proceedings or
investigations pending or, to the knowledge of AFS threatened, against
AFS, before any court, regulatory body, administrative agency or other
tribunal or governmental instrumentality having jurisdiction over AFS
or its properties (A) asserting the invalidity of this Agreement or any
of the other Basic Agreements, (B) seeking to prevent the consummation
of any of the transactions contemplated by this Agreement or any of the
other Basic Agreements, (C) seeking any determination or ruling that
might materially and adversely affect the performance by AFS of its
obligations under, or the validity or enforceability of, this Agreement
or any of the Basic Agreements or (D) seeking to adversely affect the
federal income tax or other federal, state or local tax attributes of
the transactions contemplated by the Basic Agreements;
(ix) NO CONSENTS. AFS is not required to obtain the
consent of any other party or any consent, license, approval or
authorization, or registration or declaration with, any governmental
authority, bureau or agency in connection with the execution, delivery,
performance, validity or enforceability of this Agreement which has not
already been obtained;
(x) MAINTENANCE OF INTEREST IN RECEIVABLES. Upon
written request of the Administrative Agent, AFS shall take such steps
as requested by the Administrative Agent to protect or maintain any
interest in any Receivable; and
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(xi) THIRD PARTY CLAIMS. AFS has not been notified
by any party that any third party claims an interest in the Receivables
or is requesting AFS to act as a bailee with respect to the
Receivables, except such interests as are created under the Basic
Agreements.
Section 8.2 LIABILITY OF SERVICER; INDEMNITIES.
(a) The Servicer (in its capacity as such) shall be liable
hereunder only to the extent of the obligations in this Agreement specifically
undertaken by the Servicer and the representations made by the Servicer.
(b) The Servicer agrees to indemnify and hold harmless the
Borrower, the Administrative Agent, the Secured Parties, the Backup Servicer,
their respective officers, directors, agents and employees for any and all
claims, liabilities, obligations, losses, damages, payments, costs or expenses
of any kind whatsoever (including the fees and expenses of counsel) that may be
imposed on, incurred or asserted against any of such parties as the result of
any act or omission in any way relating to
(i) the use, ownership or operation by the
Servicer or any Affiliate thereof of any Financed Vehicle or
(ii) the maintenance and custody by the Servicer of
the Receivable Files; PROVIDED, HOWEVER, that the Servicer shall not be
liable for any portion of any such liabilities, obligations, losses,
damages, payments or costs or expenses as are due to the willful
misfeasance, bad faith or gross negligence of the Secured Parties or
the Administrative Agent.
(c) The Servicer shall indemnify, defend and hold harmless the
Borrower, the Administrative Agent, the Secured Parties, the Backup Servicer,
their respective officers, directors, agents and employees from and against any
and all costs, expenses, losses, claims, damages, and liabilities to the extent
that such cost, expense, loss, claim, damage, or liability arose out of, or was
imposed upon the Borrower, the Administrative Agent, the Backup Servicer or the
Secured Parties by reason of the breach of this Agreement by the Servicer, the
negligence, misfeasance, or bad faith of the Servicer in the performance of its
duties under this Agreement, or by reason of reckless disregard of its
obligations and duties under this Agreement.
(d) Indemnification under this Article shall include, without
limitation, reasonable fees and expenses of counsel and expenses of litigation.
If the Servicer has made any indemnity payments pursuant to this Article and the
recipient thereafter collects any of such amounts from others, the recipient
shall promptly repay such amounts collected to the Servicer, without interest.
The indemnification obligations of the Servicer set forth in this Section 8.2
shall survive the termination of this Agreement and, with respect to any
Servicer, shall survive the termination of such Servicer with respect to any act
or omission that occurs prior to such Servicer's termination.
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Section 8.3 MERGER OR CONSOLIDATION OF, OR ASSUMPTION OF
THE OBLIGATIONS OF THE SERVICER OR BACKUP SERVICER.
(a) For so long as AFS is a Seller and the Servicer, in the
event of any conflict between this Section 8.3 and Section 7.4, this Section
8.3 shall control. Any Person (A) into which the Servicer may be merged or
consolidated, (B) which may result from any merger or consolidation to which
the Servicer shall be a party or (C) which may succeed to the properties and
assets of the Servicer substantially as a whole, which Person in any of the
foregoing cases executes an agreement of assumption to perform every
obligation of the Servicer under this Agreement, shall be the successor to
the Servicer hereunder without the execution or filing of any document or any
further act by any of the parties to this Agreement; PROVIDED, HOWEVER, that
the Servicer shall not merge or consolidate with any other person, convey,
transfer or lease substantially all its assets as an entirety to another
Person, or permit any other Person to become the successor to the Servicer's
business except as expressly provided in this Section 8.3.
(b) The Servicer shall be permitted to merge or consolidate
with any other person, convey, transfer or lease substantially all its assets
as an entirety to another Person, or permit another Person to become the
successor to the Servicer's business; PROVIDED (i) that such Person is a
direct or indirect wholly-owned subsidiary of AmeriCredit Corp.; and (ii)
that, after giving effect to such merger, consolidation, conveyance,
transfer, lease or succession, the successor or surviving entity shall be
capable of fulfilling the duties of the Servicer contained in this Agreement
in the reasonable judgment of the Administrative Agent.
(c) Except as described in clause (b) above, the Servicer
shall not merge or consolidate with any other person, convey, transfer or
lease substantially all its assets as an entirety to another Person, or
permit any other Person to become the successor to the Servicer's business
unless: (i) the Servicer shall have received the written consent of the
Administrative Agent (acting at the direction of the Required Lending Groups)
and the Borrower prior to entering into any such transaction, (ii)
immediately after giving effect to such transaction, no representation or
warranty made pursuant to Section 5.6 shall have been breached and no
Servicer Termination Event, and no event which, after notice or lapse of
time, or both, would become a Servicer Termination Event shall have happened
and be continuing, (iii) the Servicer shall have delivered to the
Administrative Agent and the Rating Agencies an Officer's Certificate and an
Opinion of Counsel each stating that such consolidation, merger or succession
and such agreement of assumption comply with this Section and that all
conditions precedent, if any, provided for in this Agreement relating to such
transaction have been complied with, (iv) the Rating Agency Condition shall
have been satisfied with respect to such transaction and (v) the Servicer
shall have delivered to the Administrative Agent an Opinion of Counsel
stating that, in the opinion of such counsel, either (A) all financing
statements and continuation statements and amendments thereto that are
otherwise required hereunder to be filed by the Servicer have been executed
and filed that are necessary fully to preserve and protect the interest of
the Borrower and the Administrative Agent, respectively, in the Receivables
and reciting the details of such filings or (B) no such action shall be
necessary to preserve and protect such interest. Notwithstanding anything
herein to the
48
contrary, the execution of the foregoing agreement of assumption and
compliance with clauses (i), (ii), (iii), (iv) and (v) above shall be
conditions to the consummation of the transactions referred to in clauses (a)
or (c) above.
(d) Any corporation (i) into which the Backup Servicer may
be merged or consolidated, (ii) resulting from any merger or consolidation to
which the Backup Servicer shall be a party, (iii) which acquires by
conveyance, transfer or lease substantially all of the assets of the Backup
Servicer, or (iv) succeeding to the business of the Backup Servicer, in any
of the foregoing cases shall execute an agreement of assumption to perform
every obligation of the Backup Servicer under this Agreement and, whether or
not such assumption agreement is executed, shall be the successor to the
Backup Servicer under this Agreement without the execution or filing of any
paper or any further act on the part of any of the parties to this Agreement,
anything in this Agreement to the contrary notwithstanding; PROVIDED,
HOWEVER, that nothing contained herein shall be deemed to release the Backup
Servicer from any obligation.
Section 8.4 LIMITATION ON LIABILITY OF THE SERVICER AND
THE BACKUP SERVICER.
(a) Neither the Servicer, the Backup Servicer nor any of
the directors or officers or employees or agents of the Servicer or Backup
Servicer shall be under any liability to the Borrower or the Secured Parties,
except as provided in this Agreement, for any action taken or for refraining
from the taking of any action pursuant to this Agreement; PROVIDED, HOWEVER,
that this provision shall not protect the Servicer, the Backup Servicer or
any such person against any liability that would otherwise be imposed by
reason of a breach of this Agreement or willful misfeasance, bad faith or
negligence in the performance of duties; PROVIDED, FURTHER, that this
provision shall not affect any liability to indemnify the Administrative
Agent, the Secured Parties and the Borrower for costs, taxes, expenses,
claims, liabilities, losses or damages paid by the Administrative Agent, the
Secured Parties and the Borrower. The Servicer, the Backup Servicer and any
director, officer, employee or agent of the Servicer or Backup Servicer may
rely in good faith on the written advice of counsel or on any document of any
kind PRIMA FACIE properly executed and submitted by any Person respecting any
matters arising under this Agreement.
