EXHIBIT 10.3
EXECUTION COPY
AMERICREDIT FINANCIAL SERVICES OF CANADA LTD.
as Seller and Servicer
- and -
BANK ONE, NA
as Backup Servicer
- and -
CIBC MELLON TRUST COMPANY,
in its capacity as Trustee of AmeriCredit Canada Automobile Receivables Trust
as Issuer
SALE AND SERVICING AGREEMENT
Dated as of November 15, 2002
TABLE OF CONTENTS
PAGE
ARTICLE 1
DEFINITIONS.............................................................................................1
1.1 Definitions....................................................................................1
ARTICLE 2
Conveyance of Receivables...............................................................................2
2.1 Conveyance of Initial Receivables..............................................................2
2.2 Conveyance of Subsequent Receivables...........................................................2
2.3 Closing........................................................................................3
2.4 Purchase Price; Payment of the Purchase Price; Initial Collections.............................3
2.5 Conditions to Closing..........................................................................5
2.6 Intention of the Parties.......................................................................8
2.7 Subordinated Reserve Account Loan..............................................................8
2.8 Class VPN Loans; Additional Class VPN Loans...................................................10
2.9 Liquidity Advances; Maturity Advances.........................................................12
ARTICLE 3
THE RECEIVABLES........................................................................................13
3.1 Representations and Warranties as to Receivables..............................................13
3.2 Repurchase Upon Breach........................................................................13
3.3 Custody of Receivable Files...................................................................13
ARTICLE 4
Administration and Servicing of Receivables............................................................15
4.1 Duties of the Servicer........................................................................15
4.2 Collection of Receivable Payments; Modifications of Receivables;
Depository Account Agreements.................................................................16
4.3 Realization upon Receivables..................................................................18
4.4 Insurance.....................................................................................20
4.5 Maintenance of Security Interests in Vehicles.................................................21
4.6 Covenants, Representations, and Warranties of Servicer........................................22
4.7 Purchase of Receivables Upon Breach of Covenant...............................................23
4.8 Servicing Fee; Payment of Certain Expenses by Servicer........................................23
4.9 Servicer's Certificate........................................................................24
4.10 Annual Statement as to Compliance, Notice of Servicer Termination
Event.........................................................................................24
4.11 Annual Independent Accountants' Report........................................................25
4.12 Access to Certain Documentation and Information Regarding
Receivables...................................................................................25
4.13 Monthly Tape..................................................................................25
4.14 Amendments to Schedule of Receivables.........................................................26
4.15 Fidelity Bond and Errors and Omissions Policy.................................................26
ARTICLE 5
Distributions; Reserve Account; Statements to Series C2002-1 Debtholders...............................26
5.1 Establishment of Series Accounts..............................................................26
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TABLE OF CONTENTS
(CONTINUED)
PAGE
5.2 Certain Reimbursements to the Servicer........................................................29
5.3 Collections...................................................................................29
5.4 Application of Collections....................................................................30
5.5 Additional Deposits...........................................................................30
5.6 Distributions.................................................................................30
5.7 Reserve Account...............................................................................34
5.8 Pre-Funding Account...........................................................................35
5.9 Capitalized Interest Account..................................................................35
5.10 Statements to Series C2002-1 Debtholders......................................................35
5.11 Net Deposits.................................................................................37
ARTICLE 6
The Seller.............................................................................................37
6.1 Representations of Seller.....................................................................37
6.2 Liability of Seller; Indemnities..............................................................39
6.3 Merger or Consolidation of, or Assumption of the Obligations of,
Seller........................................................................................40
6.4 Limitation on Liability of Seller and Others..................................................40
6.5 Seller May Own Series C2002-1 Debt Obligations................................................41
ARTICLE 7
The Servicer...........................................................................................41
7.1 Representations of Servicer...................................................................41
7.2 Liability of Servicer; Indemnities............................................................42
7.3 Amalgamation Merger or Consolidation, or Assumption of the
Obligations of, Servicer or Backup Servicer...................................................44
7.4 Limitation on Liability of Servicer, the Backup Servicer and Others...........................45
7.5 Delegation of Duties..........................................................................46
7.6 Servicer and Backup Servicer Not to Resign....................................................46
7.7 Repayment of Advances.........................................................................46
ARTICLE 8
Default................................................................................................47
8.1 Servicer Termination Event....................................................................47
8.2 Appointment of Successor......................................................................48
8.3 Notification to Series C2002-1 Debtholders....................................................49
8.4 Waiver of Past Defaults.......................................................................49
ARTICLE 9
Termination............................................................................................50
9.1 Optional Purchase of All Receivables..........................................................50
9.2 Event of Default Sale.........................................................................50
ARTICLE 10
Miscellaneous Provisions...............................................................................50
10.1 Amendment.....................................................................................50
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TABLE OF CONTENTS
(CONTINUED)
PAGE
10.2 Protection of Title to Receivables and the Related Collateral.................................52
10.3 Notices.......................................................................................54
10.4 Assignment....................................................................................55
10.5 Limitations On Rights Of Others...............................................................55
10.6 Severability..................................................................................55
10.7 Separate Counterparts.........................................................................55
10.8 Headings......................................................................................55
10.9 Governing Law.................................................................................55
10.10 Assignment To Indenture Trustee...............................................................55
10.11 Non-Petition Covenants........................................................................56
10.12 Limitation Of Liability Of Issuer And Indenture Trustee.......................................56
EXHIBIT "a"
EXHIBIT "a-2"
EXHIBIT "B"
SCHEDULE "A" REPRESENTATIONS AND WARRANTIES AS TO THE
RECEIVABLES
APPENDIX "A"
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SALE AND SERVICING AGREEMENT
THIS SALE AND SERVICING AGREEMENT is made as of November 15, 2002 by and between
AMERICREDIT FINANCIAL SERVICES OF CANADA LTD., an Ontario corporation, as seller
(in such capacity, together with its successors and permitted assigns in such
capacity, the "Seller") and AMERICREDIT FINANCIAL SERVICES OF CANADA LTD., an
Ontario corporation, as servicer (in such capacity, together with its successors
and permitted assigns in such capacity, the "Servicer"), BANK ONE, NA, a
national banking association organized under the laws of the United States, as
backup servicer (in such capacity, together with its successors and permitted
assigns in such capacity, the "Backup Servicer") and CIBC MELLON TRUST COMPANY,
as Trustee of AmeriCredit Canada Automobile Receivables Trust (in such capacity,
together with its successors and permitted assigns in such capacity, the
"Issuer").
WHEREAS the Issuer desires to purchase a portfolio of receivables arising in
connection with motor vehicle retail instalment sale contracts made by the
Seller or acquired by the Seller through motor vehicle dealers;
AND WHEREAS the Issuer desires to purchase the Initial Receivables from the
Seller on the date hereof;
AND WHEREAS the Issuer desires to purchase additional receivables arising in
connection with motor vehicle retail installment sale contracts to be acquired
by the Seller;
AND WHEREAS the Issuer has agreed to purchase such additional Receivables from
the Seller and the Seller is willing to sell such Receivables to the Issuer;
AND WHEREAS the Servicer is willing to sell such Receivables on a fully-serviced
basis;
NOW, THEREFORE, in consideration of the premises, other good and valuable
consideration and the mutual terms and covenants contained herein, the parties
hereto agree as follows:
ARTICLE 1
DEFINITIONS
1.1 DEFINITIONS
Capitalized terms used herein and not otherwise defined herein are
defined and shall have the respective meanings assigned to them in Part I of
Appendix A to this Agreement. All references herein or in Appendix A to "the
Agreement" or "this Agreement" are to this Sale and Servicing Agreement as it
may be amended, restated, supplemented or otherwise modified from time to time,
the exhibits and schedules hereto and the capitalized terms used herein which
are defined in such Appendix A, and all references herein to Articles, Sections
and subsections are to Articles, Sections or subsections of this Agreement
unless otherwise specified. The rules of construction set forth in Part II of
such Appendix A shall be applicable to this Agreement.
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ARTICLE 2
Conveyance of Receivables
2.1 CONVEYANCE OF INITIAL RECEIVABLES
In consideration of the Issuer's delivery or payment of the Initial Purchase
Price and its agreement to pay the portion of the Residual Purchase Price
allocable to the Initial Receivables as provided in Section 2.4, the Seller does
hereby:
(a) sell, transfer, assign, set over and otherwise convey to the
Issuer (subject to the obligations herein including the
obligation of the Seller to service the Initial Receivables) all
of its right, title and interest in, to and under the following:
(i) the Initial Receivables, including all documents
constituting chattel paper included therewith, and all
obligations of the Obligors thereunder, including all
moneys paid thereunder after the Initial Cut-Off Date;
(ii) the security interests in the Financed Vehicles granted by
Obligors pursuant to the Initial Receivables and any other
interests of the Seller in such Financed Vehicles;
(iii) any proceeds with respect to the Initial Receivables from
claims on insurance policies covering the related Financed
Vehicles or Obligors;
(iv) any proceeds from recourse to Dealers with respect to the
Initial Receivables;
(v) any rights under Service Contracts for the related
Financed Vehicles;
(vi) the related Receivables Files; and
(vii) all proceeds of any and all of the foregoing including the
related Recoveries; and
(b) agree to act as initial Servicer hereunder and to service the
Initial Receivables and other property sold hereunder in
accordance with the terms of this Agreement and to pay all costs
and expenses of the Issuer incurred in connection with the
completion of this Agreement.
2.2 CONVEYANCE OF SUBSEQUENT RECEIVABLES
In consideration of the Issuer's delivery or payment of the related Subsequent
Purchase Price and its agreement to pay the portion of the Residual Purchase
Price allocable to the Subsequent Receivables as provided in Section 2.4, the
Seller does hereby:
(a) sell, transfer, assign, set over and otherwise convey to the
Issuer (subject to the obligations herein including the
obligation of the Seller to service the related Subsequent
Receivables) all of its right, title and interest in, to and
under the following:
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(i) the Subsequent Receivables, including all documents
constituting chattel paper included therewith, and all
obligations of the Obligors thereunder, including all
moneys paid thereunder after the related Subsequent
Cut-Off Date;
(ii) the security interests in the Financed Vehicles granted by
Obligors pursuant to Contracts relating to such Subsequent
Receivables and any other interest of the Seller in such
Financed Vehicles;
(iii) any proceeds with respect to such Subsequent Receivables
from claims on insurance policies covering the related
Financed Vehicles or Obligors;
(iv) any proceeds from recourse to Dealers with respect to such
Subsequent Receivables;
(v) any rights under Service Contracts for the related
Financed Vehicles;
(vi) the related Receivables Files; and
(vii) all proceeds of any and all of the foregoing including the
related Recoveries.
(b) agree to act as initial Servicer hereunder and to service the
Subsequent Receivables and other property sold hereunder in
accordance with the terms of this Agreement and to pay all costs
and expenses of the Issuer incurred in connection with the
completion of this Agreement.
2.3 CLOSING.
The sale and purchase of the Initial Receivables and other property to be sold
hereunder shall take place at a closing (the "Closing") at the offices of Osler,
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇
▇▇▇ simultaneously with the closings under the Underwriting Agreement and the
Initial Class VPN Loan Agreement.
2.4 Purchase Price; Payment of the Purchase Price; Initial Collections.
(a) Purchase Price. The aggregate purchase price (the "Purchase
Price") payable by the Issuer to the Seller in respect of the
Receivables and other property transferred by the Seller to the
Issuer and the compensation of the Seller for the servicing of
the Receivables and other property as initial Servicer shall be
(i) in the case of the Initial Receivables transferred to the
Issuer on the Closing Date, an amount (the "Initial Purchase
Price") equal to the Aggregate Principal Balance of the Initial
Receivables as of the Initial Cut-Off Date (calculated as
$243,358,041.26) minus an amount equal to the Capitalized
Interest Account Initial Deposit for the Closing Date, plus, (ii)
in the case of the Subsequent Receivables transferred to the
Issuer on a Subsequent Transfer Date, an amount (each, a
"Subsequent Purchase Price") equal to the Aggregate Principal
Balance of such Subsequent Receivables as of the related
Subsequent Cut-Off Date, plus, (iii) in each case, a residual
purchase price (the "Residual Purchase Price") in an aggregate
amount
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equal to the sum of the Monthly Residual Purchase Price Amounts
payable or distributable by the Issuer to the Seller on each
Monthly Payment Date in accordance with Section 2.4(d) of this
Agreement and all amounts, if any, released by the Issuer to the
Seller from the Capitalized Interest Account in accordance with
Section 5.9.
(b) Initial Purchase Price. The Initial Purchase Price shall be paid
and satisfied as follows: (i) the amount of $181,723,880.43 shall
be paid by the Issuer to the Seller at the Closing in cash, by
certified cheque or bank draft or by wire transfer in immediately
available funds, in each case, payable to or to the order of the
Seller, (ii) the Issuer shall issue and deliver to the Seller on
the Closing Date Class D Notes having an initial Outstanding
Amount of $28,875,000, (iii) the Issuer shall issue and shall
cause the Underwriter to deliver to the Seller or credit the
securities account of the Seller maintained with the Underwriter,
as directed by the Seller, Class B Notes having an aggregate
principal balance of $7,892,000 and Class C Notes having an
aggregate principal balance of $22,000,000, and (iv) the balance,
being the principal amount of the Subordinated Reserve Account
Loan to be made by the Seller to the Issuer on the Closing Date,
shall be deposited by the Issuer to the Reserve Account pursuant
to Section 2.7 and such amount shall be added to the Outstanding
Amount of the Class D Notes issued to the Seller on the Closing
Date.
(c) Subsequent Purchase Price. Each Subsequent Purchase Price shall
be paid and satisfied as follows: (i) the amount equal to the
Subsequent Purchase Price minus the Reserve Account Initial
Deposit for the related Subsequent Transfer Date shall be paid by
the Issuer to the Seller on the related Subsequent Transfer Date
from the Pre-Funding Account pursuant to Section 5.8(b) in cash,
by certified cheque or bank draft or by wire transfer in
immediately available funds, in each case, payable to or to the
order of the Seller and (ii) the balance, being the principal
amount of the Subordinated Reserve Account Loan to be made by the
Seller to the Issuer on the related Subsequent Transfer Date, and
shall be deposited by the Issuer to the Reserve Account pursuant
to Section 2.7.
(d) Payment of the Residual Purchase Price. The unpaid portion of the
Residual Purchase Price shall be paid and satisfied on each
Monthly Payment Date by the payment by the Issuer to the Seller
of the Monthly Residual Purchase Price Amount, if any, for such
Monthly Payment Date in cash or by wire transfer in immediately
available funds to the Seller or by way of offset against the
portion of the Subordinated Reserve Loan Advance, if any, to be
made by the Seller to the Issuer on such Monthly Payment Date in
accordance with Section 2.7(d). For greater certainty, if the
Seller is obligated to make a Subordinated Reserve Account Loan
to the Issuer on any Monthly Payment Date pursuant to Section
2.7(c), the payments the Issuer is obligated to make pursuant to
this Section 2.4(d) shall be due and payable on such date but
will not be paid unless and until the Seller makes such
Subordinated Reserve Account Loan, and it is the intention of the
parties that such payments by the Issuer under this Section
2.4(d) shall be netted and set-off pursuant to Section 2.7(d)
against the obligation of the Seller to make such Subordinated
Reserve Account Loan to the Issuer.
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(e) Initial Collections. Within two Business Days after the Closing
Date or the Subsequent Transfer Date, as applicable, the Servicer
shall cause to be deposited into the Collection Account the
collections on the Receivables for the period from the related
Cut-Off Date to the Closing Date or the Subsequent Transfer Date,
as applicable; provided, that so long as the Servicer is not
required to make daily deposits of Collections to the Collection
Account, such Collections need not be deposited until the first
Determination Date following the Closing Date or the Subsequent
Transfer Date, as applicable.
2.5 CONDITIONS TO CLOSING
(a) Obligations of the Issuer and the Seller - Initial Receivables.
The Seller shall transfer to the Issuer the other property and
rights related thereto described in Section 2.1 only upon the
satisfaction of each of the following conditions precedent on or
prior to the related Subsequent Transfer Date:
(i) The representations and warranties of the Seller hereunder
shall be true and correct on the Closing Date and the
Seller shall have performed all obligations to be
performed by it hereunder on or prior to the Closing Date
and the Seller shall have delivered to the Issuer a
certificate of the President or a Vice-President of the
Seller to such effect.
(ii) At the Closing, the Seller will execute and deliver the
Assignment and the Quebec Assignment, which shall be
substantially in the form of Exhibit A and Exhibit A-2
hereto, respectively.
(iii) Each of the Basic Documents shall have been executed and
delivered by each of the parties thereto.
(iv) On or prior to the Closing Date, the Seller and the
Servicer shall record, register or file, at their own
expense, Financing Statements in each jurisdiction in
which such action is necessary or desirable to perfect,
preserve, publish or protect (x) the Issuer's right, title
and interest in the Receivables and the other property
sold hereunder and (y) the Indenture Trustee's right,
title and interest in the Related Collateral. Such
Financing Statements shall, in the case of (x) above, name
the Seller, as seller or debtor, and the Issuer, as
purchaser or secured party, and shall describe the
Receivables and the other property sold hereunder and, in
the case of (y) above, name the Issuer, as debtor, and the
Indenture Trustee, as secured party, and shall describe
the Related Collateral or cover all assets, undertakings
and properties of the Issuer. All such Financing
Statements shall meet the requirements of the laws of each
such jurisdiction and in such manner as is necessary to
perfect, preserve, publish and protect the sale, transfer,
assignment and conveyance of such Receivables and such
other property to the Issuer and the Lien of the Indenture
Trustee with respect to the Related Collateral or all
assets, undertakings and properties of the Issuer, as the
case may be. The Seller and/or the Servicer shall deliver
a duplicate registered or time-stamped copies, or other
evidence
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satisfactory to the Indenture Trustee of such filings, to
the Indenture Trustee on or prior to the Closing Date.
(b) Obligations of the Issuer and the Seller - Subsequent
Receivables. The Seller shall transfer to the Issuer the other
property and rights related thereto described in Section 2.2 only
upon the satisfaction of each of the following conditions
precedent on or prior to the related Subsequent Transfer Date:
(i) the Seller shall have provided the Indenture Trustee and
the Rating Agencies an Addition Notice no later than five
days prior to such Subsequent Transfer Date and shall have
provided any information reasonably requested by the
Indenture Trustee or a Rating Agency with respect to the
Subsequent Receivables;
(ii) the Seller shall have delivered to the Issuer a Subsequent
Transfer Amendment to the Schedule of Receivables and, if
any Subsequent Receivable is owing by an Obligor whose
billing address is located in the Province of Quebec, a
Subsequent Quebec Transfer Supplement listing the
Subsequent Receivables;
(iii) the Seller shall, to the extent required by Section
2.4(e), have deposited in the Collection Account all
collections in respect of the Subsequent Receivables;
(iv) as of such Subsequent Transfer Date, (A) the Seller was
not insolvent and will not become insolvent as a result of
the transfer of Subsequent Receivables on such Subsequent
Transfer Date, (B) the Seller did not intend to incur or
believe that it would incur debts that would be beyond the
Seller's ability to pay as such debts matured, (C) such
transfer was not made with actual intent to hinder, delay
or defraud any person and (D) the assets of the Seller did
not constitute unreasonably small capital to carry out its
business as conducted;
(v) the applicable Reserve Account Initial Deposit for such
Subsequent Transfer Date shall have been made;
(vi) after giving effect to the transfer of such Subsequent
Receivables on such Subsequent Transfer Date, the
Receivables transferred to the Issuer pursuant hereto
shall meet the following criteria (based on the
characteristics of the Initial Receivables on the Initial
Cut-Off Date and the Subsequent Receivables on the related
Cut-Off Dates) as such information is provided to the
Indenture Trustee by the Servicer: (i) the weighted
average APR of the Receivables transferred to the Issuer
shall not be less than 16.5%, and (ii) the weighted
average remaining term of the Receivables transferred to
the Issuer shall not be greater than 72 months;
(vii) the Pre-Funding Period shall not have ended;
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(viii) each of the representations and warranties made by the
Seller pursuant to Section 3.1 with respect to the
Subsequent Receivables shall be true and correct as of
such 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;
(ix) the Seller shall, at its own expense, on or prior to such
Subsequent Transfer Date indicate in its computer files
that the Subsequent Receivables have been sold to the
Issuer pursuant to this Agreement and the Assignment and,
if applicable, the Quebec Assignment;
(x) the Seller shall have taken any action required to
maintain the first perfected ownership interest of the
Issuer in the Receivables and the other property sold
hereunder and the first perfected security interest of the
Indenture Trustee in the Related Collateral;
(xi) no selection procedures adverse to the interests of the
Series C2002-1 Debtholders, the Issuer or the Indenture
Trustee shall have been utilized in selecting the
Subsequent Receivables;
(xii) the Seller shall have delivered (A) to the Rating Agencies
and (B) to the Issuer an Opinion of Counsel with respect
to the transfer of the Subsequent Receivables
substantially in the form of the Opinion of Counsel
delivered to the Rating Agencies and the Issuer,
respectively, on the Closing Date;
(xiii) the Rating Agencies shall have confirmed in writing to the
Issuer and the Indenture Trustee that the rating on the
Notes shall not be withdrawn or reduced as a result of the
transfer of such Subsequent Receivables to the Issuer; and
(xiv) the Seller shall have delivered to the Issuer a
certificate of a Responsible Officer of the Seller
confirming the satisfaction of each condition specified in
this paragraph (b).
(b) Obligation of the Seller. The obligation of the Seller to sell
the Receivables and other property to be sold hereunder to the
Issuer is subject to the satisfaction of the conditions that the
Issuer shall have performed all obligations to be performed by it
hereunder on or prior to the Closing Date or such Subsequent
Transfer Date; provided, however, that upon payment to the Seller
of the Initial Purchase Price or the Subsequent Purchase Price,
as applicable, all conditions precedent in favour of the Seller
shall be irrebutably deemed to have been satisfied.
2.6 INTENTION OF THE PARTIES.
(a) It is the intention of the Seller and the Issuer that the
transfer and assignments contemplated by this Agreement, the
Assignment and the Quebec Assignment shall constitute a sale of
the Initial Receivables and the Subsequent Receivables and the
other property sold under this Agreement from the Seller to the
Issuer and
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the beneficial interest in and title to the Receivables and such
other property shall not be part of the Seller's estate in the
event of any bankruptcy or insolvency proceeding by or against
the Seller under any bankruptcy or insolvency law.
