EXHIBIT 4.3
________________________________________________________________________________
SALE AND SERVICING
AGREEMENT
among
AMERICREDIT AUTOMOBILE RECEIVABLES TRUST 1996-D,
Issuer,
AFS FUNDING CORP.,
Seller,
AMERICREDIT FINANCIAL SERVICES, INC.,
Servicer
and
LASALLE NATIONAL BANK,
Backup Servicer and Trust Collateral Agent
Dated as of November 1, 1996
________________________________________________________________________________
TABLE OF CONTENTS
Page
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ARTICLE I Definitions
SECTION 1.1. Definitions............................................ 1
SECTION 1.2. Other Definitional Provisions.......................... 28
ARTICLE II Conveyance of Receivables
SECTION 2.1. Conveyance of Initial Receivables...................... 29
SECTION 2.2. Conveyance of Subsequent
Receivables............................................ 30
SECTION 2.3. Further Encumbrance of Trust
Property............................................... 33
ARTICLE III The Receivables
SECTION 3.1. Representations and Warranties of
Seller................................................. 35
SECTION 3.2. Repurchase upon Breach................................. 35
SECTION 3.3. Custody of Receivables Files........................... 36
ARTICLE IV Administration and Servicing of
Receivables
SECTION 4.1. Duties of the Servicer................................. 37
SECTION 4.2. Collection of Receivable Payments;
Modifications of Receivables;
Lockbox Agreements..................................... 39
SECTION 4.3. Realization Upon Receivables........................... 42
SECTION 4.4. Insurance.............................................. 43
SECTION 4.5. Maintenance of Security Interests
in Vehicles............................................ 45
SECTION 4.6. Covenants, Representations, and
Warranties of Servicer................................. 46
SECTION 4.7. Purchase of Receivables Upon Breach
of Covenant............................................ 47
SECTION 4.8. Total Servicing Fee; Payment of
Certain Expenses by Servicer........................... 48
SECTION 4.9. Servicer's Certificate................................. 48
SECTION 4.10. Annual Statement as to Compliance,
Notice of Servicer Termination
Event.................................................. 49
SECTION 4.11. Annual Independent Accountants'
Report................................................. 50
SECTION 4.12. Access to Certain Documentation and
Information Regarding Receivables...................... 51
SECTION 4.13. Monthly Tape........................................... 51
SECTION 4.14. Retention and Termination of
Servicer............................................... 52
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SECTION 4.15. Fidelity Bond and Errors and
Omissions Policy....................................... 52
ARTICLE V Trust Accounts; Distributions;
Statements to Certificateholders and
Noteholders
SECTION 5.1. Establishment of Trust Accounts........................ 53
SECTION 5.2. Capitalized Interest Account........................... 56
SECTION 5.3. Certain Reimbursements to the
Servicer............................................... 57
SECTION 5.4. Application of Collections............................. 57
SECTION 5.5. Withdrawals from Spread Account........................ 58
SECTION 5.6. Additional Deposits.................................... 58
SECTION 5.7. Distributions.......................................... 59
SECTION 5.8. Note Distribution Account.............................. 61
SECTION 5.10. Pre-Funding Account.................................... 65
SECTION 5.11. Statements to Certificateholders
and Noteholders........................................ 65
SECTION 5.12. Optional Deposits by the Insurer....................... 67
ARTICLE VI The Note Policy
SECTION 6.1. Claims Under Note Policy............................... 67
SECTION 6.2. Preference Claims...................................... 68
SECTION 6.3. Surrender of Policy.................................... 69
ARTICLE VII The Certificate Policy
SECTION 7.1. Claims Under Certificate Policy........................ 70
SECTION 7.2. Preference Claims; Direction of
Proceedings............................................ 71
SECTION 7.3. Surrender of Policy.................................... 72
ARTICLE VIII The Seller
SECTION 8.1. Representations of Seller.............................. 72
SECTION 8.2. Corporate Existence.................................... 74
SECTION 8.3. Liability of Seller; Indemnities....................... 75
SECTION 8.4. Merger or Consolidation of, or
Assumption of the Obligations of,
Seller................................................. 76
SECTION 8.5. Limitation on Liability of Seller
and Others............................................. 77
SECTION 8.6. Seller May Own Certificates or
Notes.................................................. 77
ARTICLE IX The Servicer
SECTION 9.1. Representations of Servicer............................ 78
SECTION 9.2. Liability of Servicer; Indemnities..................... 80
ii
SECTION 9.3. Merger or Consolidation of, or
Assumption of the Obligations of
the Servicer or Backup Servicer........................ 81
SECTION 9.4. Limitation on Liability of
Servicer, Backup Servicer and
Others................................................. 83
SECTION 9.5. Delegation of Duties................................... 83
SECTION 9.6. Servicer and Backup Servicer Not to
Resign................................................. 84
ARTICLE X Default
SECTION 10.1. Servicer Termination Event............................. 85
SECTION 10.2. Consequences of a Servicer
Termination Event...................................... 87
SECTION 10.3. Appointment of Successor............................... 88
SECTION 10.4. Notification to Noteholders and
Certificateholders..................................... 89
SECTION 10.5. Waiver of Past Defaults................................ 89
ARTICLE XI Termination
SECTION 11.1. Optional Purchase of All
Receivables............................................ 90
ARTICLE XII Administrative Duties of the
Servicer
SECTION 12.1. Administrative Duties.................................. 91
SECTION 12.2. Records................................................ 93
SECTION 12.3. Additional Information to be
Furnished to the Issuer................................ 93
ARTICLE XIII Miscellaneous Provisions
SECTION 13.1. Amendment.............................................. 94
SECTION 13.2. Protection of Title to Trust........................... 95
SECTION 13.3. Notices................................................ 98
SECTION 13.4. Assignment............................................. 98
SECTION 13.5. Limitations on Rights of Others........................ 99
SECTION 13.6. Severability........................................... 99
SECTION 13.7. Separate Counterparts.................................. 99
SECTION 13.8. Headings............................................... 99
SECTION 13.9. Governing Law.......................................... 100
SECTION 13.10. Assignment to Trustee.................................. 100
SECTION 13.11. Nonpetition Covenants.................................. 100
SECTION 13.12. Limitation of Liability of Owner
Trustee and Trustee.................................... 100
SECTION 13.13. Independence of the Servicer........................... 101
SECTION 13.14. No Joint Venture....................................... 101
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SCHEDULES
Schedule A - Schedule of Receivables
Schedule B - Schedule of Representations
Schedule C - Servicing Policies and Procedures
EXHIBITS
Exhibit A - Form of Subsequent Transfer Agreement
Exhibit B - Form of Servicer's Certificate
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SALE AND SERVICING AGREEMENT dated as of November 1, 1996, among
AMERICREDIT AUTOMOBILE RECEIVABLES TRUST 1996-D, a Delaware business trust (the
"Issuer"), AFS FUNDING CORP., a Nevada corporation (the "Seller"), and
AMERICREDIT FINANCIAL SERVICES, INC., a Delaware corporation (the "Servicer"),
and LASALLE NATIONAL BANK, a national banking association, in its capacity as
Backup Servicer and Trust Collateral Agent.
WHEREAS the Issuer desires to purchase a portfolio of receivables
arising in connection with motor vehicle retail installment sale contracts
acquired by AmeriCredit Financial Services, Inc. through motor vehicle dealers;
WHEREAS the Seller has purchased such receivables from AmeriCredit
Financial Services, Inc. and is willing to sell such receivables to the Issuer;
WHEREAS the Issuer desires to purchase additional receivables
arising in connection with motor vehicle retail installment sale contracts to be
acquired by AmeriCredit Financial Services, Inc. through motor vehicle dealers;
WHEREAS the Seller has an agreement to purchase such additional
receivables from AmeriCredit Financial Services, Inc. and is willing to sell
such receivables to the Issuer;
WHEREAS the Servicer is willing to service all such receivables;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.1. Definitions. Whenever used in this Agreement, the
following words and phrases shall have the following meanings:
"Accelerated Payment Amount Shortfall" means, with respect to any
Distribution Date, the excess, if any, of (i) the greater of (a) the excess, if
any, on such Distribution Date of the Pro Forma Security Balance for such
Distribution Date over the Required Pro Forma Security Balance for such
Distribution Date and (b) the amount necessary (after taking into account the
distributions to be made on such Distribution Date pursuant to Section 5.7(b)(i)
through (viii) to reduce the principal balance of the Class A-1 Notes to zero,
over
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(ii) the excess of amount of Available Funds (but net of any net Investment
Earnings on deposit in the Collection Account) on such Distribution Date over
the amounts payable on such Distribution Date pursuant to Section 5.7(b)(i)
through
(viii).
"Accelerated Payment Shortfall Notice" means, a written notice
specifying the Accelerated Payment Amount Shortfall for such Distribution Date.
"Accelerated Payment Termination Date" means (i) the later to occur
of (i) first Distribution Date on which the Pro Forma Security Balance equals
the Required Pro Forma Security Balance and (ii) the Distribution Date on which
the principal balance of the Class A-1 Notes is reduced to zero.
"Accelerated Principal Amount" for a Distribution Date will equal
the lesser of
(x) the sum of (i) excess, if any, of the amount of Available
Funds on such Distribution Date over the amounts payable on such
Distribution Date pursuant to clauses (i) through (viii) of Section
5.7(b) hereof plus (ii) amounts, if any, available in accordance
with the terms of the Spread Account Agreement; and
(y) the greater of (a) the excess, if any, on such
Distribution Date of (i) the Pro Forma Security Balance for such
Distribution Date over (ii) the Required Pro Forma Security Balance
for such Distribution Date and (b) the amount necessary (after
taking into account all other distributions to be made on such date)
to reduce the principal balance of the Class A-1 Notes to zero.
Notwithstanding the foregoing, the requirement to pay
Accelerated Principal Amounts will terminate on the Accelerated
Payment Termination Date.
The Insurer does not guarantee the payment of Accelerated Principal
Amounts.
"Accountants' Report" means the report of a firm of nationally
recognized independent accountants described in Section 4.11.
"Accounting Date" means, with respect to a Distribution Date, the
last day of the Collection Period immediately preceding such Distribution Date.
"Administrative Receivable" means, with respect to any Collection
Period, a Receivable which the Servicer is
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required to purchase pursuant to Section 4.7 or which the Servicer has elected
to purchase pursuant to Section 4.4(c) on the Deposit Date with respect to such
Collection Period.
"Addition Notice" means, with respect to any transfer of Subsequent
Receivables to the Trust pursuant to Section 2.2 of this Agreement, notice of
the Seller's election to transfer Subsequent Receivables to the Trust, such
notice to designate the related Subsequent Transfer Date and the approximate
principal amount of Subsequent Receivables to be transferred on such Subsequent
Transfer Date.
"Affiliate" means, with respect to any specified Person, any other
Person controlling or controlled by or under common control with such specified
Person. For the purposes of this definition, "control" when used with respect to
any Person means the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Aggregate Principal Balance" means, with respect to any date of
determination, the sum of the Principal Balances for all Receivables (other than
(i) any Receivable that became a Liquidated Receivable during the related
Collection Period and (ii) any Receivable that became a Purchased Receivable
during the related Collection Period) as of the date of determination.
"Agreement" means this Sale and Servicing Agreement, as the same may
be amended and supplemented from time to time.
"AmeriCredit" means AmeriCredit Financial Services, Inc.
"Amount Financed" means, with respect to a Receivable, the aggregate
amount advanced under such Receivable toward the purchase price of the Financed
Vehicle and any related costs, including amounts advanced in respect of
accessories, insurance premiums, service and warranty contracts, other items
customarily financed as part of retail automobile installment sale contracts or
promissory notes, and related costs.
"Annual Percentage Rate" or "APR" of a Receivable means the annual
percentage rate of finance charges or service charges, as stated in the related
Contract.
"Available Funds" means, with respect to any Determination Date, the
sum of (i) the Collected Funds for such Determination Date, (ii) all Purchase
Amounts deposited in the Collection Account during the related Collection
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Period, plus Investment Earnings with respect to the Trust Accounts for the
related Distribution Date, (iii) the Monthly Capitalized Interest Amount with
respect to the related Distribution Date, (iv) following the acceleration of the
Notes pursuant to Section 5.2 of the Indenture, the amount of money or property
collected pursuant to Section 5.7 of the Indenture since the preceding
Determination Date by the Trust Collateral Agent or Controlling Party for
distribution pursuant to Section 5.6 hereof, (v) if such Determination Date
immediately precedes the Mandatory Redemption Date, any Pre- Funded Amount to be
deposited into the Collection Account on such Distribution Date pursuant to
Section 5.7(a), and (vi) the proceeds of any purchase or sale of the assets of
the Trust described in Section 11.1 hereof.
"Backup Servicer" means LaSalle National Bank.
"Base Servicing Fee" means, with respect to any Collection Period,
the fee payable to the Servicer for services rendered during such Collection
Period, which shall be equal to one-twelfth of the Servicing Fee Rate multiplied
by the Pool Balance as of the first day of such Collection Period.
"Basic Documents" means this Agreement, the Certificate of Trust,
the Trust Agreement, the Indenture, the Spread Account Agreement, the Spread
Account Agreement Supplement and other documents and certificates delivered in
connection therewith.
"Business Day" means a day other than a Saturday, a Sunday or other
day on which commercial banks located in the states of Delaware, Texas, New York
or Illinois are authorized or obligated to be closed.
"Calendar Quarter" means the three-month period ending on the last
day of March, June, September or December.
"Capitalized Interest Account" means the account designated as such,
established and maintained pursuant to Section 5.2.
"Capitalized Interest Account Initial Deposit" means $228,998.69
deposited on the Closing Date.
"Certificate" means a Trust Certificate (as defined in the Trust
Agreement).
"Certificate Balance" equals, initially, $7,000,000 and thereafter
equals the initial Certificate Balance, reduced by all amounts allocable to
principal previously distributed to Certificateholders.
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"Certificate Distribution Account" has the meaning assigned to such
term in the Section 5.1(a) hereof.
"Certificate Policy" means the financial guaranty insurance policy
issued by the Insurer to the Trust Collateral Agent, as agent for the Owner
Trustee, for the benefit of the Certificateholders.
"Certificate Policy Claim Amount" means, for any Distribution Date,
the lesser of (i) the sum of the Certificateholders' Interest Distributable
Amount and the Certificateholders' Principal Distributable Amount (in each case,
less the amount thereof distributable to the General Partner) for such
Distribution Date and (ii) the excess, if any, of the amount required to be
distributed pursuant to clauses (i) through (vi) of Section 5.7(b) hereof over
the Distribution Amount with respect to such Distribution Date, plus, on the
Mandatory Redemption Date, the Certificate Prepayment Amount.
"Certificate Pool Factor" as of the close of business on a
Distribution Date means a seven-digit decimal figure equal to the Certificate
Balance as of such Distribution Date divided by the initial Certificate Balance.
"Certificate Prepayment Amount" means, as of the Mandatory
Redemption Date, an amount equal to the Certificateholders' pro rata share
(based on the respective current outstanding principal balance of each Class of
Notes and the current Certificate Balance) of the Prepayment Amount as of the
Mandatory Redemption Date.
"Certificate Rate" means 6.30% per annum.
"Certificateholder" has the meaning assigned to such term in the
Trust Agreement.
"Certificateholders' Accelerated Principal Amount" means, with
respect to any Distribution Date, the Certificateholders' Percentage of the
Accelerated Principal Amount on such Distribution Date, if any.
"Certificateholders' Distributable Amount" means, with respect to
any Distribution Date, the sum of the Certificateholders' Interest Distributable
Amount and the Certificateholders' Principal Distributable Amount.
"Certificateholders' Interest Carryover Shortfall" means, with
respect to any Distribution Date, the excess of the Certificateholders' Monthly
Interest Distributable Amount for the preceding Distribution Date and any
outstanding Certificateholders' Interest Carryover Shortfall on such preceding
Distribution Date, over the amount in respect of
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interest at the Certificate Rate that was actually deposited in the Certificate
Distribution Account on such preceding Distribution Date, plus interest on such
excess, to the extent permitted by law, at the Certificate Rate from and
including such preceding Distribution Date to but excluding the current
Distribution Date.
"Certificateholders' Interest Distributable Amount" means, with
respect to any Distribution Date, the sum of the Certificateholders' Monthly
Interest Distributable Amount for such Distribution Date and the
Certificateholders' Interest Carryover Shortfall for such Distribution Date.
"Certificateholders' Monthly Interest Distributable Amount" means,
with respect to any Distribution Date, interest accrued during the related
Interest Period (including the initial Interest Period which will consist of 33
days) at the Certificate Rate on the Certificate Balance immediately preceding
such Distribution Date. Interest shall be computed on the basis of a 360-day
year of twelve 30-day months for purposes of this definition.
"Certificateholders' Monthly Principal Distributable Amount" means,
with respect to any Distribution Date, the Certificateholders' Percentage of the
Principal Distributable Amount.
"Certificateholders' Percentage" means (i) for each Distribution
Date prior to the Distribution Date on which the Class A-3 Notes are paid in
full, zero, (ii) on the Distribution Date on which the Class A-3 Notes are paid
in full, the percentage equivalent of a fraction, the numerator of which is the
excess, if any, of (x) the Principal Distributable Amount for such Distribution
Date over (y) the outstanding principal amount of the Class A-3 Notes
immediately prior to such Distribution Date, and the denominator of which is the
Principal Distributable Amount for such Distribution Date, and (iii) for each
Distribution Date thereafter to and including the Distribution Date on which the
Certificate Balance is reduced to zero, 100%.
"Certificateholders' Principal Carryover Shortfall" means, as of the
close of any Distribution Date, the excess of the Certificateholders' Monthly
Principal Distributable Amount and any outstanding Certificateholders' Principal
Carryover Shortfall from the preceding Distribution Date, over the amount in
respect of principal that is actually deposited in the Certificate Distribution
Account on such current Distribution Date.
"Certificateholders' Principal Distributable Amount" means, with
respect to any Distribution Date, the sum of the Certificateholders' Monthly
Principal Distributable Amount for
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such Distribution Date and the Certificateholders' Principal Carryover Shortfall
as of the close of the preceding Distribution Date; provided, however, that the
Certificateholders' Principal Distributable Amount (i) shall not exceed the
Certificate Balance and (ii) shall equal the Certificate Balance on the Final
Scheduled Distribution Date for the Certificates.
"Class" means the Class A-1 Notes, the Class A-2 Notes or the Class
A-3 Notes, as the context requires.
"Class A-1 Notes" has the meaning assigned to such term in the
Indenture.
"Class A-2 Notes" has the meaning assigned to such term in the
Indenture.
"Class A-3 Notes" has the meaning assigned to such term in the
Indenture.
"Closing Date" means November 21, 1996.
"Collateral Agent" means LaSalle National Bank, in its capacity as
Collateral Agent under the Spread Account Agreement.
"Collateral Insurance" shall have the meaning set forth in Section
4.4(a).
"Collected Funds" means, with respect to any Determination Date, the
amount of funds in the Collection Account representing collections on the
Receivables during the related Collection Period, including all Net Liquidation
Proceeds collected during the related Collection Period (but excluding any
Purchase Amounts).
"Collection Account" means the account designated as such,
established and maintained pursuant to Section 5.1.
"Collection Period" means, with respect to the first Distribution
Date, the period beginning on the close of business on October 31, 1996 and
ending on the close of business on November 30, 1996. With respect to each
subsequent Distribution Date, the preceding calendar month. Any amount stated
"as of the close of business of the last day of a Collection Period" shall give
effect to the following calculations as determined as of the end of the day on
such last day: (i) all applications of collections, and (ii) all distributions.
"Collection Records" means all manually prepared or computer
generated records relating to collection efforts or payment histories with
respect to the Receivables.
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"Computer Tape" means the computer tapes or other electronic media
furnished by AFS Funding Corp. to the Issuer and its assigns describing certain
characteristics of the Initial Receivables as of the Cutoff Date and of
Subsequent Receivables as of the related Subsequent Cutoff Date.
"Contract" means a motor vehicle retail installment sale contract.
"Controlling Party" means the Insurer, so long as no Insurer Default
shall have occurred and be continuing and the Trust Collateral Agent for the
benefit of the Securityholders, in the event the Insurer Default shall have
occurred and be continuing.
"Corporate Trust Office" means (i) with respect to the Owner
Trustee, the principal corporate trust office of the Owner Trustee, which at the
time of execution of this agreement is 0000 Xxxxxxxxx Xxxxxx, Xxxxx 000,
Xxxxxxxxxx, Xxxxxxxx 00000, Attention: Corp. Trust Dept., and (ii) with respect
to the Trustee, the Trust Collateral Agent and the Collateral Agent, the
principal corporate trust office of the Trustee, which at the time of execution
of this agreement is 135 X. XxXxxxx Street, Site 1740, Chicago, Illinois,
Attention: Asset Backed Securities Trust Administration- AmeriCredit 1996-D.
"Cram Down Loss" means, with respect to a Receivable, if a court of
appropriate jurisdiction in an insolvency proceeding shall have issued an order
reducing the amount owed on a Receivable or otherwise modifying or restructuring
the scheduled payments to be made on a Receivable, an amount equal to (i) the
excess of the principal balance of such Receivable immediately prior to such
order over the principal balance of such Receivable as so reduced and/or (ii) if
such court shall have issued an order reducing the effective rate of interest on
such Receivable, the excess of the principal balance of such Receivable
immediately prior to such order over the net present value (using as the
discount rate the higher of the APR on such Receivable or the rate of interest,
if any, specified by the court in such order) of the scheduled payments as so
modified or restructured. A "Cram Down Loss" shall be deemed to have occurred on
the date of issuance of such order.
"Custodian" means AmeriCredit and any other Person named from time
to time as custodian in any Custodian Agreement acting as agent for the Trust
Collateral Agent, which Person must be acceptable to the Controlling Party (the
Custodian as of the Closing Date is acceptable to the Insurer as of the Closing
Date).
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"Custodian Agreement" means any Custodian Agreement from time to
time in effect between the Custodian named therein and the Trust Collateral
Agent, as the same may be amended, supplemented or otherwise modified from time
to time in accordance with the terms thereof, which Custodian Agreement and any
amendments, supplements or modifications thereto shall be acceptable to the
Controlling Party (the Custodian Agreement which is effective on the Closing
Date is acceptable to the Controlling Party).
"Dealer" means a dealer who sold a Financed Vehicle and who
originated and assigned the respective Receivable to AmeriCredit under a Dealer
Agreement or pursuant to a Dealer Assignment.
"Dealer Agreement" means any agreement between a Dealer and
AmeriCredit relating to the acquisition of Receivables from a Dealer by
AmeriCredit.
"Dealer Assignment" means, with respect to a Receivable, the
executed assignment executed by a Dealer conveying such Receivable to
AmeriCredit.
"Dealer Underwriting Guide" means the underwriting manual used by
AmeriCredit in the purchase of Receivables as amended from time to time.
"Deficiency Claim Amount" shall have the meaning set forth in
Section 5.5.
"Deficiency Claim Date" means, with respect to any Distribution
Date, the fourth Business Day immediately preceding such Distribution Date.
"Deficiency Notice" shall have the meaning set forth in Section 5.5.
"Delivery" when used with respect to Trust Account Property means:
(a) with respect to bankers' acceptances, commercial paper,
negotiable certificates of deposit and other obligations that constitute
"instruments" within the meaning of Section 9-105(1)(i) of the UCC and are
susceptible of physical delivery, transfer thereof to the Trust Collateral Agent
or its nominee or custodian by physical delivery to the Trust Collateral Agent
or its nominee or custodian endorsed to, or registered in the name of, the Trust
Collateral Agent or its nominee or custodian or endorsed in blank, and, with
respect to a certificated security (as defined in Section 8- 102 of the UCC)
transfer thereof (i) by delivery of such certificated security endorsed to, or
registered in the name of, the Trust Collateral Agent or its nominee or
custodian or
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endorsed in blank to a financial intermediary (as defined in Section 8-313 of
the UCC) and the making by such financial intermediary of entries on its books
and records identifying such certificated securities as belonging to the Trust
Collateral Agent or its nominee or custodian and the sending by such financial
intermediary of a confirmation of the purchase of such certificated security by
the Trust Collateral Agent or its nominee or custodian, or (ii) by delivery
thereof to a "clearing corporation" (as defined in Section 8-102(3) of the UCC)
and the making by such clearing corporation of appropriate entries on its books
reducing the appropriate securities account of the transferor and increasing the
appropriate securities account of a financial intermediary by the amount of such
certificated security, the identification by the clearing corporation of the
certificated securities for the sole and exclusive account of the financial
intermediary, the maintenance of such certificated securities by such clearing
corporation or a "custodian bank" (as defined in Section 8-102(4) of the UCC) or
the nominee of either subject to the clearing corporation's exclusive control,
the sending of a confirmation by the financial intermediary of the purchase by
the Trust Collateral Agent or its nominee or custodian of such securities and
the making by such financial intermediary of entries on its books and records
identifying such certificated securities as belonging to the Trust Collateral
Agent or its nominee or custodian (all of the foregoing, "Physical Property"),
and, in any event, any such Physical Property in registered form shall be in the
name of the Trust Collateral Agent or its nominee or custodian; and such
additional or alternative procedures as may hereafter become appropriate to
effect the complete transfer of ownership of any such Trust Account Property to
the Trust Collateral Agent or its nominee or custodian, consistent with changes
in applicable law or regulations or the interpretation thereof;
(b) with respect to any security issued by the U.S. Treasury, the
Federal Home Loan Mortgage Corporation or by the Federal National Mortgage
Association that is a book-entry security held through the Federal Reserve
System pursuant to Federal book-entry regulations, the following procedures, all
in accordance with applicable law, including applicable Federal regulations and
Articles 8 and 9 of the UCC: book-entry registration of such Trust Account
Property to an appropriate book-entry account maintained with a Federal Reserve
Bank by a financial intermediary which is also a "depository" pursuant to
applicable Federal regulations and issuance by such financial intermediary of a
deposit advice or other written confirmation of such book-entry registration to
the Trust Collateral Agent or its nominee or custodian of the purchase by the
Trust Collateral Agent or its nominee or custodian of such book-entry
securities; the making by such financial intermediary of entries in its books
and records
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identifying such book-entry security held through the Federal Reserve System
pursuant to Federal book-entry regulations as belonging to the Trust Collateral
Agent or its nominee or custodian and indicating that such custodian holds such
Trust Account Property solely as agent for the Trust Collateral Agent or its
nominee or custodian; and such additional or alternative procedures as may
hereafter become appropriate to effect complete transfer of ownership of any
such Trust Account Property to the Trust Collateral Agent or its nominee or
custodian, consistent with changes in applicable law or regulations or the
interpretation thereof; and
(c) with respect to any item of Trust Account Property that is an
uncertificated security under Article 8 of the UCC and that is not governed by
clause (b) above, registration on the books and records of the issuer thereof in
the name of the financial intermediary, the sending of a confirmation by the
financial intermediary of the purchase by the Trust Collateral Agent or its
nominee or custodian of such uncertificated security, the making by such
financial intermediary of entries on its books and records identifying such
uncertificated certificates as belonging to the Trust Collateral Agent or its
nominee or custodian.
"Depositor" shall mean the Seller in its capacity as Depositor under
the Trust Agreement.
"Determination Date" means, with respect to any Collection Period,
the earlier of (i) the fourth Business Day preceding the Distribution Date in
the next calendar month, and (ii) the 5th day of the next calendar month, or if
such 5th day is not a Business Day, the next succeeding Business Day.
"Distribution Amount" means, with respect to a Distribution Date,
the sum of (i) the Available Funds for the immediately preceding Determination
Date, plus (ii) the Deficiency Claim Amount, if any, received by the Trust
Collateral Agent with respect to such Distribution Date plus (iii) the Insurer
Optional Deposit, if any, received by the Trust Collateral Agent with respect to
such Distribution Date.
"Distribution Date" means, with respect to each Collection Period,
the twelfth day of the following calendar month, or if such day is not a
Business Day, the immediately following Business Day, commencing on December 12,
1996. The term "Distribution Date," insofar as it relates to the Class A-1
Notes, shall be deemed to include the Special A-1 Distribution Date.
"Draw Date" means, with respect to any Distribution Date, the third
Business Day immediately preceding such Distribution Date.
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"Electronic Ledger" means the electronic master record of the retail
installment sales contracts or installment loans of the Servicer.
"Eligible Deposit Account" means either (a) a segregated account
with a depository institution acceptable to the Insurer and rated "A-1" by
Standard & Poor's, for so long as the Class A-1 Notes are outstanding, or (b) a
segregated trust account with the corporate trust department of a depository
institution acceptable to the Insurer organized under the laws of the United
States of America or any one of the states thereof or the District of Columbia
(or any domestic branch of a foreign bank), having corporate trust powers and
acting as trustee for funds deposited in such account, so long as any of the
securities of such depository institution have a credit rating from each Rating
Agency in one of its generic rating categories which signifies investment grade.
"Eligible Investments" mean book-entry securities, negotiable
instruments or securities represented by instruments in bearer or registered
form which evidence:
(a) direct obligations of, and obligations fully guaranteed as to
timely payment by, the United States of America;
(b) demand deposits, time deposits or certificates of deposit of any
depository institution or trust company incorporated under the laws of the
United States of America or any state thereof or the District of Columbia (or
any domestic branch of a foreign bank) and subject to supervision and
examination by Federal or state banking or depository institution authorities
(including depository receipts issued by any such institution or trust company
as custodian with respect to any obligation referred to in clause (a) above or
portion of such obligation for the benefit of the holders of such depository
receipts); provided, however, that at the time of the investment or contractual
commitment to invest therein (which shall be deemed to be made again each time
funds are reinvested following each Distribution Date), the commercial paper or
other short-term senior unsecured debt obligations (other than such obligations
the rating of which is based on the credit of a Person other than such
depository institution or trust company) of such depository institution or trust
company shall have a credit rating from Standard & Poor's of A-1+ and from
Moody's of P-1;
(c) commercial paper and demand notes investing solely in commercial
paper having, at the time of the investment or contractual commitment to invest
therein, a rating from Standard & Poor's of A-1+ and from Moody's of P1;
12
(d) investments in money market funds (including funds for which the
Trust Collateral Agent or the Owner Trustee in each of their individual
capacities or any of their respective Affiliates is investment manager or
advisor) having a rating from Standard & Poor's of AAA-m or AAAm-G and from
Moody's of Aaa and having been approved by the Insurer;
(e) bankers' acceptances issued by any depository institution or
trust company referred to in clause (b) above;
(f) repurchase obligations with respect to any security that is a
direct obligation of, or fully guaranteed by, the United States of America or
any agency or instrumentality thereof the obligations of which are backed by the
full faith and credit of the United States of America, in either case entered
into with a depository institution or trust company (acting as principal)
referred to in clause (b) above; and
(g) any other investment which would satisfy the Rating Agency
Condition and is consistent with the ratings of the Securities and which, so
long as no Insurer Default shall have occurred and be continuing, has been
approved by the Insurer.