(b) Notwithstanding anything herein to the contrary, the
Backup Servicer shall not be liable for any obligation of the Servicer
contained in this Agreement, and the Administrative Agent, the Funding
Agents, the Borrower, the Sellers, and the Secured Parties shall look only to
the Servicer to perform such obligations.
Section 8.5 DELEGATION OF DUTIES. The Servicer may
delegate duties under this Agreement to an Affiliate of the Servicer with the
prior written consent of the Borrower, the Administrative Agent (acting at
the direction of the Required Lending Groups) and the Backup Servicer. The
Servicer also may at any time perform through sub-contractors the specific
duties of (i) repossession of Financed Vehicles, (ii) tracking Financed
Vehicles' insurance and (iii) pursuing the collection of deficiency balances
on certain Delinquent and Defaulted Receivables, in each case, without the
consent of the
49
Administrative Agent or the Borrower and may perform other specific duties
through such sub-contractors in accordance with Servicer's customary
servicing policies and procedures, with the prior consent of the
Administrative Agent and the Borrower; PROVIDED, HOWEVER, that no such
delegation or sub-contracting duties by the Servicer shall relieve the
Servicer of its responsibility with respect to such duties. Neither AFS or
any party acting as Servicer hereunder shall appoint any subservicer
hereunder without the prior written consent of the Administrative Agent
(acting at the direction of the Required Lending Groups), the Borrower, and
the Backup Servicer.
Section 8.6 SERVICER AND BACKUP SERVICER NOT TO RESIGN.
Subject to the provisions of Section 8.3, neither the Servicer nor the Backup
Servicer shall resign from the obligations and duties imposed on it by this
Agreement as Servicer or Backup Servicer except upon a determination that by
reason of a change in legal requirements the performance of its duties under
this Agreement would cause it to be in violation of such legal requirements
in a manner which would have a material adverse effect on the Servicer or the
Backup Servicer, as the case may be, and the Required Lending Groups and the
Borrower do not elect to waive the obligations of the Servicer or the Backup
Servicer, as the case may be, to perform the duties which render it legally
unable to act or to delegate those duties to another Person. Any such
determination permitting the resignation of the Servicer or Backup Servicer
shall be evidenced by an Opinion of Counsel to such effect delivered and
acceptable to the Administrative Agent and the Borrower. No resignation of
the Servicer shall become effective until the Backup Servicer or an entity
acceptable to the Administrative Agent (at the direction of the Required
Lending Groups) and the Borrower shall have assumed the responsibilities and
obligations of the Servicer. No resignation of the Backup Servicer shall
become effective until an entity acceptable to the Administrative Agent (at
the direction of the Required Lending Groups) and the Borrower shall have
assumed the responsibilities and obligations of the Backup Servicer;
PROVIDED, HOWEVER, that in the event a successor Backup Servicer is not
appointed within 60 days after the Backup Servicer has given notice of its
resignation and has provided the Opinion of Counsel required by this Section
8.6, the Backup Servicer may petition a court for its removal.
ARTICLE IX
DEFAULT
Section 9.1 SERVICER TERMINATION EVENT. For purposes of
this Agreement, each of the following shall constitute a "Servicer
Termination Event":
(a) Any failure by the Servicer to deliver to the
Administrative Agent for distribution to the Secured Parties any proceeds or
payment required to be so delivered under the terms of this Agreement that
continues unremedied for a period of two Business Days (one Business Day with
respect to payment of Repurchase Obligation Amounts) after written notice is
received by the Servicer from the Administrative Agent or a Funding Agent or
after discovery of such failure by a Responsible Officer of the Servicer;
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(b) Failure by the Servicer (i) to deliver to the
Administrative Agent the Servicer's Determination Date Certificate in draft
form three Business Days, and in final form two Business Days, prior to the
Distribution Date, which failure continues unremedied as of the close of
business on the first to occur of the next Business Day after written notice
is received by the Servicer from the Administrative Agent or the second
Business Day prior to the Distribution Date, or (ii) to observe its covenants
and agreements set forth in Section 8.3(a), (b) or (c);
(c) Failure on the part of the Servicer duly to observe or
perform any other covenants or agreements of the Servicer set forth in this
Agreement or any other Basic Agreement, which failure continues unremedied
for a period of 30 days after knowledge thereof by the Servicer or after the
date on which written notice of such failure shall have been given to the
Servicer by the Administrative Agent (acting at the direction of the Required
Lending Groups) or the Borrower;
(d) Any representation, warranty or statement of the
Servicer made in this Agreement or any other Basic Agreement or in any
certificate, report or other writing delivered pursuant hereto or thereto
shall prove to be incorrect in any material respect as of the time when the
same shall have been made, and, within 30 days after knowledge thereof by the
Servicer or after written notice thereof shall have been given to the
Servicer by the Administrative Agent or the Borrower, the circumstances or
condition in respect of which such representation, warranty or statement was
incorrect shall not have been eliminated or otherwise cured;
(e) The occurrence of an Insolvency Event with respect to
the Servicer; or
(f) Without duplication of any of the foregoing, a
Termination Event shall have occurred and be continuing.
Section 9.2 CONSEQUENCES OF A SERVICER TERMINATION EVENT.
If a Servicer Termination Event shall occur and be continuing, the
Administrative Agent or the Required Lending Groups or the Borrower (so long
as no other Termination Event shall have then occurred and remain
continuing), by notice given in writing to the Servicer (and to the
Administrative Agent if given by the Required Lending Groups), may terminate
all of the rights and obligations of the Servicer under this Agreement. On or
after the receipt by the Servicer of such written notice, all authority,
power, obligations and responsibilities of the Servicer under this Agreement
automatically shall pass to, be vested in and become obligations and
responsibilities of the Backup Servicer (or such other successor Servicer
appointed by the Administrative Agent at the direction of the Required
Lending Groups, or by the Borrower with the consent of the Required Lending
Groups); PROVIDED, HOWEVER, that the successor Servicer shall have no
liability with respect to any obligation which was required to be performed
by the terminated Servicer prior to the date that the successor Servicer
becomes the Servicer or any claim of a third party based on any alleged
action or inaction of the terminated Servicer. The successor Servicer is
authorized and empowered by this Agreement to execute and deliver, on behalf
of the terminated Servicer, as attorney-in-fact or otherwise, any and all
documents
51
and other instruments and to do or accomplish all other acts or things
necessary or appropriate to effect the purposes of such notice of
termination, whether to complete the sale and indorsement of the Receivables
and the Other Conveyed Property and related documents to show the Borrower as
lienholder or secured party on the related Lien Certificates, or otherwise.
The terminated Servicer agrees to cooperate with the successor Servicer in
effecting the termination of the responsibilities and rights of the
terminated Servicer under this Agreement, including, without limitation, the
transfer to the successor Servicer for administration by it of all cash
amounts that shall at the time be held by the terminated Servicer for
deposit, or have been deposited by the terminated Servicer, in the Collection
Account or thereafter received with respect to the Receivables and the
delivery to the successor Servicer of all Receivable Files, Monthly Records
and Collection Records and a computer tape in readable form as of the most
recent Business Day containing all information necessary to enable the
successor Servicer or a successor Servicer to service the Receivables and the
Other Conveyed Property. If requested by the Administrative Agent or by the
Borrower with the consent of the Administrative Agent (acting at the
direction of the Required Lending Groups), the successor Servicer shall
terminate the Lockbox Agreement and direct the Obligors to make all payments
under the Receivables directly to the successor Servicer (in which event the
successor Servicer shall process such payments in accordance with Section
4.2(e)), or to a lockbox established by the successor Servicer at the
direction of the Administrative Agent or by the Borrower with the consent of
the Administrative Agent, at the successor Servicer's expense. The terminated
Servicer shall grant the Administrative Agent, the Borrower, the successor
Servicer and the Required Lending Groups reasonable access to the terminated
Servicer's premises and to its equipment, systems and personnel, at the
terminated Servicer's expense.
Section 9.3 APPOINTMENT OF SUCCESSOR.