(b) The foregoing sale under this Agreement does not constitute and
is not intended to result in any assumption by the Issuer of any
obligation of the Seller to the Obligors, Dealers, insurers or
any other Person in connection with the Receivables, any Dealer
Agreements, any insurance policies or any agreement or instrument
relating to any of them.
2.7 SUBORDINATED RESERVE ACCOUNT LOAN.
(a) The Seller agrees to make interest bearing subordinated loans to
the Issuer (individually and collectively, the "Subordinated
Reserve Account Loan") on the Closing Date, on each Subsequent
Transfer Date and on each Monthly Payment Date in accordance with
the terms and provisions of this Agreement.
(b) On the Closing Date and on each Subsequent Transfer Date, the
Seller shall make a Subordinated Reserve Account Loan to the
Issuer in a principal amount equal to 2.00% of the Principal
Balance as of the related Cut-Off Date of the Receivables to be
sold and transferred by the Seller to the Issuer on the Closing
Date or Subsequent Transfer Date, as applicable. The Seller
hereby irrevocably directs the Issuer to retain the principal
amount of the Subordinated Reserve Account Loan for each such
date from the cash portion of the Initial Purchase Price or
Subsequent Purchase Price otherwise payable to the Seller on the
Closing Date or Subsequent Transfer Date, as applicable. The
Issuer shall deposit each Subordinated Reserve Account Loan to
the Reserve Account on the Closing Date or related Subsequent
Transfer Date.
(c) On each Monthly Payment Date following the Closing Date, the
Seller shall make an additional Subordinated Reserve Account Loan
to the Issuer in a principal amount equal to the sum of:
(i) the lesser of (A) the Monthly Residual Purchase Price
Amount for such Monthly Payment Date and (B) the excess,
if any, of (1) the Principal Balance of all Receivables
that became Liquidated Receivables during the preceding
Collection Period over (2) the Principal Balance of all
Liquidated Receivables for the preceding Collection Period
described in clauses (ii) and (iv) of the definition of
Liquidated Receivables;
(ii) the lesser of (A) the excess, if any, of the amount
determined under clause (i)(A) above over the amount, if
any, determined under clause (i)(B) above, and (B) the
Reserve Account Deposit Amount, if any, for such Monthly
Payment Date; and
(iii) the lesser of (A) the excess, if any, of the amount
determined under clause (ii)(A) above over the amount, if
any, determined under clause (ii)(B) above, and (B) the
Accelerated Principal Payment Amount for such Monthly
Payment Date.
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(d) The amount of each Subordinated Reserve Account Loan to be
advanced by the Seller to the Issuer on any Monthly Payment Date
shall be set off and netted against the Monthly Residual Purchase
Price Amount and the accrued and unpaid interest on the
Subordinated Reserve Account Loan for such Monthly Payment Date
otherwise payable by the Issuer to the Seller on such date. The
Issuer shall retain in the Reserve Account the amount of the
Subordinated Reserve Account Loan due from the Seller to the
Issuer on such Monthly Payment Date from the funds on deposit in
the Reserve Account that would otherwise be available to pay the
Monthly Residual Purchase Price Amount and the accrued and unpaid
interest on the Subordinated Reserve Account Loan due to the
Seller on such Monthly Payment Date in full satisfaction, to the
extent of the amount of such Subordinated Reserve Account Loan,
of the Issuer's obligation to pay such Monthly Residual Purchase
Price Amount and such accrued and unpaid interest. On any Monthly
Payment Date, such setoff and netting shall be made, first,
against the Monthly Residual Purchase Price Amount due and
payable by the Issuer to the extent thereof pursuant to Section
2.4(d), and second, against the accrued and unpaid interest on
the Subordinated Reserve Account Loan otherwise due and payable
by the Issuer pursuant to Section 5.6(c)(xiv), in each case, to
the extent of the Subordinated Reserve Account Loan due and
payable by the Seller to the Issuer on such Monthly Payment Date.
(e) The outstanding principal balance of the Subordinated Reserve
Account Loan (the "Subordinated Reserve Account Loan Balance")
shall bear interest at the rate of 15% per annum calculated on
the Subordinated Reserve Account Loan Balance as of the close of
the immediately preceding Monthly Payment Date (or the Closing
Date in the case of the initial Monthly Payment Date) on the
basis of a 365 day year for the actual number of days elapsed.
Accrued and unpaid interest on the Subordinated Reserve Account
Loan (including interest on overdue interest at the same rate)
shall be due and payable on each Monthly Payment Date to the
extent of the funds on deposit in the Reserve Account which are
available for release to the Seller for the payment of such
interest as herein provided.
(f) The Seller's recourse for payment of the Subordinated Reserve
Account Loan and any interest accrued and unpaid thereon
(including interest on overdue interest) and the Residual
Purchase Price shall be limited to the amounts which are
available from time to time (subject to Sections 2.4(d) and
2.7(d), as applicable) to be released to the Seller pursuant to
and in accordance with clauses (xi), (xiii) and (xiv) of Section
5.6(c) and Sections 5.7 and 5.9 of this Agreement or Section 3.2
of the Series Supplement for payment of the principal of and
interest on the Subordinated Reserve Account Loan or the Residual
Purchase Price (in each case, after all deposits, withdrawals or
payments to or for the benefit of the Series C2002-1 Debtholders
and the other Related Specified Creditors to be made thereunder
in accordance with this Agreement and the other Basic Documents).
The Seller hereby subordinates payment or repayment of the
Subordinated Reserve Account Loan and the Residual Purchase Price
to the prior payment in full of the Series C2002-1 Notes and the
debts, liabilities and obligations of the Issuer to the other
Related Specified Creditors. The Seller acknowledges and agrees
that the Subordinated Reserve Account Loan and the Residual
Purchase
10
Price are subject to the terms and provisions of Sections 15.2,
15.3, 15.4 and 15.5 of the Indenture and the Series Supplement
and is otherwise a Related Obligation for and of the Series
C2002-1 Notes for the purposes of the Indenture. The Seller
hereby irrevocably waives and agrees not to assert, claim or
endeavour to exercise, and irrevocably bars and estops itself
from asserting, claiming or exercising, any security interest,
right of set-off, right or other purported form of claim with
respect to or in any of the monies, funds or other property of
the Issuer (including Collections on the Receivables) which may
now or hereafter be in the possession of or under the control of
the Seller (in its capacity a Seller or Servicer), it being
acknowledged and agreed that the Seller's only recourse for
payment of amounts now or hereafter due or owing by the Issuer to
the Seller shall be as set forth above in this Section.
(g) None of the Issuer, the Trustee or the Indenture Trustee shall
have any personal liability to the Seller to pay or repay the
Subordinated Reserve Account Loan or any accrued and unpaid
interest thereon nor shall the Seller have recourse to any
Related Collateral for payment of the Subordinated Reserve
Account Loan other than amounts on deposit in or credited to the
Reserve Account from time to time and available for payment of
the Subordinated Reserve Account Loan and accrued and unpaid
interest thereon in accordance with the terms and provisions of
this Agreement.
2.8 CLASS VPN LOANS; ADDITIONAL CLASS VPN LOANS.
(a) On or before the Closing Date, the Issuer will enter into the
Initial Class VPN Loan Agreement with the Initial Class VPN
Lender and will obtain the Initial Class VPN Loan on the Closing
Date. The Issuer may obtain additional Class VPN Loans (i) on the
Business Day preceding any Targeted Final Payment Date for each
Class of Class A Notes, (ii) on any Class A Note Payment Date for
a Class during a Sequential Amortization Period, or (iii) on the
Business Day preceding any such date. Pursuant to the Initial
Class VPN Loan Agreement, the Issuer may (a) on the Closing Date
obtain the Initial Class VPN Loan to fund the payment of a
portion of the Initial Purchase Price, (b) on any Targeted Final
Payment Date or the Business Day preceding such date obtain
additional Class VPN Loans to repay maturing Class A Notes having
that Targeted Final Payment Date as their Targeted Final Payment
Date, and (c) on any Class A Note Payment Date during a
Sequential Amortization Period or the Determination Date
preceding such date obtain additional Class VPN Loans to repay
any Class of outstanding Class A Notes which was not paid in full
on its Targeted Final Payment Date. Under the Initial Class VPN
Loan Agreement, Class VPN Loans will be advanced to the Issuer on
the Business Day preceding each Targeted Final Payment Date.
(b) The Initial Class VPN Loan will bear interest at an annual rate
(the "Interest Rate" for such Class VPN Loans) equal to the BA 1
Month Rate plus 0.59%, subject to adjustment to a fixed rate as
described in the definition of Interest Rate. Additional Class
VPN Loans obtained after the Closing Date will have an Interest
Rate equal to the BA 1 Month Rate plus a margin; provided,
however, that in no
11
event will such margin over the BA 1 Month Rate exceed 1.50%,
subject to adjustment to a fixed rate as described in the
definition of Interest Rate. The Interest Rate for any Class VPN
Loan made after the Closing Date will be determined at the time
of advance of such Class VPN Loan and will reflect then current
market conditions.
(c) Subject to Section 2.8(d), the Servicer agrees to request
advances of Class VPN Loans that may be obtained for any Class A
Note Payment Date on which Class VPN Loans may be obtained from
the Initial Class A Lender and, if such Initial Class VPN Lender
does not advance such Class VPN Loans in accordance with the
terms of the Initial Class VPN Loan Agreement, then, subject to
the Initial Class VPN Loan Agreement, the Issuer may enter into
additional committed or uncommitted Class VPN Loan Agreements
with additional Class VPN Lenders pursuant to which the Issuer
may obtain additional Class VPN Loans. In each case, the
aggregate principal amount of the Class VPN Loans to be requested
by the Servicer in respect of any Class A Note Payment Date on
which Class VPN Loans may be obtained will be such that (i) the
Total Noteholders' Principal Payment Amount for a Targeted Final
Payment Date (except during a Sequential Amortization Period) or
(ii) the requested Class VPN Loan Proceeds, together with the
Aggregate Principal Distributable Amount for such Monthly Payment
Date, the Accelerated Principal Payment Amount, if any, for such
Monthly Payment Date, and the Accumulation Amount, if any, for
such Monthly Payment Date, will be sufficient to pay the
applicable Class of Class A Notes in full on such Class A Note
Payment Date. Neither the Seller nor the Servicer shall be liable
to the Issuer for any failure to identify any other prospective
Class VPN Lenders to make Class VPN Loans or to obtain any Class
VPN Loans on any Determination Date or for any Class A Note
Payment Date.
(d) No Class VPN Loans shall be requested by the Servicer or be
obtained by the Issuer for any Monthly Payment Date on which
Class VPN Loans may be obtained by the Issuer unless the
following conditions are satisfied:
(i) after giving effect to the advance of such Class VPN Loans
and all payments of principal on the Series C2002-1 Debt
Obligations on that Monthly Payment Date (including the
application of any Class VPN Loan Proceeds on such date),
the sum of the Outstanding Amount of the Series C2002-1
Debt Obligations shall not exceed the Pool Balance of the
Receivables on the last day of the Collection Period
immediately preceding that Monthly Payment Date;
(ii) the Class VPN Swap shall be in full force and effect and
no Early Termination Date shall have occurred thereunder;
and
(iii) no Event of Default shall have occurred and be continuing.
(e) With respect to each Class VPN Loan Agreement and each Class VPN
Loan entered into or obtained after the Closing Date, the
Servicer shall provide the Rating Agencies with written notice of
the entering into, and a true copy of, such
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Class VPN Loan Agreement, together with the Interest Rate
applicable to such Class VPN Loan.
2.9 LIQUIDITY ADVANCES; MATURITY ADVANCES.
(a) If:
(i) on any Class A Note Payment Date for the Class A-1 Notes
or Class A-2 Notes, the Issuer has a binding agreement for
the advance of a Class VPN Loan but the Servicer
determines that the proceeds from that advance will not be
received on that date in time to make payments on the
Class A Notes of that Class on that date, the Servicer
may, in its sole discretion, make an advance (each, a
"Liquidity Advance") to the Issuer in an amount equal to
those anticipated proceeds if it determines, in its sole
discretion, that it has received reasonable assurances
from the prospective lender of the Class VPN Loan to the
effect that the full amount of the proceeds will be
delivered to the Issuer later on that date or within two
Business Days thereafter; or
(ii) on any Targeted Final Payment Date for the Class B Notes
or Class C Notes, the amount on deposit in the Note
Distribution Account on such date available for payment of
principal on the applicable Class is less than the
outstanding principal amount of that Class, the Servicer
will have the option to make an advance (each, a "Maturity
Advance") on that date in an amount up to the amount of
such shortfall.
(b) If the Servicer makes a Liquidity Advance or a Maturity Advance,
the proceeds thereof will be deposited into the Note Distribution
Account on the date of advance and distributed on that date in
payment of the outstanding principal amount of the related Class
of Offered Notes in respect of which such Liquidity Advance or
Maturity Advance was made.
(c) If the Servicer has made a Liquidity Advance, the Servicer will
be immediately reimbursed for such Liquidity Advance upon receipt
by the Issuer of the proceeds of the additional Class VPN Loan.
If the proceeds of any Class VPN Loan in respect of which a
Liquidity Advance has been made are not paid to the Issuer within
two Business Days after the date on which such Liquidity Advance
is made, the Servicer shall have the right to be reimbursed for
such Liquidity Advance in priority to payments of principal on
the Offered Notes or the Class VPN Loans as provided in Section
5.6(c).
(d) If the Servicer has made any Maturity Advances, (i) the amount of
such Maturity Advances will be repaid to the Servicer in
accordance with the Series Supplement after the Outstanding
Amounts of all Offered Notes and Class VPN Loans have been paid
in full and (ii) for all purposes of this Agreement, the
Indenture and the Series Supplement (including clause (c)(i)
above), the outstanding Maturity Advances shall be deemed to be
(A) non-interest bearing Class B Notes having an Outstanding
Amount equal to the principal amount of such Maturity Advances,
in the case of Maturity Advances made to repay the Class B Notes,
and (B) non-interest
13
bearing Class C Notes having an Outstanding Amount equal to the
principal amount of such Maturity Advances, in the case of
Maturity Advances made to repay the Class C Notes.
ARTICLE 3
THE RECEIVABLES
3.1 REPRESENTATIONS AND WARRANTIES AS TO RECEIVABLES
The Seller hereby represents and warrants that each of the representations and
warranties set forth in the Schedule of Representations is true and correct and
on which the Issuer is deemed to have relied in purchasing the Receivables. 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 each Subsequent Transfer Date in the case of Subsequent Receivables, and
shall survive the sale, transfer and assignment of the Receivables to the
Issuer.
3.2 REPURCHASE UPON BREACH
The Seller, the Servicer or the Issuer, as the case may be, shall inform the
other parties to this Agreement and the Indenture Trustee promptly, in writing,
upon the discovery of any breach of the Seller's representations and warranties
made pursuant to Section 3.1 or Section 6.1. As of the last day of the second
(or, if the Seller so elects, the first) Accounting Date 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 relating to a breach if such breach has had a material adverse
effect on the interests of the Issuer or of the Series C2002-1 Debtholders and
the other Related Specified Creditors (determined without regard to the
availability of funds from any credit enhancement in the form of the
over-collateralization represented by the Class D Notes or in the form of the
Reserve Account). As consideration for the repurchase of the Receivable, the
Seller shall remit the Purchase Amount in the manner specified in Section 5.5.
It is understood and agreed that, subject to the provisions of Section 6.2, the
obligation of the Seller to repurchase any Receivable with respect to which a
breach of the representations and warranties pursuant to Section 3.1 or Section
6.1 has occurred and is continuing shall, if such obligation is fulfilled,
constitute the sole remedy of the Issuer, the Indenture Trustee, the Series
C2002-1 Debtholders or the other Related Specified Creditors with respect to for
such breach.
3.3 CUSTODY OF RECEIVABLE FILES.
(a) To assure uniform quality in servicing the Receivables and to
reduce administrative costs, (x) the Issuer and the Indenture
Trustee hereby revocably appoints the Servicer, and the Servicer
hereby accepts such appointment, to act as the agent of the
Indenture Trustee as custodian of the Receivables Files on the
terms and conditions set forth in the Custodian Agreement, all of
which are incorporated herein by reference, and (y) in connection
with the sale, transfer and assignment of the Purchased Assets to
the Issuer pursuant to this Agreement and simultaneously with the
execution and delivery of this Agreement, the Servicer shall
delegate to AmeriCredit Financial Services, Inc., as Custodian,
the obligations of the custodian of the Receivables Files as set
forth in the Custodian Agreement, which Receivables Files shall
be delivered to the Custodian as agent
14
of the Indenture Trustee on or before the Closing Date (with
respect to each Initial Receivable) and on or before the
Subsequent Transfer Date (with respect to each Subsequent
Receivable), and the Indenture Trustee and the Servicer shall
enter into the Custodian Agreement with the Custodian on the
Closing Date. The Receivables File for each Receivable consists
of:
(i) the fully executed original of the Receivable (together
with any agreements modifying the Receivable, including,
without limitation, any extension agreements);
(ii) the original credit application, or a copy thereof, of
each Obligor, fully executed by each such Obligor on
AmeriCredit's customary form, or on a form approved by
AmeriCredit, for such application;
(iii) the original acknowledgement copy or time-stamped receipt
copy of the financing statements or other such documents
or instruments that the Servicer shall keep on file, in
accordance with its customary procedures, perfecting the
security interest of the Seller in the Financed Vehicles;
and
(iv) any and all other documents that the Servicer or the
Seller shall keep on file, in accordance with its
customary procedures, relating to a Receivable, an Obligor
or any of the Financed Vehicles.
(b) The Indenture Trustee may act as the Custodian, in which case the
Indenture Trustee shall be deemed to have assumed the obligations
of the Custodian specified in the Custodian Agreement. Upon
payment in full of any Receivable, the Servicer will notify the
Custodian pursuant to a certificate of an officer of the Servicer
(which certificate shall include a statement to the effect that
all amounts received in connection with such payments which are
required to be deposited in the Collection Account pursuant to
Section 4.1 have been so deposited) and shall request delivery of
the Receivable and Receivable File to the Servicer. From time to
time as appropriate for servicing and enforcing any Receivable,
the Custodian shall, upon written request of an officer of the
Servicer and delivery to the Custodian of a receipt signed by
such officer, cause the original Receivable and the related
Receivable File to be released to the Servicer. The Servicer's
receipt of a Receivable and/or Receivable File shall obligate the
Servicer to return the original Receivable and the related
Receivable File to the Custodian when its need by the Servicer
has ceased unless the Receivable is repurchased as described in
Section 3.2 or 4.7.
ARTICLE 4
Administration and Servicing of Receivables
4.1 DUTIES OF THE SERVICER
(a) The Servicer is hereby authorized to act as agent for the Issuer
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
15
carried out in accordance with customary and usual procedures of
institutions which service motor vehicle retail installment sales
contracts and, to the extent more exacting, the degree of skill
and attention that the Servicer exercises from time to time with
respect to all comparable receivables that it services for itself
or others. In performing such duties, so long as AmeriCredit
Canada is the Servicer, it shall substantially comply with the
policies and procedures described on Schedule C, as such policies
and procedures may be updated from time to time. The Servicer's
duties shall include, without limitation, collection and posting
of all payments, responding to inquiries of Obligors on the
Receivables, investigating delinquencies, sending payment coupons
to Obligors, reporting any required tax information to Obligors,
monitoring the collateral, complying with the terms of the
Depository Account Agreement, accounting for collections and
furnishing monthly and annual statements to the Indenture Trustee
and the Issuer with respect to distributions, monitoring the
status of Insurance Policies with respect to the Financed
Vehicles and performing the other duties specified herein.
(b) The Servicer shall also administer and enforce all rights and
responsibilities of the holder of the Receivables 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 Issuer to execute and deliver, on
behalf of the Issuer, any and all instruments of satisfaction or
cancellation, or of partial or full release or discharge, and all
other comparable instruments, with respect to the Receivables and
with respect to the Financed Vehicles; provided, however, that
notwithstanding the foregoing, the Servicer shall not, except
pursuant to an order from a court of competent jurisdiction,
release an Obligor from payment of any unpaid amount under any
Receivable or waive the right to collect the unpaid balance of
any Receivable from the Obligor, except in accordance with the
Servicer's customary practices. For greater certainty, the
Servicer is granted a power of attorney and a mandate for the
purpose of executing with respect to the Receivables and the
security interests created thereby, on behalf of the Issuer, the
Indenture Trustee, the Series C2002-1 Debtholders and other
Related Specified Creditors, any and all acquittances,
mainlevees, radiations, cancellations, reductions, retrocessions
and all other documents for the purpose of discharging,
releasing, reassigning, retroceding, waiving or subordinating any
reservation of title, hypothec, lease, right of ownership under a
leasing contract (credit-bail), security interest, charge in
respect of accounts receivable and any other personal or real
right contained in or created by the Receivables and which may
from time to time be registered in the Province of Quebec against
on Obligor under or with respect to the Receivables, and more
particularly, at the Register of Personal and Moveable Real
Rights,
16
including endorsing the Issuer's, the Indenture Trustee's, the
Series C2002-1 Debtholders' or the other Related Specified
Creditors' name on any consent, filings, registrations or other
documents in furtherance thereof.
(c) The Servicer is hereby authorized to commence, in its own name or
in the name of the Issuer, 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
Issuer 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 Issuer to
execute and deliver in the Servicer's name any notices, demands,
claims, complaints, responses, affidavits or other documents or
instruments in connection with any such proceeding. The Issuer
and the Indenture Trustee shall furnish the Servicer with any
limited powers of attorney and other documents which the Servicer
may reasonably request and which the Servicer deems necessary or
appropriate and take any other steps which the Servicer may deem
necessary or appropriate to enable the Servicer to carry out its
servicing and administrative duties under this Agreement.
4.2 COLLECTION OF RECEIVABLE PAYMENTS; MODIFICATIONS OF RECEIVABLES;
DEPOSITORY ACCOUNT 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 receivables that it services for itself or others
and otherwise act with respect to the Receivables, the Dealer
Agreements, the Dealer Assignments, the Insurance Policies and
the Related Collateral in such manner as will, in the reasonable
judgement of the Servicer, maximize the amount to be received by
the Issuer 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 (A) at any time agree to a modification or
amendment of a Receivable in order to (i) change the Obligor's
regular due date to a date within the Collection Period in which
such due date occurs or (ii) re-amortize the Scheduled
Receivables Payments on the Receivable following a partial
prepayment of principal, in accordance with its customary
procedures or (B) may direct the Issuer to sell Receivables
pursuant to Section 4.3(c) if the Servicer believes in good faith
that such extension, modification, amendment or sale is necessary
to avoid a default on such Receivable, will maximize the amount
to be received by the Issuer with respect to such Receivable, and
is otherwise in the best interests of the Issuer.