Any of the foregoing Eligible Investments may be purchased by or
through the Owner Trustee or the Trust Collateral Agent or any of their
respective Affiliates.
"FDIC" means the Federal Deposit Insurance Corporation.
"Final Scheduled Distribution Date" means with respect to (i) the
Class A-1 Notes, the December 12, 1997 Distribution Date (the "Special A-1
Distribution Date"), (ii) the Class A-2 Notes, the March 2000 Distribution Date,
(iii) the Class A-3 Notes, the March 2001 Distribution Date, and (iv) the
Certificates, the May 2002 Distribution Date.
"Financed Vehicle" means an automobile or light-duty truck van or
minivan, together with all accessions thereto, securing an Obligor's
indebtedness under the respective Receivable.
"Funding Period" means the period beginning on and including the
Closing Date and ending on the first to occur of (a) the first date on which the
amount on deposit in the Pre- Funding Account (after giving effect to any
transfers therefrom in connection with the transfer of Subsequent Receivables to
the Issuer on such date) is less than $100,000, (b) the date on which an Event
of Default or a Servicer Termination Event occurs, (c) the date on which an
Insolvency
13
Event occurs with respect to the General Partner and (d) the 60th day after the
Closing Date.
"General Partner" means the General Partner under the Trust
Agreement.
"Indenture" means the Indenture dated as of November 1, 1996, among
the Issuer and LaSalle National Bank, as Trust Collateral Agent and Trustee, as
the same may be amended and supplemented from time to time.
"Initial Cutoff Date" means October 31, 1996 and the date of
origination of such Initial Receivable.
"Initial Receivables" means any Receivable conveyed
to the Trust on the Closing Date.
"Insolvency Event" means, with respect to a specified Person, (a)
the filing of a petition against such Person or the entry of a decree or order
for relief by a court having jurisdiction in the premises in respect of such
Person or any substantial part of its property in an involuntary case under any
applicable federal or state bankruptcy, insolvency or other similar law now or
hereafter in effect, or appointing a receiver, liquidator, assignee, custodian,
trustee, sequestrator, or similar official for such Person or for any
substantial part of its property, or ordering the winding-up or liquidation or
such Person's affairs, and such petition, decree or order shall remain unstayed
and in effect for a period of 60 consecutive days; or (b) the commencement by
such Person of a voluntary case under any applicable federal or state
bankruptcy, insolvency or other similar law now or hereafter in effect, or the
consent by such Person to the entry of an order for relief in an involuntary
case under any such law, or the consent by such Person to the appointment of or
taking possession by, a receiver, liquidator, assignee, custodian, trustee,
sequestrator, or similar official for such Person or for any substantial part of
its property, or the making by such Person of any general assignment for the
benefit of creditors, or the failure by such Person generally to pay its debts
as such debts become due, or the taking of action by such Person in furtherance
of any of the foregoing.
"Insurance Add-On Amount" means the premium charged to the Obligor
in the event that the Servicer obtains Force- Placed Insurance pursuant to
Section 4.4.
"Insurance Agreement" means the Insurance and Indemnity Agreement,
dated as of November 1, 1996, among the Insurer, the Trust, the Seller,
AmeriCredit Corp. and AmeriCredit.
14
"Insurance Agreement Event of Default" means an "Event of Default"
as defined in the Insurance Agreement.
"Insurance Policy" means, with respect to a Receivable, any
insurance policy (including the insurance policies described in Section 4.4
hereof) benefiting the holder of the Receivable providing loss or physical
damage, credit life, credit disability, theft, mechanical breakdown or similar
coverage with respect to the Financed Vehicle or the Obligor.
"Insurer" means Financial Security Assurance, Inc., a monoline
insurance company incorporated under the laws of the State of New York, or any
successor thereto, as issuer of the Policies.
"Insurer Default" means the occurrence and continuance of any of the
following events:
(a) the Insurer shall have failed to make a payment required under
the Note Policy or the Certificate Policy in accordance with their respective
terms;
(b) The Insurer shall have (i) filed a petition or commenced any
case or proceeding under any provision or chapter of the United States
Bankruptcy Code or any other similar federal or state law relating to
insolvency, bankruptcy, rehabilitation, liquidation or reorganization, (ii) made
a general assignment for the benefit of its creditors, or (iii) had an order for
relief entered against it under the United States Bankruptcy Code or any other
similar federal or state law relating to insolvency, bankruptcy, rehabilitation,
liquidation or reorganization which is final and nonappealable; or
(c) a court of competent jurisdiction, the New York Department of
Insurance or other competent regulatory authority shall have entered a final and
nonappealable order, judgment or decree (i) appointing a custodian, trustee,
agent or receiver for the Insurer or for all or any material portion of its
property or (ii) authorizing the taking of possession by a custodian, trustee,
agent or receiver of the Insurer (or the taking of possession of all or any
material portion of the property of the Insurer).
"Insurer Optional Deposit" means, with respect to any Distribution
Date, an amount delivered by the Insurer pursuant to Section 5.12, at its sole
option, other than amounts in respect of a Note Policy Claim Amount or a
Certificate Policy Claim Amount to the Trust Collateral Agent for deposit into
the Collection Account for any of the following purposes: (i) to provide funds
in respect of the payment of fees or expenses of any provider of services to the
15
Trust with respect to such Distribution Date; or (ii) to include such amount as
part of the Distribution Amount for such Distribution Date to the extent that
without such amount a draw would be required to be made on a Policy.
"Interest Period" means, with respect to any Distribution Date, the
period from and including the Closing Date (in the case of the first
Distribution Date) or from and including the most recent Distribution Date on
which interest has been paid to but excluding such Distribution Date.
"Interest Rate" means, with respect to (i) the Class A-1 Notes,
5.425% per annum (computed on the basis of the actual number of days elapsed in
a 360-day year), (ii) the Class A-2 Notes, the London interbank offered rates
for one-month U.S. dollar deposits ("LIBOR") plus .12%, subject to a maximum
rate equal to 12% per annum (computed on the basis of the actual number of days
elapsed in a 360-day year) and (iii) the Class A-3 Notes, 6.10% per annum
(computed on the basis of a 360-day year of twelve 30-day months).
"Investment Earnings" means, with respect to any Distribution Date
and Trust Account, the investment earnings on amounts on deposit in such Trust
Account on such Distribution Date.
"Issuer" means AmeriCredit Automobile Receivables Trust 1996-D.
"Lien" means a security interest, lien, charge, pledge, equity, or
encumbrance of any kind, other than tax liens, mechanics' liens and any liens
that attach to the respective Receivable by operation of law as a result of any
act or omission by the related Obligor.
"Lien Certificate" means, with respect to a Financed Vehicle, an
original certificate of title, certificate of lien or other notification issued
by the Registrar of Titles of the applicable state to a secured party which
indicates that the lien of the secured party on the Financed Vehicle is recorded
on the original certificate of title. In any jurisdiction in which the original
certificate of title is required to be given to the Obligor, the term "Lien
Certificate" shall mean only a certificate or notification issued to a secured
party.
"Liquidated Receivable" means, with respect to any Collection
Period, a Receivable as to which (i) 90 days have elapsed since the Servicer
repossessed the Financed Vehicle, (ii) the Servicer has determined in good faith
that all amounts it expects to recover have been received, or (iii) 5% or more
of a Scheduled Payment shall have become 120 or more days delinquent, except in
the case of a repossessed Financed Vehicle.
16
"Lockbox Account" means an account maintained on behalf of the Trust
Collateral Agent by the Lockbox Bank pursuant to Section 4.2(d).
"Lockbox Agreement" means the Tri-Party Remittance Processing
Agreement, dated as of November 1, 1996, by and among AmeriCredit, Bank One,
Texas, N.A., and the Trust Collateral Agent, as such agreement may be amended or
supplemented from time to time, unless the Trust Collateral Agent shall cease to
be a party thereunder, or such agreement shall be terminated in accordance with
its terms, in which event "Lockbox Agreement" shall mean such other agreement,
in form and substance acceptable to the Controlling Party, among the Servicer,
the Trust Collateral Agent and the Lockbox Bank.
"Lockbox Bank" means a depository institution named by the Servicer
and acceptable to the Controlling Party.
"Mandatory Redemption Date" means the earlier of (i) the
Distribution Date in February 1997 and (ii) if the last day of the Funding
Period occurs on or prior to the Determination Date in December 1996 or January,
1997, the Distribution Date relating to such Determination Date.
"Monthly Capitalized Interest Amount" means in the case of the
December 1996, January or February 1997 Distribution Dates, an amount equal to
the excess of (i) the product of (x) a fraction the numerator of which is the
actual number of days elapsed in the related Interest Period and the denominator
of which is 360, (y) the weighted average of each Interest Rate and the
Certificate Rate and (z) the difference between (i) the sum of the aggregate
principal amount of the Notes and the Certificate Balance immediately prior to
the applicable Distribution Date and (ii) the Pool Balance as of the last day of
the second preceding Collection Period, or in the case of the December
Distribution Date, as of the Closing Date over (ii) the Pre-Funding Earnings for
such Distribution Date.
"Monthly Records" means all records and data maintained by the
Servicer with respect to the Receivables, including the following with respect
to each Receivable: the account number; the originating Dealer; Obligor name;
Obligor address; Obligor home phone number; Obligor business phone number;
original Principal Balance; original term; Annual Percentage Rate; current
Principal Balance; current remaining term; origination date; first payment date;
final scheduled payment date; next payment due date; date of most recent
payment; new/used classification; collateral description; days currently
delinquent; number of contract extensions (months) to date; amount of Scheduled
Payment; current Insurance Policy expiration date; and past due late charges.
17
"Moody's" means Xxxxx'x Investors Service, Inc., or its successor.
"Net Liquidation Proceeds" means, with respect to a Liquidated
Receivable, all amounts realized with respect to such Receivable (other than
amounts withdrawn from the Spread Account and drawings under the Policies) net
of (i) reasonable expenses incurred by the Servicer in connection with the
collection of such Receivable and the repossession and disposition of the
Financed Vehicle and (ii) amounts that are required to be refunded to the
Obligor on such Receivable; provided, however, that the Liquidation Proceeds
with respect to any Receivable shall in no event be less than zero.
"Note Distribution Account" means the account designated as such,
established and maintained pursuant to Section 5.1.
"Noteholders' Accelerated Principal Amount" means, with respect to
any Distribution Date, the Noteholders' Percentage of the Accelerated Principal
Amount on such Distribution Date, if any.
"Noteholders' Distributable Amount" means, with respect to any
Distribution Date, the sum of the Noteholders' Principal Distributable Amount
and the Noteholders' Interest Distributable Amount.
"Noteholders' Interest Carryover Shortfall" means, with respect to
any Distribution Date, the excess of the Noteholders' Monthly Interest
Distributable Amount for the preceding Distribution Date and any outstanding
Noteholders' Interest Carryover Shortfall on such preceding Distribution Date,
over the amount in respect of interest that was actually deposited in the Note
Distribution Account on such preceding Distribution Date, plus interest on the
amount of interest due but not paid to Noteholders on the preceding Distribution
Date, to the extent permitted by law, at the respective Interest Rate borne by
each Class of Notes from such preceding Distribution Date to but excluding the
current Distribution Date.
"Noteholders' Interest Distributable Amount" means, with respect to
any Distribution Date, the sum of the Noteholders' Monthly Interest
Distributable Amount for such Distribution Date and the Noteholders' Interest
Carryover Shortfall for such Distribution Date. Interest shall be computed on
the basis of (i) the actual number of days elapsed in a 360-day year in the case
of the Class A-1 Notes and the Class A-2 Notes and (ii) a 360-day year of twelve
30-day months in the case of the Class A-3 Notes.
18
"Noteholders' Monthly Interest Distributable Amount" means, with
respect to any Distribution Date, the product of (i)(A) in the case of the Class
A-1 Notes and the Class A-2 Notes, the product of the Interest Rate for such
Class and a fraction, the numerator of which is the number of days elapsed from
and including the prior Distribution Date (or, in the case of the first
Distribution Date, from and including the Closing Date) to but excluding such
Distribution Date and the denominator of which is 360 and (B) in the case of the
Class A-3 Notes, one-twelfth of the Interest Rate for such Class (or, in the
case of the first Distribution Date, the Interest Rate for such Class multiplied
by a fraction, the numerator of which is the number of days elapsed from and
including the Closing Date to but excluding such Distribution Date and the
denominator of which is 360) and (ii) the outstanding principal amount of the
Notes of such Class immediately preceding such Distribution Date.
"Noteholders' Monthly Principal Distributable Amount" means, with
respect to any Distribution Date, the Noteholders' Percentage of the Principal
Distributable Amount.
"Noteholders' Percentage" means with respect to any Determination
Date (i) relating to a Distribution Date prior to the Distribution Date on which
the principal amount of the Class A-3 Notes is reduced to zero, 100%; (ii)
relating to the Distribution Date on which the principal amount of the Class A-3
Notes is reduced to zero, the percentage equivalent of a fraction, the numerator
of which is the principal amount of the Class A-3 Notes immediately prior to
such Distribution Date, and the denominator of which is the Principal
Distributable Amount; and (iii) relating to any other Distribution Date, 0%.
"Noteholders' Principal Carryover Shortfall" means, as of the close
of any Distribution Date, the excess of the Noteholders' Monthly Principal
Distributable Amount and any outstanding Noteholders' Principal Carryover
Shortfall from the preceding Distribution Date over the amount in respect of
principal that was actually deposited in the Note Distribution Account on such
Distribution Date.
"Noteholders' Principal Distributable Amount" means, with respect to
any Distribution Date, (other than the Final Scheduled Distribution Date for any
Class of Notes), the sum of the Noteholders' Monthly Principal Distributable
Amount for such Distribution Date and the Noteholders' Principal Carryover
Shortfall as of the close of the preceding Distribution Date. The Noteholders'
Principal Distributable Amount on the Final Scheduled Distribution Date for any
Class of Notes will equal the sum of (i) the Noteholders' Monthly Principal
Distributable Amount for such Distribution Date, (ii) the Noteholders' Principal
Carryover Shortfall as of the
19
close of the preceding Distribution Date, and (iii) the excess of the
outstanding principal amount of such Class of Notes, if any, over the amounts
described in clauses (i) and (ii).
"Note Policy" means the financial guaranty insurance policy issued
by the Insurer to the Trust Collateral Agent, as agent for the Trustee, for the
benefit of the Noteholders.
"Note Policy Claim Amount" means, for any Distribution Date, shall
equal the lesser of (i) the sum of the Noteholders' Interest Distributable
Amount and Noteholders' Principal Distributable Amount for such Distribution
Date and (ii) the excess, if any, of the amount required to be distributed
pursuant to clauses (i) through (iv) of Section 5.7(b) hereof over the
Distribution Amount with respect to such Distribution Date, plus, on the
Mandatory Redemption Date the Note Prepayment Amount.
"Note Pool Factor" for each Class of Notes as of the close of
business on a Distribution Date means a seven-digit decimal figure equal to the
outstanding principal amount of such Class of Notes divided by the original
outstanding principal amount of such Class of Notes.
"Note Prepayment Amount" means, as of the Distribution Date on or
immediately following the last day of the Funding Period, after giving effect to
any transfer of Subsequent Receivables on such date, an amount equal to the
Noteholders' pro rata share (based on the respective current outstanding
principal balance of each Class of Notes and the current Certificate Balance) of
the Pre-Funded Amount as of such Distribution Date.
"Obligor" on a Receivable means the purchaser or co- purchasers of
the Financed Vehicle and any other Person who owes payments under the
Receivable.
"Officers' Certificate" means a certificate signed by the chairman
of the board, the president, any executive vice president or any vice president,
any treasurer, assistant treasurer, secretary or assistant secretary of the
Seller or the Servicer, as appropriate.
"Opinion of Counsel" means a written opinion of counsel reasonably
acceptable to the Insurer, which opinion is acceptable in form and substance to
the Trust Collateral Agent and, if such opinion or a copy thereof is required by
the provisions of this Agreement to be delivered to the Insurer, to the Insurer.
"Original Pool Balance" means the sum, as of any date, of the Pool
Balance as of the Initial Cutoff Date, plus the aggregate Principal Balance of
the Subsequent Receivables,
20
if any, sold to the Trust, as of their respective Subsequent
Cutoff Dates.
"Other Conveyed Property" means all property conveyed by the Seller
to the Trust pursuant to Section 2.1(b) through (h) of this Agreement.
"Overfunded Capitalized Interest Amount" means:
With respect to the December 1996 Distribution Date, the excess of
(a) the amount on deposit in the Capitalized Interest Account on such
Distribution Date (after giving effect to the transfer of the Monthly
Capitalized Interest Amount to the Collection Account on such date) over (b) the
product of (i) 1/360, (ii) 2.50%, (iii) 60 and (iv) the amount on deposit in the
Pre-Funding Account (excluding Pre-Funding Earnings) at the close of business on
November 30, 1996.
With respect to the January 1997 Distribution Date, the excess of
(a) the amount on deposit in the Capitalized Interest Account on such
Distribution Date (after giving effect to the transfer of the Monthly
Capitalized Interest Amount to the Collection Account on such date) over (b) the
product of (i) 1/360, (ii) 2.50%, (iii) 30 and (iv) the amount on deposit in the
Pre-Funding Account (excluding Pre-Funding Earnings) at the close of business on
December 31, 1996.
With respect to the February 1997 Distribution Date, the excess of
(a) the amount on deposit in the Capitalized Interest Account on such
Distribution Date (after given effect to the transfer of the Monthly Capitalized
Interest Amount to the Collection Account on such date) over (b) the product of
(i) 1/360, (ii) 2.50%, (iii) 0 and (iv) the amount on deposit in the Pre-Funding
Account (excluding Pre-Funding Earnings) at the close of business on January 31,
1997.
"Owner Trust Estate" has the meaning assigned to such term in the
Trust Agreement.
"Owner Trustee" means Bankers Trust (Delaware), not in its
individual capacity but solely as Owner Trustee under the Trust Agreement, its
successors in interest or any successor Owner Trustee under the Trust Agreement.
"Person" means any individual, corporation, estate, partnership,
joint venture, association, joint stock company, trust (including any
beneficiary thereof), unincorporated organization or government or any agency or
political subdivision thereof.
"Physical Property" has the meaning assigned to such term in the
definition of "Delivery" above.
21
"Policies" means the Certificate Policy and the Note Policy.
"Pool Balance" means, as of any date of determination, the aggregate
Principal Balance of the Receivables (excluding Purchased Receivables and
Liquidated Receivables).
"Pre-Funded Amount" means, with respect to any Distribution Date,
the amount on deposit in the Pre-Funding Account, (exclusive of Pre-Funding
Earnings) which initially shall be $50,392,880.18.
"Pre-Funding Account" has the meaning specified in Section 5.1.
"Pre-Funding Earnings" means any Investment Earnings on amounts on
deposit in the Pre-Funding Account.
"Prepayment Amount" means the amount deposited in the Collection
Account from the Pre-Funding Account on the Mandatory Redemption Date pursuant
to Section 5.7(a)(ii) hereof.
"Principal Balance" means, with respect to any Receivable, as of any
date, the Amount Financed minus (i) that portion of all amounts received on or
prior to such date and allocable to principal in accordance with the terms of
the Receivable and (ii) any Cram Down Loss in respect of such Receivable.
"Principal Carryover Shortfall" means, as of the close of business
on any Distribution Date, the excess of the Principal Distributable Amount plus
any outstanding Principal Carryover Shortfall from the preceding Distribution
Date over the amount of principal deposited in the Note Distribution Account
and/or the Certificate Distribution Account with respect to such current
Distribution Date.
"Principal Distributable Amount" means, with respect to any
Distribution Date, the amount equal to the excess, if any, of (x) the sum of (i)
the principal portion of all Collected Funds received during the immediately
preceding Collection Period (other than Liquidated Receivables and Purchased
Receivables), (ii) the Principal Balance of all Receivables that became
Liquidated Receivables during the related Collection Period (other than
Purchased Receivables), (iii) the principal portion of the Purchase Amounts
received with respect to all Receivables that became Purchased Receivables
during the related Collection Period, (iv) in the sole discretion of the
Insurer, the Principal Balance of all the Receivables that were required to be
purchased pursuant to Sections 3.2 and 4.7, during such Collection Period but
were
22
not purchased, (v) the aggregate amount of Cram Down Losses that shall have
occurred during the related Collection Period; and (vi) following the
acceleration of the Notes pursuant to Section 5.2 of the Indenture, the amount
of money or property collected pursuant to Section 5.4 of the Indenture since
the preceding Determination Date by the Trust Collateral Agent or Controlling
Party for distribution pursuant to Section 5.7 hereof over (y) the Step-Down
Amount, if any, for such Distribution Date.
"Pro Forma Security Balance" means, with respect to any Distribution
Date, the aggregate remaining principal balance of the Notes and the
Certificates outstanding on such Distribution Date, after giving effect to
distributions pursuant to clauses (i) through (viii) of Section 5.7(b) hereof.
"Purchase Agreement" means the Purchase Agreement between the Seller
and AmeriCredit, dated as of November 1, 1996, pursuant to which the Seller
acquired the Initial Receivables, as such Agreement may be amended from time to
time.
"Purchase Amount" means, with respect to a Receivable, the Principal
Balance and all accrued and unpaid interest on the Receivable, after giving
effect to the receipt of any moneys collected (from whatever source) on such
Receivable, if any.
"Purchased Receivable" means a Receivable purchased as of the close
of business on the last day of a Collection Period by the Servicer pursuant to
Section 4.7 or repurchased by the Seller or AmeriCredit pursuant to Section 3.2
or Section 11.1(a).
"Rating Agency" means Xxxxx'x and Standard & Poor's. If no such
organization or successor maintains a rating on the Securities, "Rating Agency"
shall be a nationally recognized statistical rating organization or other
comparable Person designated by the Seller and acceptable to the Insurer (so
long as an Insurer Default shall not have occurred and be continuing), notice of
which designation shall be given to the Trust Collateral Agent, the Owner
Trustee and the Servicer.
"Rating Agency Condition" means, with respect to any action, that
each Rating Agency shall have been given 10 days' (or such shorter period as
shall be acceptable to each Rating Agency) prior notice thereof and that each of
the Rating Agencies shall have notified the Seller, the Servicer, the Insurer,
the Owner Trustee and the Trust Collateral Agent in writing that such action
will not result in a reduction or withdrawal of the then current rating of any
Class of Notes or the Certificates.
23
"Realized Losses" means, with respect to any Receivable that becomes
a Liquidated Receivable, the excess of the Principal Balance of such Liquidated
Receivable over Net Liquidation Proceeds to the extent allocable to principal.
"Receivable" means any Contract listed on Schedule A, as such
Schedule shall be amended to reflect the transfer of Subsequent Receivables to
the Trust (which Schedule may be in the form of microfiche or a disk).
"Receivable Files" means the documents specified in Section 3.3.
"Record Date" with respect to each Distribution Date means the
Business Day immediately preceding such Distribution Date, unless otherwise
specified in the Agreement.
"Registrar of Titles" means, with respect to any state, the
governmental agency or body responsible for the registration of, and the
issuance of certificates of title relating to, motor vehicles and liens thereon.
"Required Pro Forma Security Balance" means, with respect to any
Distribution Date, a dollar amount equal to the product of (x) 89% and (y) the
sum of the Pool Balance and the Pre-Funded Amount as of the end of the prior
Collection Period.
"Schedule of Receivables" means the schedule of all retail
installment sales contracts and promissory notes originally held as part of the
Trust which is attached as Schedule A.
"Schedule of Representations" the Schedule of Representations and
Warranties attached hereto as Schedule B.
"Scheduled Payment" means, with respect to any Collection Period for
any Receivable, the amount set forth in such Receivable as required to be paid
by the Obligor in such Collection Period. If after the Closing Date, the
Obligor's obligation under a Receivable with respect to a Collection Period has
been modified so as to differ from the amount specified in such Receivable as a
result of (i) the order of a court in an insolvency proceeding involving the
Obligor, (ii) pursuant to the Soldiers' and Sailors' Civil Relief Act of 1940 or
(iii) modifications or extensions of the Receivable permitted by Section 4.2(b),
the Scheduled Payment with respect to such Collection Period shall refer to the
Obligor's payment obligation with respect to such Collection Period as so
modified.
"Securityholder" means the Noteholders and the Certificateholders.
24
"Security Majority" means a majority by principal amount of the
Noteholders so long as the Notes are outstanding and a majority by principal
amount of the Certificateholders thereafter.
"Seller" means AFS Funding Corp., a Nevada corporation, and its
successors in interest to the extent permitted hereunder.
"Series 1996-D Spread Account" means the account designated as such,
established and maintained pursuant to the Spread Account Agreement Supplement.
"Service Contract" means, with respect to a Financed Vehicle, the
agreement, if any, financed under the related Receivable that provides for the
repair of such Financed Vehicle.
"Servicer" means AmeriCredit Financial Services, Inc., as the
servicer of the Receivables, and each successor Servicer pursuant to Section
10.3.
"Servicer Termination Event" means an event specified in Section
10.1.
"Servicer's Certificate" means an Officers' Certificate of the
Servicer delivered pursuant to Section 4.9, substantially in the form of Exhibit
B.
"Servicing Fee" has the meaning specified in Section 4.8.
"Servicing Fee Rate" means 2.25% per annum.
"Simple Interest Method" means the method of allocating a fixed
level payment on an obligation between principal and interest, pursuant to which
the portion of such payment that is allocated to interest is equal to the
product of the fixed rate of interest on such obligation multiplied by the
period of time (expressed as a fraction of a year, based on the actual number of
days in the calendar month and 365 days in the calendar year) elapsed since the
preceding payment under the obligation was made.
"Simple Interest Requisite Amount" means a Receivable under which
the portion of the payment allocable to interest and the portion allocable to
principal is determined in accordance with the Simple Interest Method.
"Special A-1 Distribution Date" means with respect to the Class A-1
Notes, the December 12, 1997 Distribution Date (which shall be no later than 397
days after the date on which the Notes are priced).
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"Specified Spread Account Requisite Amount" has the meaning
specified in the Spread Account Agreement Supplement.
"Spread Account Agreement" means the Spread Account Agreement dated
as of December 1, 1994, as amended and restated as of November 1, 1996 among the
Insurer, the Seller and the Collateral Agent, as the same may be modified,
supplemented or otherwise amended in accordance with the terms thereof.
"Spread Account Agreement Supplement" means the Series 1996-D Spread
Account Agreement Supplement dated as of November 1, 1996 among the Insurer, the
Seller and the Collateral Agent, as the same may be modified, supplemented or
otherwise amended in accordance with the terms thereof.
"Spread Account Initial Deposit" means an amount equal to 9% of the
aggregate principal balance of the Certificates and the Notes on the Closing
Date (which is equal to $13,464,640.78.
"Standard & Poor's" means Standard & Poor's Ratings Services, or its
successor.
"Step-Down Amount" means, with respect to any Distribution Date, the
excess, if any, of (x) the Required Pro Forma Security Balance over (y) the Pro
Forma Security Balance on such Distribution Date, calculated for this purpose
only without deduction for any Step-Down Amount (i.e., assuming that the entire
amount described in clause (x) of the definition of "Principal Distributable
Amount" is distributed as principal on the Notes and the Certificates).
"Subsequent Cutoff Date" means (i) the last day of the month
preceding the month in which particular Subsequent Receivables are conveyed to
the Trust pursuant to this Agreement or (ii) if any such Subsequent Receivable
is originated in the month of the related Subsequent Transfer Date, the date of
origination.
"Subsequent Purchase Agreement" means an agreement by and between
the Seller and AmeriCredit pursuant to which the Seller will acquire Subsequent
Receivables.
"Subsequent Receivables" means the Receivables transferred to the
Issuer pursuant to Section 2.2, which shall be listed on Schedule A to the
related Subsequent Transfer Agreement.
"Subsequent Spread Account Deposit" means, with respect to each
Subsequent Transfer Date, an amount equal to 9% of the aggregate principal
balance of Subsequent Receivables as of the related Subsequent Cutoff Date
26
transferred to the Trust on such Subsequent Transfer Date from amounts released
from the Pre-Funding Account.
"Subsequent Transfer Agreement" means the agreement among the
Issuer, the Seller and the Servicer, substantially in the form of Exhibit A.
"Subsequent Transfer Date" means, with respect to Subsequent
Receivables, any date, occurring not more frequently than once a month, during
the Funding Period on which Subsequent Receivables are to be transferred to the
Trust pursuant to this Agreement, and a Subsequent Transfer Agreement is
executed and delivered to the Trust.
"Supplemental Servicing Fee" means, with respect to any Collection
Period, all administrative fees, expenses and charges paid by or on behalf of
Obligors, including late fees, prepayment fees and liquidation fees collected on
the Receivables during such Collection Period.
"Trigger Event" has the meaning assigned thereto in the Spread
Account Agreement Supplement.
"Trust" means the Issuer.
"Trust Account Property" means the Trust Accounts, all amounts and
investments held from time to time in any Trust Account (whether in the form of
deposit accounts, Physical Property, book-entry securities, uncertificated
securities or otherwise), and all proceeds of the foregoing.
"Trust Accounts" has the meaning assigned thereto in Section 5.1.
"Trust Agreement" means the Trust Agreement dated as of November 1,
1996, between the Seller and the Owner Trustee, as the same may be amended and
supplemented from time to time.
"Trust Collateral Agent" means the Person acting as Trust Collateral
Agent hereunder, its successors in interest and any successor Trust Collateral
Agent hereunder.