(a) On and after the time the Servicer receives a notice of
termination pursuant to Section 9.2, or upon the resignation of the Servicer
pursuant to Section 8.6, the Backup Servicer (unless the Administrative
Agent, at the direction of the Required Lending Groups or the Borrower with
the consent of the Required Lending Groups, shall have exercised its option
pursuant to Section 9.3 (b) to appoint an alternate successor Servicer) shall
be the successor in all respects to the Servicer in its capacity as servicer
under this Agreement and the transactions set forth or provided for in this
Agreement, and shall be subject to all the rights, responsibilities,
restrictions, duties, liabilities and termination provisions relating thereto
placed on the Servicer by the terms and provisions of this Agreement except
as otherwise stated herein. The Administrative Agent and such successor shall
take such action, consistent with this Agreement, as shall be necessary to
effect any such succession. If a successor Servicer is acting as Servicer
hereunder, it shall be subject to termination under Section 9.2 upon the
occurrence of any Servicer Termination Event applicable to it as Servicer.
(b) The Administrative Agent, at the direction of the
Required Lending Groups, may exercise at any time its right to appoint as
successor to the Servicer a Person other than the Person serving as Backup
Servicer at the time, and shall have no liability to AFS, the Sellers, the
Person then serving as Backup Servicer, any Secured
52
Party or any other Person if it does so. Notwithstanding the above, if the
Backup Servicer shall be legally unable or unwilling to act as Servicer, the
Backup Servicer, the Administrative Agent, acting at the direction of the
Required Lending Groups, or the Borrower with the consent of the Required
Lending Groups may petition a court of competent jurisdiction to appoint any
Eligible Servicer as the successor to the Servicer. Pending appointment
pursuant to the preceding sentence, the Backup Servicer shall act as
successor Servicer unless it is legally unable to do so, in which event the
outgoing Servicer shall continue to act as Servicer until a successor has
been appointed and accepted such appointment. Subject to Section 8.6, no
provision of this Agreement shall be construed as relieving the Backup
Servicer of its obligation to succeed as successor Servicer upon the
termination of the Servicer pursuant to Section 9.2 or the resignation of the
Servicer pursuant to Section 8.6. If upon the termination of the Servicer
pursuant to Section 9.2 or the resignation of the Servicer pursuant to
Section 8.6, the Administrative Agent, acting at the direction of the
Required Lending Groups, or the Borrower with the consent of the Required
Lending Groups appoints a successor Servicer other than the Backup Servicer,
the Backup Servicer shall not be relieved of its duties as Backup Servicer
hereunder.
(c) Any successor Servicer shall be entitled to such
compensation (whether payable out of the Collection Account or otherwise,
including, without limitation, any Supplemental Servicing Fee) as the
Servicer would have been entitled to under this Agreement if the Servicer had
not resigned or been terminated hereunder. If any successor Servicer is
appointed as a result of the Backup Servicer's refusal (in breach of the
terms of this Agreement) to act as Servicer although it is legally able to do
so, the Administrative Agent, the Borrower, and such successor Servicer may
agree on reasonable additional compensation to be paid to such successor
Servicer by the Backup Servicer, which additional compensation shall be paid
by such breaching Backup Servicer in its individual capacity and solely out
of its own funds. If any successor Servicer is appointed for any reason other
than the Backup Servicer's refusal to act as Servicer although legally able
to do so, the Administrative Agent, the Borrower (so long as no Termination
Event other than a Servicer Termination Event shall have then occurred and
remain continuing), and such successor Servicer may agree on additional
compensation to be paid to such successor Servicer, subject to satisfaction
of the Rating Agency Condition, which additional compensation shall be
payable as provided in the Section 6.8 hereof. In addition, any successor
Servicer shall be entitled to reasonable transition expenses incurred in
acting as successor Servicer.
Section 9.4 NOTIFICATION TO SECURED PARTIES. Upon any
termination of, or appointment of a successor to, the Servicer, the
Administrative Agent shall give prompt written notice thereof to each Secured
Party, to the Borrower, and to the Rating Agencies.
Section 9.5 WAIVER OF PAST DEFAULTS. The Required Lending
Groups, or the Borrower with the consent of the Required Lending Groups may
waive any default by the Servicer in the performance of its obligations
hereunder and its consequences. Upon any such waiver of a past default, such
default shall cease to exist, and any Servicer Termination Event arising
therefrom shall be deemed to have been remedied for every
53
purpose of this Agreement; PROVIDED, HOWEVER, that no such waiver shall
extend to any subsequent or other default or impair any right consequent
thereto.
ARTICLE X
ADMINISTRATIVE DUTIES OF THE SERVICER
Section 10.1 ADMINISTRATIVE DUTIES.
(a) DUTIES WITH RESPECT TO THE BORROWER.
(i) Notwithstanding anything in this Agreement or
any of the Basic Agreements to the contrary, the Servicer shall be
responsible for promptly notifying, in writing, the Borrower, the
Administrative Agent and the Funding Agents in the event that any
withholding tax is imposed on the Borrower's payments (or allocations
of income) to any Secured Party. Any such notice shall be in writing
and specify the amount of any withholding tax required to be withheld
by the Administrative Agent pursuant to such provision.
(ii) The Servicer shall perform the duties of the
Servicer specified herein and any other duties expressly required to be
performed by the Servicer under any other Basic Agreement.
(iii) Notwithstanding anything to the contrary in
this Agreement, except as expressly provided herein or in the other
Basic Agreements, the Servicer, in its capacity hereunder, shall not be
obligated to, and shall not, (1) take any action that the Borrower
directs the Servicer not to take on its behalf or (2) in connection
with its duties hereunder assume any indemnification obligation of any
other Person.
Section 10.2 RECORDS. The Servicer shall maintain
appropriate books of account and records relating to services performed under
this Agreement, which books of account and records shall be accessible for
inspection by the Borrower at any time during normal business hours.
Section 10.3 ADDITIONAL INFORMATION TO BE FURNISHED TO THE
BORROWER. The Servicer shall furnish to the Borrower from time to time such
additional information regarding the Collateral as the Borrower shall
reasonably request.
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.1 AMENDMENT. This Agreement may be amended from
time to time by the parties hereto, with the consent of the Administrative
Agent (such consent not to be unreasonably withheld), but without the consent
of any of the Secured Parties, to cure any ambiguity, to correct or
supplement any provisions in this Agreement, to
54
comply with any changes in the Uniform Commercial Code, or to amend any other
provisions with respect to matters or questions arising under this Agreement
which shall not be inconsistent with the provisions of this Agreement or the
other Basic Agreements or the transactions contemplated hereby or thereby;
PROVIDED, HOWEVER, that such action shall not, as evidenced by an Opinion of
Counsel delivered to the Administrative Agent, adversely affect in any
material respect the interests of any Secured Party.
This Agreement may also be amended from time to time by the
parties hereto, with the consent of the Administrative Agent (as directed by
the Required Lending Groups) for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement
or of modifying in any manner the rights of the Secured Parties; PROVIDED,
HOWEVER, that no such amendment shall (a) increase or reduce in any manner
the amount of, or accelerate or delay the timing of, collections of payments
on Receivables or distributions that shall be required to be made for the
benefit of the Secured Parties, (b) reduce the aforesaid percentage of the
outstanding principal amount of the VFN, the Holders of which are required to
consent to any such amendment, (c) amend this Section, or (d) increase the
funding amount of the VFN, without the consent of all the Secured Parties.
Promptly after the execution of any such amendment or
consent, the Administrative Agent shall furnish written notification of the
substance of such amendment or consent to each Secured Party and the Rating
Agencies.
It shall not be necessary for the consent of Secured
Parties pursuant to this Section to approve the particular form of any
proposed amendment or consent, but it shall be sufficient if such consent
shall approve the substance thereof. The manner of obtaining such consents
(and any other consents of Secured Parties provided for in this Agreement)
and of evidencing the authorization of any action by Secured Parties shall be
subject to such reasonable requirements as the Administrative Agent may
prescribe.
Prior to the execution of any amendment to this Agreement,
the Administrative Agent shall be entitled to receive and rely upon an
Opinion of Counsel stating that the execution of such amendment is authorized
or permitted by this Agreement and, if applicable, the Opinion of Counsel
referred to in the first paragraph of this Section 11.1 has been delivered.
The Administrative Agent, the Funding Agents, the Borrower, and the Backup
Servicer may, but shall not be obligated to, enter into any such amendment
which affects the Borrower's, the Administrative Agent's, the Funding Agents'
or the Backup Servicer's, as applicable, own rights, duties or immunities
under this Agreement or otherwise.
Section 11.2 PROTECTION OF TITLE.
(a) The relevant Seller shall execute and file such
financing statements and cause to be executed and filed such continuation
statements, all in such manner and in such places as may be required by law
fully to preserve, maintain and protect the interest of the Borrower in the
Conveyed Property and in the proceeds thereof. The relevant Seller shall
deliver (or cause to be delivered) to the Borrower and the
55
Administrative Agent file-stamped copies of, or filing receipts for, any
document filed as provided above, as soon as available following such filing.