17
(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 Issuer with respect to such Receivable, and
is otherwise in the best interests of the Issuer; provided,
however, that:
(i) the aggregate period of all extensions on a Receivable
shall not exceed 12 months; and
(ii) in no event may a Receivable be extended beyond the
Collection Period immediately preceding the latest Final
Scheduled Monthly Payment Date.
(d) The Servicer shall maintain the following system for collecting
and processing payments on the Receivables and the other motor
vehicle retail instalment sale contracts or security agreements
owned or serviced by the Servicer or AmeriCredit Canada. The
Servicer shall establish and maintain one or more segregated
deposit accounts (collectively, the "Depository Account") at the
Depository Bank. The Depository Account shall be maintained by
the Servicer for and on behalf of AmeriCredit Canada, the
Custodian and each other owner of motor vehicle retail instalment
sale contracts or security agreements originated and owned or
serviced by the Servicer or AmeriCredit Canada. The Servicer
shall use its best efforts to notify or direct Obligors to make
all cheque or other mail payments on the Receivables directly to
the Depository Account and all direct debit payments on the
Receivables to the Depository Account. The Servicer shall not
permit any payments other than payments on the Receivables and
other motor vehicle retail instalment sale contracts or security
agreements originated and owned or serviced by the Servicer or
AmeriCredit Canada to be made to the Depository Account. The
Servicer shall use its best efforts to notify or direct the
Depository Bank to deposit all payments on the Receivables in the
Depository Account no later than the Business Day after receipt,
and to cause all amounts credited to the Depository Account on
account of such payments to be transferred to the Depository
Account no later than the second Business Day after receipt of
such payments. The Servicer shall cause all amounts credited to
the Depository Account on account of payments on the Receivables
to be transferred to the Collection Account no later than the
second Business Day after receipt of such payments in the
Depository Account. The Depository Account shall be a demand
deposit account held by the Depository Bank, and shall be an
Eligible Deposit Account. The Servicer may at any time move the
Depository Account to another Eligible Deposit Account provided
the Servicer shall give the Indenture Trustee and the Backup
Servicer written notice of such new Depository Account.
(e) Prior to the Closing Date, the Servicer shall have notified each
Obligor that makes its payments on the Receivables by cheque to
make such payments thereafter directly to the Depository Bank
(except in the case of Obligors that have already been making
such payments to the Depository Bank), and shall have provided
each such Obligor with remittance invoices in order to enable
such Obligors to
18
make such payments directly to the Depository Bank for deposit
into the Depository Account, and the Seller will continue, not
less often than every three months, to so notify those Obligors
who have failed to make payments to the Depository Bank. 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 sufficient to
authorize direct debit by the Depository Bank. If at any time,
the Depository Bank is unable to directly debit an Obligor's bank
account that makes payment on the Receivables by direct debit and
if such inability is not cured within 15 days or cannot be cured
by execution by the Obligor of a new authorization for automatic
payment, the Servicer shall notify such Obligor that it cannot
make payment by direct debit and must thereafter make payment by
cheque.
(f) In the event of a termination of the Servicer, the Successor
Servicer shall establish a new Depository Account or similar
collection processing system in accordance with and subject to
the terms hereof. The outgoing Servicer shall deliver to the
Successor Servicer all documents and records relating to each
such Depository Account and an accounting of amounts collected
and held by the Depository Bank and otherwise use its best
efforts to effect the orderly and efficient transfer of any
Depository Account to the Successor Servicer.
(g) The Servicer shall deposit all payments by or on behalf of the
Obligors received directly by the Servicer to the Depository Bank
without deposit into any intervening account and as soon as
practicable, but in no event later than three Business Days after
receipt thereof.
4.3 REALIZATION UPON RECEIVABLES.
(a) Consistent with the standards, policies and procedures required
by this Agreement, the Servicer shall use its best efforts to
repossess (or otherwise comparably convert the ownership of) and
liquidate any Financed Vehicle securing a Receivable with respect
to which the Servicer has determined that payments thereunder are
not likely to be resumed, as soon as is practicable after default
on such Receivable but in no event later than the date on which
all or any portion of a Scheduled Receivables Payment has become
91 days delinquent; provided, however, that the Servicer may
elect not to repossess a Financed Vehicle within such time period
if in its good faith judgement 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
19
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 Issuer any
personal property taxes assessed on repossessed, liquidated
Financed Vehicles. The Servicer shall be entitled to
reimbursement of any such tax from Net Liquidation Proceeds with
respect to such Receivable.
(b) If the Servicer elects to commence a legal proceeding to enforce
a Dealer Agreement or Dealer Assignment, the act of commencement
shall be deemed to be an automatic assignment from the Issuer to
the Servicer of the rights under such Dealer Agreement or 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 Issuer or the Indenture Trustee, at the Servicer's expense,
or the Seller, at the Seller's expense, shall take such steps as
the Servicer deems reasonably necessary to enforce the Dealer
Agreement or Dealer Assignment, including bringing suit in its
name or the name of the Seller or of the Issuer and the Trustee
or the Indenture Trustee for the benefit of the Series C2002-1
Debtholders and the other Related Specified Creditors. All
amounts recovered shall be remitted directly by the Servicer as
provided in Section 4.2(e).
(c) Consistent with the standards, policies and procedures required
by this Agreement, the Servicer may use its best efforts to
locate a third party purchaser that is not affiliated with the
Servicer, the Seller or the Issuer to purchase from the Issuer
any Receivable that has become more than 60 days delinquent, and
shall have the right to direct the Issuer to sell any such
Receivable to the third party purchaser; provided, that only
Receivables having an aggregate Principal Balance of no more than
20% of the number of Receivables purchased by the Issuer from the
Seller may be sold by the Issuer pursuant to this Section 4.3(c);
provided further, that the Servicer may elect to not direct the
Issuer to sell a Receivable that has become more than 60 days
delinquent if in its good faith judgement the Servicer determines
that the proceeds ultimately recoverable with respect to such
Receivable would be increased by forbearance. The aggregate
Purchase Amounts received by the Issuer for all Receivables sold
to a single third-party purchaser on a single date must be at
least equal to the sum of the Minimum Sale Prices for all such
Receivables. The Servicer shall remit or cause the third-party
purchaser to remit all sale proceeds from the sale of Receivables
directly to the Collection
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Account without deposit into any intervening account as soon as
practicable, but in no event later than the Business Day after
receipt thereof.
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 item 16 of the Schedule of Representations 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 Canada 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 item
16 of the Schedule of Representations (including, without
limitation, during the repossession of such Financed Vehicle) the
Servicer may enforce the rights of the holder of the Receivable
under the Receivable to require the Obligor to obtain such
physical loss and damage insurance in accordance with its
customary servicing policies and procedures. The Servicer may
maintain a vendor's single interest or other collateral
protection insurance policy with respect to all Financed Vehicles
("Collateral Insurance") which policy shall by its terms insure
against physical loss and damage in the event any Obligor fails
to maintain physical loss and damage insurance with respect to
the related Financed Vehicle. All policies of Collateral
Insurance shall be endorsed with clauses providing for loss
payable to the Servicer. Costs incurred by the Servicer in
maintaining such Collateral Insurance shall be paid by the
Servicer.
(b) The Servicer may, if an Obligor fails to obtain or maintain a
physical loss and damage Insurance Policy, obtain insurance with
respect to the related Financed Vehicle and advance on behalf of
such Obligor, as required under the terms of the insurance
policy, the premiums for such insurance (such insurance being
referred to herein as "Force-Placed Insurance"). All policies of
Force-Placed Insurance shall be endorsed with clauses providing
for loss payable to the Servicer. Any cost incurred by the
Servicer in maintaining such Force-Placed Insurance shall only be
recoverable out of premiums paid by the Obligors or Net
Liquidation Proceeds with respect to the Receivable, as provided
in Section 4.4(c).
(c) In connection with any Force-Placed Insurance obtained hereunder,
the Servicer may, in the manner and to the extent permitted by
applicable law, require the Obligors to repay 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
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distribution on the Notes and the Certificates. The Servicer
shall retain and separately administer the right to receive
payments from Obligors with respect to Insurance Add-On Amounts
or rebates of Forced-Placed Insurance premiums. If an Obligor
makes a payment with respect to a Receivable having Force-Placed
Insurance, but the Servicer is unable to determine whether the
payment is allocable to the Receivable or to the Insurance Add-On
Amount, the payment shall be applied first to any unpaid
Scheduled Receivables Payments and then to the Insurance Add-On
Amount. Net Liquidation Proceeds on any Receivable will be used
first to pay the Principal Balance and accrued interest on such
Receivable and then to pay the related Insurance Add-On Amount.
If an Obligor under a Receivable with respect to which the
Servicer has placed Force-Placed Insurance fails to make
scheduled payments of such Insurance Add-On Amount as due, and
the Servicer has determined that eventual payment of the
Insurance Add-On Amount is unlikely, the Servicer may, but shall
not be required to, purchase such Receivable from the Issuer for
the Purchase Amount on any subsequent Determination Date. Any
such Receivable, and any Receivable with respect to which the
Servicer has placed Force-Placed Insurance which has been paid in
full (excluding any Insurance Add-On Amounts) will be assigned to
the Servicer.
(d) The Servicer may ▇▇▇ to enforce or collect upon the Insurance
Policies, in its own name, if possible, or as agent of the
Issuer. 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 Issuer
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 Issuer and/or the Indenture Trustee, 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
Issuer and the Trustee and/or the Indenture Trustee for the
benefit of the Series C2002-1 Debtholders.
(e) The Servicer will cause itself and may cause the Issuer, the
Trustee and the Indenture Trustee to be named as named insured
under all policies of Collateral Insurance.
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
Issuer as are necessary to maintain perfection of the security
interest created by each Receivable in the related Financed
Vehicle, including, but not limited to, recording, registering,
filing, re-recording, re-filing, and re-registering of all
Financing Statements as are necessary to maintain the security
interest granted by the Obligors under the respective
Receivables. The Indenture Trustee 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
Issuer as necessary because of the relocation of a Financed
Vehicle or for any other reason.
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(b) AmeriCredit Canada hereby agrees to pay all expenses related to
such perfection or reperfection and to take all action necessary
therefor. AmeriCredit Canada hereby appoints the Indenture
Trustee as its attorney-in-fact to take any and all steps
required to be performed by AmeriCredit Canada pursuant to this
Section 4.5(b) (it being understood that and agreed that the
Indenture Trustee shall have no obligation to take such steps
with respect to all perfection or reperfection, except as
pursuant to the Basic Documents to which it is a party and to
which AmeriCredit Canada has paid all expenses), including
execution of certificates of title or any other documents in the
name and stead of AmeriCredit Canada, and the Indenture Trustee
hereby accepts such appointment.
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 Issuer relies
in accepting the Receivables and on which the Indenture Trustee relies in
authenticating the Notes.
(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;
(ii) No Impairment. The Servicer shall do nothing to impair the
rights of the Issuer or the Series C2002-1 Debtholders in
the Receivables, the Dealer Agreements, the Dealer
Assignments, the Insurance Policies or the Related
Collateral except as otherwise expressly provided herein;
(iii) No Amendments. The Servicer shall not extend or otherwise
amend the terms of any Receivable, except in accordance
with Section 4.2; and
(iv) Restrictions on Liens. The Servicer shall not (i) create,
incur or suffer to exist, or agree to create, incur or
suffer to exist, or consent to cause or permit in the
future (upon the happening of a contingency or otherwise)
the creation, incurrence or existence of any Lien or
restriction on transferability of the Receivables except
for the Lien in favour of the Indenture Trustee for the
benefit of the Series C2002-1 Debtholders and the
restrictions on transferability imposed by this Agreement
or (ii) sign or file under the PPSA of any jurisdiction
any financing statement which names AmeriCredit Canada 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 interests of the Issuer or the rights and
preserving the Lien of the Indenture Trustee, for the
benefit of the Series C2002-1 Debtholders and the other
Related Specified Creditors.
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(b) The Servicer represents, warrants and covenants as of the Closing
Date and as of each Subsequent Transfer Date as to itself that
the representations and warranties set forth in Section 7.1 are
true and correct; provided that such representations and
warranties contained therein and herein shall not apply to any
entity other than AmeriCredit Canada.
4.7 PURCHASE OF RECEIVABLES UPON BREACH OF COVENANT
Upon discovery by any of the Servicer, a Responsible Officer of the Indenture
Trustee or a Responsible Officer of the Trustee of a breach of any of the
covenants set forth in Sections 4.5(a) or 4.6(a), the party discovering such
breach shall give prompt written notice to the others; provided, however, that
the failure to give any such notice shall not affect any obligation of
AmeriCredit Canada as Servicer under this Section 4.7. As of the second
Accounting Date (or, at AmeriCredit Canada's election, the first 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 Issuer or of the Series C2002-1 Debtholders and the other
Related Specified Creditors in any Receivable (including any Liquidated
Receivable) or the related Financed Vehicle (determined without regard to the
availability of funds from any credit enhancement in the form of the
over-collateralization represented by the Class D Notes or in the form of the
Reserve Account), AmeriCredit Canada shall, unless such breach shall have been
cured in all material respects, purchase from the Issuer the Receivable affected
by such breach and, on the related Determination Date, AmeriCredit Canada shall
pay the related Purchase Amount. It is understood and agreed that the obligation
of AmeriCredit Canada 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 Canada for such breach available to the Series C2002-1 Debtholders,
the Issuer or the Indenture Trustee; provided, however, that AmeriCredit Canada
shall indemnify the Issuer, the Trustee, the Indenture Trustee, the Backup
Servicer and the Series C2002-1 Debtholders from and against all costs,
expenses, losses, damages, claims and liabilities, including reasonable fees and
expenses of counsel, which may be asserted against or incurred by any of them
arising out of the events or facts giving rise to such breach. This section
shall survive the termination of this Agreement and the earlier removal or
resignation of the Backup Servicer, Trustee and/or the Indenture Trustee.
4.8 SERVICING FEE; PAYMENT OF CERTAIN EXPENSES BY SERVICER
On each Monthly Payment Date, the Servicer shall be entitled to receive out of
the Collection Account the Servicing Fee pursuant to Section 5.6. The Servicer
shall be required to pay all expenses incurred by it in connection with its
activities under this Agreement (including taxes imposed on the Servicer,
expenses incurred in connection with distributions and reports made by the
Servicer to the Series C2002-1 Debtholders and all other fees and expenses of
(except taxes of or payable by) the Trustee, the Indenture Trustee, the Backup
Servicer, the Depository Bank and the Independent Accountants). The Servicer
shall be liable for the fees and expenses of the Trustee, the Indenture Trustee,
the Backup Servicer, the Depository Bank (and any fees under the Depository
Account Agreement) and the Independent Accountants.
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4.9 Servicer's Certificate.
No later than 12:00 p.m. Eastern time on each Determination Date, the Servicer
shall deliver (facsimile delivery being acceptable) to the Issuer, the Indenture
Trustee, the Backup Servicer and each Rating Agency a Servicer's Certificate
executed by a Responsible Officer of the Servicer containing among other things,
(i) all information necessary to enable the Indenture Trustee to make any
withdrawal and deposit required by Section 5.8, (ii) a listing of all Purchased
Receivables, Sold Receivables and Administrative Receivables purchased or sold
as of the related Accounting Date, identifying the Receivables so purchased or
sold, (iii) all information necessary to enable the Indenture Trustee to send
the statements to Series C2002-1 Debtholders required by Section 5.10, and (iv)
all information necessary to enable the Indenture Trustee to reconcile the
aggregate cash flows, the Collection Account for the related Collection Period
and Monthly Payment Date, including the accounting required by Section 5.11.
Receivables purchased by the Servicer or by the Seller on the related Accounting
Date and each Receivable which became a Liquidated Receivable or which was paid
in full during the related Collection Period shall be identified by account
number (as set forth in the Schedule of Receivables).
4.10 ANNUAL STATEMENT AS TO COMPLIANCE, NOTICE OF SERVICER TERMINATION
EVENT.
(a) The Servicer shall deliver to the Trustee, the Indenture Trustee,
the Backup Servicer and each Rating Agency, on or before October
31 (or 120 days after the end of the Servicer's fiscal year, if
other than June 30) of each year, beginning on October 31, 2003,
an officer's certificate signed by any Responsible Officer of the
Servicer, dated as of June 30 (or other applicable date) of such
year, stating that (i) a review of the activities of the Servicer
during the preceding 12-month period (or such other period as
shall have elapsed from the Closing Date to the date of the first
such certificate (which period shall not be less than six
months)) and of its performance under this Agreement has been
made under such officer's supervision, and (ii) to such officer's
knowledge, based on such review, the Servicer has fulfilled all
its obligations under this Agreement throughout such period, or,
if there has been a default in the fulfilment of any such
obligation, specifying each such default known to such officer
and the nature and status thereof.
(b) The Servicer shall deliver to the Trustee, the Indenture Trustee,
the Backup Servicer and each Rating Agency, promptly after having
obtained knowledge thereof, but in no event later than two (2)
Business Days thereafter, written notice in an officer's
certificate of any event which with the giving of notice or lapse
of time, or both, would become a Servicer Termination Event under
Section 8.1(a). The Seller or the Servicer shall deliver to the
Trustee, the Indenture Trustee, the Servicer, the Backup 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 8.1.
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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, the Backup Servicer or to the Seller, to deliver to
the Trustee, the Indenture Trustee, the Backup Servicer and each Rating Agency,
on or before October 31 (or 120 days after the end of the Servicer's fiscal
year, if other than June 30) of each year, beginning on October 31, 2003, with
respect to the twelve months ended the immediately preceding June 30 (or other
applicable date) (or such other period as shall have elapsed from the Closing
Date to the date of such certificate (which period shall not be less than six
months)), a statement (the "Accountants' Report") addressed to the Board of
Directors of the Servicer and to the Trustee, 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 noting whether any exceptions or errors in the Servicer's
Certificates were found.
4.12 ACCESS TO CERTAIN DOCUMENTATION AND INFORMATION REGARDING RECEIVABLES
The Servicer shall provide to representatives of the Trustee, the Indenture
Trustee and the Backup Servicer reasonable access to the Receivables Files and
other documentation regarding the Receivables. In each case, such access shall
be afforded without charge but only upon reasonable request and during normal
business hours. Nothing in this Section shall affect the obligation of the
Servicer to observe any applicable law prohibiting disclosure of information
regarding the Obligors, and the failure of the Servicer to provide access as
provided in this Section as a result of such obligation shall not constitute a
breach of this Section.
4.13 MONTHLY TAPE
Not later than the fifteenth calendar day of each month, the Servicer will
deliver to the Indenture Trustee and the Backup Servicer computer tape and a
diskette (or any other electronic transmission acceptable to the Indenture
Trustee and the Backup Servicer) in a format acceptable to the Indenture Trustee
and the Backup Servicer containing the information with respect to the
Receivables as of the preceding Determination Date necessary for preparation of
the Servicer's Certificate relating to the immediately preceding Determination
Date and necessary to review the application of Collections as provided in
Section 5.4. In addition, upon the occurrence of a Servicer Termination Event
the Servicer shall, if so requested by the Indenture Trustee, 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
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or administer the performance of the Servicer. The Backup Servicer shall
have no liability for any actions taken or omitted by the Servicer so long as
the Backup Servicer is not the Servicer.
4.14 AMENDMENTS TO SCHEDULE OF RECEIVABLES
If the Servicer, during any Collection Period, assigns to a Receivable an
account number that differs from the account number previously identifying such
Receivable on the Schedule of Receivables, the Servicer shall deliver to the
Seller, the Issuer and the Indenture Trustee on or before the Monthly Payment
Date related to such Collection Period an amendment to such Schedule of
Receivables to report the newly assigned account number. Each such amendment
shall list all new account numbers assigned to Receivables during such
Collection Period and shall show by cross reference the prior account numbers
identifying such Receivables on such Schedule of Receivables.
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
receivables.
ARTICLE 5
Distributions; Reserve Account; Statements to Series C2002-1 Debtholders
5.1 ESTABLISHMENT OF SERIES ACCOUNTS
(a) The Servicer shall:
(i) for the benefit of the Series C2002-1 Debtholders and
other Related Specified Creditors, establish and maintain
in the name of the Indenture Trustee an Eligible Deposit
Account (the "Collection Account"), bearing a designation
clearly indicating that the funds deposited therein are
held for the benefit of the Series C2002-1 Debtholders and
other Related Specified Creditors;
(ii) for the benefit of the Series C2002-1 Debtholders,
establish and maintain in the name of the Indenture
Trustee 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 Series C2002-1 Debtholders;
(iii) for the benefit of the Series C2002-1 Debtholders and
other Related Specified Creditors, establish and maintain
in the name of the Indenture Trustee 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 Series C2002-1 Debtholders and
other Related Specified Creditors;
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(iv) for the benefit of the Series C2002-1 Debtholders and the
other Related Specified Creditors establish and maintain
in the name of the Indenture Trustee an Eligible Deposit
Account (the "Capitalized Interest Account"), bearing a
designation clearly indicating that the funds deposited
therein are held for the benefit of the Series C2002-1
Debtholders and the other Related Specified Creditors;
(v) for the benefit of the Series C2002-1 Debtholders and
other Related Specified Creditors, establish and maintain
in the name of the Indenture Trustee an Eligible Deposit
Account (the "Reserve Account"), bearing a designation
clearly indicating that the funds deposited therein are
held for the benefit of the Series C2002-1 Debtholders and
other Related Specified Creditors; and
(vi) for the benefit of the Series C2002-1 Debtholders,
establish and maintain in the name of the Indenture
Trustee an Eligible Deposit Account (the "Accumulation
Account"), bearing a designation clearly indicating that
the funds deposited therein are held for the benefit of
the Series C2002-1 Debtholders.