"Trust Officer" means, (i) in the case of the Trust Collateral
Agent, the chairman or vice-chairman of the board of directors, the chairman or
vice-chairman of the executive committee of the board of directors, the
president, any vice president, the secretary, any assistant secretary, the
treasurer, any assistant treasurer, the cashier, any assistant cashier, any
trust officer or assistant trust officer, the controller and any assistant
controller or any other officer of the Trust Collateral Agent customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular
27
corporate trust matter, any other officer to whom such matter is referred
because of such officer's knowledge of and familiarity with the particular
subject, and (ii) in the case of the Owner Trustee, any officer in the corporate
trust office of the Owner Trustee or any agent of the Owner Trustee under a
power of attorney with direct responsibility for the administration of this
Agreement or any of the Basic Documents on behalf of the Owner Trustee.
"Trust Property" means the property and proceeds conveyed pursuant
to Section 2.1, together with certain monies paid on or after the Initial
Cut-off Date, the Policies, the Collection Account (including all Eligible
Investments therein and all proceeds therefrom), the Lockbox Account and certain
other rights under this Agreement. Although the Seller has pledged the Spread
Account to the Trust Collateral Agent and the Insurer pursuant to the Spread
Account Agreement, the Spread Account shall not under any circumstances be
deemed to be a part of or otherwise includable in the Trust or the Trust
Property.
"Trustee" means the Person acting as Trustee under the Indenture,
its successors in interest and any successor trustee under the Indenture.
"UCC" means the Uniform Commercial Code as in effect in the relevant
jurisdiction on the date of the Agreement.
SECTION 1.2. Other Definitional Provisions.
(a) Capitalized terms used herein and not otherwise defined herein
have the meanings assigned to them in the Indenture, or, if not defined therein,
in the Trust Agreement.
(b) All terms defined in this Agreement shall have the defined
meanings when used in any instrument governed hereby and in any certificate or
other document made or delivered pursuant hereto unless otherwise defined
therein.
(c) As used in this Agreement, in any instrument governed hereby and
in any certificate or other document made or delivered pursuant hereto or
thereto, accounting terms not defined in this Agreement or in any such
instrument, certificate or other document, and accounting terms partly defined
in this Agreement or in any such instrument, certificate or other document to
the extent not defined, shall have the respective meanings given to them under
generally accepted accounting principles as in effect on the date of this
Agreement or any such instrument, certificate or other document, as applicable.
To the extent that the definitions of accounting terms in this Agreement or in
any such instrument, certificate or other document are inconsistent
28
with the meanings of such terms under generally accepted accounting principles,
the definitions contained in this Agreement or in any such instrument,
certificate or other document shall control.
(d) The words "hereof," "herein," "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement; Section, Schedule and Exhibit
references contained in this Agreement are references to Sections, Schedules and
Exhibits in or to this Agreement unless otherwise specified; and the term
"including" shall mean "including without limitation."
(e) The definitions contained in this Agreement are applicable to
the singular as well as the plural forms of such terms and to the masculine as
well as to the feminine and neuter genders of such terms.
(f) Any agreement, instrument or statute defined or referred to
herein or in any instrument or certificate delivered in connection herewith
means such agreement, instrument or statute as from time to time amended,
modified or supplemented and includes (in the case of agreements or instruments)
references to all attachments thereto and instruments incorporated therein;
references to a Person are also to its permitted successors and assigns.
ARTICLE II
Conveyance of Receivables
SECTION 2.1. Conveyance of Initial Receivables. In consideration of
the Issuer's delivery to or upon the order of the Seller on the Closing Date of
the net proceeds from the sale of the Notes and the Certificates and the other
amounts to be distributed from time to time to the Seller in accordance with the
terms of this Agreement, the Seller does hereby sell, transfer, assign, set over
and otherwise convey to the Issuer, without recourse (subject to the obligations
set forth herein), all right, title and interest of the Seller in and to:
(a) the Initial Receivables and all moneys received thereon after
the Initial Cutoff Date;
(b) an assignment of the security interests in the Financed Vehicles
granted by Obligors pursuant to the Initial Receivables and any other interest
of the Seller such Financed Vehicles;
29
(c) any proceeds and the right to receive proceeds with respect to
the Initial Receivables from claims on any physical damage, credit life or
disability insurance policies covering Financed Vehicles or Obligors and any
proceeds from the liquidation of the Initial Receivables;
(d) all rights of the Seller against Dealers pursuant to Dealer
Agreements;
(e) all rights under any Service Contracts on the related Financed
Vehicles;
(f) the related Receivables Files;
(g) all of the Seller's right, title and interest in its rights and
benefits, but none of its obligations or burdens, under the Purchase Agreement,
including the Seller's rights under the Purchase Agreement, and the delivery
requirements, representations and warranties and the cure and repurchase
obligations of AmeriCredit under the Purchase Agreement; and
(h) the proceeds of any and all of the foregoing.
It is the intention of the Seller that the transfer and assignment
contemplated by this Agreement shall constitute a sale of the Receivables and
other Trust Property from the Seller to the Issuer and the beneficial interest
in and title to the Receivables and the other Trust Property shall not be part
of the Seller's estate in the event of the filing of a bankruptcy petition by or
against the Seller under any bankruptcy law. In the event that, notwithstanding
the intent of the Seller, the transfer and assignment contemplated hereby is
held not to be a sale, this Agreement shall constitute a grant of a security
interest in the property referred to in this Section 2.1 for the benefit of the
Securityholders and the Insurer.
SECTION 2.2. Conveyance of Subsequent Receivables.
(a) Subject to the conditions set forth in paragraph (b) below, in
consideration of the Issuer's delivery on each related Subsequent Transfer Date
to or upon the order of the Seller of the amount described in Section 5.10(a) to
be delivered to the Seller, the Seller does hereby sell, transfer, assign, set
over and otherwise convey to the Issuer without recourse (subject to the
obligations set forth herein), all right, title and interest of the Seller in
and to:
(i) the Subsequent Receivables listed on Schedule A to the related
Subsequent Transfer Agreement;
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(ii) the security interests in the Financed Vehicles granted by
Obligors pursuant to such Subsequent Receivables and any other interest of
the Seller in such Financed Vehicles;
(iii) any proceeds and the right to receive proceeds with respect to
such Subsequent Receivables from claims on any physical damage, credit
life or disability insurance policies covering the related Financed
Vehicles or Obligors and any proceeds from the liquidation of such
Subsequent Receivables;
(iv) all rights of the Seller against the Dealers pursuant to Dealer
Agreements;
(v) all rights under any Service Contracts on the related Financed
Vehicles:
(vi) the related Receivables Files;
(vii) all of the Seller's right, title and interest in its rights
and benefits, but none of its obligations or burdens, under each of the
Subsequent Purchase Agreements, including the Seller's rights under each
of the Subsequent Purchase Agreements, and the delivery requirements,
representations and warranties and the cure and repurchase obligations of
AmeriCredit under each of the Subsequent Purchase Agreements, on or after
the related Subsequent Cutoff Date; and
(viii) the proceeds of any and all of the foregoing.
(b) The Seller shall transfer to the Issuer the Subsequent
Receivables and the other property and rights related thereto described in
paragraph (a) above only upon the satisfaction of each of the following
conditions on or prior to the related Subsequent Transfer Date:
(i) the Seller shall have provided the Trust Collateral Agent, the
Owner Trustee, the Insurer and the Rating Agencies with an Addition Notice
not later than five days prior to such Subsequent Transfer Date and shall
have provided any information reasonably requested by any of the foregoing
with respect to the Subsequent Receivables;
(ii) the Seller shall have delivered to the Owner Trustee and the
Trust Collateral Agent a duly executed Subsequent Transfer Agreement which
shall include supplements to Schedule A, listing the Subsequent
Receivables;
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(iii) the Seller shall, to the extent required by Section 5.3, have
deposited in the Collection Account all collections in respect of the
Subsequent Receivables;
(iv) as of each Subsequent Transfer Date, (A) the Seller shall not
be insolvent and shall not become insolvent as a result of the transfer of
Subsequent Receivables on such Subsequent Transfer Date, (B) the Seller
shall not intend to incur or believe that it shall incur debts that would
be beyond its ability to pay as such debts mature, (C) such transfer shall
not have been made with actual intent to hinder, delay or defraud any
Person and (D) the assets of the Seller shall not constitute unreasonably
small capital to carry out its business as conducted;
(v) the Funding Period shall not have terminated;
(vi) after giving effect to any transfer of Subsequent Receivables
on a Subsequent Transfer Date, the Receivables transferred to the Trust
pursuant hereto shall meet the following criteria (based on the
characteristics of the Initial Receivables on the Initial Cutoff Date and
the Subsequent Receivables on the related Subsequent Cutoff Dates): (i)
the weighted average APR of the Receivables transferred to the Trust shall
not be less than 19.0%, unless, with the prior consent of the Rating
Agencies and the Insurer, the Seller increases the Spread Account Initial
Deposit with respect to such Subsequent Receivables by the amount required
by the Insurer; (ii) the weighted average remaining term of the
Receivables transferred to the Trust shall not be greater than 55 months;
and (iii) not more than 35% of the Aggregate Principal Balance shall have
Obligors whose mailing addresses are in Texas and California;
(vii) each of the representations and warranties made by the Seller
pursuant to Section 3.1 with respect to the Subsequent Receivables to be
transferred on such Subsequent Transfer Date shall be true and correct as
of the related Subsequent Transfer Date, and the Seller shall have
performed all obligations to be performed by it hereunder on or prior to
such Subsequent Transfer Date;
(viii) the Seller shall, at its own expense, on or prior to the
Subsequent Transfer Date indicate in its computer files that the
Subsequent Receivables identified in the Subsequent Transfer Agreement
have been sold to the Trust pursuant to this Agreement;
(ix) the Seller shall have taken any action required to maintain the
first priority perfected ownership
32
interest of the Trust in the Owner Trust Estate and the first perfected
security interest of the Trust Collateral Agent in the Collateral;
(x) no selection procedures adverse to the interests of the
Securityholders or the Insurer shall have been utilized in selecting the
Subsequent Receivables;
(xi) the addition of any such Subsequent Receivables shall not
result in a material adverse tax consequence to the Trust or the
Securityholders;
(xii) the Seller shall have delivered (A) to the Rating Agencies and
the Insurer an Opinion of Counsel with respect to the transfer of such
Subsequent Receivables substantially in the form of the Opinion of Counsel
delivered to the Rating Agencies and the Insurer on the Closing Date and
(B) to the Trust Collateral Agent the Opinion of Counsel required by
Section 13.2(i)(1);
(xiii) each Rating Agency shall have confirmed that the rating on
the Notes and the Certificates shall not be withdrawn or reduced as a
result of the transfer of such Subsequent Receivables to the Trust;
(xiv) the Insurer (so long as no Insurer Default shall have occurred
and be continuing), in its absolute and sole discretion, shall have
approved the transfer of such Subsequent Receivables to the Trust and the
Insurer shall have been reimbursed for any fees and expenses incurred by
the Insurer in connection with the granting of such approval;
(xv) the Seller shall simultaneously transfer the Subsequent Spread
Account Deposit to the Trust Collateral Agent with respect to the
Subsequent Receivables transferred on such Subsequent Transfer Date; and
(xvi) the Seller shall have delivered to the Insurer and the Trust
Collateral Agent an Officers' Certificate confirming the satisfaction of
each condition precedent specified in this paragraph (b).
The Seller covenants that in the event any of the foregoing
conditions precedent are not satisfied with respect to any Subsequent Receivable
on the date required as specified above, the Seller will immediately repurchase
such Subsequent Receivable from the Trust, at a price equal to the Purchase
Amount thereof, in the manner specified in Section 4.7.
SECTION 2.3. Further Encumbrance of Trust Property. (a) Immediately
upon the conveyance to the Trust
33
by the Seller of any item of the Trust Property pursuant to Section 2.01, all
right, title and interest of the Seller in and to such item of Trust Property
shall terminate, and all such right, title and interest shall vest in the Trust,
in accordance with the Trust Agreement and Sections 3802 and 3805 of the
Business Trust Statute (as defined in the Trust Agreement).
(b) Immediately upon the vesting of the Trust Property in the Trust,
the Trust shall have the sole right to pledge or otherwise encumber, such Trust
Property. Pursuant to the Indenture, the Trust shall grant a security interest
in the Trust Property to secure the repayment of the Notes. The Certificates
shall represent the beneficial ownership interest in the Trust Property, and the
Certificateholders shall be entitled to receive distributions with respect
thereto as set forth herein.
(c) Following the payment in full of the Notes and the release and
discharge of the Indenture, all covenants of the Issuer under Article III of the
Indenture shall, until payment in full of the Certificates, remain as covenants
of the Issuer for the benefit of the Certificateholders, enforceable by the
Certificateholders to the same extent as such covenants were enforceable by the
Noteholders prior to the discharge of the Indenture. Any rights of the Trustee
under Article III of the Indenture, following the discharge of the Indenture,
shall vest in Certificateholders.
(d) The Trust Collateral Agent shall, at such time as there are no
Securities outstanding and all sums due to (i) the Trustee pursuant to the
Indenture and (ii) the Trust Collateral Agent pursuant to this Agreement, have
been paid, release any remaining portion of the Trust Property to the Seller.
34
ARTICLE III
The Receivables
SECTION 3.1. Representations and Warranties of Seller. The Seller
makes the following representations and warranties as to the Receivables on
which the Issuer is deemed to have relied in acquiring the Receivables and upon
which the Insurer shall be deemed to rely in issuing the Policies. Such
representations and warranties speak as of the execution and delivery of this
Agreement and as of the Closing Date in the case of the Initial Receivables, and
as of the related Subsequent Transfer Date in case of the Subsequent
Receivables, but shall survive the sale, transfer and assignment of the
Receivables to the Issuer and the pledge thereof to the Trustee pursuant to the
Indenture.
(a) Schedule of Representations. The representations and warranties
set forth on the Schedule of Representations attached hereto as Schedule B are
true and correct.
SECTION 3.2. Repurchase upon Breach.
(a) The Seller, the Servicer, the Insurer, the Trust Collateral
Agent or the Owner Trustee, as the case may be, shall inform the other parties
to this Agreement promptly, in writing, upon the discovery of any breach of the
Seller's representations and warranties made pursuant to Section 3.1. As of the
last day of the second (or, if the Seller so elects, the first) month following
the discovery by the Seller or receipt by the Seller of notice of such breach,
unless such breach is cured by such date, the Seller shall have an obligation to
repurchase any Receivable in which the interests of the Noteholders or the
Certificateholders or the Insurer are materially and adversely affected by any
such breach as of such date. The "second month" shall mean the month following
the month in which discovery occurs or notice is given, and the "first month"
shall mean the month in which discovery occurs or notice is given. In
consideration of and simultaneously with the repurchase of the Receivable, the
Seller shall remit, or cause AmeriCredit to remit, to the Collection Account the
Purchase Amount in the manner specified in Section 5.6 and the Issuer shall
execute such assignments and other documents reasonably requested by such person
in order to effect such repurchase. The sole remedy of the Issuer, the Owner
Trustee, the Trust Collateral Agent, the Trustee, the Noteholders or the
Certificateholders with respect to a breach of representations and warranties
pursuant to Section 3.1 and the agreement contained in this Section shall be the
repurchase of Receivables pursuant to this Section, subject to the conditions
contained herein or to
35
enforce the obligation of AmeriCredit to the Seller to repurchase such
Receivables pursuant to the Purchase Agreement. Neither the Owner Trustee, the
Trust Collateral Agent nor the Trustee shall have a duty to conduct any
affirmative investigation as to the occurrence of any conditions requiring the
repurchase of any Receivable pursuant to this Section.
In addition to the foregoing and notwithstanding whether the related
Receivable shall have been purchased by the Seller, the Seller shall indemnify
the Trust, the Backup Servicer, the Trust Collateral Agent, the Insurer, and the
Securityholders against all costs, expenses, losses, damages, claims and
liabilities, including reasonable fees and expenses of counsel, which may be
asserted against or incurred by any of them as a result of third party claims
arising out of the events or facts giving rise to such breach.
(b) Pursuant to Section 2.1 of this Agreement, the Seller conveyed
to the Trust all of the Seller's right, title and interest in its rights and
benefits, but none of its obligations or burdens, under the Purchase Agreement
including the Seller's rights under the Purchase Agreement and the delivery
requirements, representations and warranties and the cure or repurchase
obligations of AmeriCredit thereunder. The Seller hereby represents and warrants
to the Trust that such assignment is valid, enforceable and effective to permit
the Trust to enforce such obligations of AmeriCredit under the Purchase
Agreement.
SECTION 3.3. Custody of Receivables Files.
(a) In connection with the sale, transfer and assignment of the
Receivables and the Other Conveyed Property to the Trust pursuant to this
Agreement and simultaneously with the execution and delivery of this Agreement,
the Trust Collateral Agent shall enter into the Custodian Agreement with the
Custodian, dated as of November 1, 1996, pursuant to which the Trust Collateral
Agent shall revocably appoint the Custodian, and the Custodian shall accept such
appointment, to act as the agent of the Trust Collateral Agent as custodian of
the following documents or instruments in its possession which shall be
delivered to the Custodian as agent of the Trust Collateral Agent on or before
the Closing Date (with respect to each Receivable):
(i) The fully executed original of the Receivable (together with any
agreements modifying the Receivable, including without limitation any
extension agreements);
(ii) The original credit application, or a copy thereof, of each
Obligor, fully executed by each such
36
Obligor on AmeriCredit's customary form, or on a form approved by
AmeriCredit, for such application; and
(iii) The original certificate of title (when received) and
otherwise such documents, if any, that AmeriCredit keeps on file in
accordance with its customary procedures indicating that the Financed
Vehicle is owned by the Obligor and subject to the interest of AmeriCredit
as first lienholder or secured party (including any Lien Certificate
received by AmeriCredit), or, if such original certificate of title has
not yet been received, a copy of the application therefor, showing
AmeriCredit as secured party.
The Trust Collateral Agent may act as the Custodian, in which case the
Trust Collateral Agent shall be deemed to have assumed the obligations of the
Custodian specified in the Custodian Agreement.
(b) Upon payment in full of any Receivable, the Servicer will notify
the Custodian pursuant to a certificate of an officer of the Servicer (which
certificate shall include a statement to the effect that all amounts received in
connection with such payments which are required to be deposited in the
Collection Account pursuant to Section 4.1 have been so deposited) and shall
request delivery of the Receivable and Receivable File to the Servicer. From
time to time as appropriate for servicing and enforcing any Receivable, the
Custodian shall, upon written request of an officer of the Servicer and delivery
to the Custodian of a receipt signed by such officer, cause the original
Receivable and the related Receivable File to be released to the Servicer. The
Servicer's receipt of a Receivable and/or Receivable File shall obligate the
Servicer to return the original Receivable and the related Receivable File to
the Custodian when its need by the Servicer has ceased unless the Receivable is
repurchased as described in Section 3.2 or 4.7.
ARTICLE IV
Administration and Servicing of Receivables
SECTION 4.1. Duties of the Servicer. The Servicer is hereby
authorized to act as agent for the Trust and in such capacity shall manage,
service, administer and make collections on the Receivables, and perform the
other actions required by the Servicer under this Agreement. The Servicer agrees
that its servicing of the Receivables shall be carried out in accordance with
customary and usual procedures of institutions which service motor vehicle
retail installment sales contracts and, to the extent more exacting, the degree
of skill and attention that the Servicer exercises from time
37
to time with respect to all comparable motor vehicle receivables that it
services for itself or others. In performing such duties, so long as AmeriCredit
is the Servicer, it shall comply with the policies and procedures attached
hereto as Schedule C. The Servicer's duties shall include, without limitation,
collection and posting of all payments, responding to inquiries of Obligors on
the Receivables, investigating delinquencies, sending payment coupons to
Obligors, reporting any required tax information to Obligors, monitoring the
collateral, complying with the terms of the Lockbox Agreement, accounting for
collections and furnishing monthly and annual statements to the Trust Collateral
Agent, the Trustee and the Insurer with respect to distributions, monitoring the
status of Insurance Policies with respect to the Financed Vehicles and
performing the other duties specified herein. The Servicer shall also administer
and enforce all rights and responsibilities of the holder of the Receivables
provided for in the Dealer Agreements (and 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 Trust to execute and deliver,
on behalf of the Trust, any and all instruments of satisfaction or cancellation,
or of partial or full release or discharge, and all other comparable
instruments, with respect to the Receivables and with respect to the Financed
Vehicles; provided, however, that notwithstanding the foregoing, the Servicer
shall not, except pursuant to an order from a court of competent jurisdiction,
release an Obligor from payment of any unpaid amount under any Receivable or
waive the right to collect the unpaid balance of any Receivable from the
Obligor. The Servicer is hereby authorized to commence, in it's own name or in
the name of the Trust, a legal proceeding to enforce a Receivable pursuant to
Section 4.3 or to commence or participate in any other legal proceeding
(including, without limitation, a bankruptcy proceeding) relating to or
involving a Receivable, an Obligor or a Financed Vehicle. If the Servicer
commences or participates in such a legal proceeding in its own name, the Trust
shall thereupon be deemed to have automatically assigned such Receivable to the
Servicer solely for purposes of commencing or participating in any such
proceeding as a party or claimant, and the Servicer is authorized and empowered
by the Trust to execute and deliver in the Servicer's name any
38
notices, demands, claims, complaints, responses, affidavits or other documents
or instruments in connection with any such proceeding. The Trust Collateral
Agent and the Owner Trustee shall furnish the Servicer with any powers of
attorney and other documents which the Servicer may reasonably request and which
the Servicer deems necessary or appropriate and take any other steps which the
Servicer may deem necessary or appropriate to enable the Servicer to carry out
its servicing and administrative duties under this Agreement.
SECTION 4.2. Collection of Receivable Payments; Modifications of
Receivables; Lockbox Agreements.
(a) Consistent with the standards, policies and procedures required
by this Agreement, the Servicer shall make reasonable efforts to collect all
payments called for under the terms and provisions of the Receivables as and
when the same shall become due, and shall follow such collection procedures as
it follows with respect to all comparable automobile receivables that it
services for itself or others and otherwise act with respect to the Receivables,
the Dealer Agreements, the Dealer Assignments, the Insurance Policies and the
Other Conveyed Property in such manner as will, in the reasonable judgment of
the Servicer, maximize the amount to be received by the Trust with respect
thereto. The Servicer is authorized in its discretion to waive any prepayment
charge, late payment charge or any other similar fees that may be collected in
the ordinary course of servicing any Receivable.
(b) The Servicer may at any time agree to a modification or
amendment of a Receivable in order to (i) change the Obligor's regular due date
to a date within the Collection Period in which such due date occurs or (ii) re-
amortize the scheduled 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 4.2(b)) in accordance with its customary procedures if the
Servicer believes in good faith that such extension, modification or amendment
is necessary to avoid a default on such Receivable, will maximize the amount to
be received by the Trust with respect to such Receivable, and is otherwise in
the best interests of the Trust; provided, however, that:
(i) The aggregate period of all extensions on a Receivable shall not
exceed six months;
(ii) In no event may a Receivable be extended beyond the Collection
Period immediately preceding the Final Scheduled Distribution Date;
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(iii) So long as an Insurer Default shall not have occurred and be
continuing, the Servicer shall not amend or modify a Receivable (except as
provided in Section 4.2(b) and this Section 4.2(c)) without the consent of
the Insurer or a Security Majority (if an Insurer Default shall have
occurred and be continuing); and
(iv) No such extension, modification or amendment shall be granted
more than 90 days after the Closing Date if such action would have the
effect of causing such Receivable to be deemed to have been exchanged for
another Receivable within the meaning of Section 1001 of the Internal
Revenue Code of 1986, as amended, or any proposed, temporary or final
Treasury Regulations issued thereunder.
(d) The Servicer shall use its best efforts to notify or direct
Obligors to make all payments on the Receivables, whether by check or by direct
debit of the Obligor's bank account, to be made directly to one or more Lockbox
Banks, acting as agent for the Trust pursuant to a Lockbox Agreement. The
Servicer shall use its best efforts to notify or direct any Lockbox Bank to
deposit all payments on the Receivables in the Lockbox Account no later than the
Business Day after receipt, and to cause all amounts credited to the Lockbox
Account on account of such payments to be transferred to the Collection Account
no later than the second Business Day after receipt of such payments. The
Lockbox Account shall be a demand deposit account held by the Lockbox Bank, or
at the request of the Controlling Party, an Eligible Account.
Prior to the Closing Date, the Servicer shall have notified each
Obligor that makes its payments on the Receivables by check to make such
payments thereafter directly to the Lockbox Bank (except in the case of Obligors
that have already been making such payments to the Lockbox Bank), and shall have
provided each such Obligor with remittance invoices in order to enable such
Obligors to make such payments directly to the Lockbox Bank for deposit into the
Lockbox Account, and the Servicer will continue, not less often than every three
months, to so notify those Obligors who have failed to make payments to the
Lockbox Bank. If and to the extent requested by the Controlling Party, the
Servicer shall request each Obligor that makes payment on the Receivables by
direct debit of such Obligor's bank account, to execute a new authorization for
automatic payment which in the judgment of the Controlling Party is sufficient
to authorize direct debit by the Lockbox Bank on behalf of the Trust. If at any
time, the Lockbox Bank is unable to directly debit an Obligor's bank account
that makes payment on the Receivables by direct debit and if such inability is
not cured within 15 days or cannot be cured by execution by the Obligor of a new
authorization for
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automatic payment, the Servicer shall notify such Obligor that it cannot make
payment by direct debit and must thereafter make payment by check.
Notwithstanding any Lockbox Agreement, or any of the provisions of
this Agreement relating to the Lockbox Agreement, the Servicer shall remain
obligated and liable to the Trust, the Trust Collateral Agent and
Securityholders for servicing and administering the Receivables and the Other
Conveyed Property in accordance with the provisions of this Agreement without
diminution of such obligation or liability by virtue thereof, provided, however,
that the foregoing shall not apply to any Backup Servicer for so long as a
Lockbox Bank is performing its obligations pursuant to the terms of a Lockbox
Agreement.
In the event of a termination of the Servicer, the successor
Servicer shall assume all of the rights and obligations of the outgoing Servicer
under the Lockbox Agreement subject to the terms hereof. In such event, the
successor Servicer shall be deemed to have assumed all of the outgoing
Servicer's interest therein and to have replaced the outgoing Servicer as a
party to each such Lockbox Agreement to the same extent as if such Lockbox
Agreement had been assigned to the successor Servicer, except that the outgoing
Servicer shall not thereby be relieved of any liability or obligations on the
part of the outgoing Servicer to the Lockbox Bank under such Lockbox Agreement.
The outgoing Servicer shall, upon request of the Trust Collateral Agent, but at
the expense of the outgoing Servicer, deliver to the successor Servicer all
documents and records relating to each such Lockbox Agreement and an accounting
of amounts collected and held by the Lockbox Bank and otherwise use its best
efforts to effect the orderly and efficient transfer of any Lockbox Agreement to
the successor Servicer. In the event that the Insurer (so long as an Insurer
Default shall not have occurred and be continuing) or a Security Majority (if an
Insurer Default shall have occurred and be continuing) elects to change the
identity of the Lockbox Bank, the outgoing Servicer, at its expense, shall cause
the Lockbox Bank to deliver, at the direction of the Insurer (so long as an
Insurer Default shall not have occurred and be continuing) or a Security
Majority (if an Insurer Default shall have occurred and be continuing) to the
Trust Collateral Agent or a successor Lockbox Bank, all documents and records
relating to the Receivables and all amounts held (or thereafter received) by the
Lockbox Bank (together with an accounting of such amounts) and shall otherwise
use its best efforts to effect the orderly and efficient transfer of the lockbox
arrangements and the Servicer shall notify the Obligors to make payments to the
Lockbox established by the successor.
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(e) The Servicer shall remit all payments by or on behalf of the
Obligors received directly by the Servicer to the Lockbox Bank for deposit into
the Collection Account, in either case, without deposit into any intervening
account and as soon as practicable, but in no event later than the Business Day
after receipt thereof.
SECTION 4.3. Realization Upon Receivables.
(a) Consistent with the standards, policies and procedures required
by this Agreement, the Servicer shall use its best efforts to repossess (or
otherwise comparably convert the ownership of) and liquidate any Financed
Vehicle securing a Receivable with respect to which the Servicer has determined
that payments thereunder are not likely to be resumed, as soon as is practicable
after default on such Receivable but in no event later than the date on which
all or any portion of a Scheduled Payment has become 91 days delinquent;
provided, however, that the Servicer may elect not to repossess a Financed
Vehicle within such time period if in its good faith judgment it determines that
the proceeds ultimately recoverable with respect to such Receivable would be
increased by forbearance. The Servicer is authorized to follow such customary
practices and procedures as it shall deem necessary or advisable, consistent
with the standard of care required by Section 4.1, which practices and
procedures may include reasonable efforts to realize upon any recourse to
Dealers, the sale of the related Financed Vehicle at public or private sale, the
submission of claims under an Insurance Policy and other actions by the Servicer
in order to realize upon such a Receivable. The foregoing is subject to the
provision that, in any case in which the Financed Vehicle shall have suffered
damage, the Servicer shall not expend funds in connection with any repair or
towards the repossession of such Financed Vehicle unless it shall determine in
its discretion that such repair and/or repossession shall increase the proceeds
of liquidation of the related Receivable by an amount greater than the amount of
such expenses. All amounts received upon liquidation of a Financed Vehicle shall
be remitted directly by the Servicer to the Collection Account without deposit
into any intervening account as soon as practicable, but in no event later than
the Business Day after receipt thereof. The Servicer shall be entitled to
recover all reasonable expenses incurred by it in the course of repossessing and
liquidating a Financed Vehicle into cash proceeds, but only out of the cash
proceeds of such Financed Vehicle, any deficiency obtained from the Obligor or
any amounts received from the related Dealer, which amounts in reimbursement may
be retained by the Servicer (and shall not be required to be deposited as
provided in Section 4.2(e)) to the extent of such expenses. The Servicer shall
pay on behalf of the Trust any personal property taxes assessed on repossessed
Financed Vehicles. The
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Servicer shall be entitled to reimbursement of any such tax from Net Liquidation
Proceeds with respect to such Receivable.
(b) If the Servicer elects to commence a legal proceeding to enforce
a Dealer Agreement or Dealer Assignment, the act of commencement shall be deemed
to be an automatic assignment from the Trust to the Servicer of the rights under
such Dealer Agreement 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 Owner Trustee and/or the Trust
Collateral Agent, at the Servicer's expense, or the Seller, at the Seller's
expense, shall take such steps as the Servicer deems necessary to enforce the
Dealer Agreement or Dealer Assignment, including bringing suit in its name or
the name of the Seller or of the Trust and the Owner Trustee and/or the Trust
Collateral Agent for the benefit of the Securityholders. All amounts recovered
shall be remitted directly by the Servicer as provided in Section 4.2(e).