(b) Without limiting any other provision of this Agreement,
neither of the Sellers nor the Servicer shall change its name, identity or
corporate structure in any manner that would, could or might make any
financing statement or continuation statement filed in accordance with
paragraph (a) above seriously misleading within the meaning of Section 9-402
(7) of the Relevant UCC, unless it shall have given the Administrative Agent
and the Borrower at least 15 days' prior written notice thereof and shall
have promptly filed appropriate amendments to all previously filed financing
statements or continuation statements. Promptly upon such filing, the
relevant Seller or the Servicer, as the case may be, shall deliver an Opinion
of Counsel in form and substance reasonably satisfactory to the
Administrative Agent, stating either (A) all financing statements and
continuation statements have been executed and filed that are otherwise
required hereunder to be filed by the relevant Seller or the Servicer, as
applicable, that are necessary fully to preserve and protect the interest of
the Borrower in the Receivables, and reciting the details of such filings or
referring to prior opinions of Counsel in which such details are given, or
(B) no such action shall be necessary to preserve and protect such interest.
(c) Each Seller and the Servicer shall have an obligation
to give the Administrative Agent and the Borrower at least 60 days' prior
written notice of any relocation of its principal executive office if, as a
result of such relocation, the applicable provisions of the Relevant UCC
would require the filing of any amendment of any previously filed financing
or continuation statement or of any new financing statement and shall
promptly file any such amendment. The Servicer shall at all times maintain
each office from which it shall service Receivables, and its principal
executive office, within the United States of America.
(d) The Servicer shall maintain accounts and records as to
each Receivable accurately and in sufficient detail to permit (i) the reader
thereof to know at any time the status of such Receivable, including payments
and recoveries made and payments owing (and the nature of each) and (ii)
reconciliation between payments or recoveries on (or with respect to) each
Receivable and the amounts from time to time deposited in the Collection
Account in respect of such Receivable.
(e) The Servicer shall maintain its computer systems so
that, from and after the time of sale under this Agreement of the Receivables
to the Borrower, the Servicer's master computer records (including any backup
archives) that refer to a Receivable shall indicate clearly that the Borrower
owns such Receivable and that such Receivable has been pledged by the
Borrower to the Administrative Agent for the benefit of the Secured Parties.
Indication of the Borrower's ownership of a Receivable shall be deleted from
or modified on the Servicer's computer systems when, and only when, the
related Receivable shall have been paid in full or repurchased.
(f) If at any time either Seller or the Servicer shall
propose to sell, grant a security interest in or otherwise transfer any
interest in automotive receivables to
56
any prospective purchaser, lender or other transferee, such Seller or the
Servicer, as applicable, shall give to such prospective purchaser, lender or
other transferee computer tapes, records or printouts (including any restored
from backup archives) that, if they shall refer in any manner whatsoever to
any Receivable, shall indicate clearly that such Receivable has been sold and
is owned by the Borrower and has been pledged by the Borrower to the
Administrative Agent for the benefit of the Secured Parties.
(g) Upon request, the Servicer shall furnish to the
Administrative Agent, within five Business Days, a list of all Receivables
(by contract number and name of Obligor) then held as part of the Conveyed
Property, together with a reconciliation of such list to the Schedule of
Receivables and to each of the Servicer's Determination Date Certificates
furnished before such request.
Section 11.3 NOTICES. All demands, notices and
communications upon or to the Sellers, the Servicer, the Borrower, the
Administrative Agent, the Funding Agents, the Secured Parties or the Rating
Agencies under this Agreement shall be in writing, personally delivered, or
mailed by overnight courier, express mail or certified mail, return receipt
requested, and shall be deemed to have been duly given upon receipt by such
Person at its address specified in Annex A hereto.
Section 11.4 ASSIGNMENT. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective
successors and permitted assigns. Notwithstanding anything to the contrary
contained herein, except as provided in Sections 7.4 and 8.3 and as provided
in the provisions of this Agreement concerning the resignation of the
Servicer, this Agreement may not be assigned by either Seller or the Servicer
without the prior written consent of the Administrative Agent (acting at the
direction of the Required Lending Groups), the Borrower, and the Backup
Servicer.
Section 11.5 LIMITATIONS ON RIGHTS OF OTHERS. The
provisions of this Agreement are solely for the benefit of the parties hereto
and their respective successors and permitted assigns. Except as expressly
stated otherwise herein, any right of the Administrative Agent to direct,
appoint, consent to, approve of, or take any action under this Agreement,
shall be a right exercised by the Administrative Agent in its sole and
absolute discretion. The Administrative Agent may disclaim any of its rights
and powers under this Agreement. Nothing in this Agreement, whether express
or implied, shall be construed to give to any other Person any legal or
equitable right, remedy or claim in the Property or under or in respect of
this Agreement or any covenants, conditions or provisions contained herein.
Section 11.6 SEVERABILITY. Any provision of this Agreement
that is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and
any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction.
Section 11.7 SEPARATE COUNTERPARTS. This Agreement may be
executed by the parties hereto in separate counterparts, each of which when
so executed and
57
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
Section 11.8 HEADINGS. The headings of the various
Articles and Sections herein are for convenience of reference only and shall
not define or limit any of the terms or provisions hereof.
Section 11.9 ASSIGNMENT TO ADMINISTRATIVE AGENT. Each of
the Sellers hereby acknowledges and consents to any mortgage, pledge,
assignment and grant of a security interest by the Borrower to the
Administrative Agent for the benefit of the Secured Parties of or in all
right, title and interest of the Borrower in, to and under the Receivables
and Other Conveyed Property, and/or the assignment of any or all of the
Borrower's rights and obligations hereunder to the Administrative Agent. All
rights of the Borrower hereunder may be exercised by the Administrative Agent
for the benefit of the Secured Parties or their assignees to the extent of
their respective rights pursuant to such assignments. Any assignee
(including, but not limited to, any Secured Party) is hereby intended by the
parties hereto to be a third-party beneficiary of this Agreement.
Section 11.10 CHASE ROLES; LIMITATION OF LIABILITY. The
parties expressly acknowledge and consent to The Chase Manhattan Bank acting
in the capacities of Administrative Agent, Backup Servicer, PARCO Funding
Agent and PARCO APA Bank. The Chase Manhattan Bank may, in any such or other
capacities, discharge its separate functions fully, without hindrance or
regard to conflict of interest principles, duty of loyalty principles or
other breach of fiduciary duties to the extent that any such conflict or
breach arises from the performance by The Chase Manhattan Bank of express
duties set forth in this Agreement or in any other Basic Agreement in any of
such capacities, all of which defenses, claims or assertions are hereby
expressly waived by the other parties hereto and the Secured Parties except
in the case of gross negligence and willful misconduct by The Chase Manhattan
Bank. Without limiting any other provision hereof, the parties further
expressly acknowledge and agree that in no event shall The Chase Manhattan
Bank be liable under or in connection with this Agreement or any other Basic
Agreement for indirect, special or consequential losses or damages of any
kind, including lost profits, even if advised of the possibility thereof and
regardless of the form of action by which such losses or damages may be
claimed.
Section 11.11 NON-PETITION COVENANTS.
(a) Notwithstanding any prior termination of this
Agreement, the Servicer, the Sellers, the Administrative Agent, the Funding
Agents and each Secured Party shall not, prior to the date which is one year
and one day after the later of (i) termination of this Agreement with respect
to the Borrower and (ii) the payment in full of all obligation due and owing
by the Borrower to the Administrative Agent, the Funding Agents and the
Secured Parties under the Basic Agreements, acquiesce, petition or otherwise
invoke or cause the Borrower to invoke the process of any court or government
authority for the purpose of commencing or sustaining a case by or against
the Borrower under any federal or state bankruptcy, insolvency or similar law
or appointing a receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of the
58
Borrower or any substantial part of its property, or ordering the winding up
or liquidation of the affairs of the Borrower.
(b) Notwithstanding any prior termination of this
Agreement, the Servicer, the Administrative Agent, the Funding Agents and
each Secured Party shall not, prior to the date that is one year and one day
after the termination of this Agreement with respect to any Seller, acquiesce
to, petition or otherwise invoke or cause any Seller to invoke the process of
any court or government authority for the purpose of commencing or sustaining
a case by or against any Seller under any federal or state bankruptcy,
insolvency or similar law, appointing a receiver, liquidator, assignee,
trustee, custodian, sequestrator, or other similar official of such Seller or
any substantial part of its property, or ordering the winding up or
liquidation of the affairs of any Seller.