(b) Funds on deposit in the Collection Account, the Note Distribution
Account, the Pre-Funding Account, the Capitalized Interest
Account, the Reserve Account, and the Accumulation Account
(collectively, the "Series Accounts") shall be invested or
reinvested by the Indenture Trustee (or any custodian with
respect to funds on deposit in such account) in Eligible
Investments in accordance with the written directions of the
Servicer (which written direction may be in the form of standing
instructions). All such Eligible Investments shall be held by the
Indenture Trustee for the benefit of the Series C2002-1
Debtholders and other Related Specified Creditors, provided,
however, that on each Determination Date all Investment Earnings
on funds on deposit therein shall be deposited into the
Collection Account and shall be deemed to constitute a portion of
the Available Funds for the following Monthly Payment Date. Funds
on deposit in the Series Accounts shall be invested in Eligible
Investments that will mature so that such funds will be available
at the close of business on the Determination Date preceding the
following Monthly Payment Date.
(c) The Issuer, subject to the rights of the Indenture Trustee and
the Lien of the Indenture, shall possess all right, title and
interest in all funds on deposit from time to time in the Series
Accounts and in all proceeds thereof (including all income
thereon) and all such funds, investments, proceeds and income
shall be part of the Collateral. The Series Accounts shall be
under the sole dominion and control of the Indenture Trustee for
the benefit of the Series C2002-1 Debtholders and other Related
Specified Creditors. If, at any time, any of the Series Accounts
ceases to be an Eligible Deposit Account, the Indenture Trustee
(or the Servicer on its behalf) shall within 10 Business Days (or
such longer period, not to exceed 30 calendar days, as to which
each Rating Agency may consent) establish a new Series Account as
an Eligible Deposit Account and shall transfer any cash and/or
any investments to such new Series Account.
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(d) With respect to the Series Account Property, the Indenture
Trustee agrees that:
(i) any Series Account Property that is held in deposit
accounts shall be held solely in Eligible Deposit
Accounts, subject to the last sentence of Section 5.1(c);
and each such Eligible Deposit Account shall be subject to
the exclusive custody and control of the Indenture
Trustee, and the Indenture Trustee shall have sole signing
authority with respect thereto;
(ii) any Series Account Property that constitutes a
certificated security shall be delivered to the Indenture
Trustee in accordance with paragraph (b) of the definition
of "Delivery" and shall be held, pending maturity or
disposition, solely by the Indenture Trustee or its agent;
(iii) any Series Account Property that is a book-entry security
held through a Clearing Agency shall be delivered in
accordance with paragraph (c) of the definition of
"Delivery" and shall be maintained, pending maturity or
disposition, through continued book-entry registration of
such Series Account Property as described in such
paragraph; and
(iv) any Series Account Property that is an "uncertificated
security" as defined under the PPSA as in effect in the
Province of Ontario and that is not governed by clause
(iii) above shall be delivered to the Indenture Trustee or
its agent in accordance with paragraphs (c) or (d) of the
definition of "Delivery" and shall be maintained by the
Indenture Trustee, pending maturity or disposition,
through continued registration of the Indenture Trustee's
(or its nominee's) ownership of such security.
(e) The Servicer shall have the power, revocable by the Indenture
Trustee or the Issuer with the consent of the Indenture Trustee,
to instruct the Indenture Trustee to make withdrawals and
payments from the Series Accounts for the purpose of permitting
the Servicer or the Issuer to carry out its respective duties
hereunder or permitting the Indenture Trustee to carry out its
duties under the Indenture.
(f) The Indenture Trustee shall not in any way be held liable by
reason of any insufficiency in any of the Series Accounts
resulting from any loss on any Eligible Investment included
therein except for losses attributable to the Indenture Trustee's
negligence or bad faith or its failure to make payments on such
Eligible Investments issued by the Indenture Trustee, in its
commercial capacity as principal obligor and not as trustee, in
accordance with their terms.
(g) If (i) the Servicer shall have failed to give investment
directions in writing for any funds on deposit in the Series
Accounts to the Indenture Trustee by 1:00 p.m. Eastern Time (or
such other time as may be agreed by the Issuer and Indenture
Trustee) on any Business Day; or (ii) a Default or Event of
Default shall have occurred and be continuing with respect to the
Series C2002-1 Debt Obligations but the Series C2002-1 Debt
Obligations shall not have been declared due and payable, or, if
such Series C2002-1 Debt Obligations shall have been declared due
and payable following an Event of Default, amounts collected or
receivable from the Series Account Property are being applied as
if there had not been such a
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declaration; then the Indenture Trustee shall, to the fullest
extent practicable, invest and reinvest funds in the Series
Accounts in the investment described in clause (g) of the
definition of Eligible Investments.
(h) All Series Accounts will initially be established with the
Indenture Trustee.
(i) The Indenture Trustee acknowledges that, pursuant to the
provisions of the Class VPN Swap and the Class A-1 Swap, the Swap
Counterparties may be required to post collateral with the
Indenture Trustee to secure the Swap Counterparty's obligations
under the related swap. The Indenture Trustee agrees to establish
and maintain an Eligible Deposit Account to hold such collateral,
if requested to do so by the Servicer. The Indenture Trustee
further agrees to follow such written instructions relating to
the administration of, and transfers from such account, as may be
delivered by the Servicer.
5.2 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 cheques returned for insufficient
funds. The Servicer will additionally be entitled to receive from amounts on
deposit in the Collection Account with respect to a Collection Period any
amounts paid by Obligors that were collected in the Depository Account but that
do not relate to (i) principal and interest payments due on, or made with
respect to, the Receivables, and (ii) any fees or expenses related to extensions
due on the Receivables. The amounts to be reimbursed hereunder shall be paid to
the Servicer on the related Monthly Payment Date pursuant to Section 5.6(c)(i)
upon certification by the Servicer of such amounts and the provision of such
information to the Indenture Trustee.
5.3 COLLECTIONS
The Servicer shall, and shall cause any subservicer to, remit within two
Business Days of receipt thereof to the Collection Account all payments by or on
behalf of the Obligors with respect to the Receivables, and all Liquidation
Proceeds and Recoveries, both as collected during the Collection Period.
Notwithstanding the foregoing, for so long as (a) the Servicer has been assigned
short term credit ratings of R-1(middle) (or higher) by DBRS, P-1+ by ▇▇▇▇▇'▇
and A-1+ by S&P, or (b) AmeriCredit Canada is the Servicer and (i) AmeriCredit
Canada is a direct or indirect wholly-owned subsidiary of AmeriCredit Corp.;
(ii) no Servicer Termination Event shall have occurred and be continuing; (iii)
the short term, guaranteed debt obligations of AmeriCredit Canada are rated at
least R-1 (low) by DBRS; and (iv) the long-term debt obligations of AmeriCredit
Corp. are rated at least Baa3 by ▇▇▇▇▇'▇ and BBB - by S&P then, in the case of
(a) or (b), the Servicer shall remit such collections with respect to the
related Collection Period to the Collection Account on the Determination Date
immediately following the end of such Collection Period. For purposes of this
Article 5, the phrase "payments by or on behalf of the Obligors" shall mean
payments made with respect to the Receivables by Persons other than the Servicer
or the Seller.
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5.4 APPLICATION OF COLLECTIONS
(a) With respect to each Receivable (other than a Purchased
Receivable), payments on behalf of the related Obligor shall be
applied to interest and principal in accordance with the Simple
Interest Method.
(b) All Liquidation Proceeds shall be applied to the related
Receivable.
(c) Any Optional Purchase Price payable by the Servicer under Section
9.1 shall be deposited in the Collection Account.
5.5 ADDITIONAL DEPOSITS
The Servicer and the Seller, as applicable, shall deposit or cause to be
deposited in the Collection Account the aggregate Purchase Amount with respect
to Purchased Receivables on the applicable Determination Date on which such
obligations are due and the Servicer shall deposit therein all amounts to be
paid under Section 9.1 or 9.2 on the Determination Date occurring during the
applicable Collection Period.
5.6 DISTRIBUTIONS
(a) On or before each Determination Date with respect to the prior
Collection Period and the related Monthly Payment Date, the
Servicer will calculate the Available Funds, the Total Available
Funds, any expected Class VPN Loan Proceeds, the Accumulation
Amount, the Servicing Fee, the Administration and Trustee Fees,
the Total Noteholders' Principal Payment Amount, the Aggregate
Noteholders' Interest Distributable Amount, the Aggregate
Noteholders' Principal Distributable Amount, the Aggregate
Principal Distributable Amount, the net amount, if any, payable
by the Issuer under the Class VPN Swap, the net amount, if any,
payable by the Issuer under the Class A-1 Swap, the Additional
Class VPN Loan Amounts, Investment Earnings and all other amounts
required to determine the amounts, if any, to be deposited in or
paid from each of the Series Accounts on or before the related
Monthly Payment Date (or, in the case of payments, if any, due
under the Class VPN Swap or the Class A-1 Swap, on the Business
Day preceding the Monthly Payment Date). Based on such
calculations, the Servicer shall deliver to the Indenture Trustee
a Servicer's Certificate specifying such amounts and instructing
the Indenture Trustee to make withdrawals, deposits and payments
of the following amounts on or before such Monthly Payment Date:
(i) the amount, if any, of the Reserve Account Withdrawal
Amount to be withdrawn from the Reserve Account and
deposited in the Collection Account;
(ii) the amounts to be withdrawn from the Collection Account
and paid to the Servicer in respect of the Servicing Fee,
and paid to the Administrator, the Trustee and the
Indenture Trustee, respectively, in respect of the
Administration and Trustee Fees, in each case, for such
Monthly Settlement Date;
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(iii) the net amount, if any, to be withdrawn from the
Collection Account and paid under the Class VPN Swap to
the Class VPN Swap Counterparty on the Business Day
preceding such Monthly Payment Date;
(iv) the net amount, if any, to be withdrawn from the
Collection Account and paid under the Class A-1 Swap to
the Class A-1 Swap Counterparty on the Business Day
preceding such Monthly Payment Date;
(v) the amounts to be withdrawn from the Collection Account
with respect to the Aggregate Noteholders' Interest
Distributable Amount, the Aggregate Principal
Distributable Amount and the Accelerated Principal Payment
Amount for such Monthly Payment Date;
(vi) the amount, if any, to be withdrawn from the Collection
Account and paid to the Class VPN Lenders in respect of
Additional Class VPN Loan Amounts for such Monthly Payment
Date;
(vii) the amount, if any, of the Reserve Account Deposit Amount
to be withdrawn from the Collection Account and deposited
in the Reserve Account;
(viii) the amount, if any, to be withdrawn from the Note
Distribution Account and deposited in the Accumulation
Account;
(ix) the Monthly Capitalized Interest Amount, if any, to be
withdrawn from the Capitalized Interest Account and
deposited in the Collection Account; and
(x) the Accumulation Amount, if any, to be withdrawn from the
Accumulation Account and deposited in the Note
Distribution Account.
(b) On or before each Monthly Payment Date, the Indenture Trustee
(based on the information contained in the Servicer's Certificate
delivered on the related Determination Date) shall:
(i) withdraw from the Reserve Account and deposit in the
Collection Account the Reserve Account Withdrawal Amount;
(ii) if such Monthly Payment Date is a Targeted Final Payment
Date for a Class of Offered Notes, withdraw from the
Accumulation Account and deposit in the Note Distribution
Account the Accumulation Amount, if any, for such Monthly
Payment Date; and
(iii) if such Monthly Payment Date is the first Monthly Payment
Date during a Non-Sequential Amortization Period, withdraw
from the Accumulation Account and deposit in the Note
Distribution Account the Accumulation Amount, if any, for
such Monthly Payment Date;
(iv) if the Monthly Payment Date is the first Monthly Payment
Date on or after which the Outstanding Amount of the
Offered Notes (after giving effect to
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all other payments thereon on that date) is or will be
less than or equal to the balance on deposit in the
Reserve Account (after giving effect to all other
withdrawals to be made therefrom for deposit to the
Collection Account on that date), withdraw the balance on
deposit in the Reserve Account from the Reserve Account
and deposit such amount in the Note Distribution Account;
and
(i) if the Monthly Payment Date is the first Monthly Payment
Date on or after the end of the Pre-Funding Period,
withdraw the Remaining Pre-Funded Amount from the
Pre-Funding Account and deposit such amount to the Note
Distribution Account.
In all other cases, no amounts will be transferred or withdrawn
from the Accumulation Account and deposited to the Note
Distribution Account.
(c) Except as otherwise provided in Section 5.6(d), on each Monthly
Payment Date (or in the case of payments to the Swap
Counterparties pursuant to clause (iii) below, if any, on the
Determination Date preceding such Monthly Payment Date) the
Indenture Trustee (based on the information contained in the
Servicer's Certificate delivered on the related Determination
Date) shall make the following distributions from the Collection
Account in the following order of priority:
(i) to the Servicer, to the extent of the Total Available
Funds, (A) the Servicing Fee and all unpaid Servicing
Fees, if any, from prior Collection Periods, and (B) the
amounts to be reimbursed to the Servicer pursuant to
Section 5.2;
(ii) to the Administrator, the Trustee and the Indenture
Trustee, to the extent of the Total Available Funds
remaining after the application of clause (i), the
Administration and Trustee Fees and all unpaid
Administration and Trustee Fees, if any, from prior
Collection Periods;
(iii) to the Swap Counterparties, to the extent of the Total
Available Funds remaining after the application of clauses
(i) and (ii) above, the net amount, if any, payable under
the Class VPN Swap or the Class A-1 Swap (exclusive of
payments due to either of the Swap Counterparties in
connection with any Early Termination Date under the Class
VPN Swap or the Class A-1 Swap, as applicable), pro rata;
(iv) to the extent of the Total Available Funds remaining after
the application of clauses (i) through (iii), (A) to the
Note Distribution Account, the Noteholders' Interest
Distributable Amount for the Class A Notes and the Class
VPN Loans, (B) to the Class VPN Swap Counterparty in
respect of any payments due to the Class VPN Swap
Counterparty in connection with any Early Termination Date
under the Class VPN Swap, and (C) to the Class A-1 Swap
Counterparty in respect of any payments due to the Class
A-1 Swap Counterparty in connection with an Early
Termination Dated under the Class A-1 Swap, pro rata,
based on the proportion that
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each amount owing under (A), (B) or (C) above, as
applicable, bears to the sum of the amounts owing under
(A), (B) or (C) above;
(v) to the Note Distribution Account, to the extent of the
Total Available Funds remaining after the application of
clauses (i) through (iv), the Noteholders' Interest
Distributable Amount for the Class B Notes;
(vi) to the Note Distribution Account, to the extent of the
Total Available Funds remaining after the application of
clauses (i) through (v), the Noteholders' Interest
Distributable Amount for the Class C Notes;
(vii) to the Servicer, to the extent of the Total Available
Funds remaining after the application of clauses (i)
through (vi), any outstanding Liquidity Advances;
(viii) to the Note Distribution Account, to the extent of the
Total Available Funds remaining after the application of
clauses (i) through (vii), the Aggregate Principal
Distributable Amount;
(ix) to the Class VPN Lenders entitled thereto, pro rata, to
the extent of the Total Available Funds remaining after
the application of clauses (i) through (viii), the
Additional Class VPN Loan Amounts and any unpaid
Additional Class VPN Loan Amounts from all prior Monthly
Payment Dates; and
(x) to the Reserve Account, to the extent of the Total
Available Funds remaining after the application of clauses
(i) through (ix), the Reserve Account Deposit Amount for
such Monthly Payment Date;
(xi) to the Note Distribution Account, to the extent of the
Total Available Funds remaining after the application of
clauses (i) through (x), the Accelerated Principal Payment
Amount for such Monthly Payment Date;
(xii) to the Class D Series C2002-1 Debtholders, to the extent
of the Total Available Funds remaining after the
application of clauses (i) through (xi), the accrued and
unpaid interest on the Class D Notes;
(xiii) to the Class D Series C2002-1 Debtholders, to the extent
of the Total Available Funds remaining after the
application of clauses (i) through (xii), the lesser of
(x) the Step-Down Amount for such Monthly Payment Date and
(y) the outstanding principal balance of the Class D
Notes; and
(xiv) to the extent of the Total Available Funds remaining after
the application of clauses (i) through (xiii), (x) to the
Seller, the aggregate amount remaining in the Collection
Account on such Monthly Payment Date in part payment of
the Residual Purchase Price and (y) to the Issuer, $100,
pro rata.
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(d) Notwithstanding the foregoing, on and after the Non-Sequential
Amortization Commencement Date and during a Non-Sequential
Amortization Period until all Events of Default which gave rise
to the commencement of such Non-Sequential Amortization Period
have been cured or waived, the Total Available Funds for each
Monthly Payment Date thereafter and all amounts in the Series
Accounts (other than the Reserve Account) on the Non-Sequential
Amortization Commencement Date shall be paid and applied pursuant
to Section 3.2 of the Series Supplement.
5.7 RESERVE ACCOUNT
(a) On the Closing Date and on each Subsequent Transfer Date, the
Issuer shall, as provided in Section 2.7(b), deposit the
Subordinated Reserve Account Loan for such date into the Reserve
Account.
(b) On each Monthly Payment Date, the Issuer shall deposit the
Subordinated Reserve Account Loan specified in section 2.7(c), if
any, for such date into the Reserve Account.
(c) If the amount on deposit in the Reserve Account exceeds the
Specified Reserve Account Balance for such Monthly Payment Date
(after giving effect to all deposits to and withdrawals from the
Reserve Account on such Monthly Payment Date otherwise than
pursuant to this Section 5.7(c)), the Servicer shall instruct the
Indenture Trustee to distribute the amount of the excess to the
Seller in payment of the Subordinated Reserve Account Loan
Balance. Amounts distributed pursuant to this Section 5.7 to
which the Seller is entitled to hereunder shall be deemed
released from the Lien of the Indenture and the security interest
therein granted to the Indenture Trustee, and the Seller (and
such transferees and assignees) or the Issuer shall in no event
thereafter be required to refund any such distributed amounts.
(d) On the first Monthly Payment Date on which the Outstanding Amount
of the Series C2002-1 Debt Obligations is less than or equal to
the balance on deposit in the Reserve Account, the Servicer shall
instruct the Indenture Trustee to deposit the balance on deposit
in the Reserve Account to the Note Distribution Account.
(e) Following the payment in full of the aggregate Outstanding Amount
of the Series C2002-1 Debt Obligations and of all other amounts
owing or to be distributed hereunder or under the Indenture to
the Servicer, the Administrator, the Series C2002-1 Debtholders,
the other Related Specified Creditors, the Trustee and the
Indenture Trustee, in each case, in respect of Series C2002-1,
any amount remaining on deposit in the Reserve Account shall be
distributed to the Seller (or any transferee or assignee pursuant
to clause (e)) and the Issuer as provided in subsection (b)
above. The Seller (and such transferees and assignees) and the
Issuer shall in no event be required to refund any amounts
distributed pursuant to this Section 5.7(e) to which the Seller
is entitled to hereunder.
(f) The Seller may at any time, without consent of the Series C2002-1
Debtholders, the other Related Specified Creditors, the Issuer or
the Indenture Trustee, sell,
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transfer, convey or assign in any manner its rights to and
interests in the Class D Notes, the Subordinated Reserve Account
Loans or distributions from the Reserve Account, including
interest and other investment earnings thereon; provided, that
the Rating Agency Condition is satisfied.
5.8 PRE-FUNDING ACCOUNT.
(a) On the Closing Date, the Issuer will deposit in the Pre-Funding
Account $30,000,000 from the proceeds of the Initial Class VPN
Loan.
(b) On each Subsequent Transfer Date, the Servicer shall, upon
satisfaction of the conditions set forth in Section 2.5(b) of
this Agreement with respect to such transfer, instruct the
Indenture Trustee in writing to withdraw from the Pre-Funding
Account (i) an amount equal to the Reserve Account Initial
Deposit for such Subsequent Transfer Date (which amount shall be
retained by the Issuer and set-off against the Subordinated
Reserve Account Loan to be made by the Seller to the Issuer on
such date as provided in Section 2.7(b)) and to deposit such
amount in the Reserve Account and (ii) an amount equal to the
excess of (x) the lesser of (A) the aggregate Principal Balance
of the Subsequent Receivables transferred to the Issuer on such
Subsequent Transfer Date and (B) the balance on deposit in the
Pre-Funding Account after giving effect to (i) above on such
Subsequent Transfer Date over (y) the Reserve Account Initial
Deposit for such Subsequent Transfer Date, and to distribute such
amount to or upon the order of the Seller.
(c) If: (i) the Pre-Funded Amount has not been reduced to zero on the
Monthly Payment Date on which the Pre-Funding Period ends (or, if
the Pre-Funding Period does not end on a Monthly Payment Date, on
the first Monthly Payment Date following the end of the
Pre-Funding Period) or (ii) the Pre-Funded Amount has been
reduced to $100,000 or less on any Determination Date, in either
case after giving effect to any reductions in the Pre-Funded
Amount on such date pursuant to paragraph (a), the Servicer shall
instruct the Indenture Trustee to withdraw from the Pre-Funding
Account, in the case of clause (i), on such Monthly Payment Date
or, in the case of clause (ii), on the Monthly Payment Date
immediately succeeding such Determination Date, the amount
remaining at the time in the Pre-Funding Account (such remaining
amount being the "Remaining Pre-Funded Amount") and such amount
shall be deposited to the Note Distribution Account.
5.9 CAPITALIZED INTEREST ACCOUNT
On the Initial Closing Date, the Issuer shall deposit the Capitalized Interest
Account Initial Deposit into the Capitalized Interest Account. On the January
2003 Monthly Payment Date, the Servicer will instruct the Indenture Trustee to
withdraw from the Capitalized Interest Account and deposit into the Collection
Account an amount equal to the Capitalized Interest Amount for that date. If the
amount on deposit in the Capitalized Interest Account on the January 2003
Monthly Payment Date (after giving effect to the withdrawal therefrom of the
Capitalized Interest Amount for that date) is greater than zero, the excess will
be released to the Seller in part payment of the Residual Purchase Price.