SECTION 4.4. Insurance.
(a) The Servicer shall require, in accordance with its customary
servicing policies and procedures, that each Financed Vehicle be insured by the
related Obligor under the Insurance Policies referred to in Paragraph 24 of the
Schedule of Representations and Warranties and shall monitor the status of such
physical loss and damage insurance coverage thereafter, in accordance with its
customary servicing procedures. Each Receivable requires the Obligor to maintain
such physical loss and damage insurance, naming AmeriCredit and its successors
and assigns as additional insureds, and permits the holder of such Receivable to
obtain physical loss and damage insurance at the expense of the Obligor if the
Obligor fails to maintain such insurance. If the Servicer shall determine that
an Obligor has failed to obtain or maintain a physical loss and damage Insurance
Policy covering the related Financed Vehicle which satisfies the conditions set
forth in clause (i)(a) of such Paragraph 24 (including, without limitation,
during the repossession of such Financed Vehicle) the Servicer may enforce the
rights of the holder of the Receivable under the Receivable to require the
Obligor to obtain such physical loss and damage insurance in accordance with its
customary servicing policies and procedures. The Servicer may maintain a
vendor's single interest or other collateral protection insurance policy with
respect to all Financed Vehicles ("Collateral Insurance") which policy shall by
its terms insure against physical loss and damage in the event any Obligor fails
to maintain physical loss and damage insurance with respect to the related
Financed Vehicle. All
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policies of Collateral Insurance shall be endorsed with clauses providing for
loss payable to the Servicer. Costs incurred by the Servicer in maintaining such
Collateral Insurance shall be paid by the Servicer.
(b) The Servicer may, if an Obligor fails to obtain or maintain a
physical loss and damage Insurance Policy, obtain insurance with respect to the
related Financed Vehicle and advance on behalf of such Obligor, as required
under the terms of the insurance policy, the premiums for such insurance (such
insurance being referred to herein as "Force-Placed Insurance"). All policies of
Force-Placed Insurance shall be endorsed with clauses providing for loss payable
to the Servicer. Any cost incurred by the Servicer in maintaining such
Force-Placed Insurance shall only be recoverable out of premiums paid by the
Obligors or Net Liquidation Proceeds with respect to the Receivable, as provided
in Section 4.4(c).
(c) In connection with any Force-Placed Insurance obtained
hereunder, the Servicer may, in the manner and to the extent permitted by
applicable law, require the Obligors to repay the entire premium to the
Servicer. In no event shall the Servicer include the amount of the premium in
the Amount Financed under the Receivable. For all purposes of this Agreement,
the Insurance Add-On Amount with respect to any Receivable having Force-Placed
Insurance will be treated as a separate obligation of the Obligor and will not
be added to the Principal Balance of such Receivable, and amounts allocable
thereto will not be available for distribution on the Notes and the
Certificates. The Servicer shall retain and separately administer the right to
receive payments from Obligors with respect to Insurance Add-On Amounts or
rebates of Forced-Placed Insurance premiums. If an Obligor makes a payment with
respect to a Receivable having Force-Placed Insurance, but the Servicer is
unable to determine whether the payment is allocable to the Receivable or to the
Insurance Add-On Amount, the payment shall be applied first to any unpaid
Scheduled Payments and then to the Insurance Add-On Amount. Net Liquidation
Proceeds on any Receivable will be used first to pay the Principal Balance and
accrued interest on such Receivable and then to pay the related Insurance Add-
On Amount. If an Obligor under a Receivable with respect to which the Servicer
has placed Force-Placed Insurance fails to make scheduled payments of such
Insurance Add-On Amount as due, and the Servicer has determined that eventual
payment of the Insurance Add-On Amount is unlikely, the Servicer may, but shall
not be required to, purchase such Receivable from the Trust for the Purchase
Amount on any subsequent Deposit Date. Any such Receivable, and any Receivable
with respect to which the Servicer has placed Force-Placed Insurance which has
been paid in full (excluding any Insurance Add-On Amounts) will be assigned to
the Servicer.
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(d) The Servicer may xxx to enforce or collect upon the Insurance
Policies, in its own name, if possible, or as agent of the Trust. If the
Servicer elects to commence a legal proceeding to enforce an Insurance Policy,
the act of commencement shall be deemed to be an automatic assignment of the
rights of the Trust under such Insurance Policy to the Servicer for purposes of
collection only. If, however, in any enforcement suit or legal proceeding it is
held that the Servicer may not enforce an Insurance Policy on the grounds that
it is not a real party in interest or a holder entitled to enforce the Insurance
Policy, the Owner Trustee and/or the Trust Collateral Agent, at the Servicer's
expense, or the Seller, at the Seller's expense, shall take such steps as the
Servicer deems necessary to enforce such Insurance Policy, including bringing
suit in its name or the name of the Trust and the Owner Trustee and/or the Trust
Collateral Agent for the benefit of the Securityholders.
(e) The Servicer will cause itself and may cause the Trust
Collateral Agent to be named as named insured under all policies of Collateral
Insurance.
SECTION 4.5. Maintenance of Security Interests in Vehicles.
(a) Consistent with the policies and procedures required by this
Agreement, the Servicer shall take such steps on behalf of the Trust as are
necessary to maintain perfection of the security interest created by each
Receivable in the related Financed Vehicle, including but not limited to
obtaining the execution by the Obligors and the recording, registering, filing,
re-recording, re-filing, and re- registering of all security agreements,
financing statements and continuation statements as are necessary to maintain
the security interest granted by the Obligors under the respective Receivables.
The Trust Collateral Agent hereby authorizes the Servicer, and the Servicer
agrees, to take any and all steps necessary to re-perfect such security interest
on behalf of the Trust as necessary because of the relocation of a Financed
Vehicle or for any other reason. In the event that the assignment of a
Receivable to the Trust is insufficient, without a notation on the related
Financed Vehicle's certificate of title, or without fulfilling any additional
administrative requirements under the laws of the state in which the Financed
Vehicle is located, to perfect a security interest in the related Financed
Vehicle in favor of the Trust, the Servicer hereby agrees that AmeriCredit's
designation as the secured party on the certificate of title is in its capacity
as Servicer as agent of the Trust.
(b) Upon the occurrence of an Insurance Agreement Event of Default,
the Insurer may (so long as an Insurer Default shall not have occurred and be
continuing) instruct
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the Trust Collateral Agent and the Servicer to take or cause to be taken, or, if
an Insurer Default shall have occurred, upon the occurrence of a Servicer
Termination Event, the Trust Collateral Agent and the Servicer shall take or
cause to be taken such action as may, in the opinion of counsel to the
Controlling Party, be necessary to perfect or re-perfect the security interests
in the Financed Vehicles securing the Receivables in the name of the Trust by
amending the title documents of such Financed Vehicles or by such other
reasonable means as may, in the opinion of counsel to the Controlling Party, be
necessary or prudent. AmeriCredit hereby agrees to pay all expenses related to
such perfection or reperfection and to take all action necessary therefor. In
addition, prior to the occurrence of an Insurance Agreement Event of Default,
the Controlling Party may instruct the Trust Collateral Agent and the Servicer
to take or cause to be taken such action as may, in the opinion of counsel to
the Controlling Party, be necessary to perfect or re-perfect the security
interest in the Financed Vehicles underlying the Receivables in the name of the
Trust, including by amending the title documents of such Financed Vehicles or by
such other reasonable means as may, in the opinion of counsel to the Controlling
Party, be necessary or prudent; provided, however, that if the Controlling Party
requests that the title documents be amended prior to the occurrence of an
Insurance Agreement Event of Default, the out-of-pocket expenses of the Servicer
or the Trust Collateral Agent in connection with such action shall be reimbursed
to the Servicer or the Trust Collateral Agent, as applicable, by the Controlling
Party. AmeriCredit hereby appoints the Trust Collateral Agent as its
attorney-in-fact to take any and all steps required to be performed by
AmeriCredit pursuant to this Section 4.5(b), including execution of certificates
of title or any other documents in the name and stead of AmeriCredit, and the
Trust Collateral Agent hereby accepts such appointment.
SECTION 4.6. Covenants, Representations, and Warranties of Servicer.
By its execution and delivery of this Agreement, the Servicer makes the
following representations, warranties and covenants on which the Trust
Collateral Agent relies in accepting the Receivables, on which the Trustee
relies in authenticating the Notes, on which the Owner Trustee relies in
executing the Certificates and on which the Insurer relies in issuing the
Policy.
(a) The Servicer covenants as follows:
(i) Liens in Force. The Financed Vehicle securing each Receivable
shall not be released in whole or in part from the security interest
granted by the Receivable, except upon payment in full of the Receivable
or as otherwise contemplated herein;
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(ii) No Impairment. The Servicer shall do nothing to impair the
rights of the Trust or the Securityholders in the Receivables, the Dealer
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 4.2;
and
(iv) Restrictions on Liens. The Servicer shall not (i) create, incur
or suffer to exist, or agree to create, incur or suffer to exist, or
consent to cause or permit in the future (upon the happening of a
contingency or otherwise) the creation, incurrence or existence of any
Lien or restriction on transferability of the Receivables except for the
Lien in favor of the Trust Collateral Agent for the benefit of the
Securityholders and Insurer, the Lien imposed by the Spread Account
Agreement Supplement in favor of the Collateral Agent for the benefit of
the Trust Collateral Agent and Insurer, and the restrictions on
transferability imposed by this Agreement or (ii) sign or file under the
Uniform Commercial Code of any jurisdiction any financing statement which
names AmeriCredit or the Servicer as a debtor, or sign any security
agreement authorizing any secured party thereunder to file such financing
statement, with respect to the Receivables, except in each case any such
instrument solely securing the rights and preserving the Lien of the Trust
Collateral Agent, for the benefit of the Securityholders and the Insurer.
(b) The Servicer represents, warrants and covenants as of the
Closing Date as to itself that the representations and warranties set forth on
the Schedule of Representations attached hereto as Schedule B are true and
correct, provided that such representations and warranties contained therein and
herein shall not apply to any entity other than AmeriCredit.
SECTION 4.7. Purchase of Receivables Upon Breach of Covenant. Upon
discovery by any of the Servicer, the Insurer, the Trust Collateral Agent, the
Owner Trustee or the Trustee of a breach of any of the covenants set forth in
Sections 4.5(a) or 4.6(a), the party discovering such breach shall give prompt
written notice to the others; provided, however, that the failure to give any
such notice shall not affect any obligation of AmeriCredit as Servicer under
this Section 4.7. As of the second Accounting Date following its discovery or
receipt of notice of any breach of any covenant set forth in Sections 4.5(a) or
4.6(a) which materially and adversely affects the interests of the
Securityholders or the Insurer in any Receivable (including any Liquidated
Receivable) (or, at AmeriCredit's election, the first
47
Accounting Date so following) or the related Financed Vehicle, AmeriCredit
shall, unless such breach shall have been cured in all material respects,
purchase from the Trust the Receivable affected by such breach and, on the
related Deposit Date, AmeriCredit shall pay the related Purchase Amount. It is
understood and agreed that the obligation of AmeriCredit to purchase any
Receivable (including any Liquidated Receivable) with respect to which such a
breach has occurred and is continuing shall, if such obligation is fulfilled,
constitute the sole remedy against AmeriCredit for such breach available to the
Insurer, the Securityholders, the Owner Trustee or the Trust Collateral Agent;
provided, however, that AmeriCredit shall indemnify the Trust, the Backup
Servicer, the Collateral Agent, the Insurer, the Owner Trustee, the Trust
Collateral Agent, the Trustee and the Securityholders 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 4.8. 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 Basic Servicing Fee and any Supplemental
Servicing Fee for the related Collection Period pursuant to Section 5.7. The
Servicer shall be required to pay all expenses incurred by it in connection with
its activities under this Agreement (including taxes imposed on the Servicer,
expenses incurred in connection with distributions and reports made by the
Servicer to Securityholders or the Insurer and all other fees and expenses of
the Owner Trustee, the Trust Collateral Agent or the Trustee, except taxes
levied or assessed against the Trust, and claims against the Trust in respect of
indemnification, which taxes and claims in respect of indemnification against
the Trust are expressly stated to be for the account of AmeriCredit). The
Servicer shall be liable for the fees and expenses of the Owner Trustee, the
Trust Collateral Agent, the Trustee, the Custodian, the Backup Servicer, the
Collateral Agent, the Lockbox Bank (and any fees under the Lockbox Agreement)
and the Independent Accountants. Notwithstanding the foregoing if the Servicer
shall not be AmeriCredit, a successor to AmeriCredit as Servicer including the
backup servicer permitted by Section 10.3 shall not be liable for taxes levied
or assessed against the Trust or claims against the Trust in respect of
indemnification, or the fees and expenses referred to above.
SECTION 4.9. Servicer's Certificate. No later than 10:00 am. New
York City time on each Determination Date, the Servicer shall deliver to the
Trustee, the Owner Trustee, the Trust Collateral Agent, the Backup Servicer, the
Insurer, the Collateral Agent and each Rating Agency a Servicer's
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Certificate executed by a Responsible Officer of the Servicer containing among
other things, (i) all information necessary to enable the Trust Collateral Agent
to make any withdrawal and deposit required by Section 5.5, to give any notice
required by Section 5.5(b) and to make the distributions required by Sections
5.7, (ii) all information necessary to enable the Trust Collateral Agent to send
the statements to Securityholders and the Insurer required by Section 5.11,
(iii) a listing of all Warranty Receivables and Administrative Receivables
purchased as of the related Deposit Date, identifying the Receivables so
purchased and (iv) all information necessary to enable the Trust Collateral
Agent to reconcile all deposits to, and withdrawals from, the Collection Account
for the related Collection Period and Distribution Date, including the
accounting required by Section 5.11. Receivables purchased by the Servicer or by
the Seller on the related Deposit Date and each Receivable which became a
Liquidated Receivable or which was paid in full during the related Collection
Period shall be identified by account number (as set forth in the Schedule of
Receivables). In addition to the information set forth in the preceding
sentence, the Servicer's Certificate shall also contain the following
information: (a) the Delinquency Ratio, Average Delinquency Ratio, Default
Ratio, Average Default Ratio, Net Loss Ratio and Average Net Loss Ratio (as such
terms are defined in the Spread Account Agreement) for such Determination Date;
(b) whether any Trigger Event has occurred as of such Determination Date; (c)
whether any Trigger Event that may have occurred as of a prior Determination
Date is deemed cured as of such Determination Date; and (d) whether to the
knowledge of the Servicer an Insurance Agreement Event of Default has occurred.
SECTION 4.10. Annual Statement as to Compliance, Notice of Servicer
Termination Event.
(a) The Servicer shall deliver to the Trustee, the Owner Trustee,
the Trust Collateral Agent, the Backup Servicer, the Insurer and each Rating
Agency, on or before October 31 (or 120 days after the end of the Servicer's
fiscal year, if other than June 30) of each year, beginning on October 31, 1997,
an officer's certificate signed by any Responsible Officer of the Servicer,
dated as of June 30 (or other applicable date) of such year, stating that (i) a
review of the activities of the Servicer during the preceding 12- month period
(or such other period as shall have elapsed from the Closing Date to the date of
the first such certificate) and of its performance under this Agreement has been
made under such officer's supervision, and (ii) to such officer's knowledge,
based on such review, the Servicer has fulfilled all its obligations under this
Agreement throughout such period, or, if there has been a default in the
fulfillment of
49
any such obligation, specifying each such default known to such officer and the
nature and status thereof.
(b) The Servicer shall deliver to the Trustee, the Owner Trustee,
the Trust Collateral Agent, the Backup Servicer, the Insurer, the Collateral
Agent, and each Rating Agency, promptly after having obtained knowledge thereof,
but in no event later than two (2) Business Days thereafter, written notice in
an officer's certificate of any event which with the giving of notice or lapse
of time, or both, would become a Servicer Termination Event under Section
10.1(a). The Seller or the Servicer shall deliver to the Trustee, the Owner
Trustee, the Trust Collateral Agent, the Backup Servicer, the Insurer, the
Collateral Agent, the Servicer or the Seller (as applicable) and each Rating
Agency promptly after having obtained knowledge thereof, but in no event later
than two (2) Business Days thereafter, written notice in an officer's
certificate of any event which with the giving of notice or lapse of time, or
both, would become a Servicer Termination Event under any other clause of
Section 10.1.
SECTION 4.11. Annual Independent Accountants' Report.
The Servicer shall cause a firm of nationally recognized independent
certified public accountants (the "Independent Accountants"), who may also
render other services to the Servicer or to the Seller, to deliver to the
Trustee, the Owner Trustee, the Trust Collateral Agent, the Backup Servicer, the
Insurer and each Rating Agency, on or before October 31 (or 120 days after the
end of the Servicer's fiscal year, if other than June 30) of each year,
beginning on October 31, 1997, with respect to the twelve months ended the
immediately preceding June 30 (or other applicable date) (or such other period
as shall have elapsed from the Closing Date to the date of such certificate), a
statement (the "Accountants' Report") addressed to the Board of Directors of the
Servicer, to the Trustee, the Owner Trustee, the Trust Collateral Agent, the
Backup Servicer and to the Insurer, to the effect that such firm has audited the
books and records of AmeriCredit Corp., in which the Servicer is included as a
consolidated subsidiary, and issued its report thereon in connection with the
audit report on the consolidated financial statements of AmeriCredit Corp. and
that (1) such audit was made in accordance with generally accepted auditing
standards, and accordingly included such tests of the accounting records and
such other auditing procedures as such firm considered necessary in the
circumstances; (2) the firm is independent of the Seller and the Servicer within
the meaning of the Code of Professional Ethics of the American Institute of
Certified Public Accountants, and (3) includes a report on the application of
agreed upon procedures to three randomly selected Servicer's Certificates
including the delinquency,
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default and loss statistics required to be specified therein noting whether any
exceptions or errors in the Servicer's Certificates were found.
SECTION 4.12. Access to Certain Documentation and Information
Regarding Receivables. The Servicer shall provide to representatives of the
Trustee, the Owner Trustee, the Trust Collateral Agent, the Backup Servicer and
the Insurer reasonable access to the documentation regarding the Receivables. In
each case, such access shall be afforded without charge but only upon reasonable
request and during normal business hours. Nothing in this Section shall 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 4.13. Monthly Tape. On or before the fifth Business Day, but
in no event later than the seventh calendar day, of each month, the Servicer
will deliver to the Trust Collateral Agent and the Backup Servicer a computer
tape and a diskette (or any other electronic transmission acceptable to the
Trust Collateral Agent and the Backup Servicer) in a format acceptable to the
Trust Collateral Agent and the Backup Servicer containing the information with
respect to the Receivables as of the preceding Accounting Date necessary for
preparation of the Servicer's Certificate relating to the immediately succeeding
Determination Date and necessary to determine the application of collections as
provided in Section 5.4. The Backup Servicer shall use such tape or diskette (or
other electronic transmission acceptable to the Trust Collateral Agent and the
Backup Servicer) to verify the Servicer's Certificate delivered by the Servicer,
and the Backup Servicer shall certify to the Controlling Party that it has
verified the Servicer's Certificate in accordance with this Section 4.13 and
shall notify the Servicer and the Controlling Party 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 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 Certificate by the related Distribution Date, the
Servicer shall cause the Independent Accountants, at the Servicer's expense, to
audit the Servicer's Certificate and, prior to the third Business Day, but in no
event later than the fifth calendar day, of the following month, reconcile the
discrepancies. The effect, if
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any, of such reconciliation shall be reflected in the Servicer's Certificate for
such next succeeding Determination Date. In addition, upon the occurrence of a
Servicer Termination Event the Servicer shall, if so requested by the
Controlling Party deliver to the Backup Servicer its Collection Records and its
Monthly Records within 15 days after demand therefor and a computer tape
containing as of the close of business on the date of demand all of the data
maintained by the Servicer in computer format in connection with servicing the
Receivables. Other than the duties specifically set forth in this Agreement, the
Backup Servicer shall have no obligations hereunder, including, without
limitation, to supervise, verify, monitor or administer the performance of the
Servicer. The Backup Servicer shall have no liability for any actions taken or
omitted by the Servicer.
SECTION 4.14. Retention and Termination of Servicer. The Servicer
hereby covenants and agrees to act as such under this Agreement for an initial
term, commencing on the Closing Date and ending on December 31, 1996, which term
shall be extendible by the Controlling Party for successive quarterly terms
ending on each successive March 31, June 30 and September 30 (or, pursuant to
revocable written standing instructions from time to time to the Servicer and
the Trust Collateral Agent for any specified number of terms greater than one),
until the Notes and the Securities are paid in full. Each such notice (including
each notice pursuant to standing instructions, which shall be deemed delivered
at the end of successive quarterly terms for so long as such instructions are in
effect) (a "Servicer Extension Notice") shall be delivered by the Insurer to the
Trust Collateral Agent and the Servicer. The Servicer hereby agrees that, as of
the date hereof and upon its receipt of any such Servicer Extension Notice, the
Servicer shall become bound, for the initial term beginning on the Closing Date
and for the duration of the term covered by such Servicer Extension Notice, to
continue as the Servicer subject to and in accordance with the other provisions
of this Agreement. Until such time as an Insurer Default shall have occurred and
be continuing the Trust Collateral Agent agrees that if as of the fifteenth day
prior to the last day of any term of the Servicer the Trust Collateral Agent
shall not have received any Servicer Extension Notice from the Insurer, the
Trust Collateral Agent will, within five days thereafter, give written notice of
such non-receipt to the Insurer and the Servicer.
SECTION 4.15. Fidelity Bond and Errors and Omissions Policy. The
Servicer has obtained, and shall continue to maintain in full force and effect,
a Fidelity Bond and Errors and Omissions Policy of a type and in such amount as
is customary for servicers engaged in the business of servicing automobile
receivables.
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ARTICLE V
Trust Accounts; Distributions;
Statements to Certificateholders and Noteholders
SECTION 5.1. Establishment of Trust Accounts.
(a)(i) The Trust Collateral Agent, on behalf of the Securityholders
and the Insurer, shall establish and maintain in its own name an Eligible
Deposit Account (the "Collection Account"), bearing a designation clearly
indicating that the funds deposited therein are held for the benefit of
the Trust Collateral Agent on behalf of the Securityholders and the
Insurer.
(ii) The Trust Collateral Agent, on behalf of the Noteholders, shall
establish and maintain in its own name an Eligible Deposit Account (the
"Note Distribution Account"), bearing a designation clearly indicating
that the funds deposited therein are held for the benefit of the Trust
Collateral Agent on behalf of the Noteholders and the Insurer. The Note
Distribution Account shall initially be established with the Trust
Collateral Agent.
(iii) The Trust Collateral Agent, on behalf of the
Certificateholders, shall establish and maintain in its own name an
Eligible Deposit Account (the "Certificate Distribution Account"), bearing
a designation clearly indicating that the funds deposited therein are held
for the benefit of the Trust Collateral Agent on behalf of the
Certificateholders and the Insurer. The Certificate Distribution Account
shall initially be established with the Trust Collateral Agent.
(iv) The Trust Collateral Agent, on behalf of the Securityholders
and the Insurer, shall establish and maintain in its own name an Eligible
Deposit Account (the "Pre-Funding Account"), bearing a designation clearly
indicating that the funds deposited therein are held for the benefit of
the Trust Collateral Agent on behalf of the Securityholders and the
Insurer.
(b) Funds on deposit in the Collection Account, the Pre-Funding
Account, the Note Distribution Account, the Certificate Distribution Account and
the Capitalized Interest Account (collectively, the "Trust Accounts") and the
Lockbox Accounts shall be invested by the Trust Collateral Agent (or any
custodian with respect to funds on deposit in any such account) in Eligible
Investments selected in writing by the Servicer (pursuant to standing
instructions or otherwise). All such Eligible Investments shall be held by or on
behalf of the Trust Collateral Agent for the benefit of the Noteholders
53
and/or the Certificateholders and the Insurer, as applicable. Other than as
permitted by the Rating Agencies and the Insurer, funds on deposit in any
Account shall be invested in Eligible Investments that will mature so that such
funds will be available at the close of business on the Business Day immediately
preceding the following Distribution Date. Funds deposited in a Trust Account on
the day immediately preceding a Distribution Date upon the maturity of any
Eligible Investments are not required to be invested overnight. All Eligible
Investments will be held to maturity.
(c) All investment earnings of moneys deposited in the Trust
Accounts shall be deposited (or caused to be deposited) by the Trust Collateral
Agent in the Collection Account, and any loss resulting from such investments
shall be charged to such account. The Servicer will not direct the Trust
Collateral Agent to make any investment of any funds held in any of the Trust
Accounts unless the security interest granted and perfected in such account will
continue to be perfected in such investment, in either case without any further
action by any Person, and, in connection with any direction to the Trust
Collateral Agent to make any such investment, if requested by the Trust
Collateral Agent, the Servicer shall deliver to the Trust Collateral Agent an
Opinion of Counsel, acceptable to the Trust Collateral Agent, to such effect.
(d) The Trust Collateral Agent shall not in any way be held liable
by reason of any insufficiency in any of the Trust Accounts resulting from any
loss on any Eligible Investment included therein except for losses attributable
to the Trust Collateral Agent's negligence or bad faith or its failure to make
payments on such Eligible Investments issued by the Trust Collateral Agent, in
its commercial capacity as principal obligor and not as trustee, in accordance
with their terms.
(e) If (i) the Servicer shall have failed to give investment
directions for any funds on deposit in the Trust Accounts to the Trust
Collateral Agent by 2:00 p.m. Eastern Time (or such other time as may be agreed
by the Issuer and Trust Collateral Agent) on any Business Day; or (ii) a Default
or Event of Default shall have occurred and be continuing with respect to the
Notes but the Notes shall not have been declared due and payable, or, if such
Notes shall have been declared due and payable following an Event of Default,
amounts collected or receivable from the Trust Property are being applied as if
there had not been such a declaration; then the Trust Collateral Agent shall, to
the fullest extent practicable, invest and reinvest funds in the Trust Accounts
in one or more Eligible Investments.
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(f)(i) The Trust Collateral Agent shall possess all right, title and
interest in all funds on deposit from time to time in the Trust Accounts
and in all proceeds thereof (excluding all Investment Earnings on the
Collection Account) and all such funds, investments, proceeds and income
shall be part of the Owner Trust Estate. Except as otherwise provided
herein, the Trust Accounts shall be under the sole dominion and control of
the Trust Collateral Agent for the benefit of the Noteholders and the
Certificateholders, as the case may be, and the Insurer. If, at any time,
any of the Trust Accounts ceases to be an Eligible Deposit Account, the
Trust Collateral Agent (or the Servicer on its behalf) shall within five
Business Days (or such longer period as to which each Rating Agency and
the Insurer may consent) establish a new Trust Account as an Eligible
Deposit Account and shall transfer any cash and/or any investments to such
new Trust Account. In connection with the foregoing, the Servicer agrees
that,in the event that any of the Trust Accounts are not accounts with the
Trust Collateral Agent, the Servicer shall notify the Trust Collateral
Agent in writing promptly upon any of such Trust Accounts ceasing to be an
Eligible Deposit Account.
(ii) With respect to the Trust Account Property, the Trust
Collateral Agent agrees that:
(A) any Trust Account Property or any property in the
Certificate Distribution Account that is held in deposit accounts
shall be held solely in the Eligible Deposit Accounts; and, except
as otherwise provided herein, each such Eligible Deposit Account
shall be subject to the exclusive custody and control of the Trust
Collateral Agent, and the Trust Collateral Agent shall have sole
signature authority with respect thereto;
(B) any Trust Account Property that constitutes Physical
Property shall be delivered to the Trust Collateral Agent in
accordance with paragraph (a) of the definition of "Delivery" and
shall be held, pending maturity or disposition, solely by the Trust
Collateral Agent or a financial intermediary (as such term is
defined in Section 8- 313(4) of the UCC) acting solely for the Trust
Collateral Agent;
(C) any Trust Account Property that is a book-entry security
held through the Federal Reserve System pursuant to Federal
book-entry regulations shall be delivered in accordance with
55
paragraph (b) of the definition of "Delivery" and shall be
maintained by the Trust Collateral Agent, pending maturity or
disposition, through continued book-entry registration of such Trust
Account Property as described in such paragraph; and
(D) any Trust Account Property that is an "uncertificated
security" under Article 8 of the UCC and that is not governed by
clause (C) above shall be delivered to the Trust Collateral Agent in
accordance with paragraph (c) of the definition of "Delivery" and
shall be maintained by the Trust Collateral Agent, pending maturity
or disposition, through continued registration of the Trust
Collateral Agent's (or its nominee's) ownership of such security.
(g) The Servicer shall have the power, revocable by the Insurer or,
with the consent of the Insurer by the Trustee or by the Owner Trustee with the
consent of the Trustee, to instruct the Trust Collateral Agent to make
withdrawals and payments from the Trust Accounts for the purpose of permitting
the Servicer and the Trust Collateral Agent to carry out its respective duties
hereunder.
SECTION 5.2. Capitalized Interest Account.
(a) The Servicer shall cause the Trust Collateral Agent to establish
and maintain an Eligible Deposit Account (the "Capitalized Interest Account")
with the Trust Collateral Agent, bearing a designation clearly indicating that
the funds deposited therein are held in trust for the benefit of the
Noteholders, Certificateholders and the Insurer.
On or prior to the Closing Date, the Seller shall deposit an amount
equal to the Capitalized Interest Account Initial Deposit into the Capitalized
Interest Account.
(b) (i) On the Distribution Dates occurring in December 1996,
January and February of 1997 the Trust Collateral Agent shall withdraw from the
Capitalized Interest Account the Monthly Capitalized Interest Amount for such
Distribution Date and deposit such amount in the Collection Account as further
provided in Section 5.7.
(ii) On the Distribution Dates occurring in December 1996, January
and February of 1997 the Servicer shall instruct the Trust Collateral Agent to
withdraw from the Capitalized Interest Account and pay to the Seller on such
Distribution Date an amount equal to the Overfunded Capitalized Interest Amount
for such Distribution Date. Any amounts remaining in the Capitalized Interest
Account on the Distribution Date which immediately follows the end of the
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Funding Period after taking into account the transfer pursuant to Section
5.7(a)(i) shall be remitted by the Trust Collateral Agent to the Seller. Upon
any such distributions to the Seller, the Noteholders, the Certificateholders
and the Insurer will have no further rights in, or claims to, such amounts.