(c) Notwithstanding anything contained herein to the
contrary, this Agreement has been executed and delivered by The Chase
Manhattan Bank, not in its individual capacity but solely in its capacities
as Administrative Agent and as Backup Servicer and in no event shall The
Chase Manhattan Bank have any liability for the representations, warranties,
covenants, agreements or other obligations of the Borrower hereunder or in
any of the certificates, notices or agreements delivered pursuant hereto, as
to all of which recourse shall be had solely to the assets of the Borrower.
Section 11.12 INDEPENDENCE OF THE SERVICER. For all
purposes of this Agreement, the Servicer shall be an independent contractor
and shall not be subject to the supervision of the Borrower, the
Administrative Agent or the Backup Servicer with respect to the manner in
which it accomplishes the performance of its obligations hereunder. Unless
expressly authorized by this Agreement, the Servicer shall have no authority
to act for or represent the Borrower in any way and shall not otherwise be
deemed an agent of the Borrower.
Section 11.13 NO JOINT VENTURE. Nothing contained in this
Agreement (i) shall constitute the Servicer or the Borrower as members of any
partnership, joint venture, association, syndicate, unincorporated business
or other separate entity, (ii) shall be construed to impose any liability as
such on any of them or (iii) shall be deemed to confer on any of them and
express, implied or apparent authority to incur any obligation or liability
on behalf of the others.
Section 11.14 CONSENTS TO JURISDICTION. Each of the
parties hereto irrevocably submits to the jurisdiction of the United States
District Court for the Southern District of New York, any court in the State
of New York located in the city and county of New York, and any appellate
court from any thereof, in any action, suit or proceeding brought against it
and related to or in connection with this Agreement, the other Basic
Agreements or the transactions contemplated hereunder or thereunder or for
recognition or enforcement of any judgment and each of the parties hereto
irrevocably and unconditionally agrees that all claims in respect of any such
suit or action or proceeding may be heard or determined in such New York
State court or, to the extent permitted by law, in such federal court. Each
of the parties hereto agrees that a final judgment in any such action, suit
or proceeding shall be conclusive and may be enforced in other
59
jurisdictions by suit on the judgment or in any other manner provided by law.
To the extent permitted by applicable law, each of the parties hereby waives
and agrees not to assert by way of motion, as a defense or otherwise in any
such suit, action or proceeding, any claim that it is not personally subject
to the jurisdiction of such courts, that the suit, action or proceeding is
brought in an inconvenient forum, that the venue of the suit, action or
proceeding is improper or that this Agreement or any of the other Basic
Agreements or the subject matter hereof or thereof may not be litigated in or
by such courts. The Borrower hereby irrevocably appoints and designates The
Xxxxxxxx-Xxxx Corporation System, 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxx Xxxx
00000-0000 as its true and lawful attorney and duly authorized agent for
acceptance of service of legal process. The Borrower agrees that service of
such process upon such Person shall constitute personal service of such
process upon it. Nothing contained in this Agreement shall limit or affect
the rights of any party hereto to serve process in any other manner permitted
by law or to start legal proceedings relating to any of the Basic Agreements
against the Sellers, the Servicer, the Borrower or their respective property
in the courts of any jurisdiction.
Section 11.15 TRIAL BY JURY WAIVED. Each of the parties
hereto waives, to the fullest extent permitted by law, any right it may have
to a trial by jury in respect of any litigation arising directly or
indirectly out of, under or in connection with this Agreement, any of the
other Basic Agreements or any of the transactions contemplated hereunder or
thereunder. Each of the parties hereto (a) certifies that no representative,
agent or attorney of any other party has represented, expressly or otherwise,
that such other party would not, in the event of litigation, seek to enforce
the foregoing waiver and (b) acknowledges that it has been induced to enter
into this Agreement and the other Basic Agreements to which it is a party, by
among other things, this waiver.
Section 11.16 GOVERNING LAW. THIS AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED
IN ACCORDANCE WITH SUCH LAWS.
Section 11.17 NO RECOURSE. It is expressly understood and
agreed by the parties hereto that (a) this Agreement is executed and
delivered by Bankers Trust (Delaware), not individually or personally but
solely as trustee of the Borrower, in the exercise of the powers and
authority conferred and vested in it, (b) each of the representations,
undertakings and agreements herein made on the part of the Borrower is made
and intended not as personal representations, undertakings and agreements by
Bankers Trust (Delaware) but is made and intended for the purpose of binding
only the Borrower, (c) nothing herein contained shall be construed as
creating any liability on Bankers Trust (Delaware), individually or
personally, to perform any covenant either expressed or implied contained
herein, all such liability, if any, being expressly waived by the parties
hereto and by any Person claiming by, through or under the parties hereto and
(d) under no circumstances shall Bankers Trust (Delaware) be personally
liable for the payment of any indebtedness or expenses of the Borrower or be
liable for the breach or failure of any obligation, representation, warranty
or covenant made or undertaken by the Borrower under this Agreement or any
other related documents.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their respective duly
authorized officers as of the day and the year first above written.
AMERICREDIT MANHATTAN TRUST,
Borrower
By: Bankers Trust (Delaware), solely in its
capacity as Trustee of AmeriCredit Manhattan
Trust
By:
-----------------------------------------------------
Name:
Title:
AMERICREDIT FUNDING CORP. V,
Seller
By:
-----------------------------------------------------
Name:
Title:
AMERICREDIT FINANCIAL SERVICES, INC.,
Servicer and Primary Seller
By:
-----------------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President
and Treasurer
By:
-----------------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President
and Treasurer
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THE CHASE MANHATTAN BANK,
not in its individual capacity
but solely as Backup Servicer
By:
---------------------------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK,
as Administrative Agent on behalf of the
Secured Parties
By:
---------------------------------------------------
Name:
Title:
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SCHEDULE A
THIS SCHEDULE INTENTIONALLY OMITTED
A-1
SCHEDULE B
REPRESENTATIONS AND WARRANTIES OF THE SELLERS
RELATING TO RECEIVABLES
(a) GENERAL CHARACTERISTICS.
Each Receivable:
(i) has been originated in the United States by the Primary Seller
directly or by a Dealer or Third-Party Lender for the retail sale or
refinancing of a Financed Vehicle in the ordinary course of its
business and the Primary Seller or Dealer or Third-Party Lender (as the
case may be) has all necessary licenses and permits to originate
Receivables in the state where either such Dealer or Third-Party Lender
or the related consumer is located, has been fully and properly
executed by the parties thereto, and, if originated by a Dealer or
Third-Party Lender, has been purchased from such Dealer or Third-Party
Lender by the Primary Seller under an existing Dealer Agreement or
Third Party Loan Purchase Agreements, as the case may be, or validly
assigned by such Dealer or Third-Party Lender to the Primary Seller or,
with respect to any Receivable sold to the Borrower by the Seller, was
purchased by the Seller (and, if originated by the Primary Seller, is
an eligible Receivable under any term securitization documents of the
Primary Seller at the time of purchase by the Borrower);
(ii) has created a valid, subsisting and enforceable first priority
perfected security interest in favor of the Primary Seller in the
related Financed Vehicle (which security interest has been validly
assigned to the Borrower (or the Secondary Seller and by the Secondary
Seller to the Borrower in cases of sales by the Primary Seller to the
Secondary Seller) and has been validly assigned by the Borrower to the
Administrative Agent on behalf of the Secured Parties), except as
enforceability may be limited by bankruptcy, insolvency, reorganization
or similar laws affecting the enforcement of creditors' rights
generally;
(iii) contains customary and enforceable provisions (except as
enforceability may be limited by bankruptcy, insolvency, reorganization
or similar laws affecting the enforcement of creditors' rights
generally) such that the rights and remedies of the holder thereof
shall be adequate for realization against the collateral of the
benefits of the security;
(iv) provides for level monthly payments (PROVIDED that the payment in
the first or last month in the life of the Receivable may be minimally
different from the level payment) that fully amortize the amount
financed over the original contractual term and yield interest at the
annual percentage rate;
(v) provides for, in the event that the related Contract is prepaid, a
prepayment that fully pays the principal balance and includes accrued
but unpaid interest
B-1
through the date of prepayment in an amount at least equal to the
annual percentage rate; and
(vi) has not been amended, or rewritten or collections with respect
thereto deferred or waived except in accordance with the Credit and
Servicing Procedures.
(b) COMPLIANCE WITH LAW. Each Receivable and the sale or refinancing of
the related Financed Vehicle complied at the time it was originated or made,
and at the date such Receivable is sold by the Seller to the Borrower,
complies, in all material respects, with all requirements of applicable
Federal, state and local laws and regulations thereunder, including, without
limitation, usury laws, the Federal Truth-in-Lending Act, the Equal Credit
Opportunity Act, the Federal Trade Commission Act, the Fair Credit Billing
Act, the Fair Credit Reporting Act, the Fair Debt Collection Practices Act,
the Xxxxxxxx-Xxxx Warranty Act, the Federal Reserve Board's Regulations B and
Z, the Federal Trade Commission Credit Practices Rule, state unfair and
deceptive trade practice laws, and state adaptations of the National Consumer
Act and of the Uniform Consumer Credit Code, and any other applicable
consumer credit, equal credit opportunity and disclosure laws.