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5.10 STATEMENTS TO SERIES C2002-1 DEBTHOLDERS
(a) On each Determination Date, the Servicer shall provide to the
Indenture Trustee (with a copy to the Rating Agencies) a
statement substantially in the form of Exhibit B setting forth at
least the following information as to the Series C2002-1 Debt
Obligations to the extent applicable:
(i) the amount of the distributions allocable to the principal
in respect of the Series C2002-1 Debt Obligations of each
Class;
(ii) the amount of the distributions allocable to the interest
on the Series C2002-1 Debt Obligations of each Class;
(iii) the Pool Balance as of the close of business on the last
day of the preceding Collection Period;
(iv) the aggregate Outstanding Amount for each Class of Series
C2002-1 Debt Obligations and the Note Pool Factor for each
Class of Series C2002-1 Debt Obligations as of such
Monthly Payment Date, in each case, after giving effect to
all payments made on each such Class on such Monthly
Payment Date; (v) the amount of Noteholders' Principal
Carryover Amount for each Class of Series C2002-1 Debt
Obligations for the Monthly Payment Date and the changes
therein, if any, from the preceding payment date, and the
amount of the Noteholders' Interest Carryover Amount for
that Monthly Payment Date and the allocation thereof
between the Classes of Series C2002-1 Debt Obligations and
the changes therein, if any, from the preceding payment
date;
(vi) the amount of the Servicing Fee paid to the Servicer with
respect to the preceding Collection Period;
(vii) the amount of the Administration and Trustee Fees paid to
the Administrator, the Trustee and the Indenture Trustee
in respect of the preceding Collection Period;
(viii) the amount, if any, distributed to the Series C2002-1
Debtholders of each Class and to the other Related
Specified Creditors from amounts on deposit in the Reserve
Account;
(ix) the balance of the Reserve Account and the Accumulation
Account on such Monthly Payment Date (after giving effect
to all changes therein on such Monthly Payment Date);
(x) the amount of the aggregate Realized Losses, if any, for
the related Collection Period;
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(xi) the aggregate Purchase Amounts for Receivables, if any
that were repurchased, purchased or sold in respect of
such Collection Period;
(xii) the aggregate Purchase Amounts for Sold Receivables, if
any, that were sold by the Issuer in such Collection
Period;
(xiii) the BA 1 Month Rate, BA 3 Month Rate and the Interest
Rates for such Monthly Payment Date and each Class of
outstanding Series C2002-1 Debt Obligations; and
(xiv) the aggregate Additional Class VPN Loan Amounts, if any,
for such Monthly Payment Date and all other amounts
payable to the Related Specified Creditors other than the
Series C2002-1 Debtholders on such Monthly Payment Date.
Each amount set forth pursuant to paragraph (i), (ii), (iii),
(iv) and (v) above shall be expressed as a dollar amount per
$10,000 of the original principal balance of the Series C2002-1
Debt Obligations.
(b) The Seller will cause AmeriCredit Corp. to post the information
contained in the monthly statement referred to in paragraph (a)
above at its world wide web site located at ▇▇▇.▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.
5.11 NET DEPOSITS
As an administrative convenience, unless the Servicer is required to remit
collections daily, the Servicer will be permitted to make the deposit of
Collections net of distributions or payments to be made to the Servicer (in its
capacity as Seller or Servicer) with respect to the Collection Period. The
Servicer, however, will account to the Issuer, the Indenture Trustee, Series
C2002-1 Debtholders and other Related Specified Creditors as if all deposits,
distributions and transfers were made individually.
ARTICLE 6
THE SELLER
6.1 REPRESENTATIONS OF SELLER
The Seller makes the following representations on which the Issuer is deemed to
have relied in acquiring the Receivables and on which the Backup Servicer may
rely. The representations speak as of the execution and delivery of this
Agreement and as of the Closing Date with respect to the Initial Receivables and
as of the related Subsequent Transfer Date with respect to the Subsequent
Receivables, and shall survive the sale of the Receivables to the Issuer and the
pledge thereof to the Indenture Trustee pursuant to the Indenture:
(a) Organization and Good Standing. The Seller is duly organized and
validly existing as a corporation in good standing under the laws
of its jurisdiction of incorporation, with the corporate power
and authority to own its properties and to conduct its business
as such properties are currently owned and such business is
38
presently conducted, and had at all relevant times, and has, the
corporate power, authority and legal right to acquire and own
Purchased Assets.
(b) Due Qualification. The Seller is duly qualified to do business as
a foreign or extra-provincial 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 shall require such qualifications.
(c) Power and Authority. The Seller has the power and authority to
execute and deliver this Agreement and to carry out its terms;
the Seller has full power and authority to sell and assign the
property to be sold and assigned to and deposited with the Issuer
and has duly authorized such sale and assignment to the Issuer by
all necessary corporate action; and the execution, delivery and
performance of this Agreement has been duly authorized by the
Seller by all necessary corporate action.
(d) Valid Sale; Binding Obligation. This Agreement effects a valid
sale, assignment and transfer of the Purchased Assets,
enforceable against the Seller and this Agreement and the other
Basic Documents and, when duly executed and delivered by the
Seller, shall constitute legal, valid and binding obligations of
the Seller enforceable in accordance with their terms.
(e) No Violation. The consummation of the transactions contemplated
by this Agreement and the fulfilment of the terms hereof do 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 or both) a default under, the articles of incorporation or
by-laws of the Seller, or any indenture, agreement or other
instrument to which the Seller is a party or by which it shall be
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 or other instrument (other than pursuant to
the Basic Documents); or violate any law or, to the best of the
Seller's knowledge, any order, rule or regulation applicable to
the Seller of any court or of any federal or provincial
regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Seller or its
properties.
(f) No Proceedings. There are no proceedings or investigations
pending or, to the best of the Seller's knowledge, threatened,
before any court, regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over the Seller
or its properties: (i) asserting the invalidity of this
Agreement, any of the other Basic Documents or the Series C2002-1
Debt Obligations, (ii) seeking to prevent the issuance of the
Series C2002-1 Debt Obligations or the consummation of any of the
transactions contemplated by this Agreement or any of the other
Basic Documents, or (iii) seeking any determination or ruling
that could reasonably be expected to materially and adversely
affect the performance by the Seller of its obligations under, or
the validity or enforceability of, this Agreement, the Indenture,
any of the other Basic Document, or the Series C2002-1 Debt
Obligations.
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(g) Chief Executive Office. The chief executive office of the Seller
is located in the Province of Ontario.
(h) No Consents. No consent, approval, authorization or order of any
court or governmental agency or body is required for the
execution, delivery and performance by the Seller of or
compliance by the Seller with this Agreement or the consummation
of the transactions contemplated by this Agreement, other than
those which have been obtained by the Seller.
(i) Not Bulk Sale. The transfer, assignment and conveyance of the
Receivables by the Seller to the Issuer does not constitute a
bulk sale under applicable bulk sales legislation or any similar
statutory provisions in effect in any applicable jurisdiction.
(j) Solvency. The Seller will be solvent at all relevant times prior
to, and will not be rendered insolvent by, the sale of the
Purchased Assets to the Issuer. The Seller is not selling the
Purchased Assets to the Issuer with any intent to hinder, delay
or defraud any of the creditors of the Seller.
6.2 LIABILITY OF SELLER; INDEMNITIES
(a) The Seller shall be liable in accordance herewith only to the
extent of the obligations specifically undertaken by the Seller
under this Agreement.
(b) The Seller shall indemnify, defend and hold harmless the Issuer,
the Trustee, the Indenture Trustee, the Backup Servicer, any
Successor Servicer and the Related Specified Creditors and each
of their respective officers, directors, employees and agents,
from and against (i) any taxes that may at any time be asserted
against any such Person with respect to the sale and conveyance
of the Purchased Assets to the Issuer or the transactions
contemplated in this Agreement and the Basic Documents, and (ii)
any goods and services taxes, sales taxes or other transfer taxes
arising out of (x) the sale and conveyance of the Purchased
Assets to the Issuer or (y) the issuance and original sale of the
Series C2002-1 Debt Obligations, or (z) the servicing of the
Purchased Assets by AmeriCredit Canada, as Servicer, in
accordance with and on the terms of the Agreement including in
each case, any sales, goods and services, gross receipts, general
corporation, tangible personal property, privilege, capital or
license taxes and costs and expenses in defending against the
same but excluding, in the case of (i) and (ii): (x) any federal
or provincial income taxes arising out of fees paid to the
Trustee, Indenture Trustee, the Backup Servicer or any Successor
Servicer, (y) any taxes to which the Trustee, the Indenture
Trustee, the Backup Servicer or a Successor Servicer may
otherwise be subject to, without regard to the transactions
contemplated hereby, and (z) any taxes asserted with respect to
federal, provincial or other income or capital taxes arising out
of the creation, sale, ownership or disposition of the Purchased
Assets or the Related Obligations or payments thereon.
(c) The Seller shall indemnify, defend and hold harmless the Issuer,
the Indenture Trustee, the Backup Servicer and any Successor
Servicer (and their respective
40
officers, directors, employees and agents), from and against any
loss, liability or expense incurred by reason of (i) the Seller's
wilful misfeasance, bad faith or negligence in the performance of
its duties under this Agreement, (ii) the Seller's reckless
disregard of its obligations and duties under this Agreement, or
(iii) the Seller's failure to duly observe or perform in any
material respect its covenants and agreements set forth in this
Agreement.
(d) Indemnification under this Section 6.2 shall survive the
resignation or removal of the Trustee or the Indenture Trustee or
the termination of this Agreement and the Indenture and shall
include reasonable fees and expenses of counsel and 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.
6.3 MERGER OR CONSOLIDATION OF, OR ASSUMPTION OF THE OBLIGATIONS OF, SELLER
Any Person (a) into which the Seller may be amalgamated, merged or consolidated,
(b) that may result from any amalgamation, merger or consolidation to which the
Seller shall be a party, (c) that may succeed to the properties and assets of
the Seller substantially as a whole, or (d) that is (i) an Affiliate of the
Seller, (ii) a successor to the retail finance business and related properties
and assets of AmeriCredit Canada, and (iii) is engaged in the business of
owning, administering and servicing the Receivables or Contracts and receivables
similar to the Receivables and which Person (in any of the foregoing cases)
executes an agreement of assumption to perform every obligation of the Seller
under this Agreement (or is deemed by law to have assumed such obligations),
shall be the successor to the Seller hereunder without the execution or filing
of any further document or any further act by any of the parties to this
Agreement; provided, however, that (1) 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 that, after
notice or lapse of time, or both, would become a Servicer Termination Event
shall have occurred and be continuing, (2) the Seller shall have delivered to
the Issuer, the Backup Servicer and the Indenture Trustee 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, (3) the Rating Agency
Condition shall have been satisfied with respect to such transaction and (4) the
Seller shall have delivered to the Issuer, the Backup Servicer and the Indenture
Trustee an Opinion of Counsel either (A) stating that, in the opinion of such
counsel, all financing statements and amendments thereto have been executed and
filed that are necessary fully to preserve and protect the interest of the
Issuer and Indenture Trustee, respectively, in the Receivables and reciting the
details of such filings, or (B) stating that, in the opinion of such counsel, no
such action shall be necessary to preserve and protect such interests.
Notwithstanding anything herein to the contrary, the execution of the foregoing
agreement of assumption and compliance with clauses (1), (2), (3) and (4) above
shall be conditions to the consummation of the transactions referred to in
clauses (a), (b), (c) or (d) above.
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6.4 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 acting on behalf of
the Issuer or the Indenture Trustee respecting any matters arising hereunder.
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.
6.5 SELLER MAY OWN SERIES C2002-1 DEBT OBLIGATIONS
The Seller and any Affiliate thereof may in its individual or any other capacity
become the owner or pledgee of Series C2002-1 Debt Obligations 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 other Basic Document.
ARTICLE 7
THE SERVICER
7.1 REPRESENTATIONS OF SERVICER
AmeriCredit Canada makes the following representations on which the Issuer is
deemed to have relied in acquiring the Receivables. The representations speak as
of the execution and delivery of the Agreement and as of the Closing Date with
respect to the Initial Receivables and as of the Subsequent Transfer Date with
respect to the Subsequent Receivables and shall survive the sale of the
Receivables to the Issuer and the pledge thereof to the Indenture Trustee
pursuant to the Indenture.
(a) Organization and Good Standing. The Servicer is duly organized
and validly existing as a corporation in good standing under the
laws of its jurisdiction of incorporation, with the corporate
power and authority to own its properties and to conduct its
business as such properties are currently owned and such business
is presently conducted, and had at all relevant times, and has,
the power, authority and legal right to acquire, own, sell and
service the Receivables and to hold the Receivable Files as
custodian.
(b) Due Qualification. The Servicer is duly qualified to do business
as a foreign or extra-provincial 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) shall require such
qualifications.
(c) Power and Authority. The Servicer has the corporate power and
authority to execute and deliver this Agreement and to carry out
its terms; and the execution, delivery and performance of this
Agreement have been duly authorized by the Servicer by all
necessary corporate action.
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(d) Binding Obligation. This Agreement constitutes a legal, valid and
binding obligation of the Servicer enforceable against the
Servicer in accordance with its terms.
(e) No Violation. The consummation of the transactions contemplated
by this Agreement and the fulfilment of the terms hereof 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 or both) a default under, the articles of incorporation or
by-laws of the Servicer, or any indenture, agreement or other
instrument to which the Servicer is a party or by which it shall
be 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 or other instrument (other than this
Agreement); or violate any law or, to the best of the Servicer's
knowledge, any order, rule or regulation applicable to the
Servicer of any court or of any federal or provincial regulatory
body, administrative agency or other governmental instrumentality
having jurisdiction over the Servicer or its properties.
(f) No Consents. No consent, approval, authorization or order of any
court or governmental agency or body is required for the
execution, delivery and performance by the Servicer of or
compliance by the Servicer with this Agreement or the
consummation of the transactions contemplated by this Agreement,
other than those which have been obtained by the Servicer.
(g) No Proceedings. There are no proceedings or investigations
pending, or, to the best of the Servicer's knowledge, threatened,
before any court, regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over the
Servicer or its properties: (i) asserting the invalidity of this
Agreement, any of the other Basic Documents, or the Series
C2002-1 Debt Obligations, (ii) seeking to prevent the issuance of
the Series C2002-1 Debt Obligations or the consummation of any of
the transactions contemplated by this Agreement or any of the
other Basic Documents, or (iii) seeking any determination or
ruling that could reasonably be expected to materially and
adversely affect the performance by the Servicer of its
obligations under, or the validity or enforceability of, this
Agreement, any of the other Basic Documents or the Series C2002-1
Debt Obligations.
7.2 LIABILITY OF SERVICER; INDEMNITIES
(a) The Servicer (in its capacity as such) shall be liable in
accordance herewith only to the extent of the obligations
specifically undertaken by the Servicer under this Agreement.
(b) The Servicer shall defend, indemnify and hold harmless the
Issuer, the Indenture Trustee, the Backup Servicer, the Series
C2002-1 Debtholders, the other Related Specified Creditors and
the Seller and any of their respective officers, directors,
employees and agents from and against any and all costs,
expenses, losses, damages, claims and liabilities, arising out of
or resulting from:
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(i) the use, ownership or operation by the Servicer or any
Affiliate thereof of any of the Financed Vehicles;
(ii) the negligence, wilful misfeasance or bad faith of the
Servicer in the performance of its duties under this
Agreement;
(iii) the reckless disregard of its obligations and duties under
this Agreement; or
(iv) the Servicer's failure to duly observe or perform in any
material respect its covenants and agreements set forth in
this Agreement.
(c) The Servicer shall indemnify, defend and hold harmless the
Issuer, the Backup Servicer and the Indenture Trustee (and their
respective officers, directors, employees and agents) from and
against 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 herein and, in
the case of the Issuer, in the Declaration of Trust contained,
and, in the case of the Indenture Trustee, in the Indenture
contained, except to the extent that such cost, expense, loss,
claim, damage or liability:
(i) shall be due to the wilful misfeasance, bad faith or gross
negligence (except for errors in judgement) of the Issuer,
the Backup Servicer or Indenture Trustee, as applicable;
or
(ii) is a debt, liability or obligation of the Issuer to a
Specified Creditor in respect of a Series C2002-1 Note
Obligation or otherwise (other than pursuant to Sections
7.2(d), (e), or (f)).
(d) The Servicer shall pay any and all taxes levied or assessed upon
all or part of the Related Collateral.
(e) The Servicer shall pay the Indenture Trustee and the Issuer from
time to time reasonable compensation for all services rendered by
the Indenture Trustee under the Indenture or the Issuer under the
Declaration of Trust (which compensation shall not be limited by
any provision of law in regard to the compensation of a trustee
of an express trust).
(f) The Servicer shall, except as otherwise expressly provided in the
Indenture or Declaration of Trust, reimburse the Indenture
Trustee and the Issuer upon its request for all reasonable
expenses, disbursements and advances incurred or made in
accordance with the Indenture or Declaration of Trust
respectively (including the reasonable compensation, expenses and
disbursements of its agents and either in-house counsel or
outside counsel, but not both), except any such expense,
disbursement or advance as may be attributable to the Indenture
Trustee's or Issuer's negligence, bad faith or wilful
misfeasance.
(g) For purposes of this Section, in the event of the termination of
the rights and obligations of Servicer pursuant to Section 8.1 or
a resignation by such Servicer
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pursuant to this Agreement, the Servicer shall be deemed to be
the Servicer pending appointment of a Successor Servicer pursuant
to Section 8.2.
(h) Indemnification under this Section shall survive the resignation
or removal of the Issuer, the Backup Servicer or the Indenture
Trustee or the termination of this Agreement and shall include
reasonable fees and expenses of counsel and expenses of
litigation. If the Servicer shall have made any indemnity
payments pursuant to this Section and the Person to or on behalf
of whom such payments are made thereafter collects any of such
amounts from others, such Person shall promptly repay such
amounts to the Servicer, without interest.
7.3 AMALGAMATION MERGER OR CONSOLIDATION, OR ASSUMPTION OF THE
OBLIGATIONS OF, SERVICER OR BACKUP SERVICER
(a) Any Person (i) into which the Servicer may be amalgamated, merged
or consolidated; (ii) that may result from any amalgamation,
merger or consolidation to which the Servicer shall be a party;
(iii) that may succeed to the properties and assets of the
Servicer substantially as a whole; and (iv) that is (a) an
Affiliate of the Seller, (b) a successor to the retail finance
business and related properties and assets of AmeriCredit Canada,
and (c) is engaged in the business of owning, administering and
servicing the Receivables or Contracts and receivables similar to
the Receivables and which Person (in any of the foregoing
circumstances) executes an agreement of assumption to perform
every obligation of the Servicer hereunder (or is deemed by law
to have assumed such obligations), shall be the successor to the
Servicer under this Agreement without further act on the part of
any of the parties to this Agreement; provided, however, that (1)
immediately after giving effect to such transaction, no Servicer
Termination Event, and no event which, after notice or lapse of
time, or both, would become a Servicer Termination Event shall
have occurred and be continuing, (2) the Servicer shall have
delivered to the Issuer, the Backup Servicer and Indenture
Trustee 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, (3) the
Rating Agency Condition shall have been satisfied with respect to
such transaction; and (4) the Servicer shall have delivered to
the Issuer and Indenture Trustee an Opinion of Counsel either (A)
stating that, in the opinion of such counsel, all financing
statements, financing change statements, continuation statements
and amendments thereto have been executed and filed that are
necessary fully to preserve and protect the interest of the
Issuer or Indenture Trustee, respectively, in the Receivables and
reciting the details of such filings or (B) stating that, in the
opinion of such counsel, no such action shall be necessary to
preserve and protect such interests. Notwithstanding anything
herein to the contrary, the execution of the foregoing agreement
of assumption and compliance with clauses (1), (2), (3) and (4)
above shall be conditions to the consummation of the transactions
referred to in clauses (i), (ii), (iii) or (iv) above.
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(b) Any corporation (i) into which the Backup Servicer may be merged
or consolidated; (ii) resulting from any merger or consolidation
to which the Backup Servicer shall be a party; (iii) which
acquires by conveyance, transfer or lease substantially all of
the assets of the Backup Servicer; or (iv) succeeding to the
business of the Backup Servicer, in any of the foregoing cases
shall execute an agreement of assumption to perform every
obligation of the Backup Servicer under this Agreement and,
whether or not such assumption agreement is executed, shall be
the successor to the Backup Servicer under this Agreement without
the execution or filing of any paper or any further act on the
part of any of the parties to this Agreement, anything in this
Agreement to the contrary notwithstanding; provided, however,
that nothing contained herein shall be deemed to release the
Backup Servicer from any obligation.
7.4 LIMITATION ON LIABILITY OF SERVICER, THE BACKUP SERVICER AND OTHERS
(a) Neither the Servicer, the Backup Servicer nor any of their
respective directors, officers, employees or agents shall be
under any liability to the Issuer, the Indenture Trustee, the
Series C2002-1 Debtholders or the other Related Specified
Creditors, except as provided under this Agreement, for any
action taken or for refraining from the taking of any action
pursuant to this Agreement or for errors in judgement; provided,
however, that this provision shall not protect the Servicer, the
Backup Servicer or any such Person against any liability that
would otherwise be imposed by reason of wilful misfeasance, bad
faith or negligence in the performance of duties or by reason of
reckless disregard of obligations and duties under this
Agreement. The Servicer, the Backup Servicer and any director or
officer or employee or agent of the Servicer or Backup Servicer
may rely in good faith on any document of any kind prima facie
properly executed and submitted by any Person acting on behalf of
the Issuer or the Indenture Trustee respecting any matters
arising hereunder.
(b) Except as provided in this Agreement, the Servicer and the Backup
Servicer shall not be under any obligation to appear in,
prosecute or defend any legal action that shall not be incidental
to its duties to service the Receivables in accordance with this
Agreement, and that in its opinion may involve it in any expense
or liability; provided, however, that the Servicer or the Backup
Servicer may undertake any reasonable action that it may deem
necessary or desirable in respect of this Agreement, the other
Basic Documents and the rights and duties of the parties to this
Agreement, the other Basic Documents and the interests of the
Series C2002-1 Debtholders and other Related Specified Creditors
under this Agreement and the Indenture.
(c) The Backup Servicer shall not be liable for any obligation of the
Servicer contained in this Agreement or for any errors of the
Servicer contained in any computer tape, certificate or other
data or document delivered to the Backup Servicer hereunder or on
which the Backup Servicer must rely in order to perform its
obligations hereunder, and the Indenture Trustee, the Issuer, the
Seller and the Series C2002-1 Debtholders shall look only to the
Servicer to perform such obligations. The Backup Servicer and the
Indenture Trustee shall have no
46
responsibility and shall not be in default hereunder or incur any
liability for any failure, error, malfunction or any delay in
carrying out any of their respective duties under this Agreement
if such failure or delay results from the Backup Servicer acting
in accordance with information prepared or supplied by a Person
other than the Backup Servicer (or contractual agents) or the
failure of any such other Person to prepare or provide such
information. The Backup Servicer shall have no responsibility,
shall not be in default and shall incur no liability for (i) any
act or failure to act of any third party (other than its
contractual agents), including the Servicer, (ii) any inaccuracy
or omission in a notice or communication received by the Backup
Servicer from any third party (other than its contractual
agents), (iii) the invalidity or unenforceability of any
Receivable under applicable law, (iv) the breach or inaccuracy of
any representation or warranty made with respect to any
Receivable, or (v) the acts or omissions of any successor Backup
Servicer.