SECTION 5.3. Certain Reimbursements to the Servicer. The Servicer
will be entitled to be reimbursed from amounts on deposit in the Collection
Account with respect to a Collection Period for amounts previously deposited in
the Collection Account but later determined by the Servicer to have resulted
from mistaken deposits or postings or checks returned for insufficient funds.
The amount to be reimbursed hereunder shall be paid to the Servicer on the
related Distribution Date pursuant to Section 5.7(b)(i) upon certification by
the Servicer of such amounts and the provision of such information to the Trust
Collateral Agent and the Insurer as may be necessary in the opinion of the
Insurer to verify the accuracy of such certification. In the event that the
Insurer has not received evidence satisfactory to it of the Servicer's
entitlement to reimbursement pursuant to this Section, the Insurer shall (unless
an Insurer Default shall have occurred and be continuing) give the Trust
Collateral Agent notice to such effect, following receipt of which the Trust
Collateral Agent shall not make a distribution to the Servicer in respect of
such amount pursuant to Section 5.7, or if the Servicer prior thereto has been
reimbursed pursuant to Section 5.7, the Trust Collateral Agent shall withhold
such amounts from amounts otherwise distributable to the Servicer on the next
succeeding Distribution Date.
SECTION 5.4. Application of Collections. All collections for the
Collection Period shall be applied by the Servicer as follows:
With respect to each Receivable (other than a Purchased Receivable),
payments by or on behalf of the Obligor, (other than Supplemental Servicing Fees
with respect to such Receivable, to the extent collected) shall be applied to
interest and principal in accordance with the Simple Interest Method.
All amounts collected that are payable to the Servicer as
Supplemental Servicing Fees hereunder shall be deposited in the Collection
Account and paid to the Servicer in accordance with Section 5.7(b).
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SECTION 5.5. Withdrawals from Spread Account.
(a) In the event that the Servicer's Certificate with respect to any
Determination Date shall state that the sum of (i) the Available Funds plus (ii)
the Prepayment Amount 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 (vii) of Section 5.7(b) (such deficiency being a "Deficiency Claim
Amount") then on the Deficiency Claim Date immediately preceding such
Distribution Date, the Trust Collateral Agent shall deliver to the Collateral
Agent, the Owner Trustee, the Insurer and the Servicer, by hand delivery, telex
or facsimile transmission, a written notice (a "Deficiency Notice") specifying
the Deficiency Claim Amount for such Distribution Date, the Note Policy Claim
Amount, if any, and the Certificate Policy Claim Amount, if any. Such Deficiency
Notice shall direct the Collateral Agent to remit such Deficiency Claim Amount
(to the extent of the funds available to be distributed pursuant to the Spread
Account Agreement) to the Trust Collateral Agent for deposit in the Collection
Account on the related Distribution Date.
(b) In the event that the Servicer's Certificate with respect to any
Determination Date shall state that there shall be an Accelerated Payment Amount
Shortfall with respect to the related Distribution Date, then on the fourth
Business Day preceding such Distribution Date, the Trust Collateral Agent shall
deliver to the Collateral Agent, the Insurer and the Servicer, by hand delivery,
a telex or facsimile transmission, an Accelerated Payment Shortfall Notice. Such
Accelerated Payment Shortfall Notice shall direct the Collateral Agent to remit
such Accelerated Payment Amount Shortfall to the Trust Collateral Agent (to the
extent of funds available to be distributed in the Spread Account Agreement) for
deposit in the Collection Account on the related Distribution Date.
(c) Any Deficiency Notice or Accelerated Payment Shortfall Notice
shall be delivered by 10:00 am., New York City time, on the fourth Business Day
preceding such Distribution Date. The amounts distributed by the Collateral
Agent to the Trust Collateral Agent pursuant to a Deficiency Notice or
Accelerated Payment Shortfall Notice shall be deposited by the Trust Collateral
Agent into the Collection Account pursuant to Section 5.6.
SECTION 5.6. Additional Deposits. (a) The Servicer and the Seller,
as applicable, shall deposit or cause to be deposited in the Collection Account
on the Determination Date following the date on which such obligations are due
the aggregate Purchase Amount with respect to Purchased Receivables. On or
before each Draw Date, the Trust
58
Collateral Agent shall remit to the Collection Account any amounts delivered to
the Trust Collateral Agent by the Collateral Agent.
(b) The proceeds of any purchase or sale of the assets of the Trust
described in Section 11.1 hereof shall be deposited in the Collection Account.
SECTION 5.7. Distributions.
(a) No later than 11:00 a.m. New York time on each Distribution
Date, the Trust Collateral Agent shall (based solely on the information
contained in the Servicer's Certificate delivered on the related Determination
Date unless the Insurer shall have notified the Trust Collateral Agent of any
errors or deficiencies with respect thereto) cause to be made the following
transfers and distributions in the amounts set forth in the Servicer's
Certificate for such Distribution Date:
(i) During the Funding Period, from the Capitalized Interest Account
to the Collection Account, in immediately available funds, the Monthly
Capitalized Interest Amount for such Distribution Date; and
(ii) If such Distribution Date is the Mandatory Redemption Date,
from the Pre-Funding Account to the Collection Account, in immediately
available funds, the Pre-Funded Amount after giving effect to the purchase
of Subsequent Receivables, if any, on the Mandatory Redemption Date.
(b) On each Distribution Date, the Trust Collateral Agent shall
(based solely on the information contained in the Servicer's Certificate
delivered with respect to the related Determination Date unless the Insurer
shall have notified the Trust Collateral Agent of any errors or deficiencies
with respect thereto) distribute the following amounts from the Collection
Account unless otherwise specified, to the extent of the sources of funds stated
to be available therefor, and in the following order of priority:
(i) from the Distribution Amount, to the Servicer, the Base
Servicing Fee for the related Collection Period, any Supplemental
Servicing Fees for the related Collection Period, and any amounts
specified in Section 5.3, to the extent the Servicer has not reimbursed
itself in respect of such amounts pursuant to Section 5.3 and to the
extent not retained by the Servicer;
(ii) from the Distribution Amount, to each of the Lockbox Banks, the
Trustee and the Owner Trustee, their
59
respective accrued and unpaid trustees' fees and expenses and any accrued
and unpaid fees and expenses of the Trust Collateral Agent (in each case,
to the extent such fees have not been previously paid by the Servicer and
provided that such fees shall not exceed $300,000 in the aggregate in any
calendar year);
(iii) from the Distribution Amount and from amounts, if any, paid
under the Note Policy with respect to such Distribution Date, to the Note
Distribution Account, the Noteholders' Interest Distributable Amount;
(iv) from the Distribution Amount and from amounts, if any, paid
under the Note Policy with respect to such Distribution Date to the Note
Distribution Account, the Noteholders' Principal Distributable Amount
plus, on the Mandatory Redemption Date, the Note Prepayment Amount;
(v) from the Distribution Amount and from amounts, if any, paid
under the Certificate Policy with respect to such Distribution Date to the
Certificate Distribution Account, the Certificateholders' Interest
Distributable Amount;
(vi) from the Distribution Amount and from amounts, if any, paid
under the Certificate Policy with respect to such Distribution Date to the
Certificate Distribution Account, the Certificateholders' Principal
Distributable Amount, plus, on the Mandatory Redemption Date, the
Certificate Prepayment Amount;
(vii) from the Distribution Amount, to the Insurer, to the extent of
any amounts owing to the Insurer under the Insurance Agreement and not
paid;
(viii) from Available Funds (minus the amount of Investment Earnings
relating to the Collection Account (provided, that such amount so
remaining after deduction of such Investment Earnings shall not be less
than zero)), to the Spread Account, an amount, if necessary, required to
increase the amount therein to its then required level;
(ix) from Available Funds (minus the amount of Investment Earnings
relating to the Collection Account (provided, that such amount so
remaining after deduction of such Investment Earnings shall not be less
than zero)) and amounts, if any, received by the Trust Collateral Agent in
respect of the Accelerated Payment Amount Shortfall, to the Note
Distribution Account, the Noteholders' Accelerated Principal Amount;
(x) from Available Funds (minus the amount of
60
Investment Earnings relating to the Collection Account (provided, that such
amount so remaining after deduction of such Investment Earnings shall not be
less than zero)) and amounts, if any, received by the Trust Collateral Agent in
respect of the Accelerated Payment Amount Shortfall, to the Certificate
Distribution Account, the Certificateholders' Accelerated Principal Amount; and
(xi) from Available Funds, any remaining Available Funds to the
Collateral Agent for deposit in the Spread Account;
provided, however, that, (A) following an acceleration of the Notes or, (B) if
an Insurer Default shall have occurred and be continuing and an Event of Default
pursuant to Section 5.1(i), 5.1(ii), 5.1(iv), 5.1(v) or 5.1(vi) of the Indenture
shall have occurred and be continuing, or (C) the receipt of Insolvency Proceeds
pursuant to Section 11.1(b), amounts deposited in the Note Distribution Account
and the Certificate Distribution Account (including any such Insolvency
Proceeds) shall be paid to the Noteholders and the Certificateholders, pursuant
to Section 5.6 of the Indenture.
(c) In the event that the Collection Account is maintained with an
institution other than the Trust Collateral Agent, the Servicer shall instruct
and cause such institution to make all deposits and distributions pursuant to
Section 5.7(b) on the related Distribution Date.
SECTION 5.8. Note Distribution Account. (a) On each Distribution
Date, the Trust Collateral Agent shall distribute all amounts on deposit in the
Note Distribution Account to Noteholders in respect of the Notes to the extent
of amounts due and unpaid on the Notes for principal and interest in the
following amounts and in the following order of priority:
(i) accrued and unpaid interest on the Notes; provided that if there
are not sufficient funds in the Note Distribution Account to pay the
entire amount of accrued and unpaid interest then due on each Class of
Notes, the amount in the Note Distribution Account shall be applied to the
payment of such interest on each Class of Notes pro rata on the basis of
the amount of accrued and unpaid interest due on each Class of Notes;
(ii) any amounts deposited in the Note Distribution Account with
respect to the Note Prepayment Amount, shall be distributed to the Holders
of the Class A-1 Notes, the Class A-2 Notes and the Class A-3 Notes,
respectively, based upon the pro rata share as represented by the relative
Outstanding Amount of each Class of Notes;
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(iii) to the Holders of the Class A-1 Notes, the Noteholders'
Principal Distributable Amount and the Accelerated Principal Amount until
the outstanding principal balance of the Class A-1 Notes is reduced to
zero;
(iv) to the Holders of the Class A-2 Notes, the Noteholders'
Principal Distributable Amount and the Accelerated Principal Amount until
the outstanding principal balance of the Class A-2 Notes is reduced to
zero; and
(v) to the Holders of the Class A-3 Notes, the Noteholders'
Principal Distributable Amount and the Accelerated Principal Amount until
the outstanding principal balance of the Class A-3 Notes is reduced to
zero.
(b) On each Distribution Date, the Trust Collateral Agent shall send
to each Noteholder the statement provided to the Trust Collateral Agent by the
Servicer pursuant to Section 5.11 hereof on such Distribution Date.
(c) In the event that any withholding tax is imposed on the Trust's
payment (or allocations of income) to a Noteholder, such tax shall reduce the
amount otherwise distributable to the Noteholder in accordance with this
Section. The Trust Collateral Agent is hereby authorized and directed to retain
from amounts otherwise distributable to the Noteholders sufficient funds for the
payment of any tax that is legally owed by the Trust (but such authorization
shall not prevent the Trust Collateral Agent from contesting any such tax in
appropriate proceedings, and withholding payment of such tax, if permitted by
law, pending the outcome of such proceedings). The amount of any withholding tax
imposed with respect to a Noteholder shall be treated as cash distributed to
such Noteholder at the time it is withheld by the Trust and remitted to the
appropriate taxing authority. If there is a possibility that withholding tax is
payable with respect to a distribution (such as a distribution to a non-US
Noteholder), the Trust Collateral Agent may in its sole discretion withhold such
amounts in accordance with this clause (f). In the event that a Noteholder
wishes to apply for a refund of any such withholding tax, the Trust Collateral
Agent shall reasonably cooperate with such Noteholder in making such claim so
long as such Noteholder agrees to reimburse the Trust Collateral Agent for any
out-of-pocket expenses incurred.
(d) Distributions required to be made to Noteholders on any
Distribution Date shall be made to each Noteholder of record on the preceding
Record Date either by wire transfer, in immediately available funds, to the
account of such Holder at a bank or other entity having appropriate
62
facilities therefor, if (i) such Noteholder shall have provided to the Note
Registrar appropriate written instructions at least five Business Days prior to
such Distribution Date and such Holder's Notes in the aggregate evidence a
denomination of not less than $1,000,000 or (ii) such Noteholder is the General
Partner, or an Affiliate thereof, or, if not, by check mailed to such Noteholder
at the address of such holder appearing in the Note Register; provided, however,
that, unless Definitive Notes have been issued pursuant to Section 3.13 of the
Trust Agreement, with respect to Notes registered on the Record Date in the name
of the nominee of the Clearing Agency (initially, such nominee to be Cede &
Co.), distributions will be made by wire transfer in immediately available funds
to the account designated by such nominee. Notwithstanding the foregoing, the
final distribution in respect of any Note (whether on the Final Scheduled
Distribution Date or otherwise) will be payable only upon presentation and
surrender of such Note at the office or agency maintained for that purpose by
the Note Registrar pursuant to Section 2.4 of the Indenture.
(e) Subject to Section 5.1 and this section, monies received by the
Trust Collateral Agent hereunder need not be segregated in any manner except to
the extent required by law and may be deposited under such general conditions as
may be prescribed by law, and the Trust Collateral Agent shall not be liable for
any interest thereon.
SECTION 5.9. Certificate Distribution Account. (a) On each
Distribution Date, the Trust Collateral Agent shall distribute all amounts on
deposit in the Certificate Distribution Account to Certificateholders in respect
of the Certificates to the extent of amounts due and unpaid on the Certificates
for principal and interest in the following amounts and in the following order
of priority:
(i) accrued and unpaid interest on the Certificates; provided that
if there are not sufficient funds in the Certificate Distribution Account
to pay the entire amount of accrued and unpaid interest then due on the
Certificates, the amount in the Certificate Distribution Account shall be
applied to the payment of such interest on the Certificates pro rata on
the basis of the amount of accrued and unpaid interest due on the
Certificates;
(ii) any amounts deposited in the Certificate Distribution Account
with respect to the Certificate Prepayment Amount, shall be distributed
pro rata to the Holders of the Certificates;
(iii) to the Holders of the Certificates, the Certificateholders'
Principal Distributable Amount and
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the Accelerated Principal Amount until the outstanding principal balance
of the Certificates is reduced to zero.
(b) On each Distribution Date, the Trust Collateral Agent shall send
to each Certificateholder the statement provided to the Trust Collateral Agent
by the Servicer pursuant to Section 5.11 hereof on such Distribution Date.
(c) In the event that any withholding tax is imposed on the Trust's
payment (or allocations of income) to a Certificateholder, such tax shall reduce
the amount otherwise distributable to the Certificateholder in accordance with
this Section. The Trust Collateral Agent is hereby authorized and directed to
retain from amounts otherwise distributable to the Certificateholders sufficient
funds for the payment of any tax that is legally owed by the Trust (but such
authorization shall not prevent the Trust Collateral Agent from contesting any
such tax in appropriate proceedings, and withholding payment of such tax, if
permitted by law, pending the outcome of such proceedings). The amount of any
withholding tax imposed with respect to a Certificateholder shall be treated as
cash distributed to such Certificateholder at the time it is withheld by the
Trust and remitted to the appropriate taxing authority. If there is a
possibility that withholding tax is payable with respect to a distribution (such
as a distribution to a non-US Certificateholder), the Trust Collateral Agent may
in its sole discretion withhold such amounts in accordance with this clause (c).
In the event that an Certificateholder wishes to apply for a refund of any such
withholding tax, the Trust Collateral Agent shall reasonably cooperate with such
Certificateholder in making such claim so long as such Certificateholder agrees
to reimburse the Trust Collateral Agent for any out-of-pocket expenses incurred.
(d) Any funds remaining in the Certificate Distribution Account
after distribution of all amounts specified in this Section shall be distributed
to the General Partner.
(e) Distributions required to be made to Certificateholders on any
Distribution Date shall be made to each Certificateholder of record on the
preceding Record Date either by wire transfer, in immediately available funds,
to the account of such Holder at a bank or other entity having appropriate
facilities therefor, if (i) such Certificateholder shall have provided to the
Certificate Registrar appropriate written instructions at least five Business
Days prior to such Distribution Date and such Holder's Certificates in the
aggregate evidence a denomination of not less than $1,000,000 or (ii) such
Certificateholder is the General Partner, or an Affiliate thereof, or, if not,
by check mailed to such Certificateholder at the address of such holder
appearing in
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the Certificate Register; provided, however, that, unless Definitive
Certificates have been issued pursuant to Section 3.13 of the Trust Agreement,
with respect to Certificates registered on the Record Date in the name of the
nominee of the Clearing Agency (initially, such nominee to be Cede & Co.),
distributions will be made by wire transfer in immediately available funds to
the account designated by such nominee. Notwithstanding the foregoing, the final
distribution in respect of any Certificate (whether on the Final Scheduled
Distribution Date or otherwise) will be payable only upon presentation and
surrender of such Certificate at the office or agency maintained for that
purpose by the Certificate Registrar pursuant to Section 3.8 of the Trust
Agreement.
(f) Subject to Section 5.1 and this section, monies received by the
Trust Collateral Agent hereunder need not be segregated in any manner except to
the extent required by law and may be deposited under such general conditions as
may be prescribed by law, and the Trust Collateral Agent shall not be liable for
any interest thereon.
SECTION 5.10. Pre-Funding Account.
(a) On the Closing Date, the Trust Collateral Agent will deposit, on
behalf of the Seller, in the Pre-Funding Account $50,392,880,18 from the
proceeds of the sale of the Notes and the Certificates. On each Subsequent
Transfer Date, the Servicer shall instruct the Trust Collateral Agent to
withdraw from the Pre-Funding Account (i) an amount equal to 91% of the
Principal Balance of the Subsequent Receivables transferred to the Issuer on
such Subsequent Transfer Date and to distribute such amount to or upon the order
of the Seller upon satisfaction of the conditions set forth in this Agreement
with respect to such transfer and (ii) an amount equal to the Subsequent Spread
Account Deposit on such Subsequent Transfer Date upon satisfaction of the
conditions set forth in this Agreement with respect to such transfer.
(b) If the Pre-Funded Amount has not been reduced to zero on the
date on which the Funding Period ends after giving effect to any reductions in
the Pre-Funded Amount on such date, the Servicer shall instruct the Trust
Collateral Agent to withdraw from the Pre-Funding Account on the Mandatory
Redemption Date the Pre-Funded Amount (exclusive of any Pre-Funding Earnings)
and (i) deposit an amount equal to the Note Prepayment Amount in the Note
Distribution Account and (ii) deposit an amount equal to the Certificate
Prepayment Amount in the Certificate Distribution Account, in accordance with
the priority of payments under Section 5.7(b).
SECTION 5.11. Statements to Certificateholders and Noteholders. On
or prior to each Determination Date, the
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Servicer shall provide to the Trust Collateral Agent (with a copy to the Insurer
and the Rating Agencies) for the Trust Collateral Agent to forward to each
Noteholder of record, and to each Certificateholder of record, a statement
setting forth at least the following information as to the Notes and the
Certificates to the extent applicable:
(i) the amount of such distribution allocable to principal of each
Class of Notes and to the Certificate Balance of the Certificates;
(ii) the amount of such distribution allocable to interest on or
with respect to each Class of Notes and to the Certificates;
(iii) the amount of such distribution payable out of amounts
withdrawn from the Spread Account or pursuant to a claim on the Note
Policy or the Certificate Policy;
(iv) the Pool Balance as of the close of business on the last day of
the preceding Collection Period;
(v) the aggregate outstanding principal amount of each Class of the
Notes, the Note Pool Factor for each such Class, the Certificate Balance
and the Certificate Pool Factor after giving effect to payments allocated
to principal reported under (i) above;
(vi) the amount of the Servicing Fee paid to the Servicer with
respect to the related Collection Period and/or due but unpaid with
respect to such Collection Period or prior Collection Periods, as the case
may be;
(vii) the Noteholders' Interest Carryover Shortfall, the
Certificateholders' Interest Carryover Shortfall, the Noteholders'
Principal Carryover Shortfall, and the Certificateholders' Principal
Carryover Shortfall;
(viii) the amount of the aggregate Realized Losses, if any, for the
second preceding Collection Period;
(ix) the aggregate Purchase Amounts for Receivables, if any, that
were repurchased in such period;
(x) for Distribution Dates during the Funding Period (if any), the
remaining Pre-Funded Amount; and
(xi) for the final Subsequent Transfer Date, the amount of any
remaining Pre-Funded Amount that has not been used to fund the purchase of
Subsequent Receivables and is passed through as principal to Noteholders
and Certificateholders.
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Each amount set forth pursuant to paragraph (i), (ii), (iii), (vi), (vii), (xi)
and (xii) above shall be expressed as a dollar amount per $1,000 of the initial
principal balance of the Notes (or Class thereof) or the initial Certificate
Balance, as applicable.
SECTION 5.12. Optional Deposits by the Insurer. The Insurer shall at
any time, and from time to time, with respect to a Distribution Date, have the
option (but shall not be required, except in accordance with the terms of a
Policy) to deliver amounts to the Trust Collateral Agent for deposit into the
Collection Account for any of the following purposes: (i) to provide funds in
respect of the payment of fees or expenses of any provider of services to the
Trust with respect to such Distribution Date, or (ii) to include such amount to
the extent that without such amount a draw would be required to be made on the
Note Policy or the Certificate Policy.
ARTICLE VI
The Note Policy
SECTION 6.1. Claims Under Note Policy.
(a) In the event that the Trust Collateral Agent has delivered a
Deficiency Notice with respect to any Determination Date pursuant to Section 5.5
hereof, the Trust Collateral Agent shall on the related Draw Date determine the
Note Policy Claim Amount for the related Distribution Date. If the Note Policy
Claim Amount for such Distribution Date is greater than zero, the Trust
Collateral Agent shall furnish to the Insurer no later than 12:00 noon New York
City time on the related Draw Date a completed Notice of Claim (as defined in
(b) below) in the amount of the Note Policy Claim Amount. Amounts paid by the
Insurer pursuant to a claim submitted under this Section 6.1. shall be deposited
by the Trust Collateral Agent into the Note Distribution Account for payment to
Noteholders on the related Distribution Date.
(b) Any notice delivered by the Trust Collateral Agent to the
Insurer pursuant to subsection 6.1(a) shall specify the Note Policy Claim Amount
claimed under the Note Policy and shall constitute a "Notice of Claim" under the
Note Policy. In accordance with the provisions of the Note Policy, the Insurer
is required to pay to the Trust Collateral Agent the Note Policy Claim Amount
properly claimed thereunder by 12:00 noon, New York City time, on the later of
(i) the third Business Day following receipt on a Business Day of the Notice of
Claim, and (ii) the applicable Distribution Date. Any payment made by the
Insurer under the Note Policy shall be applied solely to the payment of the
Notes, and for no other purpose.
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(c) The Trust Collateral Agent shall (i) receive as attorney-in-fact
of each Noteholder any Note Policy Claim Amount from the Insurer and (ii)
deposit the same in the Collection Account for distribution to Noteholders. Any
and all Note Policy Claim Amounts disbursed by the Trust Collateral Agent from
claims made under the Note Policy shall not be considered payment by the Trust
or from the Spread Account with respect to such Notes, and shall not discharge
the obligations of the Trust with respect thereto. The Insurer shall, to the
extent it makes any payment with respect to the Notes, become subrogated to the
rights of the recipients of such payments to the extent of such payments.
Subject to and conditioned upon any payment with respect to the Notes by or on
behalf of the Insurer, the Trust Collateral Agent shall assign to the Insurer
all rights to the payment of interest or principal with respect to the Notes
which are then due for payment to the extent of all payments made by the
Insurer, and the Insurer may exercise any option, vote, right, power or the like
with respect to the Notes to the extent that it has made payment pursuant to the
Note Policy. To evidence such subrogation, the Note Registrar shall note the
Insurer's rights as subrogee upon the register of Noteholders upon receipt from
the Insurer of proof of payment by the Insurer of any Noteholders' Interest
Distributable Amount or Noteholders' Principal Distributable Amount. The
foregoing subrogation shall in all cases be subject to the rights of the
Noteholders to receive all Scheduled Payments (as defined in the Note Policy) in
respect of the Notes.
(d) The Trust Collateral Agent shall keep a complete and accurate
record of all funds deposited by the Insurer into the Collection Account and the
allocation of such funds to payment of interest on and principal paid in respect
of any Note. The Insurer shall have the right to inspect such records at
reasonable times upon one Business Day's prior notice to the Trust Collateral
Agent.
(e) The Trust Collateral Agent shall be entitled to enforce on
behalf of the Noteholders the obligations of the Insurer under the Note Policy.
Notwithstanding any other provision of this Agreement or any Basic Document, the
Noteholders are not entitled to institute proceedings directly against the
Insurer.
SECTION 6.2. Preference Claims. (a) In the event that the Trust
Collateral Agent has received a certified copy of an order of the appropriate
court that any Noteholders' Interest Distributable Amount or Noteholders'
Principal Distributable Amount paid on a Note has been avoided in whole or in
part as a preference payment under applicable bankruptcy law, the Trust
Collateral Agent shall so notify the Insurer, shall comply with the provisions
of the Note Policy to obtain payment by the Insurer of such avoided payment, and
shall, at
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the time it provides notice to the Insurer, notify Holders of the Notes by mail
that, in the event that any Noteholder's payment is so recoverable, such
Noteholder will be entitled to payment pursuant to the terms of the Note Policy.
The Trust Collateral Agent shall furnish to the Insurer its records evidencing
the payments of principal of and interest on Notes, if any, which have been made
by the Trust Collateral Agent and subsequently recovered from Noteholders, and
the dates on which such payments were made. Pursuant to the terms of the Note
Policy, the Insurer will make such payment on behalf of the Noteholder to the
receiver, conservator, debtor-in-possession or trustee in bankruptcy named in
the Order (as defined in the Note Policy) and not to the Trust Collateral Agent
or any Noteholder directly (unless a Noteholder has previously paid such payment
to the receiver, conservator, debtor-in-possession or trustee in bankruptcy, in
which case the Insurer will make such payment to the Trust Collateral Agent for
distribution to such Noteholder upon proof of such payment reasonably
satisfactory to the Insurer).
(b) The Trust Collateral Agent shall promptly notify the Insurer of
any proceeding or the institution of any action (of which the Trust Collateral
Agent has actual knowledge) seeking the avoidance as a preferential transfer
under applicable bankruptcy, insolvency, receivership, rehabilitation or similar
law (a "Note Preference Claim") of any distribution made with respect to the
Notes. Each Holder, by its purchase of Notes, and the Trust Collateral Agent
hereby agree that so long as an Insurer Default shall not have occurred and be
continuing, the Insurer may at any time during the continuation of any
proceeding relating to a Preference Claim direct all matters relating to such
Preference Claim including, without limitation, (i) the direction of any appeal
of any order relating to any Preference Claim and (ii) the posting of any
surety, supersedeas or performance bond pending any such appeal at the expense
of the Insurer, but subject to reimbursement as provided in the Insurance
Agreement. In addition, and without limitation of the foregoing, as set forth in
Section 6.1(c), the Insurer shall be subrogated to, and each Noteholder and the
Trust Collateral Agent hereby delegate and assign, to the fullest extent
permitted by law, the rights of the trustee and each Noteholder in the conduct
of any proceeding with respect to a Preference Claim, including, without
limitation, all rights of any party to an adversary proceeding action with
respect to any court order issued in connection with any such Preference Claim.
SECTION 6.3. Surrender of Policy. The Trust Collateral Agent shall
surrender the Note Policy to the Insurer for cancellation upon the expiration of
such policy in accordance with the terms thereof.
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ARTICLE VII
The Certificate Policy
SECTION 7.1. Claims Under Certificate Policy.
(a) In the event that the Trust Collateral Agent has delivered a
Deficiency Notice with respect to any Determination Date pursuant to Section 5.5
hereof, if the Certificate Policy Claim Amount for the related Distribution Date
is greater than zero, the Trust Collateral Agent shall furnish to the Insurer
(with a copy to the Servicer) no later than 12:00 noon New York City time on the
related Draw Date a completed Notice of Claim in the amount of the Certificate
Policy Claim Amount. Amounts paid by the Insurer under the Certificate Policy
shall be deposited by the Trust Collateral Agent into the Certificate
Distribution Account for payment to Certificateholders on the related
Distribution Date (or promptly following payment on a later date as set forth in
the Certificate Policy).
(b) Any notice delivered by the Trust Collateral Agent to the
Insurer pursuant to subsection 7.1(a) shall specify the Certificate Policy Claim
Amount claimed under the Certificate Policy and shall constitute a "Notice of
Claim" under the Certificate Policy. In accordance with the provisions of the
Certificate Policy, the Insurer is required to pay to the Trust Collateral Agent
the Certificate Policy Claim Amount properly claimed thereunder by 12:00 noon,
New York City time, on the later of (i) the third Business Day following receipt
on a Business Day of the Notice of Claim, and (ii) the applicable Distribution
Date. Any payment made by the Insurer under the Certificate Policy shall be
applied solely to the payment of the Certificates, and for no other purpose.