(c) NO FRAUD. Each Receivable was originated by (i) a Dealer or
Third-Party Lender and was sold by the Dealer or Third-Party Lender to the
Seller without any fraud or misrepresentation by the dealer or (ii) the
Seller in connection with a refinancing or direct loan.
(d) BINDING OBLIGATION. Each Receivable represents the genuine, legal,
valid and binding payment obligation in writing of the Obligor, enforceable
by the holder thereof in accordance with its terms (except as enforceability
may be limited by bankruptcy, insolvency, reorganization or similar laws
affecting the enforcement of creditors' rights generally) and all parties to
each Receivable had full legal capacity to execute and deliver such
Receivable and all other documents related thereto and to grant the security
interest purported to be granted thereby.
(e) NO GOVERNMENT OBLIGOR. No Receivable is due from the United States
of America or any state or local government or from any agency, department or
instrumentality of the United States of America, any state or local
government.
(f) NO OBLIGOR BANKRUPTCY. At the Relevant Cutoff Date no Obligor had
been identified on the records of the Seller as being the subject of a
current bankruptcy proceeding.
(g) SCHEDULE OF RECEIVABLES. The information set forth in the Schedule
of Receivables has been produced from the Seller's electronic ledger and was
true and correct in all material respects on the Relevant Cutoff Date, and is
a complete and accurate description, on the relevant Receivables Sale Date,
of the Receivables sold to the Borrower on such date; and on or prior to the
relevant Receivables Sale Date, the Seller
B-2
has appropriately marked its computer records to indicate the sale to the
Borrower of the Receivables sold on such date.
(h) CERTAIN CHARACTERISTICS OF RECEIVABLES.
Each Receivable:
(i) has a remaining maturity, as of the Relevant Cutoff Date, of not
more than 72 months;
(ii) each Receivable has an original maturity of not more than 72
months;
(iii) each Receivable has a remaining Principal Balance as of the
Relevant Cutoff Date of not more than $60,000;
(iv) no Receivable is more than 30 days past due as of the Relevant
Cutoff Date; and
(v) no funds have been advanced by the Seller, any dealer, or anyone
acting on behalf of any of them in order to cause any Receivable to
qualify under clause (iv) above.
(i) RECEIVABLES IN FORCE. No Receivable has been satisfied, subordinated
or rescinded, nor shall any Financed Vehicle have been released from the
security interests granted by the related Contract in whole or in part.
(j) NO WAIVER. No provision of any Receivable has been waived, except in
accordance with the Credit and Servicing Procedures.
(k) NO DEFENSES. Except for the security interests in favor of the
Primary Seller, the Secondary Seller and the Borrower, the Receivables are
free and clear of all security interests, liens, charges, and encumbrances
and to the best knowledge of the relevant Seller no right of rescission,
setoff, counterclaim or defense has been asserted or threatened with respect
to any Receivable.
(l) NO LIENS. No liens or claims have been filed for work, labor or
materials relating to a Financed Vehicle that are liens prior to or equal or
coordinate with, the security interest in the Financed Vehicle granted by the
Receivable.
(m) NO DEFAULT. No default, breach, violation or event permitting
acceleration under the terms of any Receivable has occurred, and neither the
Seller nor the Servicer has waived any of the foregoing, except in accordance
with the Credit and Servicing Procedures.
(n) INSURANCE. The Obligor under each Receivable has obtained physical
damage and theft insurance covering the Financed Vehicle, and is required
under the terms of the Receivable to maintain such insurance.
B-3
(o) TITLE. (i) Immediately prior to the sale of the subject Receivables,
the Seller had, and has conveyed to the Borrower, good and marketable title
to each Receivable free and clear of all liens, encumbrances, security
interests and rights of others, and (ii) the sale and assignment of the
Receivables to the Borrower has been perfected under the Relevant UCC.
(p) RECEIVABLE FILES COMPLETE. There exists a Receivable File pertaining
to each Receivable and such Receivable File contains (1) where applicable, a
fully executed original of the Contract, (2) the original executed credit
application (or, if no such credit application has been completed, other
evidence of application being made or credit evaluation being conducted), or
a copy thereof, together with all applicable amendments and addenda and (3)
the original Lien Certificate or application therefor or, for any Contract
secured by a Financed Vehicle registered in any state for which the Paperless
Title System is used to evidence title to and any lien in the Financed
Vehicle, a computer printout or similar documentary evidence that there is an
electronic record in the Paperless Title System indicating that the Financed
Vehicle is owned by the Obligor and subject to the interest of the Seller as
first lienholder or secured party (when such electronic record becomes
available through the Paperless Title System). Each of such documents which
is required to be signed by the Obligor has been signed by the Obligor in the
appropriate spaces. All blanks on any form have been properly filled in and
each form has otherwise been correctly prepared. The complete Receivable File
for each Receivable currently is in the possession of the Servicer, as
custodian.
(q) LAWFUL ASSIGNMENT. No Receivable has been originated in, or is
subject to the laws of, any jurisdiction under which the sale, transfer and
assignment of such Receivable shall be unlawful, void or voidable.
(r) ALL FILINGS MADE. All filings (including, without limitation, UCC
filings) necessary in any jurisdiction to give the Borrower a first priority
perfected security interest in the Receivables have been made.
(s) ONE ORIGINAL. There is in existence one, and only one, original
executed copy of each Receivable.
(t) LOCKBOX. The Obligor of each Receivable is required to make payments
to a lockbox that is subject to a Lockbox Agreement.
(u) UCC CHARACTERIZATION. The contract evidencing such Receivable
constitutes "chattel paper" under the Relevant UCC.
(v) NO ADVERSE SELECTION. No selection procedures adverse to the Secured
Parties or the Borrower were used in selecting the Receivables from the
receivables owned by the Seller and/or otherwise constituting Managed Assets,
that met the selection criteria contained in the Sale and Servicing Agreement
and set forth above in this Schedule B.
(w) At the time a Receivable was sold to the Borrower, such Receivable
was "eligible" as such term is defined in any asset-backed transaction of AFS.
B-4
SCHEDULE C
REPRESENTATIONS AND WARRANTIES OF THE PRIMARY SELLER
RELATING TO ASSET BACKED SECURITIES
(a) GENERAL CHARACTERISTICS.
Each Asset Backed Security:
(i) is an Eligible Security; and
(ii) contains customary and enforceable provisions (except as
enforceability may be limited by bankruptcy, insolvency, reorganization
or similar laws affecting the enforcement of creditors' rights
generally) such that the rights and remedies of the holder thereof
shall be adequate for realization against the collateral of the
benefits of the security.
(b) BINDING OBLIGATION. Each Asset Backed Security represents the
genuine, legal, valid and binding payment obligation in writing of the
issuer, enforceable by the holder thereof in accordance with its terms
(except as enforceability may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting the enforcement of creditors' rights
generally).
(c) NO OBLIGOR BANKRUPTCY. On the relevant ABS Sale Date, the issuer
thereof was not the subject of a current bankruptcy proceeding.
(d) ONE ORIGINAL. In the case of an Asset Backed Security in
certificated form, there is only one, original executed copy of such Asset
Backed Security.
C-1
Schedule 3.1 to
SALE AND SERVICING AGREEMENT
CONDITIONS PRECEDENT
In addition to the receipt of documents and satisfaction of
other conditions set forth in Section 3.1 of the Sale and Servicing
Agreement, the following shall have been delivered, and shall be satisfactory
in form and substance, to the Administrative Agent and the Borrower:
1. Certified copy of the Credit and Servicing Procedures.
2. A Certified Certificate of Trust
3. A Borrower Good Standing Certificate.
4. Each of the Sellers' and Servicer's Certificate, including as
attachments thereto:
a. Resolutions of the Board of Directors duly
authorizing the execution, delivery and performance
by the Primary Seller, the Secondary Seller or the
Servicer, as appropriate, of each of the Basic
Agreements to which it is a party and any other
documents executed by or on behalf of the Primary
Seller, the Secondary Seller or the Servicer, as
appropriate, in connection with the transactions
contemplated thereby;
b. Certified Certificate of Incorporation; and
c. By-laws.
5. An Incumbency Certificate of the Primary Seller and the
Secondary Seller setting forth the names, titles and
signatures of their respective officers who are authorized to
execute documents, give instructions and otherwise take
actions on their behalf in connection with the contemplated
transactions, in its roles as a Seller or the Servicer, as
appropriate.