7.5 DELEGATION OF DUTIES
AmeriCredit Canada, as Servicer, may at any time appoint a sub-servicer (a
"Sub-Servicer") to perform all or any portion of its obligations as Servicer.
AmeriCredit Canada may appoint as a Sub-Servicer and delegate any of its duties
as Servicer to a direct or indirect wholly-owned subsidiary of AmeriCredit Corp.
and the Rating Agencies need not approve any such delegation. The appointment of
any Sub-Servicer, other than an affiliate of AmeriCredit Corp., is subject to
the condition that the Rating Agencies confirm in writing that the appointment
of any Sub-Servicer will not result in the reduction or withdrawal of the
ratings of the Offered Notes. The Servicer may also 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
approval of the Rating Agencies. The Servicer shall remain obligated and be
liable to the Issuer, the Indenture Trustee, the Backup Servicer and the Series
C2002-1 Debtholders for the servicing and administering of the Receivables in
accordance with the Agreement without diminution of those obligations and
liabilities by virtue of the appointment of any Sub-Servicer or the delegation
of the specified duties and to the same extent and under the same terms and
conditions as if the Servicer itself were servicing and administering the
Receivables. The fees and expenses of each Sub-Servicer will be as agreed
between the Servicer and its Sub-Servicer, if any, from time to time and none of
the Issuer, the Trustee, the Indenture Trustee or the Series C2002-1 Debtholders
will have any responsibility therefor.
7.6 SERVICER AND BACKUP SERVICER NOT TO RESIGN
Subject to the provisions of Section 7.3, neither the Servicer nor the Backup
Servicer shall resign from the obligations and duties imposed on it as Servicer
or Backup Servicer under this Agreement except upon determination that the
performance of its duties under this Agreement shall no longer be permissible
under applicable law. Notice of any such determination shall be communicated to
the Issuer and the Indenture Trustee at the earliest practicable time (and, if
such communication is not in writing, shall be confirmed in writing at the
earliest practicable time) and any such determination shall be evidenced by an
Opinion of Counsel to such effect delivered to the Issuer and the Indenture
Trustee concurrently with or promptly after such notice. No resignation of the
Servicer shall become effective until the Backup Servicer or a Successor
47
Servicer shall have assumed the responsibilities and obligations of the Servicer
in accordance with Section 8.2. No resignation of the Backup Servicer shall
become effective until a Person that satisfies the Rating Agency Condition 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,
the Backup Servicer may petition a court for its removal.
7.7 REPAYMENT OF ADVANCES.
If the identity of the Servicer shall change, the predecessor Servicer shall be
entitled to receive, to the extent of available funds, reimbursement for
Liquidity Advances and Maturity Advances pursuant to Section 2.9 in the manner
specified in Section 2.9 with respect to all Liquidity Advances and Maturity
Advances made by such predecessor Servicer.
ARTICLE 8
DEFAULT
8.1 SERVICER TERMINATION EVENT
If any one of the following events (a "Servicer Termination Event") shall occur:
(a) any failure by the Servicer to deliver to the Issuer or the
Indenture Trustee for distribution to the Series C2002-1
Debtholders any proceeds or payment required to be so delivered
that continues unremedied for a period of three Business Days
(one Business Day with respect to payment of Purchase Amounts)
after the earlier of written notice of such failure is received
by the Servicer from the Issuer or the Indenture Trustee or after
discovery of such failure by a Responsible Officer of the
Servicer;
(b) failure by the Servicer to deliver to the Indenture Trustee the
Servicer's Certificate by 12:00 p.m. (Toronto time) on any
Determination Date;
(c) any failure by the Servicer duly to observe or to perform in any
material respect any other covenants or agreements of the
Servicer set forth in this Agreement or any other Basic Document,
which failure shall (i) materially and adversely affect the
rights of the Issuer or the Series C2002-1 Debtholders and the
other Related Specified Creditors (determined without regard to
the availability of funds from any credit enhancement in the form
of the over-collateralization represented by the Class D Notes or
in the form of the Reserve Account) and (ii) continues unremedied
for a period of 30 days after the earlier of knowledge thereof by
the Servicer or the date on which written notice of such failure,
requiring the same to be remedied, shall have been given (A) to
the Servicer by the Issuer or the Indenture Trustee or (B) to the
Servicer and to the Issuer by the holders of not less than 25% of
the Outstanding Amount of the Series C2002-1 Debt Obligations;
(d) an Insolvency Event occurs with respect to the Servicer;
48
(e) 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 Issuer or the
Series C2002-1 Debtholders and the other Related Specified
Creditors (determined without regard to the availability of funds
from any credit enhancement in the form of the
over-collateralization represented by the Class D Notes or in the
form of the Reserve Account) and, within 30 days after the
earlier of knowledge thereof by the Servicer or after written
notice thereof shall have been given to the Servicer by the
Indenture Trustee or by the holders of the at least 25% of the
outstanding principal amount of the Series C2002-1 Debt
Obligations and the circumstances or condition in respect of
which such representation, warranty or statement was incorrect
shall not have been eliminated or otherwise cure; or
(f) if AmeriCredit Canada or an Affiliate is the Servicer, such
Servicer shall cease to be a direct or indirect wholly owned
subsidiary of AmeriCredit Corp.,
then, and in each and every case, so long as the Servicer Termination Event
shall not have been remedied, either the Indenture Trustee or the holders of not
less than 66-2/3% of the Outstanding Amount of the Series C2002-1 Debt
Obligations, by notice then given in writing to the Servicer (and to the
Indenture Trustee and Issuer if given by the Series C2002-1 Debtholders) may
terminate all the rights and obligations (other than the obligations set forth
in Section 7.2 hereof) of the Servicer under this Agreement. On or after the
receipt by the Servicer of such written notice, all authority and power of the
Servicer under this Agreement, whether with respect to the Series C2002-1 Debt
Obligations or the Receivables or otherwise, shall, without further action, pass
to and be vested in the Backup Servicer or such Successor Servicer as may be
appointed under Section 8.2; and, without limitation, the Backup Servicer or the
Successor Servicer is hereby authorized and empowered to execute and deliver, on
behalf of the predecessor 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 related documents, or otherwise. The predecessor Servicer shall co-operate
with the Backup Servicer or the Successor Servicer, the Indenture Trustee and
the Issuer in effecting the termination of the responsibilities and rights of
the predecessor Servicer under this Agreement, including the transfer to the
Backup Servicer or the Successor Servicer for administration by it of (i) all
cash amounts that shall at the time be held by the predecessor Servicer for
deposit, or shall thereafter be received by it with respect to a Receivable and
(ii) 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 to service the
Receivables. All reasonable costs and expenses (including fees and disbursements
of counsel) incurred in connection with transferring the Receivable Files,
Monthly Records and Collection Records to the Backup Servicer or the Successor
Servicer and amending this Agreement to reflect such succession as Servicer
pursuant to this Section shall be paid by the predecessor Servicer. Upon receipt
of notice of the occurrence of a Servicer Termination Event, the Issuer shall
give notice thereof to the Rating Agencies.
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8.2 APPOINTMENT OF SUCCESSOR
(a) On and after the time the Servicer receives a notice of
termination pursuant to Section 8.1(a) or upon the resignation of
the Servicer pursuant to Section 7.6, the Backup 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 Indenture Trustee and such successor
Servicer (the "Successor Servicer") 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 termination under
Section 8.1(a) upon the occurrence of any Servicer Termination
Event applicable to it as Servicer.
(b) If the Backup Servicer shall be legally unable or unwilling to
act as Servicer, the Backup Servicer, the Indenture Trustee or
the holders of not less than a majority of the Outstanding Amount
of the Series C2002-1 Debt Obligations may petition a court of
competent jurisdiction to appoint any Eligible Servicer as
Successor 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
7.6, no provision of this Agreement shall be construed as
relieving the Backup Servicer of its obligation to succeed as
Successor Servicer upon the termination of the Servicer pursuant
to Section 8.1(a) , or upon the resignation of the Servicer
pursuant to Section 7.6. If upon the termination of the Servicer
pursuant to Section 8.1(a) or the resignation of the Servicer
pursuant to Section 7.6, the Indenture Trustee 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 the Servicing Fee and
such other compensation as described in Section 4.8 hereof. 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
Indenture Trustee or the holders of not less than a majority of
the Outstanding Amount of the Series C2002-1 Debt Obligations and
such Successor Servicer may agree on reasonable additional
compensation to be paid to such Successor Servicer by the Backup
Servicer, which additional compensation shall be paid by such
breaching Backup Servicer in its individual capacity and solely
out of its own funds; provided, however, it being understood and
agreed that the Indenture Trustee shall give prior notice to the
Backup Servicer with respect to the appointment of such Successor
Servicer and the payment of additional compensation, if any. If
any Successor Servicer is appointed for any reason other than the
Backup Servicer's refusal to act as Servicer although legally
able to do so, the Backup Servicer shall not be liable for any
Servicing Fee, additional
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compensation or other amounts to be paid to such Successor
Servicer in connection with its assumption and performance of the
servicing duties described herein.
8.3 NOTIFICATION TO SERIES C2002-1 DEBTHOLDERS
Upon any termination of, or appointment of a successor to, the Servicer pursuant
to this Article 8, the Issuer shall give prompt written notice thereof to Series
C2002-1 Debtholders, the other Related Specified Creditors and the Rating
Agencies.
8.4 WAIVER OF PAST DEFAULTS
The Indenture Trustee or the holders of not less than a majority of the
Outstanding Amount of the Series C2002-1 Debt Obligations may, on behalf of all
Series C2002-1 Debtholders, waive in writing any default by the Servicer in the
performance of its obligations hereunder and its consequences. Upon any such
waiver of a past default, if such waiver so provides, such default shall cease
to exist, and any Servicer Termination Event arising therefrom shall be deemed
to have been remedied for every purpose of this Agreement. No such waiver shall
extend to any subsequent or other default or impair any right consequent
thereto.
ARTICLE 9
TERMINATION
9.1 OPTIONAL PURCHASE OF ALL RECEIVABLES
(a) On any Monthly Payment Date for which the Pool Balance, as of the
last day of the Collection Period ended immediately prior to such
Monthly Payment Date, is 10% or less of the Original Pool
Balance, the Servicer and the Seller each shall have the option
to purchase all of the Related Collateral, other than the Series
Accounts, as of the first day of the Collection Period
immediately preceding such Monthly Payment Date, for a purchase
price (the "Optional Purchase Price") equal to the aggregate
Purchase Amount for the Receivables plus the appraised value of
any such other Related Collateral, such value to be determined by
an appraiser mutually agreed upon by the Servicer, the Issuer and
the Indenture Trustee; provided, however, that the Servicer or
the Seller shall not be entitled to exercise such option unless,
upon the exercise thereof as hereinafter provided, the Issuer
shall have available funds sufficient to pay the Redemption Price
of the Redeemable Debt Obligations to be redeemed on the
Redemption Date therefor and to pay all accrued and unpaid
Additional Class VPN Loan Amounts due and payable and all amounts
under the Swap Agreements on such Redemption Date. To exercise
such option, the Servicer or the Seller shall (i) give the Issuer
and the Indenture Trustee notice of the exercise of such option
not less than 10 days prior to the Monthly Payment Date on which
such option is to be exercised and (ii) deposit in the Collection
Account pursuant to Section 5.5 on such Monthly Payment Date an
amount equal to the aggregate Purchase Amount for the Receivables
(including Liquidated Receivables) plus the appraised value of
any such other Related Collateral and shall succeed to all
interests in, to and under the Related Collateral, other than the
Series Accounts.
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9.2 EVENT OF DEFAULT SALE.
Upon any sale or other disposition of the Related Collateral pursuant to Section
8.2 of the Indenture (an "Event of Default Sale"), the Servicer shall instruct
the Indenture Trustee to deposit the proceeds of such disposition (the "Event of
Default Proceeds") into the Collection Account.
ARTICLE 10
MISCELLANEOUS PROVISIONS
10.1 AMENDMENT
The Agreement may be amended from time to time by a written amendment duly
executed and delivered by the Seller, the Servicer, the Backup Servicer and the
Issuer, with the written consent of the Indenture Trustee, but without the
consent of any of the Series C2002-1 Debtholders or other Related Specified
Creditors, to cure any ambiguity, to correct or supplement any provisions in
this Agreement or for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions in this Agreement or of modifying in
any manner the rights of the Series C2002-1 Debtholders or other Related
Specified Creditors; provided, however, that such action shall not, as evidenced
by an Opinion of Counsel delivered to the Issuer and the Indenture Trustee,
adversely affect in any material respect the interests of any Series C2002-1
Debtholders or other Related Specified Creditor.
This Agreement may also be amended from time to time by the Seller, the
Servicer, the Backup Servicer and the Issuer, with the written consent of the
Indenture Trustee, but without the consent of any of the Series C2002-1
Debtholders or other Related Specified Creditors, to: (x) replace the Reserve
Account with another form of credit enhancement as long as the Rating Agency
Condition is satisfied with respect thereto and the Class VPN Lenders consent
thereto, such consent not to be unreasonably withheld or (y) add credit
enhancement for the benefit of any Class of Series C2002-1 Debt Obligations.
This Agreement may also be amended from time to time by the Seller, the
Servicer, the Backup Servicer and the Issuer, with the written consent of (a)
the Indenture Trustee, and (b) Series C2002-1 Debtholders or other Related
Specified Creditors holding Series C2002-1 Debt Obligations evidencing not less
than a majority of the Outstanding Amount 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 Series C2002-1
Debtholders or other Related Specified Creditors; 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 Series
C2002-1 Debtholders or other Related Specified Creditors or (b) reduce the
aforesaid percentage of the Series C2002-1 Debt Obligations that are required to
consent to any such amendment, in the case of (a) or (b), without the consent of
the holders of all the outstanding Series C2002-1 Debt Obligations or (c)
adversely affect the interests of any other Related Specified Creditor without
the consent of that affected Related Specified Creditor.
Promptly after the execution of any such amendment or consent (or, in the case
of the Rating Agencies, 10 days prior thereto), the Issuer shall furnish written
notification of the substance of such amendment or consent to the Indenture
Trustee and each of the Rating Agencies.
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It shall not be necessary for the consent of the Series C2002-1 Debtholders or
other Related Specified Creditors 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.
Prior to the execution of any amendment to this Agreement, the Issuer and the
Indenture Trustee shall be entitled to receive and rely upon: (i) an Opinion of
Counsel stating that the execution of such amendment is authorized or permitted
by this Agreement and that all conditions precedent to such execution and
delivery by the Issuer and the Indenture Trustee have been satisfied and (ii)
the Opinion of Counsel referred to in Section 10.2(i)(i). The Issuer and the
Indenture Trustee may, but shall not be obligated to, enter into any such
amendment that affects the Issuer's or the Indenture Trustee's, as applicable,
own rights, duties or immunities under this Agreement or otherwise.
10.2 PROTECTION OF TITLE TO RECEIVABLES AND THE RELATED COLLATERAL.
(a) Subject to the last sentence of this Section 10.2(a), the Seller
and the Servicer shall execute and file such financing
statements, Forms RG, assignments and other documents and cause
to be executed, delivered and filed such financing statements,
financing change statements, Forms UCC-1 or other statements,
assignments and other documents (collectively, "Financing
Statements") all at such times, in such manner and in such places
as may be required by any applicable PPSA to fully preserve,
maintain, and protect the right, title and interest of the Issuer
and the interests of the Indenture Trustee in the Receivables,
the other property sold hereunder, the Related Collateral and in
the proceeds thereof. The Seller shall deliver (or cause to be
delivered) to the Issuer and Indenture Trustee duplicate
registered copies of, or filing receipts for, any document filed
as provided above, as soon as available following such filing.
The Issuer and the Indenture Trustee shall co-operate fully with
the Seller and the Servicer in connection with the obligations
set forth above and will execute any and all documents reasonably
required to fulfil the intent of this paragraph.
(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 filed by the Seller or the
Servicer in accordance with paragraph (a) above misleading or
ineffective within the meaning of any PPSA, unless it shall have
given the Issuer and Indenture Trustee at least five days' prior
written notice thereof and shall have promptly filed appropriate
Financing Statements amending or validating previously filed
Financing Statements.
(c) Each of the Seller and the Servicer shall give the Issuer and the
Indenture Trustee at least 60 days' prior written notice of any
relocation of its chief executive office if, as a result of such
relocation, the applicable provisions of the PPSA would require
the filing of any amendment of any previously filed Financing
Statement or of any new Financing Statement and shall promptly
file any such amendment or Financing Statement.
53
(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, the Servicer's master computer records (including
any backup archives) that refer to a Receivable shall indicate
clearly the interest of the Issuer and the Indenture Trustee in
such Receivable and that such Receivable is owned by the Issuer
and has been pledged to the Indenture Trustee. Indication of the
Issuer's and the Indenture Trustee's interest in a Receivable may
be deleted from or modified on the Servicer's computer systems
when, and only when, the related Receivable shall have been paid
in full, repurchased by the Seller or purchased by the Servicer
pursuant to the terms of this Agreement.
(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 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 Issuer and has been pledged to the Indenture
Trustee.
(g) The Seller 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 favour of the Indenture Trustee for the benefit of the
Series C2002-1 Debtholders and the restrictions on
transferability imposed by this Agreement or (ii) sign or file
under the PPSA of any jurisdiction any financing statement which
names the Seller 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 interests of
the Issuer or the rights and preserving the Lien of the Indenture
Trustee, for the benefit of the Series C2002-1 Debtholders and
the other Related Specified Creditors.
(h) The Servicer shall permit the Indenture Trustee and its agents at
any time during normal business hours to inspect, audit and make
copies of and abstracts from the Servicer's records regarding any
Receivable provided, however that nothing in this Section 10.2
shall affect the obligation of the Servicer to observe any
applicable law prohibiting disclosure of information regarding
the Obligors, and the failure of the Servicer to provide access
to information as a result of such obligation shall not
constitute a breach of this Section.
54
(i) Upon request, the Servicer shall furnish to the Issuer or to the
Indenture Trustee, within five Business Days, a list of all
Receivables (by contract number and name of Obligor) then held as
part of the Related Collateral, 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 Issuer.
(j) The Servicer shall deliver to the Issuer and the Indenture
Trustee:
(i) promptly after the execution and delivery of each
amendment hereto, an Opinion of Counsel either: (A)
stating that, in the opinion of such counsel, all
Financing Statements have been executed and filed that are
necessary fully to preserve and protect the interest of
the Issuer and the Indenture Trustee in the Receivables
(except as otherwise contemplated by the last sentence of
Section 10.2(a)), and reciting the details of such filings
or referring to prior Opinions of Counsel in which such
details are given, or (B) stating that, in the opinion of
such counsel, no such action shall be necessary to
preserve and protect such interest; and
(ii) within 90 days after the beginning of each calendar year
beginning with the first calendar year beginning more than
three months after the Initial Cut-Off Date, an Opinion of
Counsel, dated as of a date during such 90-day period,
either: (A) stating that, in the opinion of such counsel,
all Financing Statements have been executed and filed that
are necessary fully to preserve and protect the interest
of the Issuer and the Indenture Trustee in the Receivables
(except as otherwise contemplated by the last sentence of
Section 10.2(a)), and reciting the details of such filings
or referring to prior Opinions of Counsel in which such
details are given, or (B) stating that, in the opinion of
such counsel, no such action shall be necessary to
preserve and protect such interest.
Each Opinion of Counsel referred to in clause (i)(i) or (i)(ii)
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.
10.3 NOTICES
All demands, notices, directions, instructions and communications upon or to the
Seller, the Servicer, the Issuer, the Indenture Trustee or any Rating Agency
under this Agreement shall be in writing, personally delivered or mailed by
certified mail, return receipt requested, or sent by facsimile or other similar
electronic communication and shall be deemed to have been duly given upon
receipt, or in the case of any facsimile or other similar electronic
communication, upon receipt of confirmation of successful transmission (a) in
the case of the Seller, to AmeriCredit Financial Services of Canada Ltd., ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇, Attention of Executive
Vice-President and Treasurer, (b) in the case of the Servicer, to AmeriCredit
Financial Services of Canada Ltd., ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇, ▇▇▇▇▇; Attention of Executive Vice-President and Treasurer (c) in the
case of the Issuer at the Corporate Trust Office of the Trustee, (d) in the case
of the Indenture Trustee, at the
55
Corporate Trust Office of the Indenture Trustee, (e) in the case of the Backup
Servicer, to Bank One, NA, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
Attention of Global Trust Corporate Servicers (f) in the case of DBRS, to
Dominion Bond Rating Service Limited, Suite 1304, Sun Life Centre, West Tower,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇, Attention of President
(facsimile (▇▇▇) ▇▇▇-▇▇▇▇); (g) in the case of Standard & Poor's, to Standard &
Poor's Ratings Services, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇ Attention: Asset Backed
Surveillance Department, and (h) in the case of Moody's, to ▇▇▇▇▇'▇ Investor
Service, Inc., ABS Monitoring Department, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇▇▇ or, as to each of the foregoing, at such other address as shall be
designated by written notice to the other parties. Any notice required or
permitted to be mailed to a Noteholder shall be given by first class mail,
postage prepaid, at the address of such Holder as shown in the applicable Note
Register. Any notice so mailed within the time prescribed in this Agreement
shall be conclusively presumed to have been duly given, whether or not the
Noteholder shall receive such notice. Any notice required or permitted to be
mailed to any other Related Specified Creditor shall be given in any manner
permitted by the related Basic Document.
10.4 ASSIGNMENT
Notwithstanding anything to the contrary contained herein, except as provided in
Sections 6.3 and 7.3 and as provided in the provisions of this Agreement
concerning the resignation of the Servicer, this Agreement may not be assigned
by the Seller or the Servicer.