(c) The Trust Collateral Agent shall (i) receive as attorney-in-fact
of each Certificateholder any Certificate Policy Claim Amount from the Insurer
and (ii) deposit the same in the Collection Account for disbursement to the
Certificateholders. Any and all Certificate Policy Claim Amounts disbursed by
the Trust Collateral Agent from claims made under the Certificate Policy shall
not be considered payment by the Trust or from the Spread Account with respect
to such Certificates, and shall not discharge the obligations of the Trust with
respect thereto. The Insurer shall, to the extent it makes any payment with
respect to the Certificates, become subrogated to the rights of the recipients
of such payments to the extent of such payments. Subject to and conditioned upon
any payment with respect to the Certificates by or on behalf of the Insurer, the
Trust Collateral Agent shall assign to the Insurer all rights to the payment of
interest or principal with respect to the Certificates which
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are then due for payment to the extent of all payments made by the Insurer and
the Insurer may exercise any option, vote, right, power or the like with respect
to the Certificates to the extent that it has made payment pursuant to the
Certificate Policy. To evidence such subrogation, the Certificate Registrar
shall note the Insurer's rights as subrogee upon the register of
Certificateholders upon receipt from the Insurer of proof of payment by the
Insurer of any Certificateholders' Interest Distributable Amount or
Certificateholders' Principal Distributable Amount.
(d) The Trust Collateral Agent shall keep a complete and accurate
record of all funds deposited by the Insurer into the Collection Account and the
allocation of such funds to payment of interest on and principal paid in respect
of any Certificate. The Insurer shall have the right to inspect such records at
reasonable times upon one Business Day's prior notice to the Trust Collateral
Agent.
(e) The Trust Collateral Agent shall be entitled to enforce on
behalf of the Certificateholders the obligations of the Insurer under the
Certificate Policy. Notwithstanding any other provision of this Agreement, the
Certificateholders are not entitled to make a claim directly under the
Certificate Policy or institute proceedings directly against the Insurer.
SECTION 7.2. Preference Claims; Direction of Proceedings. (a) In the
event that the Trust Collateral Agent has received a certified copy of an order
of the appropriate court that any Certificateholders' Interest Distributable
Amount or Certificateholders' Principal Distributable Amount paid on a
Certificate has been avoided in whole or in part as a preference payment under
applicable bankruptcy law, the Trust Collateral Agent shall so notify the
Insurer, shall comply with the provisions of the Certificate Policy to obtain
payment by the Insurer of such avoided payment, and shall, at the time it
provides notice to the Insurer, notify Holders of the Certificates by mail that,
in the event that any Certificateholder's payment is so recoverable, such
Certificateholder will be entitled to payment pursuant to the terms of the
Certificate Policy. Pursuant to the terms of the Certificate Policy, the Insurer
will make such payment on behalf of the Certificateholder to the receiver,
conservator, debtor-in-possession or trustee in bankruptcy named in the Order
(as defined in the Certificate Policy) and not to the Trust Collateral Agent or
any Certificateholder directly (unless a Certificateholder has previously paid
such payment to the receiver, conservator, debtor-in-possession or trustee in
bankruptcy, in which case the Insurer will make such payment to the Trust
Collateral Agent for distribution to such Certificateholder upon proof of such
payment reasonably satisfactory to the Insurer).
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(b) The Trust Collateral Agent shall promptly notify the Insurer of
any proceeding or the institution of any action (of which a responsible officer
of the Trust Collateral Agent has actual knowledge) seeking the avoidance as a
preferential transfer under applicable bankruptcy, insolvency, receivership,
rehabilitation or similar law (a "Preference Claim") of any distribution made
with respect to the Certificates. Each Holder, by its purchase of Certificates,
and the Trust Collateral Agent hereby agree that so long as an Insurer Default
shall not have occurred and be continuing, the Insurer may at any time during
the continuation of any proceeding relating to a Preference Claim direct all
matters relating to such Preference Claim including, without limitation, (i) the
direction of any appeal of any order relating to any Preference Claim and (ii)
the posting of any surety, supersedeas or performance bond pending any such
appeal at the expense of the Insurer, but subject to reimbursement as provided
in the Insurance Agreement. In addition, and without limitation of the
foregoing, as set forth in Section 6.1(c), the Insurer shall be subrogated to,
and each Certificateholder and the Trust Collateral Agent hereby delegate and
assign, to the fullest extent permitted by law, the rights of the Trust
Collateral Agent and each Certificateholder in the conduct of any proceeding
with respect to a Preference Claim, including, without limitation, all rights of
any party to an adversary proceeding action with respect to any court order
issued in connection with any such Preference Claim.
SECTION 7.3. Surrender of Policy. The Trust Collateral Agent shall
surrender the Certificate Policy to the Insurer for cancellation upon the
expiration of such policy in accordance with the terms thereof.
ARTICLE VIII
The Seller
SECTION 8.1. Representations of Seller. The Seller makes the
following representations on which the Insurer shall be deemed to have relied in
executing and delivering the Policies and on which the Issuer is deemed to have
relied in acquiring the Receivables. The representations speak as of the
execution and delivery of this Agreement and as of the Closing Date, in the case
of Initial Receivables, and as of the applicable Subsequent Transfer Date, in
the case of Subsequent Receivables, and shall survive the sale of the
Receivables to the Issuer and the pledge thereof to the Trustee pursuant to the
Indenture.
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(a) Schedule of Representations. The representations and warranties set
forth on the Schedule of Representations attached hereto as Schedule B are true
and correct.
(b) Organization and Good Standing. The Seller has been duly organized and
is validly existing as a corporation in good standing under the laws of the
State of Nevada, with power and authority to own its properties and to conduct
its business as such properties are currently owned and such business is
currently conducted, and had at all relevant times, and now has, power,
authority and legal right to acquire, own and sell the Receivables and the Other
Conveyed Property transferred to the Trust.
(c) Due Qualification. The Seller is duly qualified to do business as a
foreign corporation in good standing and has obtained all necessary licenses and
approvals in all jurisdictions where the failure to do so would materially and
adversely affect Seller's ability to transfer the Receivables and the Other
Conveyed Property to the Trust pursuant to this Agreement, or the validity or
enforceability of the Receivables and the Other Conveyed Property or to perform
Seller's obligations hereunder and under the Seller's Basic Documents.
(d) Power and Authority. The Seller has the power and authority to execute
and deliver this Agreement and its Basic Documents and to carry out its terms
and their terms, respectively; the Seller has full power and authority to sell
and assign the Receivables and the Other Conveyed Property to be sold and
assigned to and deposited with the Trust by it and has duly authorized such sale
and assignment to the Trust by all necessary corporate action; and the
execution, delivery and performance of this Agreement and the Seller's Basic
Documents have been duly authorized by the Seller by all necessary corporate
action.
(e) Valid Sale, Binding Obligations. This Agreement effects a valid sale,
transfer and assignment of the Receivables and the Other Conveyed Property,
enforceable against the Seller and creditors of and purchasers from the Seller;
and this Agreement and the Seller's Basic Documents, when duly executed and
delivered, shall constitute legal, valid and binding obligations of the Seller
enforceable in accordance with their respective terms, except as enforceability
may be limited by bankruptcy, insolvency, reorganization or other similar laws
affecting the enforcement of creditors' rights generally and by equitable
limitations on the availability of specific remedies, regardless of whether such
enforceability is considered in a proceeding in equity or at law.
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(f) No Violation. The consummation of the transactions contemplated by
this Agreement and the Basic Documents and the fulfillment of the terms of this
Agreement and the Basic Documents shall not conflict with, result in any breach
of any of the terms and provisions of or constitute (with or without notice,
lapse of time or both) a default under the certificate of incorporation or
by-laws of the Seller, or any indenture, agreement, mortgage, deed of trust or
other instrument to which the Seller is a party or by which it is bound, or
result in the creation or imposition of any Lien upon any of its properties
pursuant to the terms of any such indenture, agreement, mortgage, deed of trust
or other instrument, other than this Agreement, or violate any law, order, rule
or regulation applicable to the Seller of any court or of any federal or state
regulatory body, administrative agency or other governmental instrumentality
having jurisdiction over the Seller or any of its properties.
(g) No Proceedings. There are no proceedings or investigations pending or,
to the Seller's knowledge, threatened against the Seller, before any court,
regulatory body, administrative agency or other tribunal or governmental
instrumentality having jurisdiction over the Seller or its properties (A)
asserting the invalidity of this Agreement or any of the Basic Documents, (B)
seeking to prevent the issuance of the Securities or the consummation of any of
the transactions contemplated by this Agreement or any of the Basic Documents,
(C) seeking any determination or ruling that might materially and adversely
affect the performance by the Seller of its obligations under, or the validity
or enforceability of, this Agreement or any of the Basic Documents, or (D)
seeking to adversely affect the federal income tax or other federal, state or
local tax attributes of the Securities.
(h) Chief Executive Office. The chief executive office of the Seller is at
0000 Xxxxxxxxx Xxx, Xxxx, Xxxxxx 00000.
SECTION 8.2. Corporate Existence. (a) During the term of this
Agreement, the Seller will keep in full force and effect its existence, rights
and franchises as a corporation under the laws of the jurisdiction of its
incorporation and will obtain and preserve its qualification to do business in
each jurisdiction in which such qualification is or shall be necessary to
protect the validity and enforceability of this Agreement, any Subsequent
Transfer Agreement, the Basic Documents and each other instrument or agreement
necessary or appropriate to the proper administration of this Agreement and the
transactions contemplated hereby.
(b) During the term of this Agreement, the Seller shall observe the
applicable legal requirements for the
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recognition of the Seller as a legal entity separate and apart from its
Affiliates, including as follows:
(i) the Seller shall maintain corporate records and books of account
separate from those of its Affiliates;
(ii) except as otherwise provided in this Agreement, the Seller
shall not commingle its assets and funds with those of its Affiliates;
(iii) the Seller shall hold such appropriate meetings of its Board
of Directors as are necessary to authorize all the Seller's corporate
actions required by law to be authorized by the Board of Directors, shall
keep minutes of such meetings and of meetings of its stockholder(s) and
observe all other customary corporate formalities (and any successor
Seller not a corporation shall observe similar procedures in accordance
with its governing documents and applicable law);
(iv) the Seller shall at all times hold itself out to the public
under the Seller's own name as a legal entity separate and distinct from
its Affiliates; and
(v) all transactions and dealings between the Seller and its
Affiliates will be conducted on an arm's- length basis.
SECTION 8.3. Liability of Seller; Indemnities. The Seller shall be
liable in accordance herewith only to the extent of the obligations specifically
undertaken by the Seller under this Agreement.
(a) The Seller shall indemnify, defend and hold harmless the Issuer,
the Owner Trustee, the Trust, the Insurer, the Trustee and the Trust Collateral
Agent from and against any taxes that may at any time be asserted against any
such Person with respect to the transactions contemplated in this Agreement and
any of the Basic Documents (except any income taxes arising out of fees paid to
the Owner Trustee, the Trust Collateral Agent, the Trustee and the Insurer and
except any taxes to which the Owner Trustee, the Trust Collateral Agent or the
Trustee may otherwise be subject to), including any sales, gross receipts,
general corporation, tangible personal property, privilege or license taxes
(but, in the case of the Issuer, not including any taxes asserted with respect
to, federal or other income taxes arising out of distributions on the
Certificates and the Notes) and costs and expenses in defending against the
same.
(b) The Seller shall indemnify, defend and hold harmless the Issuer,
the Owner Trustee, the Trustee, and the Trust Collateral Agent, the Insurer, the
Certificateholders
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and the Noteholders from and against any loss, liability or expense incurred by
reason of (i) the Seller's willful misfeasance, bad faith or negligence in the
performance of its duties under this Agreement, or by reason of reckless
disregard of its obligations and duties under this Agreement and (ii) the
Seller's or the Issuer's violation of Federal or state securities laws in
connection with the offering and sale of the Notes and the Certificates.
(c) The Seller shall indemnify, defend and hold harmless the Owner
Trustee, Trustee, Trust Collateral Agent and Backup Servicer and its officers,
directors, employees and agents from and against any and all costs, expenses,
losses, claims, damages and liabilities arising out of, or incurred in
connection with the acceptance or performance of the trusts and duties set forth
herein and in the Basic Documents except to the extent that such cost, expense,
loss, claim, damage or liability shall be due to the willful misfeasance, bad
faith or negligence (except for errors in judgment) of the Owner Trustee.
Indemnification under this Section shall survive the resignation or
removal of the Owner Trustee, the Trustee or the Trust Collateral Agent and the
termination of this Agreement or the Indenture or the Trust Agreement, as
applicable, and shall include reasonable fees and expenses of counsel and other
expenses of litigation. If the Seller shall have made any indemnity payments
pursuant to this Section and the Person to or on behalf of whom such payments
are made thereafter shall collect any of such amounts from others, such Person
shall promptly repay such amounts to the Seller, without interest.
SECTION 8.4. Merger or Consolidation of, or Assumption of the
Obligations of, Seller. Any Person (a) into which the Seller may be merged or
consolidated, (b) which may result from any merger or consolidation to which the
Seller shall be a party or (c) which may succeed to the properties and assets of
the Seller substantially as a whole, which Person in any of the foregoing cases
executes an agreement of assumption to perform every obligation of the Seller
under this Agreement, shall be the successor to the Seller hereunder without the
execution or filing of any document or any further act by any of the parties to
this Agreement; provided, however, that (i) the Seller shall have received the
written consent of the Insurer prior to entering into any such transaction, (ii)
immediately after giving effect to such transaction, no representation or
warranty made pursuant to Section 3.1 shall have been breached and no Servicer
Termination Event, and no event which, after notice or lapse of time, or both,
would become a Servicer Termination Event shall have happened and be continuing,
(iii) the Seller shall have delivered to the Owner Trustee, the Trust Collateral
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Agent, the Trustee and the Insurer an Officers' Certificate and an Opinion of
Counsel each stating that such consolidation, merger or succession and such
agreement of assumption comply with this Section and that all conditions
precedent, if any, provided for in this Agreement relating to such transaction
have been complied with, (iv) the Rating Agency Condition shall have been
satisfied with respect to such transaction and (v) the Seller shall have
delivered to the Owner Trustee, the Trust Collateral Agent, the Trustee and the
Insurer an Opinion of Counsel stating that, in the opinion of such counsel,
either (A) all financing statements and continuation statements and amendments
thereto have been executed and filed that are necessary fully to preserve and
protect the interest of the Trust Collateral Agent, the Owner Trustee and the
Trustee, respectively, in the Receivables and reciting the details of such
filings or (B) no such action shall be necessary to preserve and protect such
interest. Notwithstanding anything herein to the contrary, the execution of the
foregoing agreement of assumption and compliance with clauses (i), (ii), (iii),
(iv) and (v) above shall be conditions to the consummation of the transactions
referred to in clauses (a), (b) or (c) above.
SECTION 8.5. Limitation on Liability of Seller and Others. The
Seller and any director or officer or employee or agent of the Seller may rely
in good faith on the advice of counsel or on any document of any kind, prima
facie properly executed and submitted by any Person respecting any matters
arising under any Basic Document. The Seller shall not be under any obligation
to appear in, prosecute or defend any legal action that shall not be incidental
to its obligations under this Agreement, and that in its opinion may involve it
in any expense or liability.
SECTION 8.6. Seller May Own Certificates or Notes. The Seller and
any Affiliate thereof may in its individual or any other capacity become the
owner or pledgee of Certificates or Notes with the same rights as it would have
if it were not the Seller or an Affiliate thereof, except as expressly provided
herein or in any Basic Document. Notes or Certificates so owned by the Seller or
such Affiliate shall have an equal and proportionate benefit under the
provisions of the Basic Documents, without preference, priority, or distinction
as among all of the Notes or Certificates; provided, however, that any Notes or
Certificates owned by the Seller or any Affiliate thereof, during the time such
Notes or Certificates are owned by them, shall be without voting rights for any
purpose set forth in the Basic Documents and will not be entitled to the
benefits of the Policies. The Seller shall notify the Owner Trustee, the
Trustee, the Trust Collateral Agent and the Insurer promptly after it or any of
its Affiliates become the owner of a Certificate or a Note.
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ARTICLE IX
The Servicer
SECTION 9.1. Representations of Servicer. The Servicer makes the
following representations on which the Insurer shall be deemed to have relied in
executing and delivering the Policies and on which the Issuer is deemed to have
relied in acquiring the Receivables. The representations speak as of the
execution and delivery of this Agreement and as of the Closing Date, in the case
of the Initial Receivables, and as of the applicable Subsequent Transfer Date,
in the case of the Subsequent Receivables, and shall survive the sale of the
Receivables to the Issuer and the pledge thereof to the Trustee pursuant to the
Indenture.
(i) Representations and Warranties. The representations and
warranties set forth on the Schedule of Representations attached hereto as
Schedule B are true and correct, provided that such representations and
warranties contained therein and herein shall not apply to any entity
other than AmeriCredit;
(ii) Organization and Good Standing. The Servicer has been duly
organized and is validly existing and in good standing under the laws of
its jurisdiction of organization, with power, authority and legal right to
own its properties and to conduct its business as such properties are
currently owned and such business is currently conducted, and had at all
relevant times, and now has, power, authority and legal right to enter
into and perform its obligations under this Agreement;
(iii) Due Qualification. The Servicer is duly qualified to do
business as a foreign corporation in good standing and has obtained all
necessary licenses and approvals, in all jurisdictions in which the
ownership or lease of property or the conduct of its business (including
the servicing of the Receivables as required by this Agreement) requires
or shall require such qualification;
(iv) Power and Authority. The Servicer has the power and authority
to execute and deliver this Agreement and its Basic Documents and to carry
out its terms and their terms, respectively, and the execution, delivery
and performance of this Agreement and the Servicer's Basic Documents have
been duly authorized by the Servicer by all necessary corporate action;
(v) Binding Obligation. This Agreement and the Servicer's Basic
Documents shall constitute legal, valid and binding obligations of the
Servicer enforceable in
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accordance with their respective terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization, or other similar laws
affecting the enforcement of creditors' rights generally and by equitable
limitations on the availability of specific remedies, regardless of
whether such enforceability is considered in a proceeding in equity or at
law;
(vi) No Violation. The consummation of the transactions contemplated
by this Agreement and the Servicer's Basic Documents, and the fulfillment
of the terms of this Agreement and the Servicer's Basic Documents, shall
not conflict with, result in any breach of any of the terms and provisions
of, or constitute (with or without notice or lapse of time) a default
under, the articles of incorporation or bylaws of the Servicer, or any
indenture, agreement, mortgage, deed of trust or other instrument to which
the Servicer is a party or by which it is bound, or result in the creation
or imposition of any Lien upon any of its properties pursuant to the terms
of any such indenture, agreement, mortgage, deed of trust or other
instrument, other than this Agreement, or violate any law, order, rule or
regulation applicable to the Servicer of any court or of any federal or
state regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Servicer or any of its
properties;
(vii) No Proceedings. There are no proceedings or investigations
pending or, to the Servicer's knowledge, threatened against the Servicer,
before any court, regulatory body, administrative agency or other tribunal
or governmental instrumentality having jurisdiction over the Servicer or
its properties (A) asserting the invalidity of this Agreement or any of
the Basic Documents, (B) seeking to prevent the issuance of the Securities
or the consummation of any of the transactions contemplated by this
Agreement or any of the Basic Documents, or (C) seeking any determination
or ruling that might materially and adversely affect the performance by
the Servicer of its obligations under, or the validity or enforceability
of, this Agreement or any of the Basic Documents or (D) seeking to
adversely affect the federal income tax or other federal, state or local
tax attributes of the Securities;
(viii) No Consents. The Servicer is not required to obtain the
consent of any other party or any consent, license, approval or
authorization, or registration or declaration with, any governmental
authority, bureau or agency in connection with the execution, delivery,
performance, validity or enforceability of this Agreement which has not
already been obtained.
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SECTION 9.2. Liability of Servicer; Indemnities.
(a) The Servicer (in its capacity as such) shall be liable hereunder only
to the extent of the obligations in this Agreement specifically undertaken by
the Servicer and the representations made by the Servicer.
(b) The Servicer shall defend, indemnify and hold harmless the Trust, the
Trustee, the Trust Collateral Agent, the Owner Trustee, the Backup Servicer, the
Insurer, their respective officers, directors, agents and employees, and the
Securityholders from and against any and all costs, expenses, losses, damages,
claims and liabilities, including reasonable fees and expenses of counsel and
expenses of litigation arising out of or resulting from the use, ownership or
operation by the Servicer or any Affiliate thereof of any Financed Vehicle;
(c) The Servicer (when the Servicer is AmeriCredit) shall indemnify,
defend and hold harmless the Trust, the Trustee, the Trust Collateral Agent, the
Owner Trustee, the Backup Servicer, the Insurer, their respective officers,
directors, agents and employees and the Securityholders from and against any
taxes that may at any time be asserted against any of such parties with respect
to the transactions contemplated in this Agreement, including, without
limitation, any sales, gross receipts, tangible or intangible personal property,
privilege or license taxes (but not including any federal or other income taxes,
including franchise taxes asserted with respect to, and as of the date of, the
sale of the Receivables and the Other Conveyed Property to the Trust or the
issuance and original sale of the Securities) and costs and expenses in
defending against the same;
The Servicer (when the Servicer is not AmeriCredit) shall indemnify,
defend and hold harmless the Trust, the Trustee, the Trust Collateral Agent, the
Owner Trustee, the Backup Servicer, the Insurer, their respective officers,
directors, agents and employees and the Securityholders from and against any
taxes with respect to the sale of Receivables in connection with servicing
hereunder that may at any time be asserted against any of such parties with
respect to the transactions contemplated in this Agreement, including, without
limitation, any sales, gross receipts, tangible or intangible personal property,
privilege or license taxes (but not including any federal or other income taxes,
including franchise taxes asserted with respect to, and as of the date of, the
sale of the Receivables and the Other Conveyed Property to the Trust or the
issuance and original sale of the Securities) and costs and expenses in
defending against the same; and
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(d) The Servicer shall indemnify, defend and hold harmless the Trust, the
Trustee, the Trust Collateral Agent, the Owner Trustee, the Backup Servicer, the
Insurer, their respective officers, directors, agents and employees and the
Securityholders from and against any and all costs, expenses, losses, claims,
damages, and liabilities to the extent that such cost, expense, loss, claim,
damage, or liability arose out of, or was imposed upon the Trust, the Trustee,
the Trust Collateral Agent, the Backup Servicer, the Insurer or the
Securityholders by reason of the breach of this Agreement by the Servicer, the
negligence, misfeasance, or bad faith of the Servicer in the performance of its
duties under this Agreement or by reason of reckless disregard of its
obligations and duties under this Agreement.
(e) AmeriCredit shall indemnify, defend and hold harmless the Trust, the
Trustee, the Trust Collateral Agent, the Owner Trustee, the Backup Servicer, the
Insurer, their respective officers, directors, agents and employees and the
Securityholders from and against any loss, liability or expense incurred by
reason of the violation by Servicer or Seller of federal or state securities
laws in connection with the registration or the sale of the Securities.
(f) Indemnification under this Article shall include, without limitation,
reasonable fees and expenses of counsel and expenses of litigation. If the
Servicer has made any indemnity payments pursuant to this Article and the
recipient thereafter collects any of such amounts from others, the recipient
shall promptly repay such amounts collected to the Servicer, without interest.
SECTION 9.3. Merger or Consolidation of, or Assumption of the
Obligations of the Servicer or Backup Servicer.
(a) AmeriCredit shall not merge or consolidate with any other
person, convey, transfer or lease substantially all its assets as an entirety to
another Person, or permit any other Person to become the successor to
AmeriCredit's business unless, after the merger, consolidation, conveyance,
transfer, lease or succession, the successor or surviving entity shall be
capable of fulfilling the duties of AmeriCredit contained in this Agreement and
shall be acceptable to the Controlling Party, and, if an Insurer Default shall
have occurred and be continuing, shall be an Eligible Servicer. Any corporation
(i) into which AmeriCredit may be merged or consolidated, (ii) resulting from
any merger or consolidation to which AmeriCredit shall be a party, (iii) which
acquires by conveyance, transfer, or lease substantially all of the assets of
AmeriCredit, or (iv) succeeding to the business of AmeriCredit, in any of the
foregoing cases shall execute an agreement of assumption to perform every
obligation of
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AmeriCredit under this Agreement and, whether or not such assumption agreement
is executed, shall be the successor to AmeriCredit under this Agreement without
the execution or filing of any paper or any further act on the part of any of
the parties to this Agreement, anything in this Agreement to the contrary
notwithstanding; provided, however, that nothing contained herein shall be
deemed to release AmeriCredit from any obligation. AmeriCredit shall provide
notice of any merger, consolidation or succession pursuant to this Section to
the Owner Trustee, the Trust Collateral Agent, the Securityholders, the Insurer
and each Rating Agency. Notwithstanding the foregoing, AmeriCredit shall not
merge or consolidate with any other Person or permit any other Person to become
a successor to AmeriCredit's business, unless (x) immediately after giving
effect to such transaction, no representation or warranty made pursuant to
Section 4.6 shall have been breached (for purposes hereof, such representations
and warranties shall speak as of the date of the consummation of such
transaction) and no event that, after notice or lapse of time, or both, would
become an Insurance Agreement Event of Default shall have occurred and be
continuing, (y) AmeriCredit shall have delivered to the Owner Trustee, the Trust
Collateral Agent, the Rating Agencies and the Insurer an Officer's Certificate
and an Opinion of Counsel each stating that such consolidation, merger or
succession and such agreement of assumption comply with this Section and that
all conditions precedent, if any, provided for in this Agreement relating to
such transaction have been complied with, and (z) AmeriCredit shall have
delivered to the Owner Trustee, the Trust Collateral Agent, the Rating Agencies
and the Insurer an Opinion of Counsel, stating in the opinion of such counsel,
either (A) all financing statements and continuation statements and amendments
thereto have been executed and filed that are necessary to preserve and protect
the interest of the Trust in the Receivables and the Other Conveyed Property and
reciting the details of the filings or (B) no such action shall be necessary to
preserve and protect such interest.
(b) Any corporation (i) into which the Backup Servicer may be merged
or consolidated, (ii) resulting from any merger or consolidation to which the
Backup Servicer shall be a party, (iii) which acquires by conveyance, transfer
or lease substantially all of the assets of the Backup Servicer, or (iv)
succeeding to the business of the Backup Servicer, in any of the foregoing cases
shall execute an agreement of assumption to perform every obligation of the
Backup Servicer under this Agreement and, whether or not such assumption
agreement is executed, shall be the successor to the Backup Servicer under this
Agreement without the execution or filing of any paper or any further act on the
part of any of the parties to this Agreement, anything in this Agreement to the
contrary notwithstanding; provided, however, that nothing
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contained herein shall be deemed to release the Backup Servicer from any
obligation.
SECTION 9.4. Limitation on Liability of Servicer, Backup Servicer
and Others.
(a) Neither AmeriCredit, the Backup Servicer nor any of the directors or
officers or employees or agents of AmeriCredit or Backup Servicer shall be under
any liability to the Trust or the Securityholders, except as provided in this
Agreement, for any action taken or for refraining from the taking of any action
pursuant to this Agreement; provided, however, that this provision shall not
protect AmeriCredit, the Backup Servicer or any such person against any
liability that would otherwise be imposed by reason of a breach of this
Agreement or willful misfeasance, bad faith or negligence (excluding errors in
judgment) in the performance of duties; provided further that this provision
shall not affect any liability to indemnify the Trust Collateral Agent and the
Owner Trustee for costs, taxes, expenses, claims, liabilities, losses or damages
paid by the Trust Collateral Agent and the Owner Trustee, in their individual
capacities. AmeriCredit, the Backup Servicer and any director, officer, employee
or agent of AmeriCredit or Backup Servicer may rely in good faith on the written
advice of counsel or on any document of any kind prima facie properly executed
and submitted by any Person respecting any matters arising under this Agreement.
(b) 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 Trust Collateral Agent and the Owner Trustee, the Seller, the
Insurer and the Securityholders shall look only to the Servicer to perform such
obligations.
(c) The parties expressly acknowledge and consent to LaSalle National Bank
acting in the possible dual capacity of Backup Servicer or successor Servicer
and in the capacity as Trust Collateral Agent. LaSalle National Bank may, in
such dual or other capacity, discharge its separate functions fully, without
hinderance 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 LaSalle of express duties set
forth in the this Agreement in any of such capacities, all of which defenses,
claims or assertions are hereby expressly waived by the other parties hereto and
the Securityholders except in the case of gross negligence and willful
misconduct by LaSalle National Bank.
SECTION 9.5. Delegation of Duties. The Servicer may delegate duties
under this Agreement to an Affiliate of AmeriCredit with the prior written
consent of the Insurer
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(unless an Insurer Default shall have occurred and be continuing), the Trust
Collateral Agent, the Owner Trustee and the Backup Servicer. The Servicer also
may at any time perform through sub-contractors the specific duties of (i)
repossession of Financed Vehicles, (ii) tracking Financed Vehicles' insurance
and (iii) pursuing the collection of deficiency balances on certain Liquidated
Receivables, in each case, without the consent of the Insurer and may perform
other specific duties through such sub-contractors in accordance with Servicer's
customary servicing policies and procedures, with the prior consent of the
Insurer; provided, however, that no such delegation or sub-contracting duties by
the Servicer shall relieve the Servicer of its responsibility with respect to
such duties. So long as no Insurer Default shall have occurred and be continuing
neither AmeriCredit or any party acting as Servicer hereunder shall appoint any
subservicer hereunder without the prior written consent of the Insurer, the
Trustee and the Backup Servicer.
SECTION 9.6. Servicer and Backup Servicer Not to Resign. Subject to
the provisions of Section 9.6, neither the Servicer nor the Backup Servicer
shall resign from the obligations and duties imposed on it by this Agreement as
Servicer or Backup Servicer except upon a determination that by reason of a
change in legal requirements the performance of its duties under this Agreement
would cause it to be in violation of such legal requirements in a manner which
would have a material adverse effect on the Servicer or the Backup Servicer, as
the case may be, and the Insurer (so long as an Insurer Default shall not have
occurred and be continuing) or a Security Majority (if an Insurer Default shall
have occurred and be continuing) does not elect to waive the obligations of the
Servicer or the Backup Servicer, as the case may be, to perform the duties which
render it legally unable to act or to delegate those duties to another Person.
Any such determination permitting the resignation of the Servicer or Backup
Servicer shall be evidenced by an Opinion of Counsel to such effect delivered
and acceptable to the Trust Collateral Agent, the Owner Trustee and the Security
Insurer (unless an Insurer Default shall have occurred and be continuing). No
resignation of the Servicer shall become effective until, so long as no Insurer
Default shall have occurred and be continuing the Backup Servicer or an entity
acceptable to the Insurer shall have assumed the responsibilities and
obligations of the Servicer or, if an Insurer Default shall have occurred and be
continuing, the Backup Servicer or a successor Servicer that is an Eligible
Servicer shall have assumed the responsibilities and obligations of the
Servicer. No resignation of the Backup Servicer shall become effective until, so
long as no Insurer Default shall have occurred and be continuing, an entity
acceptable to the Security Insurer shall have assumed the responsibilities and
obligations of the Backup Servicer or, if an Insurer Default shall have occurred
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and be continuing a Person that is an Eligible Servicer 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 9.6, the Backup Servicer may
petition a court for its removal.