6. A Good Standing Certificate of each of the Sellers and the
Servicer.
7. An Opinion of special counsel to each of the Sellers as to
true sale and nonconsolidation matters.
8. An Opinion of special counsel to each of the Sellers with
respect to the validity and enforceability of certain
transaction documents.
9. Opinion of local counsel to the Borrower, as to the formation
of and other corporate matters relating to the Borrower, as to
the enforceability of
3.1-1
certain transaction documents and as to the enforceability,
perfection and priority of the security interests in the
Collateral.
10. The Opinion of Xxxxx X. Xxxxxx, General Counsel to AmeriCredit
Corp., AFS, and AmeriCredit Funding Corp., V, with respect to
corporate matters for each of the Sellers, the Servicer and
the Borrower.
11. Acknowledgment copy of the financing statements naming the
Primary Seller and the Secondary Seller, as debtors, the
Borrower, as secured party, and the Administrative Agent, as
assignee, filed with the Office of the Secretary of State of
the State of Texas, in the case of the Primary Seller, and
Delaware in the case of the Secondary Seller.
12. Acknowledgment copy of the financing statement naming the
Borrower, as debtor, and the Administrative Agent, as secured
party, filed with the Secretary of State of the State of
Delaware.
13. Rating Letters:
a. Letters from Standard & Poor's and Moody's confirming
PARCO's A-1/P-1 commercial paper ratings;
b. Letters from Standard & Poor's and Fitch confirming
HLS's "A-1" and "F-1", respectively, commercial paper
ratings;
c. VFN rating letter from Moody's;
d. VFN rating letter from S&P; and
e. Any rating letter issued with respect to Asset Backed
Securities.
3.1-2
Exhibit A-1 to
SALE AND SERVICING AGREEMENT
RECEIVABLES SALE AGREEMENT
Receivables Sale Agreement (this "Agreement"), dated
_________, 2000, among AMERICREDIT FUNDING CORP. V, a Delaware corporation
("AFC"), AMERICREDIT FINANCIAL SERVICES, INC., a Delaware corporation ("AFS"
and together with AFC, the "Sellers") and AMERICREDIT MANHATTAN TRUST, a
Delaware business trust (the "Purchaser").
W I T N E S S E T H:
WHEREAS, pursuant to the Sale Agreement (the form of which
is attached hereto as Addendum A), AFS wishes to sell/and or contribute
Receivables to AFC;
WHEREAS, the Sellers wish to sell/and or contribute
Receivables to the Purchaser; and
WHEREAS, the Purchaser is willing to purchase or acquire as
a contribution such Receivables subject to the terms and conditions hereof.
NOW, THEREFORE, the Purchaser and the Sellers hereby agree
as follows:
1. DEFINED TERMS. Capitalized terms used herein shall have
the meanings ascribed to them in Annex A to the Sale and Servicing Agreement,
dated as of September [14], 2000, (the "SALE AND SERVICING AGREEMENT"),
unless otherwise defined herein.
"RELEVANT CUTOFF DATE" shall mean, with respect to the
Receivables sold and/or contributed hereby, _____________ __, 200_.
"RECEIVABLES SALE DATE" shall mean, with respect to the
Receivables assigned hereby, the date hereof.
2. SCHEDULE OF RECEIVABLES. Annexed hereto are Schedule A-1
and Schedule A-2 from AFS and AFC, respectively, listing the Receivables sold
and/or contributed by it pursuant to this Agreement on the Receivables Sale
Date. The term "Receivables" as used in this Agreement means and includes
each and every chattel paper and other form of receivable relating to the
sale or financing provided for new or used motor vehicles transferred by
Sellers to Purchaser pursuant to this Agreement and identified on the
Schedule A-1 and Schedule A-2 provided by AFS and AFC, respectively, attached
hereto, together with all payment obligations hereunder and all proceeds
thereof. It is intended that Sellers will transfer to Purchaser hereafter
from time
A-1-1
to time additional Receivables, whether now existing or hereafter arising and
wherever located.
3. SALE AND/OR CONTRIBUTION OF RECEIVABLES. (a) Each
Seller, does hereby sell and/or contribute, transfer, assign, set over and
otherwise convey to the Purchaser (the "ASSIGNMENT"), without recourse
(except as expressly provided in the Sale and Servicing Agreement), all
right, title and interest of such Seller in and to:
(i) the Receivables listed in Schedule A-1 (in the case of
AFS) and Schedule A-2 (in the case of AFC) and all moneys received
thereon, on and after the Relevant Cutoff Date;
(ii) all security interests in the Financed Vehicles granted
by Obligors pursuant to the Receivables and any other interest of the
Seller in such Financed Vehicles;
(iii) all proceeds and all rights to receive proceeds with
respect to the Receivables from claims on any physical damage, credit
life or disability insurance policies covering Financed Vehicles or
Obligors;
(iv) all rights of the Seller against Dealers pursuant to
Dealer Agreements and/or Dealer Assignments;
(v) all rights of the relevant Seller against Third-Party
Lenders pursuant to Third-Party Loan Purchase Agreements and/or
Third-Party Lender Assignments.
(vi) all rights under any Service Contracts on the related
Financed Vehicles;
(vii) the related Receivables Files; and
(viii) all proceeds of any and all of the foregoing.
(b) The Assignment is in consideration of the Purchaser's
delivery to or upon the order of Sellers as set forth below:
(i) $___________ to AFS; and
(ii) $___________ to AFC.
4. REPRESENTATIONS AND WARRANTIES OF THE SELLERS.
(a) REPRESENTATIONS AND WARRANTIES OF AFS. AFS hereby
represents and warrant to the Purchaser as of the Receivables Sale Date
that:
(i) SALE AND SERVICING AGREEMENT. The representations
and warranties set forth herein and in the Sale and Servicing
Agreement are
A-1-2
true and correct and with respect to any representation which
relates to the property sold and/or contributed pursuant to
Section 3 hereof.
(ii) PRINCIPAL BALANCE. As of the Relevant Cutoff
Date, the aggregate Outstanding Principal Balance of the
Receivables listed on the Schedule of Receivables provided by
AFS (annexed hereto as Schedule A-1) and sold to the Purchaser
pursuant to this Agreement is
$____________________.
(b) REPRESENTATIONS AND WARRANTIES OF AFC. AFC hereby
represents and warrant to the Purchaser as of the Receivables Sale Date
that:
(i) SALE AND SERVICING AGREEMENT. The representations
and warranties set forth herein and in the Sale and Servicing
Agreement are true and correct and with respect to any
representation which relates to the property sold and/or
contributed pursuant to Section 3 hereof.
(ii) PRINCIPAL BALANCE. As of the Relevant Cutoff
Date, the aggregate Outstanding Principal Balance of the
Receivables listed on the Schedule of Receivables provided by
AFC (annexed hereto as Schedule A-2) and sold to the Purchaser
pursuant to this Agreement is
$_____________________.
5. CONDITIONS PRECEDENT. The obligation of the Purchaser to
acquire the Receivables hereunder is subject to the satisfaction, on or prior
to the Receivables Sale Date, of the following conditions precedent:
(a) REPRESENTATIONS AND WARRANTIES. Each of the
representations and warranties made by the Sellers in Section 4 of this
Agreement and in Sections 4.1 and 7.1 of the Sale and Servicing
Agreement shall be true and correct with respect to the property sold
and/or contributed pursuant to Section 3 hereof as of the Receivables
Sale Date.
(b) SALE AND SERVICING AGREEMENT CONDITIONS. Each of the
conditions set forth in Section 3.2 of the Sale and Servicing Agreement
shall have been satisfied with respect to the property sold pursuant to
Section 3 hereof.
(c) ADDITIONAL INFORMATION. The Sellers shall have delivered
to the Purchaser such information as was reasonably requested by the
Purchaser to satisfy itself as to the satisfaction of the conditions
set forth in this Section 5.
6. RATIFICATION OF AGREEMENT. As supplemented by this
Agreement, the Sale and Servicing Agreement is in all respects ratified and
confirmed and the Sale and Servicing Agreement as so supplemented by this
Agreement shall be read, taken and construed as one and the same instrument.
A-1-3
7. COUNTERPARTS. This Agreement may be executed in two or
more counterparts (and by different parties in separate counterparts), each
of which shall be an original but all of which together shall constitute one
and the same instrument.
8. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
A-1-4
IN WITNESS WHEREOF, the Purchaser and the Sellers have
caused this Agreement to be duly executed and delivered by their respective
duly authorized officers as of the day and the year first above written.