10.5 LIMITATIONS ON RIGHTS OF OTHERS
The provisions of this Agreement are solely for the benefit of the Seller, the
Servicer, the Issuer, the Indenture Trustee, the Backup Servicer, the Series
C2002-1 Debtholders and the other Related Specified Creditors, and 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 Related
Collateral or under or in respect of this Agreement or any covenants, conditions
or provisions contained herein.
10.6 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.
10.7 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.
10.8 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.
56
10.9 GOVERNING LAW
This Agreement shall be construed in accordance with the laws of the Province of
Ontario, 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 and each of the parties hereby attorns to the
non-exclusive jurisdiction of the courts of the Province of Ontario.
10.10 ASSIGNMENT TO INDENTURE TRUSTEE
The Seller and the Servicer hereby acknowledge and consent to any mortgage,
pledge, assignment and grant of a security interest by the Issuer to the
Indenture Trustee pursuant to the Indenture for the benefit of the Series
C2002-1 Debtholders and the other Related Specified Creditors of all right,
title and interest of the Issuer in, to and under the Receivables and this
Agreement (including the benefit of all covenants, agreements and indemnities of
the Seller or Servicer made or contained herein) and/or the assignment of any or
all of the Issuer's rights and obligations under this Agreement (including the
benefit of all covenants, agreements and indemnities of the Seller or Servicer
made or contained herein) to the Indenture Trustee, and agrees that the
Indenture Trustee may enforce any right or remedy of the Issuer hereunder for
the benefit of the Related Specified Creditors and enforcement of a right or
remedy hereunder by the Indenture Trustee shall have the same force and effect
as if the right or remedy had been enforced or executed by the Issuer.
10.11 NON-PETITION COVENANTS
Notwithstanding any prior termination of this Agreement, the Servicer, the
Backup Servicer and the Seller shall not, prior to the date that is one year and
one day after the termination of the Issuer, with respect to the Issuer,
acquiesce, petition or otherwise invoke or cause the Issuer to invoke the
process of any court or governmental authority for the purpose of commencing or
sustaining an application, case or proceeding by or against the Issuer under any
applicable bankruptcy, insolvency or similar law or for the appointment of a
receiver, interim receiver, receiver and manager, 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. The foregoing shall not limit the right of the
Servicer, the Backup Servicer and the Seller to file any claim in or otherwise
take any action with respect to any such insolvency proceeding that was
instituted against the Issuer by any Person other than the Servicer, the Backup
Servicer or the Seller.
10.12 LIMITATION OF LIABILITY OF ISSUER AND INDENTURE TRUSTEE
(a) Notwithstanding anything contained herein to the contrary, this
Agreement has been executed by CIBC Mellon Trust Company, not in
its individual capacity but solely in its capacity as Issuer, and
in no event shall CIBC Mellon Trust Company, in its individual
capacity or, except as expressly provided in the Declaration of
Trust, any beneficial owner of the Issuer 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 Related
Collateral; provided, however, that nothing contained in this
Section 10.12(a) shall relieve the Trustee from any liability for
its own negligence or wilful
57
misconduct or the negligence or wilful misconduct of its
officers, representatives, employees or agents.
(b) Notwithstanding anything contained herein to the contrary, this
Agreement has been acknowledged and accepted by BNY Trust Company
of Canada, not in its individual capacity but solely as Indenture
Trustee, and in no event shall BNY Trust Company of Canada have
any liability for the representations, warranties, covenants,
agreements or other obligations of the Indenture Trustee
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 Related Collateral.
58
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their respective officers as of the day and year first above
written.
AMERICREDIT FINANCIAL SERVICES
OF CANADA LTD., as Seller and Servicer
By:
--------------------------------------
Name:
Title:
CIBC MELLON TRUST COMPANY in its
capacity as trustee of AMERICREDIT
CANADA AUTOMOBILE RECEIVABLES TRUST,
as Issuer, by its Administrator
AMERICREDIT FINANCIAL SERVICES
OF CANADA LTD.
By:
--------------------------------------
Name:
Title:
By:
--------------------------------------
Name:
Title:
BANK ONE, NA
By:
--------------------------------------
Name:
Title:
Acknowledged and accepted as of the 15th day of November, 2002.
BNY TRUST COMPANY OF CANADA, as
Indenture Trustee
By:
--------------------------------------
Name:
Title:
EXHIBIT "A"
FORM OF ASSIGNMENT OF RECEIVABLES
ASSIGNMENT
THIS ASSIGNMENT is made as of November ., 2002 by AMERICREDIT FINANCIAL SERVICES
OF CANADA LTD., a Canadian corporation (the "SELLER"), as Seller and Servicer,
(the "Seller") in favour of CIBC MELLON TRUST COMPANY, in its capacity as
trustee of AmeriCredit Canada Automobile Receivables Trust (in such capacity,
the "ISSUER") pursuant to, in accordance with and subject to the Sale and
Servicing Agreement dated as of November 15, 2002 between the Seller, the Issuer
and Bank One, NA (as amended, restated, supplemented or otherwise modified, the
"SALE AND SERVICING AGREEMENT").
WHEREAS the Seller wishes to transfer certain specific, identified existing and
future receivables and certain related assets to the Issuer and the Issuer is
willing to accept such transfer;
AND WHEREAS capitalized terms used in this Assignment shall have the respective
meanings specified in Section 5;
NOW THEREFORE THIS ASSIGNMENT WITNESSES that, in consideration of the sum of
$2.00 in the lawful currency of Canada now paid by the Issuer to the Seller and
for other good and valuable consideration (the receipt and sufficiency of which
are hereby acknowledged by the Seller):
1. The Seller hereby:
(a) sells, assigns, transfers, sets over and otherwise conveys unto
the Issuer, without recourse, all of its right, title and
interest in and to:
(i) the Initial Receivables, including all documents
constituting chattel paper included therewith, and all
obligations of the Obligors thereunder including all
moneys paid thereunder after the Initial Cut-Off Date;
(ii) the security interests in the Financed Vehicles granted by
Obligors pursuant to the Initial Receivables and any other
interest of the Seller in the Financed Vehicles;
(iii) any proceeds with respect to the Initial Receivables from
claims on insurance policies covering Financed Vehicles or
Obligors;
(iv) any proceeds from recourse to Dealers with respect to the
Initial Receivables;
(v) any rights under Service Contracts relating to the
Financed Vehicles;
(vi) the related Receivables Files; and
(vii) the proceeds of any and all of the foregoing; and
- 2 -
(b) sells, transfers, assign, sets over and otherwise conveys to the
Issuer, without recourse, all of its right, title and interest in
and to:
(i) the Subsequent Receivables listed on the supplement and
amendment to the Schedule of Receivables delivered by the
Seller to the Issuer on the related Subsequent Transfer
Date including all documents constituting chattel paper
included therewith, and all obligations of the Obligors
thereunder including all moneys paid thereunder after the
related Cut-Off Date;
(ii) the security interests in the Financed Vehicle granted by
Obligors pursuant to such Subsequent Receivables and any
other interest of the Seller in such Financed Vehicle;
(iii) any proceeds with respect to such Subsequent Receivables
from claims on insurance policies covering Financed
Vehicle or Obligors;
(iv) any proceeds from recourse to Dealers with respect to such
Subsequent Receivables;
(v) any rights under Service Contracts relating to the
Financed Vehicles
(vi) the related Receivables Files; and
(vii) the proceeds of any and all of the foregoing.
2. The foregoing sale does not constitute and is not intended to result in
any assumption by the Issuer of any obligation of the undersigned to
the Obligors, insurers or any other person in connection with the
Receivables, the Receivables Files, any insurance policies or any
agreement or instrument relating to any of them.
3. This Assignment is made pursuant to and upon the representations,
warranties and agreements on the part of the undersigned contained in
the Sale and Servicing Agreement and is to be governed in all respects
by the Sale and Servicing Agreement.
4. In addition, the Seller hereby represents and warrants with respect to
the Initial Receivables as of the Closing Date and with respect to the
Subsequent Receivables as of the applicable Subsequent Transfer Date
that:
(a) notwithstanding anything to the contrary contained herein, (i)
all of such Receivables are Retail Instalment Contracts, and (ii)
all of the Financed Vehicles securing such Receivables are
automobiles, light-duty trucks, vans or mini-vans;
(b) the Receivables owing by each Obligor on each such date
constitute all of the Eligible Receivables owing by such Obligor
to the Seller as of the applicable Cut-Off Date and owned by
Seller on the Closing Date or applicable Subsequent Transfer
Date.
- 3 -
5. Capitalized terms used herein and not otherwise defined shall have the
meanings assigned to them in the Sale and Servicing Agreement and the
following terms shall have the following meanings:
"AmeriCredit Canada" means AmeriCredit Financial Services of Canada Ltd., and
its successors and assigns.
"Business Day" means any day other than a Saturday, a Sunday or a day on which
banking institutions or trust companies in Toronto, Ontario and Fort Worth,
Texas are authorized or obligated by law, regulation or executive order to
remain closed.
"Closing Date" means November 22, 2002, or such other date as the Seller, the
Issuer and the Underwriter shall agree.
"Contract" means a motor vehicle retail instalment sales contract.
"Cut-Off Date" means with respect to the Initial Receivables, the Initial
Cut-Off Date, and with respect to Subsequent Receivables, the Subsequent Cut-Off
Date determined by the Seller with respect to such Subsequent Receivables.
"Dealer" means the dealer who sold a Financed Vehicle and who originated and
assigned the respective Receivable to the Seller under a Dealer Agreement or a
Dealer Assignment.
"Dealer Agreement" means the agreement between the applicable Dealer and the
Seller which governs the terms of sales of Receivables from that Dealer to the
Seller.
"Dealer Assignment" means, with respect to a Receivable, the executed assignment
conveying such Receivable to the Seller.
"Eligible Receivable" means a Contract, as of the related Cut-Off Date:
(a) which had an initial principal balance of not more than $100,000
and not less than $250;
(b) which had an annual percentage rate of at least 7% and no more
than 33%;
(c) which was not more than 60 days overdue;
(d) which has a remaining term to maturity of not more than 72
months;
(e) which had an original term of not more than 72 months;
(f) which was not in a repossessed status and the related Obligor was
not the subject of any voluntary or involuntary bankruptcy
proceeding;
(g) which is denominated and payable in Canadian dollars; and
(h) which is due from an Obligor that has a billing address located
in Canada.
- 4 -
"Financed Vehicles" means property, including an automobile, light-duty truck,
van or mini-van, together with all accessions thereto, securing an Obligor's
indebtedness under the respective Receivable.
"Initial Cut-Off Date" means November 15, 2002.
"Initial Receivables" means any and all Contracts listed on the Schedule of
Receivables (which Schedule may be in the form of microfiche) on the Closing
Date.
"Obligor" on a Receivable means the purchaser or co-purchasers of the related
Financed Vehicle and any other Person who owes payments under the Receivable.
"PPSA" means (a) the personal property security legislation, as amended,
supplemented or replaced from time to time, as in effect in each Province of
Canada (other than Quebec) and (b) the Civil Code of Quebec, as amended,
supplemented or replaced from time to time, as in effect in Quebec.
"Receivables" means the Contracts listed on the Schedule of Receivables (which
Schedule may be in the form of a microfiche).
"Receivables Files" means the documents specified in Section 3.3 of the Sale and
Servicing Agreement.
"Retail Instalment Contract" means a fixed rate retail instalment sale contract
secured by a Financed Vehicle.
"Sale and Servicing Agreement" means the Sale and Servicing Agreement, dated as
of November 15, 2002, among the Issuer, the Seller, the Servicer and Bank One,
NA, as the same may be amended, restated, supplemented or otherwise modified
from time to time.
"Schedule of Receivables" means the listing of the Receivables delivered by the
Seller to the Issuer on the Closing Date pursuant to the Sale and Servicing
Agreement and this Assignment with respect to the Initial Receivables to be
transferred, assigned, set over and conveyed by the Seller to the Issuer on the
Closing Date attached as Schedule A to the Assignment, as supplemented and
amended as of each Subsequent Transfer Date by each Subsequent Transfer
Amendment to reflect the sale to the Issuer of Subsequent Receivables.
"Seller" means AmeriCredit Canada, as the seller of the Receivables, and each
successor to AmeriCredit Canada (in the same capacity) pursuant to the Sale and
Servicing Agreement.
"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 Canada, as the Servicer of the Receivables, and
each successor to AmeriCredit Canada (in the same capacity) pursuant to the Sale
and Servicing Agreement.
"Subsequent Cut-Off Date" means, with respect to any Subsequent Receivables, the
close of business on the last day of the calendar month immediately preceding
the related Subsequent Transfer Date.
- 5 -
"Subsequent Receivables" means any and all Receivables transferred to the Issuer
pursuant to Section 1(b) and listed on a supplement and amendment to the
Schedule of Receivables delivered by the Seller to the Issuer on such Subsequent
Transfer Date pursuant to a written agreement between the Seller and the Issuer
with respect to the Subsequent Receivables to be transferred, assigned, set over
and conveyed by the Seller to the Issuer on such Subsequent Transfer Date.
"Subsequent Transfer Amendment" means a supplement and amendment to the Schedule
of Receivables executed and delivered by the Seller to the Issuer on a
Subsequent Transfer Date.
"Subsequent Transfer Date" means each Business Day during the period from and
including the Closing Date to and including the January 6, 2003 on which
Subsequent Receivables are to be transferred to the Issuer and a Subsequent
Transfer Amendment to the Schedule of Receivables is executed and delivered by
the Seller to the Issuer with respect to the Subsequent Receivables to be
transferred, assigned, set over and conveyed by the Seller to the Issuer on such
date.
"Underwriter" means ▇▇▇▇▇▇▇ ▇▇▇▇▇ Canada Inc.
IN WITNESS WHEREOF, the undersigned has caused this Assignment to be
duly executed as of November [o], 2002.
AMERICREDIT FINANCIAL SERVICES
OF CANADA LTD.
By:
--------------------------------------
Name:
Title:
EXHIBIT A-1
SUBSEQUENT TRANSFER AMENDMENT #__
This Subsequent Transfer #__ and the listing of Receivables attached hereto is a
supplement and amendment to the Schedule of Receivables executed and delivered
by the undersigned, as Seller, to CIBC MELLON TRUST COMPANY, in its capacity as
trustee of AmeriCredit Canada Automobile Receivables Trust (in such capacity,
the "ISSUER") on the Closing Date pursuant to, in accordance with and subject to
the Sale and Servicing Agreement dated as of November 15, 2002 (as amended,
restated, supplemented or otherwise modified, the "SALE AND SERVICING
AGREEMENT") between the undersigned, as Seller and Servicer, and the Issuer, as
purchaser, and Bank One, NA and the Assignment dated November [.] , 2002 between
the Seller and the Issuer (the "Assignment").
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, _______________, 2002.
"Subsequent Transfer Date" shall mean, with respect to the
Subsequent Receivables conveyed hereby, _____________, 2002.
2. Schedule of Receivables. Annexed hereto is a supplement to the
Sale and Servicing Agreement and the Assignment listing the Receivables that
constitute the Subsequent Receivables to be conveyed pursuant to the Sale and
Servicing Agreement and the Assignment on the Subsequent Transfer Date.
3. Representations and Warranties of the Seller. The Seller hereby
represents and warrants to the Issuer as of the Subsequent Transfer Date that:
(a) Schedule of Representations. The representations and warranties
of the Seller set forth in the Sale and Servicing Agreement (including those
made in the Schedule of Representations attached as Schedule A thereto with
respect to the Subsequent Receivables) are true and correct.
(b) 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 Subsequent Transfer Amendment # , the Sale and
Servicing Agreement and the Assignment as of the Subsequent Cutoff Date is
$____________.
(c) Sale and Servicing Agreement Conditions. Each of the conditions
set forth in Section 2.5(b) to the Sale and Servicing Agreement has been
satisfied.
4. Ratification of Agreement. As supplemented by this Subsequent
Transfer Amendment #__, each of the Sale and Servicing Agreement and the
Assignment is in all respects ratified and confirmed and the Sale and Servicing
Agreement and the Assignment, as so supplemented by this Subsequent Transfer
Amendment #__, shall be read, taken and construed as one and the same
instrument.
- 2 -
All terms used herein shall have the respective meanings ascribed thereto in the
Sale and Servicing Agreement.
Dated this [.] day of [.] , 200[.].
IN WITNESS WHEREOF, the undersigned has executed this Schedule of
Receivables as of [.], 200[.].
AMERICREDIT FINANCIAL SERVICES
OF CANADA LTD.
By:
--------------------------------------
Name:
Title:
EXHIBIT "A-2"
FORM OF QUEBEC ASSIGNMENT OF RECEIVABLES
QUEBEC ASSIGNMENT
THIS QUEBEC ASSIGNMENT is made as of November 22, 2002 by AMERICREDIT FINANCIAL
SERVICES OF CANADA LTD., a Canadian corporation (the "SELLER"), as Seller and
Servicer, (the "Seller") in favour of CIBC MELLON TRUST COMPANY, in its capacity
as trustee of AmeriCredit Canada Automobile Receivables Trust (in such capacity,
the "ISSUER") pursuant to, in accordance with and subject to the Sale and
Servicing Agreement dated as of November 15, 2002 between the Seller, the Issuer
and Bank One, NA (as amended, restated, supplemented or otherwise modified, the
"SALE AND SERVICING AGREEMENT").
WHEREAS the Seller wishes to transfer certain existing and future receivables
and certain related assets to the Issuer and the Issuer is willing to accept
such transfer;
AND WHEREAS capitalized terms used in this Quebec Assignment shall have the
respective meanings specified in Section 6;
NOW THEREFORE THIS QUEBEC ASSIGNMENT WITNESSES that, in consideration of the sum
of $2.00 in the lawful currency of Canada now paid by the Issuer to the Seller
and for other good and valuable consideration (the receipt and sufficiency of
which are hereby acknowledged by the Seller):
1. The Seller hereby:
(a) sells, assigns, transfers, sets over and otherwise conveys unto
the Issuer, without recourse, all of its right, title and
interest in and to:
(i) the Eligible Receivables, including all documents
constituting chattel paper included therewith, and all
obligations of the Obligors thereunder including all
moneys paid thereunder after the Cut-Off Date;
(ii) the security interests in the Financed Vehicles granted by
Obligors pursuant to the Eligible Receivables and any
other interest of the Seller in the Financed Vehicles;
(iii) any proceeds with respect to the Eligible Receivables from
claims on insurance policies covering Financed Vehicles or
Obligors;
(iv) any proceeds from recourse to Dealers with respect to the
Eligible Receivables;
(v) any rights under Service Contracts relating to the
Financed Vehicles;
(vi) the related Receivables Files; and
(vii) the proceeds of any and all of the foregoing, and
- 4 -
(i) sells, assigns, transfers, sets over and otherwise conveys unto
the Issuer, without recourse, all of its right, title and
interest in and to:
(i) the Subsequent Eligible Receivables, including all
documents constituting chattel paper included therewith,
and all obligations of the Obligors thereunder including
all moneys paid thereunder after the related Subsequent
Cut-Off Date;
(ii) the security interests in the Financed Vehicle granted by
Obligors pursuant to such Subsequent Eligible Receivables
and any other interest of the Seller in such Financed
Vehicle;
(iii) any proceeds with respect to such Subsequent Eligible
Receivables from claims on insurance policies covering
Financed Vehicles or Obligors;
(iv) any proceeds from recourse to Dealers with respect to such
Subsequent Eligible Receivables;
(v) any rights under Service Contracts relating to the
Financed Vehicles;
(vi) the related Receivables Files; and
(vii) the proceeds of any and all of the foregoing.
2. The foregoing sale does not constitute and is not intended to result in
any assumption by the Issuer of any obligation of the undersigned to
the Obligors, insurers or any other person in connection with the
Eligible Receivables, the Subsequent Eligible Receivables, the
Receivables Files, any insurance policies or any agreement or
instrument relating to any of them.
3. This Quebec Assignment is made pursuant to and upon the
representations, warranties and agreements on the part of the
undersigned contained in the Sale and Servicing Agreement and is to be
governed in all respects by the Sale and Servicing Agreement. This
Quebec Assignment shall be governed by the laws of the Province of
Ontario and the laws of Canada applicable therein.
4. In addition, the Seller hereby represents and warrants with respect to
the Eligible Receivables as of the Closing Date and with respect to the
Subsequent Eligible Receivables as of the applicable Subsequent
Transfer Date that:
(a) notwithstanding anything to the contrary contained herein, (i)
all of such Eligible Receivables or Subsequent Eligible
Receivables, as applicable, are Retail Instalment Contracts, and
(ii) all of the Financed Vehicles securing such Eligible
Receivables or Subsequent Eligible Receivables, as applicable,
are automobiles, light-duty trucks, vans or mini-vans;
(b) There are no other Eligible Receivables or Subsequent Eligible
Receivables, as applicable, owing by such Obligor to the Seller
as of the Cut-Off Date or Subsequent Cut-Off Date, as applicable,
and owned by Seller on the Closing Date
- 5 -
or the Subsequent Transfer Date, as applicable, that are not
listed on the Schedule of Receivables.
5. The Seller hereby agrees to deliver to the Issuer on the Closing Date
the Schedule of Receivables and on each Subsequent Transfer Date, a
supplement thereto.
6. Capitalized terms used herein and not otherwise defined shall have the
meanings assigned to them in the Sale and Servicing Agreement and the
following terms shall have the following meanings:
"AmeriCredit Canada" means AmeriCredit Financial Services of Canada Ltd., and
its successors and assigns.
"Business Day" means any day other than a Saturday, a Sunday or a day on which
banking institutions or trust companies in Toronto, Ontario and Fort Worth,
Texas are authorized or obligated by law, regulation or executive order to
remain closed.
"Closing Date" means November 22, 2002.
"Contract" means a motor vehicle retail instalment sales contract.
"Cut-Off Date" means November 15, 2002.
"Dealer" means the dealer who sold a Financed Vehicle and who originated and
assigned the respective Eligible Receivable or Subsequent Eligible Receivable to
the Seller under a Dealer Agreement or a Dealer Assignment.
"Dealer Agreement" means the agreement between the applicable Dealer and the
Seller which governs the terms of sales of Eligible Receivables or Subsequent
Eligible Receivable from that Dealer to the Seller.
"Dealer Assignment" means, with respect to an Eligible Receivable or Subsequent
Eligible Receivable, the executed assignment conveying such Eligible Receivable
or Subsequent Eligible Receivable to the Seller.