ARTICLE X
Default
SECTION 10.1. Servicer Termination Event. For purposes of this
Agreement, each of the following shall constitute a "Servicer Termination
Event":
(a) Any failure by the Servicer to deliver to the Trust Collateral
Agent for distribution to Securityholders any proceeds or payment required to be
so delivered under the terms of this Agreement that continues unremedied for a
period of two Business Days (one Business Day with respect to payment of
Purchase Amounts) after written notice is received by the Servicer from the
Trust Collateral Agent or (unless an Insurer Default shall have occurred and be
continuing) the Insurer or after discovery of such failure by a Responsible
Officer of the Servicer;
(b) Failure by the Servicer to deliver to the Trust Collateral Agent
and (so long as an Insurer Default shall not have occurred and be continuing)
the Insurer the Servicer's Certificate by the fourth Business Day prior to the
Distribution Date, or failure on the part of the Servicer to observe its
covenants and agreements set forth in Section 9.3(a);
(c) Failure on the part of the Servicer duly to observe or perform
any other covenants or agreements of the Servicer set forth in this Agreement,
which failure (i) materially and adversely affects the rights of Securityholders
(determined without regard to the availability of funds under the Policy), or of
the Insurer (unless an Insurer Default shall have occurred and be continuing),
and (ii) continues unremedied for a period of 30 days after knowledge thereof by
the Servicer or after the date on which written notice of such failure,
requiring the same to be remedied, shall have been given to the Servicer by the
Trust Collateral Agent or the Insurer (or, if an Insurer Default shall have
occurred and be continuing by any Securityholder);
(d) The entry of a decree or order for relief by a court or
regulatory authority having jurisdiction in respect
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of the Servicer in an involuntary case under the federal bankruptcy laws, as now
or hereafter in effect, or another present or future, federal bankruptcy,
insolvency or similar law, or appointing a receiver, liquidator, assignee,
trustee, custodian, sequestrator or other similar official of the Servicer or of
any substantial part of its property or ordering the winding up or liquidation
of the affairs of the Servicer and the continuance of any such decree or order
unstayed and in effect for a period of 60 consecutive days or the commencement
of an involuntary case under the federal bankruptcy laws, as now or hereinafter
in effect, or another present or future federal or state bankruptcy, insolvency
or similar law and such case is not dismissed within 60 days; or
(e) The commencement by the Servicer of a voluntary case under the
federal bankruptcy laws, as now or hereafter in effect, or any other present or
future, federal or state, bankruptcy, insolvency or similar law, or the consent
by the Servicer to the appointment of or taking possession by a receiver,
liquidator, assignee, trustee, custodian, sequestrator or other similar official
of the Servicer or of any substantial part of its property or the making by the
Servicer of an assignment for the benefit of creditors or the failure by the
Servicer generally to pay its debts as such debts become due or the taking of
corporate action by the Servicer in furtherance of any of the foregoing; or
(f) Any representation, warranty or statement of the Servicer made
in this Agreement or any certificate, report or other writing delivered pursuant
hereto shall prove to be incorrect in any material respect as of the time when
the same shall have been made, and the incorrectness of such representation,
warranty or statement has a material adverse effect on the Trust or the
Securityholders and, within 30 days after knowledge thereof by the Servicer or
after written notice thereof shall have been given to the Servicer by the Trust
Collateral Agent or the Insurer (or, if an Insurer Default shall have occurred
and be continuing, a Securityholder), the circumstances or condition in respect
of which such representation, warranty or statement was incorrect shall not have
been eliminated or otherwise cured; or
(g) So long as an Insurer Default shall not have occurred and be
continuing, the Insurer shall not have delivered a Servicer Extension Notice
pursuant to Section 4.14; or
(h) So long as an Insurer Default shall not have occurred and be
continuing, an Insurance Agreement Event of Default or under any other Insurance
and Indemnity Agreement relating to any Series an Event of Default thereunder
shall have occurred; or
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(i) A claim is made under any Policy.
SECTION 10.2. Consequences of a Servicer Termination Event. If a
Servicer Termination Event shall occur and be continuing, the Insurer (or, if an
Insurer Default shall have occurred and be continuing either the Trust
Collateral Agent, (to the extent it has knowledge thereof) a Security Majority),
by notice given in writing to the Servicer (and to the Trust Collateral Agent if
given by the Insurer or the Securityholders) or by non-extension of the term of
the Servicer as referred to in Section 4.14 may terminate all of the rights and
obligations of the Servicer under this Agreement. On or after the receipt by the
Servicer of such written notice or upon termination of the term of the Servicer,
all authority, power, obligations and responsibilities of the Servicer under
this Agreement, whether with respect to the Notes, the Certificates or the Other
Conveyed Property or otherwise, automatically shall pass to, be vested in and
become obligations and responsibilities of the Backup Servicer (or such other
successor Servicer appointed by the Controlling Party); provided, however, that
the successor Servicer shall have no liability with respect to any obligation
which was required to be performed by the terminated Servicer prior to the date
that the successor Servicer becomes the Servicer or any claim of a third party
based on any alleged action or inaction of the terminated Servicer. The
successor Servicer is authorized and empowered by this Agreement to execute and
deliver, on behalf of the terminated Servicer, as attorney-in-fact or otherwise,
any and all documents and other instruments and to do or accomplish all other
acts or things necessary or appropriate to effect the purposes of such notice of
termination, whether to complete the transfer and endorsement of the Receivables
and the Other Conveyed Property and related documents to show the Trust as
lienholder or secured party on the related Lien Certificates, or otherwise. The
terminated Servicer agrees to cooperate with the successor Servicer in effecting
the termination of the responsibilities and rights of the terminated Servicer
under this Agreement, including, without limitation, the transfer to the
successor Servicer for administration by it of all cash amounts that shall at
the time be held by the terminated Servicer for deposit, or have been deposited
by the terminated Servicer, in the Collection Account or thereafter received
with respect to the Receivables and the delivery to the successor Servicer of
all Receivable Files, Monthly Records and Collection Records and a computer tape
in readable form as of the most recent Business Day containing all information
necessary to enable the successor Servicer or a successor Servicer to service
the Receivables and the Other Conveyed Property. If requested by the Controlling
Party, the successor Servicer shall terminate the Lockbox Agreement and direct
the Obligors to make all payments under the Receivables directly to the
successor Servicer (in
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which event the successor Servicer shall process such payments in accordance
with Section 4.2(e)), or to a lockbox established by the successor Servicer at
the direction of the Controlling Party, at the successor Servicer's expense. The
terminated Servicer shall grant the Trust Collateral Agent, the successor
Servicer and the Controlling Party reasonable access to the terminated
Servicer's premises at the terminated Servicer's expense.
SECTION 10.3. Appointment of Successor.
(a) On and after the time the Servicer receives a notice of
termination pursuant to Section 10.2, upon non- extension of the servicing term
as referred to in Section 4.14, or upon the resignation of the Servicer pursuant
to Section 9.5, the Backup Servicer (unless the Insurer shall have exercised its
option pursuant to Section 10.3(b) to appoint an alternate successor Servicer)
shall be the successor in all respects to the Servicer in its capacity as
servicer under this Agreement and the transactions set forth or provided for in
this Agreement, and shall be subject to all the rights, responsibilities,
restrictions, duties, liabilities and termination provisions relating thereto
placed on the Servicer by the terms and provisions of this Agreement except as
otherwise stated herein. The Trust Collateral Agent and such successor shall
take such action, consistent with this Agreement, as shall be necessary to
effectuate any such succession. If a successor Servicer is acting as Servicer
hereunder, it shall be subject to term-to-term servicing as referred to in
Section 4.14 and to termination under Section 10.2 upon the occurrence of any
Servicer Termination Event applicable to it as Servicer.
(b) The Controlling Party may exercise at any time its right to
appoint as Backup Servicer or as successor to the Servicer a Person other than
the Person serving as Backup Servicer at the time, and (without limiting its
obligations under the Policies) shall have no liability to the Trust Collateral
Agent, AmeriCredit, the Seller, the Person then serving as Backup Servicer, any
Securityholders or any other Person if it does so. Notwithstanding the above, if
the Backup Servicer shall be legally unable or unwilling to act as Servicer, and
an Insurer Default shall have occurred and be continuing, the Backup Servicer,
the Trust Collateral Agent or a Security Majority may petition a court of
competent jurisdiction to appoint any Eligible Servicer as the successor to the
Servicer. Pending appointment pursuant to the preceding sentence, the Backup
Servicer shall act as successor Servicer unless it is legally unable to do so,
in which event the outgoing Servicer shall continue to act as Servicer until a
successor has been appointed and accepted such appointment. Subject to Section
9.5, no provision of this Agreement shall be construed as relieving the Backup
Servicer of its
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obligation to succeed as successor Servicer upon the termination of the Servicer
pursuant to Section 10.2, the resignation of the Servicer pursuant to Section
9.5 or the non-extension of the servicing term of the Servicer, as referred to
in Section 4.14. If upon the termination of the Servicer pursuant to Section
10.2 or the resignation of the Servicer pursuant to Section 9.5, the Controlling
Party appoints a successor Servicer other than the Backup Servicer, the Backup
Servicer shall not be relieved of its duties as Backup Servicer hereunder.
(c) Any successor Servicer shall be entitled to such compensation
(whether payable out of the Collection Account or otherwise) as the Servicer
would have been entitled to under this Agreement if the Servicer had not
resigned or been terminated hereunder. If any successor Servicer is appointed as
a result of the Backup Servicer's refusal (in breach of the terms of this
Agreement) to act as Servicer although it is legally able to do so, the Insurer
and such successor Servicer may agree on reasonable additional compensation to
be paid to such successor Servicer by the Backup Servicer, which additional
compensation shall be paid by such breaching Backup Servicer in its individual
capacity and solely out of its own funds. If any successor Servicer is appointed
for any reason other than the Backup Servicer's refusal to act as Servicer
although legally able to do so, the Insurer and such successor Servicer may
agree on additional compensation to be paid to such successor Servicer, which
additional compensation shall be payable as provided in the Spread Account
Agreement and shall in no event exceed $150,000. In addition, any successor
Servicer shall be entitled, as provided in the Spread Account Agreement, to
reasonable transition expenses incurred in acting as successor Servicer.
SECTION 10.4. Notification to Noteholders and Certificateholders.
Upon any termination of, or appointment of a successor to, the Servicer, the
Trust Collateral Agent shall give prompt written notice thereof to each
Securityholder and to the Rating Agencies.
SECTION 10.5. Waiver of Past Defaults. So long as no Insurer Default
shall have occurred and be continuing, the Insurer (or, if an Insurer Default
shall have occurred and be continuing, the Security Majority) may, on behalf of
all Noteholders and Certificateholders, waive any default by the Servicer in the
performance of its obligations hereunder and its consequences. Upon any such
waiver of a past default, such default shall cease to exist, and any Servicer
Termination Event arising therefrom shall be deemed to have been remedied for
every purpose of this Agreement. No such waiver shall extend to any subsequent
or other default or impair any right consequent thereto.
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ARTICLE XI
Termination
SECTION 11.1. Optional Purchase of All Receivables. (a) On the last
day of any Collection Period as of which the Pool Balance shall be less than or
equal to 10% of the Original Pool Balance, the Servicer and the Seller each
shall have the option to purchase the Owner Trust Estate, other than the Trust
Accounts (with the consent of the Insurer if such purchase would result in a
claim on either Policy or would result in any amount owing to the Insurer under
the Insurance Agreement remaining unpaid); provided, however, that the amount to
be paid for such purchase (as set forth in the following sentence) shall be
sufficient to pay the full amount of principal, premium, if any, and interest
then due and payable on the Notes and the Certificates. To exercise such option,
the Servicer or the Seller, as the case may be, shall deposit pursuant to
Section 5.6 in the Collection Account an amount equal to the aggregate Purchase
Amount for the Receivables (including Liquidated Receivables), plus the
appraised value of any other property held by the Trust, such value to be
determined by an appraiser mutually agreed upon by the Servicer, the Insurer and
the Trust Collateral Agent, and shall succeed to all interests in and to the
Trust.
(b) Upon any sale of the assets of the Trust pursuant to Section 9.2
of the Trust Agreement, the Servicer shall instruct the Trust Collateral Agent
to deposit the proceeds from such sale after all payments and reserves therefrom
(including the expenses of such sale) have been made (the "Insolvency Proceeds")
in the Collection Account.
(c) Notice of any termination of the Trust shall be given by the
Servicer to the Owner Trustee, the Trustee, the Trust Collateral Agent, the
Insurer and the Rating Agencies as soon as practicable after the Servicer has
received notice thereof.
(d) Following the satisfaction and discharge of the Indenture and
the payment in full of the principal of and interest on the Notes, the
Certificateholders will succeed to the rights of the Noteholders hereunder and
the Owner Trustee will succeed to the rights of, and assume the obligations of,
the Trust Collateral Agent pursuant to this Agreement.
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ARTICLE XII
Administrative Duties of the Servicer
SECTION 12.1. Administrative Duties.
(a) Duties with Respect to the Indenture. The Servicer shall perform
all its duties and the duties of the Issuer under the Indenture. In addition,
the Servicer shall consult with the Owner Trustee as the Servicer deems
appropriate regarding the duties of the Issuer under the Indenture. The Servicer
shall monitor the performance of the Issuer and shall advise the Owner Trustee
when action is necessary to comply with the Issuer's duties under the Indenture.
The Servicer shall prepare for execution by the Issuer or shall cause the
preparation by other appropriate Persons of all such documents, reports,
filings, instruments, certificates and opinions as it shall be the duty of the
Issuer to prepare, file or deliver pursuant to the Indenture. In furtherance of
the foregoing, the Servicer shall take all necessary action that is the duty of
the Issuer to take pursuant to the Indenture, including, without limitation,
pursuant to Sections 2.7, 3.5, 3.6, 3.7, 3.9, 3.10, 3.17, 5.1, 5.4, 7.3, 8.3,
9.2, 9.3, 11.1 and 11.15 of the Indenture.
(b) Duties with Respect to the Issuer.
(i) In addition to the duties of the Servicer set forth in
this Agreement or any of the Basic Documents, the Servicer shall perform such
calculations and shall prepare for execution by the Issuer or the Owner Trustee
or shall cause the preparation by other appropriate Persons of all such
documents, reports, filings, instruments, certificates and opinions as it shall
be the duty of the Issuer or the Owner Trustee to prepare, file or deliver
pursuant to this Agreement or any of the Basic Documents or under state and
federal tax and securities laws, and at the request of the Owner Trustee shall
take all appropriate action that it is the duty of the Issuer to take pursuant
to this Agreement or any of the Basic Documents, including, without limitation,
pursuant to Sections 2.6 and 2.11 of the Trust Agreement. In accordance with the
directions of the Issuer or the Owner Trustee, the Servicer shall administer,
perform or supervise the performance of such other activities in connection with
the Collateral (including the Basic Documents) as are not covered by any of the
foregoing provisions and as are expressly requested by the Issuer or the Owner
Trustee and are reasonably within the capability of the Servicer.
(ii) Notwithstanding anything in this Agreement or any of the
Basic Documents to the contrary, the Servicer shall be responsible for promptly
notifying the Owner Trustee and the Trust Collateral Agent in the event that any
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withholding tax is imposed on the Issuer's payments (or allocations of income)
to an Owner (as defined in the Trust Agreement) as contemplated this Agreement.
Any such notice shall be in writing and specify the amount of any withholding
tax required to be withheld by the Owner Trustee or the Trust Collateral Agent
pursuant to such provision.
(iii) Notwithstanding anything in this Agreement or the Basic
Documents to the contrary, the Servicer shall be responsible for performance of
the duties of the Issuer or the General Partner set forth in Section 5.6(a),
(b), (c) and (d) of the Trust Agreement with respect to, among other things,
accounting and reports to Owners (as defined in the Trust Agreement); provided,
however, that once prepared by the Servicer the Owner Trustee shall retain
responsibility for the distribution of the Schedule K-1s necessary to enable
each Certificateholder to prepare its federal and state income tax returns.
(iv) The Servicer shall perform the duties of the Servicer
specified in Section 10.2 of the Trust Agreement required to be performed in
connection with the resignation or removal of the Owner Trustee, and any other
duties expressly required to be performed by the Servicer under this Agreement
or any of the Basic Documents.
(v) In carrying out the foregoing duties or any of its other
obligations under this Agreement, the Servicer may enter into transactions with
or otherwise deal with any of its Affiliates; provided, however, that the terms
of any such transactions or dealings shall be in accordance with any directions
received from the Issuer and shall be, in the Servicer's opinion, no less
favorable to the Issuer in any material respect.
(c) Tax Matters. The Servicer shall prepare and file, on behalf of
the General Partner, all tax returns, tax elections, financial statements and
such annual or other reports of the Issuer as are necessary for preparation of
tax reports as provided in Article V of the Trust Agreement, including without
limitation forms 1099 and 1066. All tax returns will be signed by the General
Partner.
(d) Non-Ministerial Matters. With respect to matters that in the
reasonable judgment of the Servicer are non-ministerial, the Servicer shall not
take any action pursuant to this Article XII unless within a reasonable time
before the taking of such action, the Servicer shall have notified the Owner
Trustee and the Trustee of the proposed action and the Owner Trustee and, with
respect to items (A), (B), (C) and (D) below, the Trustee shall not have
withheld consent or provided an alternative direction. For the purpose
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of the preceding sentence, "non-ministerial matters" shall include:
(A) the amendment of or any supplement to the Indenture;
(B) the initiation of any claim or lawsuit by the Issuer and
the compromise of any action, claim or lawsuit brought by or against
the Issuer (other than in connection with the collection of the
Receivables);
(C) the amendment, change or modification of this Agreement or
any of the Basic Documents;
(D) the appointment of successor Note Registrars, successor
Paying Agents and successor Trustees pursuant to the Indenture or
the appointment of Successor Servicers or the consent to the
assignment by the Note Registrar, Paying Agent or Trustee of its
obligations under the Indenture; and
(E) the removal of the Trustee or the Trust Collateral Agent.
(e) Exceptions. Notwithstanding anything to the contrary in this
Agreement, except as expressly provided herein or in the other Basic Documents,
the Servicer, in its capacity hereunder, shall not be obligated to, and shall
not, (1) make any payments to the Noteholders or Certificateholders under the
Basic Documents, (2) sell the Indenture Trust Property pursuant to Section 5.5
of the Indenture, (3) take any other action that the Issuer directs the Servicer
not to take on its behalf or (4) in connection with its duties hereunder assume
any indemnification obligation of any other Person.
(f) The Backup Servicer or any successor Servicer shall not be
responsible for any obligations or duties of the servicer under Section 12.1.
SECTION 12.2. Records. The Servicer shall maintain appropriate books
of account and records relating to services performed under this Agreement,
which books of account and records shall be accessible for inspection by the
Issuer at any time during normal business hours.
SECTION 12.3. Additional Information to be Furnished to the Issuer.
The Servicer shall furnish to the Issuer from time to time such additional
information regarding the Collateral as the Issuer shall reasonably request.
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ARTICLE XIII
Miscellaneous Provisions
SECTION 13.1. Amendment. (a) This Agreement may be amended from time
to time by the parties hereto, with the consent of the Trustee (which consent
may not be unreasonably withheld), with the prior written consent of the Insurer
(so long as no Insurer Default has occurred and is continuing) but without the
consent of any of the Noteholders or the Certificateholders, to cure any
ambiguity, to correct or supplement any provisions in this Agreement, to comply
with any changes in the Code, or to make any other provisions with respect to
matters or questions arising under this Agreement which shall not be
inconsistent with the provisions of this Agreement or the Insurance Agreement;
provided, however, that such action shall not, as evidenced by an Opinion of
Counsel delivered to Owner Trustee and the Trustee, adversely affect in any
material respect the interests of any Noteholder or Certificateholder; provided
further that if an Insurer Default has occurred and is continuing, such action
shall not materially adversely affect the interests of the Insurer.
This Agreement may also be amended from time to time by the parties
hereto, with the consent of the Insurer, the consent of the Trustee, the consent
of the Holders of Notes evidencing not less than a majority of the outstanding
principal amount of the Notes and the consent of the Holders (as defined in the
Trust Agreement) of Certificates evidencing not less than a majority of the
Certificate Balance for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Agreement or of
modifying in any manner the rights of the Noteholders or the Certificateholders;
provided, however, that no such amendment shall (a) increase or reduce in any
manner the amount of, or accelerate or delay the timing of, collections of
payments on Receivables or distributions that shall be required to be made for
the benefit of the Noteholders or the Certificateholders or (b) reduce the
aforesaid percentage of the outstanding principal amount of the Notes and the
Certificate Balance, the Holders of which are required to consent to any such
amendment, without the consent of the Holders of all the outstanding Notes and
the Holders (as defined in the Trust Agreement) of all the outstanding
Certificates, of each class affected thereby; provided further, that if an
Insurer Default has not occurred and is continuing, such action shall not
materially adversely affect the interest of the Insurer.
Promptly after the execution of any such amendment or consent, the
Trust Collateral Agent shall furnish written notification of the substance of
such amendment or consent to each Securityholder and the Rating Agencies.
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It shall not be necessary for the consent of Certificateholders or
Noteholders pursuant to this Section to approve the particular form of any
proposed amendment or consent, but it shall be sufficient if such consent shall
approve the substance thereof. The manner of obtaining such consents (and any
other consents of Noteholders or Certificateholders provided for in this
Agreement) and of evidencing the authorization of any action by Noteholders or
Certificateholders shall be subject to such reasonable requirements as the
Trustee or the Owner Trustee, as applicable, may prescribe.
Prior to the execution of any amendment to this Agreement, the Owner
Trustee and the Trustee shall be entitled to receive and rely upon an Opinion of
Counsel stating that the execution of such amendment is authorized or permitted
by this Agreement and the Opinion of Counsel referred to in Section 13.2(i)(1)
has been delivered. The Owner Trustee, the Trust Collateral Agent, the Backup
Servicer and the Trustee may, but shall not be obligated to, enter into any such
amendment which affects the Issuer's, the Owner Trustee's, the Trust Collateral
Agent's, the Backup Servicer's or the Trustee's, as applicable, own rights,
duties or immunities under this Agreement or otherwise.
(b) Notwithstanding anything to the contrary contained in subsection
13.1(a) above, the provisions of the Agreement relating to (i) the Spread
Account Agreement Supplement, the Spread Account, the Specified Spread Account
Requirement, a Trigger Event or any component definition of a Trigger Event and
(ii) any additional sources of funds which may be added to the Spread Account or
uses of funds on deposit in the Spread Account may be amended in any respect by
the Seller, the Servicer, the Insurer and the Collateral Agent (the consent of
which shall not be withheld or delayed with respect to any amendment that does
not adversely affect the Collateral Agent) without the consent of, or notice to,
the Noteholders or the Certificateholders.
SECTION 13.2. Protection of Title to Trust. (a) The Seller shall
execute and file such financing statements and cause to be executed and filed
such continuation statements, all in such manner and in such places as may be
required by law fully to preserve, maintain and protect the interest of the
Issuer and the interests of the Trust Collateral Agent in the Receivables and in
the proceeds thereof. The Seller shall deliver (or cause to be delivered) to the
Insurer, the Owner Trustee and the Trust Collateral Agent file-stamped copies
of, or filing receipts for, any document filed as provided above, as soon as
available following such filing.
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(b) Neither the Seller nor the Servicer shall change its name,
identity or corporate structure in any manner that would, could or might make
any financing statement or continuation statement filed in accordance with
paragraph (a) above seriously misleading within the meaning of ss. 9-402(7) of
the UCC, unless it shall have given the Insurer, the Owner Trustee, the Trust
Collateral Agent and the Trustee at least five days' prior written notice
thereof and shall have promptly filed appropriate amendments to all previously
filed financing statements or continuation statements. Promptly upon such
filing, the Seller or the Servicer, as the case may be, shall deliver an Opinion
of Counsel in form and substance reasonably satisfactory to the Insurer, stating
either (A) all financing statements and continuation statements have been
executed and filed that are necessary fully to preserve and protect the interest
of the Trust and the Trust Collateral Agent in the Receivables, and reciting the
details of such filings or referring to prior Opinions of Counsel in which such
details are given, or (B) no such action shall be necessary to preserve and
protect such interest.
(c) Each of the Seller and the Servicer shall have an obligation to
give the Insurer, the Owner Trustee, the Trust Collateral Agent and the Trustee
at least 60 days' prior written notice of any relocation of its principal
executive office if, as a result of such relocation, the applicable provisions
of the UCC would require the filing of any amendment of any previously filed
financing or continuation statement or of any new financing statement and shall
promptly file any such amendment. The Servicer shall at all times maintain each
office from which it shall service Receivables, and its principal executive
office, within the United States of America.
(d) The Servicer shall maintain accounts and records as to each
Receivable accurately and in sufficient detail to permit (i) the reader thereof
to know at any time the status of such Receivable, including payments and
recoveries made and payments owing (and the nature of each) and (ii)
reconciliation between payments or recoveries on (or with respect to) each
Receivable and the amounts from time to time deposited in the Collection Account
in respect of such Receivable.
(e) The Servicer shall maintain its computer systems so that, from
and after the time of sale under this Agreement of the Receivables to the
Issuer, the Servicer's master computer records (including any backup archives)
that refer to a Receivable shall indicate clearly the interest of the Trust in
such Receivable and that such Receivable is owned by the Trust. Indication of
the Trust's interest in a Receivable shall be deleted from or modified on the
Servicer's
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computer systems when, and only when, the related Receivable shall have been
paid in full or repurchased.
(f) If at any time the Seller or the Servicer shall propose to sell,
grant a security interest in or otherwise transfer any interest in automotive
receivables to any prospective purchaser, lender or other transferee, the
Servicer shall give to such prospective purchaser, lender or other transferee
computer tapes, records or printouts (including any restored from backup
archives) that, if they shall refer in any manner whatsoever to any Receivable,
shall indicate clearly that such Receivable has been sold and is owned by the
Trust.
(g) Upon request, the Servicer shall furnish to the Insurer, the
Owner Trustee or to the Trustee, within five Business Days, a list of all
Receivables (by contract number and name of Obligor) then held as part of the
Trust, together with a reconciliation of such list to the Schedule of
Receivables and to each of the Servicer's Certificates furnished before such
request indicating removal of Receivables from the Trust.
(h) The Servicer shall deliver to the Insurer, the Owner Trustee and
the Trustee:
(1) promptly after the execution and delivery of the Agreement and,
if required pursuant to Section 13.1, of each amendment, an Opinion of
Counsel stating that, in the opinion of such Counsel, in form and
substance reasonably satisfactory to the Insurer, either (A) all financing
statements and continuation statements have been executed and filed that
are necessary fully to preserve and protect the interest of the Trust and
the Trustee in the Receivables, and reciting the details of such filings
or referring to prior Opinions of Counsel in which such details are given,
or (B) no such action shall be necessary to preserve and protect such
interest; and
(2) within 90 days after the beginning of each calendar year
beginning with the first calendar year beginning more than three months
after the Cutoff Date, an Opinion of Counsel, dated as of a date during
such 90- day period, stating that, in the opinion of such counsel, either
(A) all financing statements and continuation statements have been
executed and filed that are necessary fully to preserve and protect the
interest of the Trust and the Trustee in the Receivables, and reciting the
details of such filings or referring to prior Opinions of Counsel in which
such details are given, or (B) no such action shall be necessary to
preserve and protect such interest.
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Each Opinion of Counsel referred to in clause (1) or (2) above shall
specify any action necessary (as of the date of such opinion) to be taken in the
following year to preserve and protect such interest.
SECTION 13.3. Notices. All demands, notices and communications upon
or to the Seller, the Servicer, the Owner Trustee, the Trustee or the Rating
Agencies under this Agreement shall be in writing, personally delivered, or
mailed by certified mail, return receipt requested, and shall be deemed to have
been duly given upon receipt (a) in the case of the Seller to AFS Funding Corp.,
0000 Xxxxxxxxx Xxx, Xxxx, Xxxxxx 00000, (b) in the case of the Servicer to
AmeriCredit Financial Services, Inc., 000 Xxxxxx Xxxxxx, Xxxx Xxxxx, Xxxxx
00000-0000, Attention: Chief Financial Officer, (c) in the case of the Issuer or
the Owner Trustee, at the Corporate Trust Office of the Owner Trustee, with a
copy to Bankers Trust Company, 0 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Corporate Trust Agency, Structured Finance, 10th floor, (d) in the
case of the Trustee, the Trust Collateral Agent or the Collateral Agent, at the
Corporate Trust Office, (e) in the case of the Insurer, to Financial Security
Assurance Inc., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000; Attention: Senior
Vice President, Surveillance (in each case in which notice or other
communication to the Insurer refers to a Servicer Termination Event, a claim on
a Policy, a Deficiency Notice pursuant to Section 5.5 of this Agreement or with
respect to which failure on the part of the Insurer to respond shall be deemed
to constitute consent or acceptance, then a copy of such notice or other
communication should also be sent to the attention of each of the General
Counsel and the Head -Financial Guaranty Group and shall be marked to indicate
"URGENT MATERIAL ENCLOSED"); (f) in the case of Moody's, to Xxxxx'x Investors
Service, Inc., ABS Monitoring Department, 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000; and (g) in the case of Standard & Poor's, to Standard & Poor's Ratings
Group, 00 Xxxxxxxx - 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Asset
Backed Surveillance Department. Any notice required or permitted to be mailed to
a Noteholder or Certificateholder shall be given by first class mail, postage
prepaid, at the address of such Holder as shown in the Certificate Register or
Note Register, as applicable. Any notice so mailed within the time prescribed in
the Agreement shall be conclusively presumed to have been duly given, whether or
not the Certificateholder or Noteholder shall receive such notice.