AMERICREDIT MANHATTAN TRUST,
as Purchaser
By: AMERICREDIT FINANCIAL SERVICES, INC.,
attorney-in-fact
By:
------------------------------------------------
Name:
Title:
AMERICREDIT FINANCIAL SERVICES, INC.,
as Seller
By:
------------------------------------------------
Name:
Title:
AMERICREDIT FUNDING CORP. V,
as Seller
By:
------------------------------------------------
Name:
Title:
Acknowledged:
THE CHASE MANHATTAN BANK,
solely in its capacity as Administrative Agent
By:
-------------------------------------------------
Name:
Title:
X-0-0
Xxxxxxx X-0 to
SALE AND SERVICING AGREEMENT
ASSET BACKED SECURITIES SALE AGREEMENT
SALE No. [____] of Receivables made this ___ day of ____________, ______,
between AMERICREDIT FINANCIAL SERVICES, INC. (the "Seller"), and AMERICREDIT
MANHATTAN TRUST, a Delaware business trust (the "Purchaser"), pursuant to the
Sale and Servicing Agreement, dated as of September [14], 2000 (the "Sale and
Servicing Agreement"), among the Purchaser, AmeriCredit Financial Services,
Inc., as Servicer and Primary Seller, AmeriCredit Funding Corp. V, as a
Seller, and The Chase Manhattan Bank, as Backup Servicer and as
Administrative Agent.
W I T N E S S E T H:
WHEREAS pursuant to the Sale and Servicing Agreement, the
Primary Seller wishes to sell Asset Backed Securities to the Purchaser; and
WHEREAS, the Purchaser is willing to purchase such Asset
Backed Securities subject to the terms and conditions hereof.
NOW, THEREFORE, the Purchaser and the Primary Seller hereby
agree as follows:
1. DEFINED TERMS. Capitalized terms used herein shall have
the meanings ascribed to them in Annex A to the Sale and Servicing Agreement,
unless otherwise defined herein.
"ABS Sale Date" shall mean, with respect to the Asset
Backed Securities sold hereby, the date hereof.
2. SCHEDULE OF ASSET BACKED SECURITIES. Annexed hereto is a
Schedule A listing the Asset Backed Securities sold pursuant to this ABS Sale
Agreement on this ABS Sale Date.
3. SALE OF ASSET BACKED SECURITIES. In consideration of the
Purchaser's delivery to or upon the order of the Primary Seller of $________,
the Primary Seller does hereby sell, transfer, assign, set over and otherwise
convey to the Purchaser, without recourse (except as expressly provided in
the Sale and Servicing Agreement), all right, title and interest of the
Primary Seller in, to and under the Asset Backed Securities sold on the date
hereof as listed in Schedule A annexed hereto, and all distributions thereon
and the security granted to, and the rights and benefits of the holder
thereof under the related ABS Documents.
A-2-1
4. REPRESENTATIONS AND WARRANTIES OF THE PRIMARY SELLERS.
The Primary Seller hereby represents and warrants to the Purchaser as of this
ABS Sale Date that:
(a) SALE AND SERVICING AGREEMENT. The representations and
warranties set forth in Sections 4A.1 and 7.1 of the Sale and Servicing
Agreement are true and correct with respect to the property sold
pursuant to Section 3 hereof.
(b) PRINCIPAL BALANCE. As of the date hereof, the aggregate
Principal Balance of the Asset Backed Securities listed on Schedule A
annexed hereto and sold to the Purchaser pursuant to this ABS Sale
Agreement is $_______________.
5. CONDITIONS PRECEDENT. The obligation of the Purchaser to
acquire the Asset Backed Securities hereunder is subject to the satisfaction, on
or prior to the ABS Sale Date, of the following conditions precedent:
(a) REPRESENTATIONS AND WARRANTIES. Each of the
representations and warranties made by the Primary Seller in Section 4
of this ABS Sale Agreement and in Sections 4A.1 and 7.1 of the Sale and
Servicing Agreement shall be true and correct with respect to the
property sold pursuant to Section 3 hereof as of this ABS Sale Date.
(b) SALE AND SERVICING AGREEMENT CONDITIONS. Each of the
conditions set forth in Section 3.3 of the Sale and Servicing Agreement
shall have been satisfied with respect to the property sold pursuant to
Section 3 hereof.
(c) ADDITIONAL INFORMATION. The Primary Seller shall have
delivered to the Purchaser such information as was reasonably requested
by the Purchaser to satisfy itself as to the satisfaction of the
conditions set forth in this Section 5.
6. RATIFICATION OF AGREEMENT. As supplemented by this ABS Sale
Agreement, the Sale and Servicing Agreement, including without limitation
Section 2.2(b) thereof, is in all respects ratified and confirmed and the Sale
and Servicing Agreement as so supplemented by this ABS Sale Agreement shall be
read, taken and construed as one and the same instrument.
7. COUNTERPARTS. This ABS Sale Agreement may be executed in
two or more counterparts (and by different parties in separate counterparts),
each of which shall be an original but all of which together shall constitute
one and the same instrument.
8. GOVERNING LAW. THIS ABS SALE AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
A-2-2
IN WITNESS WHEREOF, the Purchaser and the Primary Seller have
caused this ABS Sale Agreement to be duly executed and delivered by their
respective duly authorized officers as of the day and the year first above
written.
AMERICREDIT MANHATTAN TRUST
By: AmeriCredit Financial Services, Inc.,
attorney-in-fact
By:
----------------------------------------------------
Name:
Title:
AMERICREDIT FINANCIAL SERVICES, INC.,
Primary Seller
By:
----------------------------------------------------
Name:
Title:
Acknowledged:
THE CHASE MANHATTAN BANK,
as Administrative Agent
By:
----------------------------------------
Title:
X-0-0
Xxxxxxx X-0 to
SALE AND SERVICING AGREEMENT
FORM OF SERVICER'S DETERMINATION DATE CERTIFICATE
B-1-1
Exhibit B-2 to
SALE AND SERVICING AGREEMENT
FORM OF SERVICER'S VFN PREPAYMENT DATE CERTIFICATE
B-2-1
Exhibit C-1 to
SALE AND SERVICING AGREEMENT
FORM OF RECEIVABLES SALE NOTICE
C-1-1
Exhibit C-2 to
SALE AND SERVICING AGREEMENT
FORM OF ABS SALE NOTICE
C-2-1
Exhibit D-1 to
SALE AND SERVICING AGREEMENT
FORM OF SERVICER'S RECEIVABLES SALE DATE CERTIFICATE
D-1-1
Exhibit D-2 to
SALE AND SERVICING AGREEMENT
FORM OF SERVICER'S ABS SALE DATE CERTIFICATE
D-2-1
EXHIBIT E
SERVICER'S ACKNOWLEDGMENT
AmeriCredit Financial Services, Inc. (the "Servicer"),
acting as Servicer under Sale and Servicing Agreement (the "Sale and
Servicing Agreement"), dated as of September [14], 2000, among AmeriCredit
Manhattan Trust, AmeriCredit Financial Services, Inc., as a Seller and
Servicer, AmeriCredit Funding Corp V, as a Seller, and The Chase Manhattan
Bank, as Administrative Agent and Backup Servicer, pursuant to which, among
other things, the Servicer holds on behalf of the Secured Parties certain
"Receivable Files," as described in such Sale and Servicing Agreement, hereby
acknowledges receipt of the Receivable File for each Receivable listed in the
Schedule of Receivables attached as Exhibit A to the Receivables Sale
Agreement, dated __________, between AmeriCredit Financial Services, Inc. or
AmeriCredit Funding Corp., V, applicable, and AmeriCredit Manhattan Trust,
except as noted in the Exception List attached as Schedule I hereto.
IN WITNESS WHEREOF, AmeriCredit Financial Services, Inc.
has caused this acknowledgment to be executed by its duly authorized officer
as of this ___ day of ______.
AMERICREDIT FINANCIAL SERVICES, INC.
as Servicer
By:
---------------------------------------------
Name:
Title:
E-1
Exhibit F to
SALE AND SERVICING AGREEMENT
FORM OF SEMI-ANNUAL DATA INTEGRITY REVIEW
[Form to Come]
F-1
Exhibit G to
SALE AND SERVICING AGREEMENT
FORM OF DATA INTEGRITY REVIEW
[Form to Come]
G-1
Exhibit H to
SALE AND SERVICING AGREEMENT
FORM OF ABS SCHEDULE OF INFORMATION
(a) Pool Balance as of Reference Date
(b) Principal Balance of Asset Backed Security
(c) CUSIP number
(d) Date last principal payment is due on Asset Backed Security
(e) Interest Rate paid on Asset Backed Security
H-1