SECTION 13.4. 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 ln Sections 8.4 and 9.3 and as provided in the provisions of
this Agreement concerning the resignation of
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the Servicer, this Agreement may not be assigned by the Seller or the Servicer
without the prior written consent of the Owner Trustee, the Trust Collateral
Agent, the Backup Servicer, the Trustee and the Insurer (or if an Insurer
Default shall have occurred and be continuing the Holders of Notes evidencing
not less than 66% of the principal amount of the outstanding Notes and the
Holders of Certificates evidencing not less than 66% of the Certificate
Balance).
SECTION 13.5. Limitations on Rights of Others. The provisions of
this Agreement are solely for the benefit of the parties hereto and for the
benefit of the Certificateholders (including the General Partner), the Trustee
and the Noteholders, as third-party beneficiaries. The Insurer and its
successors and assigns shall be a third-party beneficiary to the provisions of
this Agreement, and shall be entitled to rely upon and directly enforce such
provisions of this Agreement so long as no Insurer Default shall have occurred
and be continuing. Except as expressly stated otherwise herein, any right of the
Insurer to direct, appoint, consent to, approve of, or take any action under
this Agreement, shall be a right exercised by the Insurer in its sole and
absolute discretion. The Insurer may disclaim any of its rights and powers under
this Agreement (but not its duties and obligations under the Note Policy or the
Certificate Policy) upon delivery of a written notice to the Owner Trustee.
Nothing in this Agreement, whether express or implied, shall be construed to
give to any other Person any legal or equitable right, remedy or claim in the
Owner Trust Estate or under or in respect of this Agreement or any covenants,
conditions or provisions contained herein.
SECTION 13.6. 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 13.7. Separate Counterparts. This Agreement may be executed
by the parties hereto in separate counterparts, each of which when so executed
and delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
SECTION 13.8. 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.
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SECTION 13.9. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 13.10. Assignment to Trustee. The Seller hereby acknowledges
and consents to any mortgage, pledge, assignment and grant of a security
interest by the Issuer to the Trustee pursuant to the Indenture for the benefit
of the Noteholders of all right, title and interest of the Issuer in, to and
under the Receivables and/or the assignment of any or all of the Issuer's rights
and obligations hereunder to the Trustee.
SECTION 13.11. Nonpetition Covenants. (a) Notwithstanding any prior
termination of this Agreement, the Servicer and the Seller shall not, prior to
the date which is one year and one day after the termination of this Agreement
with respect to the Issuer, acquiesce, petition or otherwise invoke or cause the
Issuer to invoke the process of any court or government authority for the
purpose of commencing or sustaining a case against the Issuer under any federal
or state bankruptcy, insolvency or similar law or appointing a receiver,
liquidator, assignee, trustee, custodian, sequestrator or other similar official
of the Issuer or any substantial part of its property, or ordering the winding
up or liquidation of the affairs of the Issuer.
(b) Notwithstanding any prior termination of this Agreement, the
Servicer shall not, prior to the date that is one year and one day after the
termination of this Agreement with respect to the Seller, acquiesce to, petition
or otherwise invoke or cause the Seller to invoke the process of any court or
government authority for the purpose of commencing or sustaining a case against
the Seller under any federal or state bankruptcy, insolvency or similar law,
appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator,
or other similar official of the Seller or any substantial part of its property,
or ordering the winding up or liquidation of the affairs of the Seller.
SECTION 13.12. Limitation of Liability of Owner Trustee and Trustee.
(a) Notwithstanding anything contained herein to the contrary, this Agreement
has been countersigned by Bankers Trust (Delaware) not in its individual
capacity but solely in its capacity as Owner Trustee of the Issuer and in no
event shall Bankers Trust (Delaware) in its individual capacity or, except as
expressly provided in the Trust Agreement, as Owner Trustee have any liability
for the representations, warranties, covenants, agreements or other obligations
of the Issuer hereunder or in any of the certificates, notices or agreements
delivered pursuant hereto,
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as to all of which recourse shall be had solely to the assets of the Issuer. For
all purposes of this Agreement, in the performance of its duties or obligations
hereunder or in the performance of any duties or obligations of the Issuer
hereunder, the Owner Trustee shall be subject to, and entitled to the benefits
of, the terms and provisions of Articles VI, VII and VIII of the Trust
Agreement.
(b) Notwithstanding anything contained herein to the contrary, this
Agreement has been executed and delivered by LaSalle National Bank, not in its
individual capacity but solely as Trust Collateral Agent and Backup Servicer and
in no event shall LaSalle National Bank, have any liability for the
representations, warranties, covenants, agreements or other obligations of the
Issuer hereunder or in any of the certificates, notices or agreements delivered
pursuant hereto, as to all of which recourse shall be had solely to the assets
of the Issuer.
(c) In no event shall LaSalle National Bank, in any of its
capacities hereunder, be deemed to have assumed any duties of the Owner Trustee
under the Delaware Business Trust Statute, common law, or the Trust Agreement.
SECTION 13.13. Independence of the Servicer. For all purposes of
this Agreement, the Servicer shall be an independent contractor and shall not be
subject to the supervision of the Issuer, the Trust Collateral Agent and Backup
Servicer or the Owner Trustee with respect to the manner in which it
accomplishes the performance of its obligations hereunder. Unless expressly
authorized by this Agreement, the Servicer shall have no authority to act for or
represent the Issuer or the Owner Trustee in any way and shall not otherwise be
deemed an agent of the Issuer or the Owner Trustee.
SECTION 13.14. No Joint Venture. Nothing contained in this Agreement
(i) shall constitute the Servicer and either of the Issuer or the Owner Trustee
as members of any partnership, joint venture, association, syndicate,
unincorporated business or other separate entity, (ii) shall be construed to
impose any liability as such on any of them or (iii) shall be deemed to confer
on any of them any express, implied or apparent authority to incur any
obligation or liability on behalf of the others.
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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 AUTOMOBILE RECEIVABLES
TRUST 1996-D
by BANKERS TRUST (DELAWARE) not
in its individual capacity but
solely as Owner Trustee on behalf
of the Trust,
by ___________________________
Title:
AFS FUNDING CORP., Seller,
by ___________________________
Name: Xxxxxxx X. Xxxxxx
Title: Vice President and
Controller
AMERICREDIT FINANCIAL SERVICES, INC.,
Servicer,
by ___________________________
Name: Xxxxxxx X. Xxxxxx
Title: Vice President and
Controller
LASALLE NATIONAL BANK,
not in its individual capacity
but solely as Backup Servicer
and Trust Collateral Agent
by ___________________________
Name: Xxxxxxxx Xxxxxx
Title: Vice President
SCHEDULE A
SCHEDULE OF RECEIVABLES
1
SCHEDULE B
REPRESENTATIONS AND WARRANTIES OF THE SELLER
1. Characteristics of Receivables. Each Receivable (A) was originated by a
Dealer for the retail sale of a Financed Vehicle in the ordinary course of such
Dealer's business in accordance with AmeriCredit's credit policies and such
Dealer had all necessary licenses and permits to originate Receivables in the
state where such Dealer was located, was fully and properly executed by the
parties thereto, was purchased by AmeriCredit from such Dealer under an existing
Dealer Agreement or pursuant to a Dealer Assignment with AmeriCredit and was
validly assigned by such Dealer to AmeriCredit pursuant to a Dealer Assignment,
(B) contains customary and enforceable provisions such as to render the rights
and remedies of the holder thereof adequate for realization against the
collateral security, (C) is a Receivable which provides for level monthly
payments (provided that the period in the first Collection Period and the
payment in the final Collection Period of the Receivable may be minimally
different from the normal period and level payment) which, if made when due,
shall fully amortize the Amount Financed over the original term and (D) has not
been amended or collections with respect to which waived, other than as
evidenced in the Receivable File relating thereto.
2. No Fraud or Misrepresentation. Each Receivable was originated by a
Dealer and was sold by the Dealer to AmeriCredit and by AmeriCredit to the
Seller without any fraud or misrepresentation on the part of such Dealer in any
case.
3. Compliance with Law. All requirements of applicable federal, state and
local laws, and regulations thereunder (including, without limitation, usury
laws, the Federal Truth- in-Lending Act, the Equal Credit Opportunity Act, the
Fair Credit Billing Act, the Fair Credit Reporting Act, the Fair Debt Collection
Practices Act, the Federal Trade Commission Act, the Xxxx-Xxxxxxxx Warranty Act,
the Federal Reserve Board's Regulations "B" and "Z", the Soldiers' and Sailors'
Civil Relief Act of 1940, each applicable state Motor Vehicle Retail Installment
Sales Act, and state adaptations of the National Consumer Act and of the Uniform
Consumer Credit Code and other consumer credit laws and equal credit opportunity
and disclosure laws) in respect of the Receivables and the Financed Vehicles,
have been complied with in all material respects, and each Receivable and the
sale of the Financed Vehicle evidenced by each Receivable complied at the time
it was originated or made and now complies in all material respects with all
applicable legal requirements.
4. Origination. Each Receivable was originated in the United States.
1
5. Binding Obligation. Each Receivable represents the genuine, legal,
valid and binding payment obligation of the Obligor thereon, enforceable by the
holder thereof in accordance with its terms, except (A) as enforceability may be
limited by bankruptcy, insolvency, reorganization or similar laws affecting the
enforcement of creditors' rights generally and by equitable limitations on the
availability of specific remedies, regardless of whether such enforceability is
considered in a proceeding in equity or at law and (B) as such Receivable may be
modified by the application after the Cutoff Date of the Soldiers' and Sailors'
Civil Relief Act of 1940, as amended; and all parties to each Receivable had
full legal capacity to execute and deliver such Receivable and all other
documents related thereto and to grant the security interest purported to be
granted thereby.
6. No Government Obligor. No Obligor is the United States of America or
any State or any agency, department, subdivision or instrumentality thereof.
7. Obligor Bankruptcy. At the related Cutoff Date no Obligor had been
identified on the records of AmeriCredit as being the subject of a current
bankruptcy proceeding.
8. Schedule of Receivables. The information set forth in the Schedule of
Receivables has been produced from the Electronic Ledger and was true and
correct in all material respects as of the close of business on the related
Cutoff Date.
9. Marking Records. By the Closing Date or Subsequent Transfer Date, as
applicable, the Seller will have caused the portions of the Electronic Ledger
relating to the Receivables to be clearly and unambiguously marked to show that
the Receivables have been sold to the Seller by the Servicer and resold by the
Seller to the Trust in accordance with the terms of the Sale and Servicing
Agreement.
10. Computer Tape. The Computer Tape made available by the Seller to the
Trust on the Closing Date or Subsequent Transfer Date, as applicable, was
complete and accurate as of the related Cutoff Date and includes a description
of the same Receivables that are described in the Schedule of Receivables.
11. Adverse Selection. No selection procedures adverse to the
Securityholders or the Insurer were utilized in selecting the Receivables from
those receivables owned by the Seller which met the selection criteria contained
in the Sale and Servicing Agreement.
12. Chattel Paper. The Receivables constitute chattel paper within the
meaning of the UCC as in effect in the States of Texas and New York.
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13. One Original. There is only one original executed copy of each
Receivable.
14. Receivable Files Complete. There exists a Receivable File pertaining
to each Receivable and such Receivable File contains (a) a fully executed
original of the Receivable, (b) the original executed credit application, or a
copy thereof and (c) the original Lien Certificate or application therefor. Each
of such documents which is required to be signed by the Obligor has been signed
by the Obligor in the appropriate spaces. All blanks on any form have been
properly filled in and each form has otherwise been correctly prepared. The
complete Receivable File for each Receivable currently is in the possession of
the Custodian.
15. Receivables in Force. No Receivable has been satisfied, subordinated
or rescinded, and the Financed Vehicle securing each such Receivable has not
been released from the lien of the related Receivable in whole or in part. No
terms of any Receivable have been waived, altered or modified in any respect
since its origination, except by instruments or documents identified in the
Receivable File. No Receivable has been modified as a result of application of
the Soldiers' and Sailors' Civil Relief Act of 1940, as amended.
16. Lawful Assignment. No Receivable was originated in, or is subject to
the laws of, any jurisdiction the laws of which would make unlawful, void or
voidable the sale, transfer and assignment of such Receivable under this
Agreement or pursuant to transfers of the Securities.
17. Good Title. Immediately prior to the conveyance of the Receivables to
the Trust pursuant to this Agreement or Subsequent Transfer Agreement, as
applicable, the Seller was the sole owner thereof and had good and indefeasible
title thereto, free of any Lien and, upon execution and delivery of this
Agreement by the Seller, the Trust shall have good and indefeasible title to and
will be the sole owner of such Receivables, free of any Lien. No Dealer has a
participation in, or other right to receive, proceeds of any Receivable. The
Seller has not taken any action to convey any right to any Person that would
result in such Person having a right to payments received under the related
Insurance Policies or the related Dealer Agreements or Dealer Assignments or to
payments due under such Receivables.
18. Security Interest in Financed Vehicle. Each Receivable created or
shall create a valid, binding and enforceable first priority security interest
in favor of the Seller in the Financed Vehicle. The Lien Certificate and
original certificate of title for each Financed Vehicle show, or if a new or
replacement Lien Certificate is being applied for with respect to such Financed
Vehicle the Lien Certificate
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will be received within 180 days of the Closing Date or Subsequent Transfer
Date, as applicable, and will show the Seller named as the original secured
party under each Receivable as the holder of a first priority security interest
in such Financed Vehicle. With respect to each Receivable for which the Lien
Certificate has not yet been returned from the Registrar of Titles, the Seller
has received written evidence from the related Dealer that such Lien Certificate
showing the Seller as first lienholder has been applied for and the Seller's
security interest has been validly assigned by the Seller to the Trust pursuant
to this Agreement. Immediately after the sale, transfer and assignment thereof
by the Seller to the Trust, each Receivable will be secured by an enforceable
and perfected first priority security interest in the Financed Vehicle in favor
of the Trustee as secured party, which security interest is prior to all other
Liens upon and security interests in such Financed Vehicle which now exist or
may hereafter arise or be created (except, as to priority, for any lien for
taxes, labor or materials affecting a Financed Vehicle). As of the related
Cutoff Date there were no Liens or claims for taxes, work, labor or materials
affecting a Financed Vehicle which are or may be Liens prior or equal to the
Liens of the related Receivable.
19. All Filings Made. All filings (including, without limitation, UCC
filings) required to be made by any Person and actions required to be taken or
performed by any Person in any jurisdiction to give the Trust a first priority
perfected lien on, or ownership interest in, the Receivables and the proceeds
thereof and the Other Conveyed Property have been made, taken or performed.
20. No Impairment. The Seller has not done anything to convey any right to
any Person that would result in such Person having a right to payments due under
the Receivable or otherwise to impair the rights of the Trust, the Insurer, the
Trustee, the Trust Collateral Agent and the Securityholders in any Receivable or
the proceeds thereof.
21. Receivable Not Assumable. No Receivable is assumable by another Person
in a manner which would release the Obligor thereof from such Obligor's
obligations to AmeriCredit with respect to such Receivable.
22. No Defenses. No Receivable is subject to any right of rescission,
setoff, counterclaim or defense and no such right has been asserted or
threatened with respect to any Receivable.
23. No Default. There has been no default, breach, violation or event
permitting acceleration under the terms of any Receivable (other than payment
delinquencies of not more than 30 days), and no condition exists or event has
occurred
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and is continuing that with notice, the lapse of time or both would constitute a
default, breach, violation or event permitting acceleration under the terms of
any Receivable, and there has been no waiver of any of the foregoing. As of the
related Cutoff Date no Financed Vehicle had been repossessed.
24. Insurance. At the time of a purchase of a Receivable by AmeriCredit
from a Dealer, each Financed Vehicle is required to be covered by a
comprehensive and collision insurance policy (i) in an amount at least equal to
the lesser of (a) its maximum insurable value or (b) the principal amount due
from the Obligor under the related Receivable, (ii) naming AmeriCredit as loss
payee and (iii) insuring against loss and damage due to fire, theft,
transportation, collision and other risks generally covered by comprehensive and
collision coverage. Each Receivable requires the Obligor to maintain physical
loss and damage insurance, naming AmeriCredit and its successors and assigns as
additional insured parties, and each Receivable permits the holder thereof to
obtain physical loss and damage insurance at the expense of the Obligor if the
Obligor fails to do so. No Financed Vehicle is insured under a policy of
Force-Placed Insurance on the related Cutoff Date.
25. Past Due. At the related Cutoff Date no Receivable was more than 30
days past due.
26. Remaining Principal Balance. At the related Cutoff Date the Principal
Balance of each Receivable set forth in the Schedule of Receivables is true and
accurate in all material respects.
27. Certain Characteristics of Initial Receivables. (A) Each Initial
Receivable had a remaining maturity, as of the Initial Cutoff Date, of not more
than 60 months; (B) each Receivable had an original maturity of not more than 60
months; (C) each Initial Receivable had a remaining Principal Balance as of the
Initial Cutoff Date of at least $250 and not more than $30,000; (D) each Initial
Receivable has an Annual Percentage Rate of at least 14.25% and not more than
33.00%; (E) no Initial Receivable was more than 30 days past due as of the
Initial Cutoff Date and (F) no funds have been advanced by AmeriCredit, any
Dealer, or anyone acting on behalf of any of them in order to cause any Initial
Receivable to qualify under clause (E) above.
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SCHEDULE C
SERVICING POLICIES AND PROCEDURES
Note: Applicable Time Periods Will Vary by State
Compliance with state collection laws is required of all AmeriCredit Collection
Personnel. Additionally, AmeriCredit has chosen to follow the guidelines of the
Federal Fair Debt
Collection Practices Act (FDCPA).
The Collection Process
Customer is issued a monthly billing statement 16 to 20 days before payment is
due.
A. All accounts are issued to the Computer Assisted Collection System (CACS)
at 5 days delinquent or at such other dates of delinquency as determined
by historical payment patterns of the account.
B. Accounts are then segregated into two groups, those less than 30 days
delinquent and those over 30 days delinquent.
C. Accounts less than 30 days delinquent are further segregated into accounts
that have good residential and business phone numbers and those that do
not.
D. For those that have good phone numbers, they are assigned to the Melita
Group.
E. For those without good phone numbers, they are assigned to the front-end
collector.
F. In both groups, all reasonable collection efforts are made to avoid the
account rolling over 30 days delinquent, including the use of collection
letters. Collection letters may be utilized between 15 and 25 days
delinquent.
G. At the time the account reaches 31 days delinquent, it is assigned to a
mid-range collector. At this time the collector identifies the necessity
of any default notification required by state law.
H. Once the account exceeds 60 days in delinquency, it is assigned to a
hard-core collector. The hard-core collector then continues the collection
effort. If the account cannot be resolved through normal collection
efforts, i.e., satisfactory payment arrangements, then the account may be
submitted for repossession approval,
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either voluntary or by an approved outside contractor or if necessary for
sequestration approval. All repossessions and sequestrations must be
approved by an Officer.
I. CACS allows the individual collector to accurately document and update
each account pertaining to telephone calls and correspondence created as a
result of contact with the customer.
Repossessions
If repossession of the collateral occurs, whether voluntary or involuntary, the
following steps are taken:
A. Notification of repossession to proper authorities when necessary.
B. Inventory of all personal property is taken and a condition report is done
on the vehicle. Pictures are also taken of the vehicle.
C. Written notification, as required by state law, to customer(s) concerning
their rights of redemption or reinstatement along with information on how
to obtain any personal property that was in the vehicle at the time of
repossession.
D. Written request to the originating dealer for all refunds due for dealer
adds.
E. Collateral disposition through public or private sale, (dictated by state
law), in a commercially reasonable manner, whenever possible through a
Manheim or Xxxxxx Auto Auction.
F. After the collateral is liquidated, the debtor(s) is notified in writing
of the deficiency balance owed, if any.
Use of Due Date Changes
Due dates may be changed subject to the following conditions:
A. The account is contractually current or will be brought current with the
due date change.
B. Due date changes cannot exceed the total of 15 days over the life of the
contract.
C. The first installment payment has been paid in full.
D. Only one date change in a twelve month period.
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E. Any exceptions to the above stated policy must be approved by an Officer.
Use of Payment Deferments
A payment deferral is offered to customers who have encountered temporary
financial difficulties.
A. Minimum of six payments have been made on the account.
B. The account will be brought current with the deferment, but not paid
ahead.
C. A deferment fee is collected on all transactions.
D. Only one deferment transaction can be performed in a twelve month period.
E. No more than two payments may be deferred in a twelve month period, and no
more than eight total payments may be deferred over the life of the loan.
F. Any exceptions to the above stated policy must be approved by an Officer.
Charge-Offs
A. When a Post Repossession Notice is generated on an account, the account
may be partially charged-off on the date that the notice legally expires.
The partial charge-off calculation is based on the expected residual value
of the vehicle at time of sale. Adjustments to the account are made once
final liquidation of the vehicle occurs.
B. It is AmeriCredit's policy that any account that is not successfully
recovered by 180 days delinquent is submitted to an Officer for approval
and charge-off.
C. It is AmeriCredit's policy to carry all Chapter 13 bankruptcy accounts
until confirmation of the plan. Once the plan is approved, a partial
charge-off is taken for the unsecured portion of the account. On fully
reaffirmed Chapter 7 bankruptcy accounts, the accounts are deferred
current at the time of discharge.
Deficiency Collections
A. Contact is made with the customer in an attempt to establish acceptable
payment arrangements or settlements on the account.
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B. If the customer is unwilling to do so, AmeriCredit may invoke any legal
collection remedy that the state allows, i.e., judgements, garnishments,
etc.
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EXHIBIT A
SUBSEQUENT TRANSFER AGREEMENT
TRANSFER No. OF SUBSEQUENT Receivables pursuant to a Sale and
Servicing Agreement dated as of November 1, 1996, among THE AMERICREDIT
AUTOMOBILE RECEIVABLES TRUST 1996-D, a Delaware business trust (the "Issuer"),
AFS FUNDING CORP., a Nevada corporation (the "Seller"), AMERICREDIT FINANCIAL
SERVICES, INC. a Delaware corporation (the "Servicer"), and LASALLE NATIONAL
BANK, a national banking association (the "Trust Collateral Agent").
W I T N E S S E T H:
WHEREAS pursuant to the Sale and Servicing Agreement, the Seller
wishes to convey the Subsequent Receivables to the Issuer; and
WHEREAS, the Issuer is willing to accept such conveyance subject to
the terms and conditions hereof.
NOW, THEREFORE, the Issuer, the Seller, the Servicer and the Trust
Collateral Agent hereby agree as follows:
1. Defined Terms. Capitalized terms used herein shall have the
meanings ascribed to them in the Sale and Servicing Agreement unless otherwise
defined herein.
"Subsequent Cutoff Date" shall mean, with respect to the Subsequent
Receivables conveyed hereby, _______________, 1996/7.
"Subsequent Transfer Date" shall mean. with respect to the
Subsequent Receivables conveyed hereby, _____________, 1996/7.
2. Schedule of Receivables. Annexed hereto is a supplement to
Schedule A to the Sale and Servicing Agreement listing the Receivables that
constitute the Subsequent Receivables to be conveyed pursuant to this Agreement
on the Subsequent Transfer Date.
3. Conveyance of Subsequent Receivables. In consideration of the
Issuer's delivery to or upon the order of the Seller of $____________, the
Seller does hereby sell, transfer, assign, set over and otherwise convey to the
Issuer, without recourse (except as expressly provided in the Sale and Servicing
Agreement), all right, title and interest of the Seller in and to:
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(a) the Subsequent Receivables and all moneys received thereon, on
and after the related Subsequent Cutoff Date;
(b) the security interests in the Financed Vehicles granted by
Obligors pursuant to the Subsequent Receivables and any other interest of
the Seller in such Financed Vehicles;
(c) any proceeds and the right to receive proceeds with respect to
the Subsequent Receivables from claim and the right to receive proceeds on
any physical damage, credit life or disability insurance policies covering
Financed Vehicles or Obligors;
(d) all rights of the Seller against the Dealers;
(e) any proceeds with respect to the Subsequent Receivables from
recourse to Dealers in respect to which the Servicer has determined in
accordance with its customary servicing procedures that eventual payment
in full is unlikely;
(f) the related Receivables Files;
(g) its rights and benefits, but none of its obligations or burdens,
under the Subsequent Transfer Agreement, including the delivery
requirements, representations and warranties and the cure and repurchase
obligations of AmeriCredit under the Subsequent Purchase Agreement, on or
after the Subsequent Cutoff Date; and
(h) the proceeds of any and all of the foregoing.
4. Representations and Warranties of the Seller. The Seller hereby
represents and warrants to the Issuer as of the date of this Agreement and as of
the Subsequent Transfer Date that:
(a) Schedule of Representations. The representations and warranties
set forth on the Schedule of Representations attached hereto as Schedule B are
true and correct.
(b) Organization and Good Standing. The Seller has been duly
organized and is validly existing as a corporation in good standing under the
laws of the State of Nevada, with power and authority to own its properties and
to conduct its business as such properties are currently owned and such business
is currently conducted, and had at all relevant times, and now has, power,
authority and legal right to acquire, own and sell the Receivables and the Other
Conveyed Property transferred to the Trust.
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(c) Due Qualification. The Seller is duly qualified to do business
as a foreign corporation in good standing and has obtained all necessary
licenses and approvals in all jurisdictions where the failure to do so would
materially and adversely affect Seller's ability to transfer the Receivables and
the Other Conveyed Property to the Trust pursuant to this Agreement, or the
validity or enforceability of the Receivables and the Other Conveyed Property or
to perform Seller's obligations hereunder and under the Seller's Basic
Documents.
(d) Power and Authority. The Seller has the power and authority to
execute and deliver this Agreement and its Basic Documents and to carry out its
terms and their terms, respectively; the Seller has full power and authority to
sell and assign the Receivables and the Other Conveyed Property to be sold and
assigned to and deposited with the Trust by it and has duly authorized such sale
and assignment to the Trust by all necessary corporate action; and the
execution, delivery and performance of this Agreement and the Seller's Basic
Documents have been duly authorized by the Seller by all necessary corporate
action.
(e) Valid Sale, Binding Obligations. This Agreement effects a valid
sale, transfer and assignment of the Receivables and the Other Conveyed
Property, enforceable against the Seller and creditors of and purchasers from
the Seller; and this Agreement and the Seller's Basic Documents, when duly
executed and delivered, shall constitute legal, valid and binding obligations of
the Seller enforceable in accordance with their respective terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization or other
similar laws affecting the enforcement of creditors' rights generally and by
equitable limitations on the availability of specific remedies, regardless of
whether such enforceability is considered in a proceeding in equity or at law.
(f) No Violation. The consummation of the transactions contemplated
by this Agreement and the Basic Documents and the fulfillment of the terms of
this Agreement and the Basic Documents shall not conflict with, result in any
breach of any of the terms and provisions of or constitute (with or without
notice, lapse of time or both) a default under the certificate of incorporation
or by-laws of the Seller, or any indenture, agreement, mortgage, deed of trust
or other instrument to which the Seller is a party or by which it is bound, or
result in the creation or imposition of any Lien upon any of its properties
pursuant to the terms of any such indenture, agreement, mortgage, deed of trust
or other instrument, other than this Agreement, or violate any law, order, rule
or regulation applicable to the Seller of any court or of any federal or state
regulatory body,
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administrative agency or other governmental instrumentality having jurisdiction
over the Seller or any of its properties.
(g) No Proceedings. There are no proceedings or investigations
pending or, to the Seller's knowledge, threatened against the Seller, before any
court, regulatory body, administrative agency or other tribunal or governmental
instrumentality having jurisdiction over the Seller or its properties (A)
asserting the invalidity of this Agreement or any of the Basic Documents, (B)
seeking to prevent the issuance of the Securities or the consummation of any of
the transactions contemplated by this Agreement or any of the Basic Documents,
(C) seeking any determination or ruling that might materially and adversely
affect the performance by the Seller of its obligations under, or the validity
or enforceability of, this Agreement or any of the Basic Documents, or (D)
seeking to adversely affect the federal income tax or other federal, state or
local tax attributes of the Securities.
(h) Chief Executive Office. The chief executive office of the Seller
is at 0000 Xxxxxxxxx Xxx, Xxxx, Xxxxxx 00000.
(i) Principal Balance. The aggregate Principal Balance of the
Receivables listed on the supplement to Schedule A annexed hereto and conveyed
to the Issuer pursuant to this Agreement as of the Subsequent Cutoff Date is
$____________.
5. Conditions Precedent. The obligation of the Issuer to acquire the
Receivables hereunder is subject to the satisfaction, on or prior to the
Subsequent Transfer Date, of the following conditions precedent:
(a) Representations and Warranties. Each of the representations and
warranties made by the Seller in Section 4 of this Agreement and in Section 6.1
of the Sale and Servicing Agreement shall be true and correct as of the date of
this Agreement and as of the Subsequent Transfer Date.
(b) Sale and Servicing Agreement Conditions. Each of the conditions
set forth in Section 2.2(b) to the Sale and Servicing Agreement shall have been
satisfied.
(c) Additional Information. The Seller shall have delivered to the
Issuer such information as was reasonably requested by the Issuer to satisfy
itself as to (i) the accuracy of the representations and warranties set forth in
Section 4 of this Agreement and in Section 6.1 of the Sale and Servicing
Agreement and (ii) the satisfaction of the conditions set forth in this Section
5.
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6. Ratification of Agreement. As supplemented by this Agreement, the
Sale and Servicing Agreement is in all respects ratified and confirmed and the
Sale and Servicing Agreement as so supplemented by this Agreement shall be read,
taken and construed as one and the same instrument.
7. Counterparts. This Agreement may be executed in two or more
counterparts (and by different parties in separate counterparts), each of which
shall be an original but all of which together shall constitute one and the same
instrument.
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.
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IN WITNESS WHEREOF, the Issuer, the Seller and the Servicer have
caused this Agreement to be duly executed and delivered by their respective duly
authorized officers as of day and the year first above written.
AMERICREDIT AUTOMOBILE RECEIVABLES
TRUST 1996-D
by BANKERS TRUST (DELAWARE) not
in its individual capacity but
solely as Owner Trustee on
behalf of the Trust,
by _________________________
Title:
AFS FUNDING CORP., Seller,
by ___________________________
Title:
AMERICREDIT FINANCIAL SERVICES, INC.,
Servicer,
by ___________________________
Title:
Acknowledged and Accepted:
LASALLE NATIONAL BANK,
not in its individual
capacity but solely as
Trust Collateral Agent
by ________________________________
Title:
EXHIBIT B
SCHEDULE OF RECEIVABLES
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