"Eligible Receivable" means a Contract, as of the Cut-Off Date:
(a) which had an initial principal balance of not more than $100,000
and not less than $250;
(b) which had an annual percentage rate of at least 7% and no more
than 33%;
(c) which was not more than 60 days overdue;
(d) which has a remaining term to maturity of not more than 72
months;
(e) which had an original term of not more than 72 months;
(f) which was not in a repossessed status and the related Obligor was
not the subject of any voluntary or involuntary bankruptcy
proceeding;
- 6 -
(g) which is denominated and payable in Canadian dollars;
(h) which (a) is due from an Obligor that is domiciled in Quebec or
has a billing address located in Quebec or (b) is payable in
Quebec; and
(i) which is secured by a duly registered reservation of ownership in
respect of the Financed Vehicle.
"Financed Vehicles" means property, including an automobile, light-duty truck,
van or mini-van, together with all accessions thereto, securing an Obligor's
indebtedness under the respective Eligible Receivable or Subsequent Eligible
Receivable.
"Obligor" on an Eligible Receivable or Subsequent Eligible Receivable means the
purchaser or co-purchasers of the related Financed Vehicle and any other Person
who owes payments under the Eligible Receivable or Subsequent Eligible
Receivable.
"PPSA" means (a) the personal property security legislation, as amended,
supplemented or replaced from time to time, as in effect in each Province of
Canada (other than Quebec) and (b) the Civil Code of Quebec, as amended,
supplemented or replaced from time to time, as in effect in Quebec.
"Receivables Files" means the documents specified in Section 3.3 of the Sale and
Servicing Agreement.
"Retail Instalment Contract" means a fixed rate retail instalment sale contract
secured by a Financed Vehicle.
"Sale and Servicing Agreement" means the Sale and Servicing Agreement, dated as
of November 15, 2002, among the Issuer, the Seller, the Servicer and Bank One,
NA, as the same may be amended, restated, supplemented or otherwise modified
from time to time.
"Schedule of Receivables" means the listing of the Eligible Receivables executed
and delivered by the Seller to the Issuer on the Closing Date pursuant to the
Sale and Servicing Agreement and this Quebec Assignment with respect to the
Eligible Receivables to be transferred, assigned, set over and conveyed by the
Seller to the Issuer on the Closing Date, as supplemented and amended as of each
Subsequent Transfer Date by each Subsequent Quebec Transfer Supplement to
reflect the sale to the Issuer of Subsequent Eligible Receivables.
"Seller" means AmeriCredit Canada, as the seller of the Eligible Receivables and
Subsequent Eligible Receivables, and each successor to AmeriCredit Canada (in
the same capacity) pursuant to the Sale and Servicing Agreement.
- 7 -
"Service Contract" means, with respect to a Financed Vehicle, the agreement, if
any, financed under the related Eligible Receivable or Subsequent Eligible
Receivable that provides for the repair of such Financed Vehicle.
"Servicer" means AmeriCredit Canada, as the Servicer of the Eligible Receivables
and Subsequent Eligible Receivables, and each successor to AmeriCredit Canada
(in the same capacity) pursuant to the Sale and Servicing Agreement.
"Subsequent Cut-Off Date" means with respect to any Subsequent Eligible
Receivables, the close of business on the last day of the calendar month
immediately preceding the related Subsequent Transfer Date.
"Subsequent Eligible Receivables" means a Contract, as of the related Subsequent
Cut-Off Date:
(a) which had an initial principal balance of not more than $100,000
and not less than $250;
(b) which had an annual percentage rate of at least 7% and no more
than 33%;
(c) which was not more than 60 days overdue;
(d) which has a remaining term to maturity of not more than 72
months;
(e) which had an original term of not more than 72 months;
(f) which was not in a repossessed status and the related Obligor was
not the subject of any voluntary or involuntary bankruptcy
proceeding;
(g) which is denominated and payable in Canadian dollars;
(h) which (i) is due from an Obligor that is domiciled in Quebec or
has a billing address located in Quebec or (ii) is payable in
Quebec; and
(i) which is secured by a duly registered reservation of ownership in
respect of the Financed Vehicle.
"Subsequent Quebec Transfer Supplement" means a supplement to this Quebec
Assignment executed and delivered by the Seller to the Issuer on a Subsequent
Transfer Date.
"Subsequent Transfer Date" means each Business Day during the period from and
including the Closing Date to and including the January 6, 2003 on which
Subsequent Eligible Receivables are to be transferred to the Issuer and a
Subsequent Quebec Transfer Supplement to this Quebec Assignment is executed and
delivered by the Seller to the Issuer with respect to the Subsequent Eligible
Receivables to be transferred, assigned, set over and conveyed by the Seller to
the Issuer on such date.
"Underwriter" means ▇▇▇▇▇▇▇ ▇▇▇▇▇ Canada Inc.
- 8 -
IN WITNESS WHEREOF, the undersigned has caused this Quebec Assignment
to be duly executed as of o, 2002.
AMERICREDIT FINANCIAL SERVICES
OF CANADA LTD.
By:
--------------------------------------
Name:
Title:
Read and Accepted by:
CIBC MELLON TRUST COMPANY, in its
capacity as trustee of AMERICREDIT
CANADA AUTOMOBILE RECEIVABLES TRUST,
by its Administrator, AMERICREDIT
FINANCIAL SERVICES OF CANADA LTD.
By:
--------------------------------------
Name:
Title:
By:
--------------------------------------
Name:
Title:
EXHIBIT ▇-▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ TRANSFER SUPPLEMENT #
This Subsequent Quebec Transfer Supplement # and the listing of Subsequent
Eligible Receivables attached hereto is a supplement to the Quebec Assignment
executed and delivered by the undersigned, as Seller, to CIBC MELLON TRUST
COMPANY, in its capacity as trustee of AmeriCredit Canada Automobile Receivables
Trust (in such capacity, the "ISSUER") on the Closing Date pursuant to, in
accordance with and subject to the Sale and Servicing Agreement dated as of
November 15, 2002 between the Seller, the Issuer and Bank One, NA (as amended,
restated, supplemented or otherwise modified, the "SALE AND SERVICING
AGREEMENT").
5. 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 Eligible Receivables conveyed hereby, _______________, 2002.
"Subsequent Transfer Date" shall mean, with respect to the
Subsequent Eligible Receivables conveyed hereby, _____________, 2002.
6. Subsequent Eligible Receivables. The Schedule of Receivables
attached hereto as Schedule A represents all of the Subsequent Eligible
Receivables conveyed to the Issuer on the Subsequent Transfer Date in accordance
with the Sale and Servicing Agreement and the Quebec Assignment.
7. Representations and Warranties of the Seller. The Seller hereby
represents and warrants to the Issuer as of the Subsequent Transfer Date that:
(d) Schedule of Representations. The representations and warranties
of the Seller set forth in the Sale and Servicing Agreement (including those
made in the Schedule of Representations attached as Schedule A thereto with
respect to the Subsequent Eligible Receivables) are true and correct.
(e) Principal Balance. The Aggregate Principal Balance of the
Subsequent Eligible Receivables listed on the Schedule of Receivables attached
hereto and all other Receivables conveyed to the Issuer on the Subsequent
Transfer Date pursuant to the Sale and Servicing Agreement and the Assignment as
of the Subsequent Cut-Off Date is $_________.
(f) Sale and Servicing Agreement Conditions. Each of the conditions
set forth in Section 2.5(b) to the Sale and Servicing Agreement has been
satisfied.
8. Ratification of Agreement. As supplemented by this Subsequent
Quebec Transfer Supplement #__, each of the Sale and Servicing Agreement and the
Quebec Assignment is in all respects ratified and confirmed and the Sale and
Servicing Agreement and the Quebec Assignment, as so supplemented by this
Subsequent Quebec Transfer Supplement #____, shall be read, taken and construed
as one and the same instrument.
- 2 -
All terms used herein shall have the respective meanings ascribed thereto in the
Sale and Servicing Agreement.
Dated this [.] day of [.] , 200[.].
IN WITNESS WHEREOF, the undersigned has executed this Subsequent Quebec
Transfer Supplement as of [.], 200[.].
AMERICREDIT FINANCIAL SERVICES
OF CANADA LTD.
By:
--------------------------------------
Name:
Title:
Read and Accepted by:
CIBC MELLON TRUST COMPANY, in its
capacity as trustee of AMERICREDIT
CANADA AUTOMOBILE RECEIVABLES TRUST,
by its Administrator, AMERICREDIT
FINANCIAL SERVICES OF CANADA LTD.
By:
--------------------------------------
Name:
Title:
By:
--------------------------------------
Name:
Title:
EXHIBIT "B"
FORM OF SERVICER'S CERTIFICATE AND MONTHLY STATEMENT TO NOTEHOLDERS
MONTHLY SERVICER'S CERTIFICATE
TO: CIBC Mellon Trust Company, as Trustee
AND TO: BNY Trust Company of Canada, as Indenture Trustee
AND TO: [Seller, if other than Servicer]
AND TO: Dominion Bond Rating Service Limited
AND TO: Standard & Poor's Rating Service
AND TO: ▇▇▇▇▇'▇ Investor Service, Inc.
Monthly Payment Date: [Date] Collection Period Ending: [Date]
The undersigned, a duly appointed officer of AmeriCredit Financial Services of
Canada Ltd. ("AFSC"), as Servicer pursuant to the Sale and Servicing Agreement
dated as of November [o], 2002 (as amended, restated, supplemented or otherwise
modified, the "Sale and Servicing Agreement") among AFSC, as seller and
servicer, and CIBC Mellon Trust Company, in its capacity as trustee of
AmeriCredit Canada Automobile Receivables Trust, and Bank One, NA do hereby
certify as follows:
1. Capitalized terms used in this Officer's Certificate have their
respective meanings set forth in the Sale and Servicing Agreement.
2. The undersigned officer of AFSC, in such capacity and not in [his]
personal capacity, hereby certifies that
(a) The undersigned is an officer of AFSC duly appointed to the
office set forth below his name.
(b) Attached hereto is a true copy of (i) the statement required to
be delivered by the Servicer to the Issuer, the Indenture Trustee
and the Seller (if other than the Servicer) on the date of this
Officer's Certificate pursuant to Section 4.9 of the Sale and
Servicing Agreement and (ii) the statement required to be
delivered by the Servicer to the Indenture Trustee on the date of
this Officer's Certificate pursuant to Section 5.10 of the Sale
and Servicing Agreement.
(c) As of the date hereof, no Servicer Termination Event has occurred
or is continuing.
- 2 -
In witness whereof, the undersigned has duly executed and delivered this
Officer's Certificate this day of , 2002.
AMERICREDIT FINANCIAL SERVICES OF
CANADA LTD., as Servicer
By:
--------------------------------------
Name:
Title:
SCHEDULE "A"
REPRESENTATIONS AND WARRANTIES AS TO THE rECEIVABLES
1. Characteristics of Receivables. Each Receivable (A) was (i) originated
in Canada by the Seller, or (ii) by a Dealer in Canada and purchased by
the Seller from such Dealer under an existing Dealer Agreement or
pursuant to a Dealer Assignment with the Seller and was validly
assigned by such Dealer to the Seller pursuant to a Dealer Assignment,
(B) was originated by the Seller or such Dealer for the retail sale of
a Financed Vehicle in the ordinary course of the Seller's or the
Dealer's business, in each case was originated in accordance with the
Seller's credit policies and was fully and properly executed by the
parties thereto, and the Seller and each Dealer had all necessary
licenses and permits to originate Receivables in the province where the
Seller or each such Dealer was located, (C) contains customary and
enforceable provisions such as to render the rights and remedies of the
holder thereof adequate for realization against the collateral
security, (D) is a Receivable which provides for level monthly payments
(provided that the period in the first Collection Period and the
payment in the final Collection Period of the Receivable may be
minimally different from the normal period and level payment) which, if
made when due, shall fully amortize the Amount Financed over the
original term, and (E) has not been amended or collections with respect
to which waived, other than as evidenced in the Receivable File
relating thereto.
2. Schedule of Receivables. The information set forth on Schedule A to the
Assignment delivered on the Closing Date or the Subsequent
Determination Date, as applicable, is true and correct in all material
respects as of the opening of business on the related Cut-Off Date. The
computer tape regarding the Receivables made available to the Issuer
and its assigns is true and correct in all respects.
3. Compliance With Law. Each Receivable and the sale or lease of the
related Financed Vehicles complied in all material respects at the time
it was originated or made and at the execution of this Agreement and
the Assignment and Schedule of Receivables complies in all material
respects with all requirements of applicable federal, provincial and
local laws and regulations thereunder, including consumer protection
and cost of credit disclosure laws and regulations.
4. Binding Obligation. Each Receivable represents the genuine, legal,
valid and binding payment obligation in writing of the Obligor,
enforceable by the holder thereof in accordance with its terms.
5. No Government Obligor. None of the Receivables is due from the
Government of Canada or any province thereof or from any Canadian,
federal or provincial agency, department or instrumentality.
6. Security Interest in Financed Vehicles. Each Receivable creates or
shall create a valid, binding and enforceable first priority security
interest in favour of the Seller in the Financed Vehicle in favour of
the Seller as secured party. Immediately after the sale, transfer and
assignment thereof by the Seller to the Issuer, each Receivable will be
secured by an enforceable and perfected first priority security
interest in the Financed Vehicle in favour of the Issuer 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
- 2 -
hereafter arise or be created (except, as to priority, for any lien for
taxes, labour or materials affecting a Financed Vehicle). As of the
related Cut-Off Date there were no Liens or claims for taxes, work,
labour or materials affecting a Financed Vehicle which are or may be
Liens prior or equal to the Liens of the related Receivable.
7. Receivables in Force. No Receivable has been satisfied, subordinated or
rescinded, nor has any Financed Vehicles been released from the Lien
granted by the related Receivable in whole or in part.
8. No Amendment or Waiver. No provision of a Receivable has been waived,
altered or modified in any respect, except pursuant to a document,
instrument or writing included in the Receivable Files.
9. No Defences. No right of rescission, set off, counterclaim or defence
has been asserted or threatened or exists with respect to any
Receivable.
10. No Default. No Receivable is a non-performing Receivable or has a
payment that is more than 90 days overdue as of the related Cut-Off
Date and, except for a payment default continuing for a period of not
more than 90 days, no default, breach, violation or event permitting
acceleration under the terms of any Receivable has occurred and is
continuing; and no continuing condition that with notice or the lapse
of time or both would constitute such a default, breach, violation or
event permitting acceleration under the terms of any Receivable has
arisen; and the Seller has not waived and shall not waive any of the
foregoing.
11. Title. No Receivable or portion thereof has been sold, transferred,
assigned, conveyed or pledged by the Seller to any Person other than
the Issuer. Immediately prior to the transfer and assignment herein
contemplated, the Seller had good title to each Receivable, free and
clear of all Liens, encumbrances, claims, security interests and rights
of others and, immediately upon the transfer thereof, the Issuer shall
have good title to each such Receivable, free and clear of all Liens,
encumbrances, security interests and rights of others; and the transfer
and assignment of the Receivables to the Issuer has been perfected,
recorded or published, as the case may be, under the applicable PPSA.
12. Lawful Assignment. No Receivable has been originated in, or is subject
to the laws of, any jurisdiction under which the sale, transfer and
assignment of such Receivable or any Receivable under this Agreement,
the Purchase Agreement, or the Indenture is unlawful, void or voidable.
13. All Filings Made. All filings (including PPSA filings) necessary in any
all applicable jurisdictions necessary or desirable to give the Issuer
a first priority perfected ownership and/or security interest in the
Receivables and to give the Indenture Trustee a first priority
perfected security interest therein have been made.
14. One Original. There is only one original executed copy of each
Receivable.
15. No Default: There has been no default, breach, violation or event
permitting acceleration under the terms of any Receivable (other than
payment delinquencies of not more than 30 days), and no condition
exists or event has occurred and is continuing that with notice,
- 3 -
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
Cut-Off Date no Financed Vehicle had been repossessed.
16. Insurance. At the time of an origination of a Receivable by the Seller
or a purchase of a Receivable by the Seller 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 Canada 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 Canada 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 Cut-Off
Date.
17. Remaining Principal Balance. At the related Cut-Off Date the Principal
Balance of each Receivable set forth in the Schedule of Receivables is
true and accurate in all material respects.
18. Certain Characteristics of Receivables. (A) Each Receivable had a
remaining maturity, as of the related Cut-Off Date, of not more than 72
months; (B) each Receivable had an original maturity of not more than
72 months; (C) each Receivable had a Principal Balance as of the
related Cut-Off Date of not more than $100,000 and not less than $250;
(D) each Receivable has an Annual Percentage Rate of at least 7% and
not more than 33%; (E) no Receivable was in a repossessed status and no
related Obligor was the subject of any voluntary or involuntary
bankruptcy or insolvency proceeding as of the related Cut-Off Date; (F)
no Receivable was more than 60 days past due as of the related Cut-Off
Date (and if any Receivable was past due as of the related Cut-Off
Date, such Receivable was not one which caused the percentage of the
Pool Balance, determined as of the Statistical Calculation Date (in the
case of the Initial Receivables) and the related Cut-Off Date and,
which is comprised of Receivables which are 31 to 60 days past due, to
exceed 5%); and (G) no funds have been advanced by the Seller, any
Dealer, or anyone acting on behalf of any of them in order to cause any
Receivable to qualify under clause (F) above.
19. No Bankruptcies. No Obligor on any Receivable as of the related Cut-Off
Date was noted in the related Receivable File as being the subject of a
bankruptcy proceeding.
20. No Repossessions. None of the Financed Vehicles securing any Receivable
is in repossession status.
21. Chattel Paper. Each Receivable constitutes "chattel paper" as defined
in the PPSA of the provincial law of which governs the perfection of
the interest granted in it.
22. Canadian Obligors. None of the Receivables is denominated and payable
in any currency other than Canadian Dollars or is due from any Person
that does not have a mailing address in one of the Provinces of Canada.
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23. Receivable Not Assumable. No Receivable is assumable by any other
Person in a manner which would release the Obligor thereof from such
Obligor's obligations to the Seller with respect to such Receivable.
24. Marking Records. By the Closing Date, 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 by the Seller to the Issuer in accordance with the terms of the
Agreement.
25. Computer Tape. The Computer Tape made available by the Seller to the
Issuer on the Closing Date and on each Subsequent Transfer Date was
complete and accurate as of the related Cut-off Date and includes a
description of the same Receivables that are described in the Schedule
of Receivables.
26. Adverse Selection. No selection procedures adverse to the Series
C2002-1 Debtholders were utilized in selecting the Receivables from
those receivables owned by the Seller.
27. Receivables Files Complete. There exists an Receivable File pertaining
to each Receivable and such Receivable File contains (a) a fully
executed original of the Receivable and (b) the original executed
credit application, or a paper or electronic copy thereof. 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.
28. 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
Issuer, the Indenture Trustee and the Series C2002-1 Debtholders in any
Receivable or the proceeds thereof
APPENDIX "A"
DEFINITIONS AND RULES OF CONSTRUCTION
PART I - DEFINITIONS
All terms defined in this Appendix shall have the defined meanings when used in
the Basic Documents, unless otherwise defined therein or the context otherwise
requires. All terms used herein or in the Agreement that are defined in the
Series Supplement (but not in this Appendix A) shall have the defined meanings
contained in the Series Supplement, unless otherwise defined herein or the
context otherwise requires.
"Accelerated Principal Payment Amount" for any Monthly Payment Date will equal
the lesser of:
(a) the excess, if any, of (i) the Total Available Funds for such
Monthly Payment Date over (ii) the sum of the amounts payable on
such Monthly Payment Date pursuant to clauses (i) through (x) of
Section 5.6(c) on such Monthly Payment Date; and
(b) the excess, if any, on such Monthly Payment Date of (i) the Pro
Forma Note Balance for such Monthly Payment Date over (ii) the
Required Pro Forma Note Balance for such Monthly Payment Date.
"Accountant's Report" is defined in Section 4.11 of the Agreement.
"Accounting Date" means, with respect to any Collection Period, the last day of
such Collection Period.
"Accumulation Account" means the account designated as such, established and
maintained pursuant to Section 5.1 of the Agreement.
"Accumulation Amount" means, for any Monthly Payment Date, the aggregate of the
amounts on deposit on the Accumulation Account as of the opening of business on
such Monthly Payment Date; provided, however that for any Monthly Payment Date
which is a Targeted Final Payment Date for a Class of Offered Notes (except
during a Sequential Amortization Period or a Non-Sequential Amortization
Period), the Accumulation Amount shall not be greater than the excess of (i) the
aggregate of the Outstanding Amount for such Class of Offered Notes and the
Class VPN Loans, in each case, for such Monthly Payment Date over (ii) the sum
of (x) the Aggregate Principal Distributable Amount for such Monthly Payment
Date and (y) the Class VPN Loan Proceeds, if any, for such Monthly Payment Date.
"Addition Notice" means, with respect to any transfer of Subsequent Receivables
to the Issuer pursuant to Section 2.2 of this Agreement, notice of the Seller's
election to transfer Subsequent Receivables to the Issuer, such notice to
designate the related Subsequent Cut-Off Date, Subsequent Transfer Date and the
approximate principal amount of Subsequent Receivables to be transferred on such
Subsequent Transfer Date.
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"Additional Class VPN Loan Amounts" means, for any Monthly Payment Date, the
aggregate amounts of increased costs, taxes and indemnity amounts due and
payable by the Issuer on such Monthly Payment Date pursuant to the Class VPN
Loan Agreements in respect of the Class VPN Loans which are not paid by the
Seller on or before such date.
"Administration Agreement" means the Administration Agreement, dated as of
September 30, 2002, among the Administrator and the Issuer.
"Administration and Trustee Fees" means (i) the fee payable to the Administrator
pursuant to Section 4 of the Administration Agreement in respect of the Series
C2002-1 Notes, and (ii) the Trust Expenses.
"Administrative Receivable" means, with respect to any Collection Period, a
Receivable which the Servicer is required to purchase pursuant to Section 4.7 or
which the Servicer has elected to purchase pursuant to Section 4.3(c) on the
Determination Date with respect to such Collection Period.
"Administrator" means AmeriCredit Canada, or any successor Administrator under
the Administration Agreement.
"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
specified 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. The term "Affiliated"
has a correlative meaning.
"Aggregate Noteholders' Interest Distributable Amount" means, for any Monthly
Payment Date, the sum of the Noteholders' Interest Distributable Amounts for all
Classes of Offered Notes and Class VPN Loans for such Monthly Payment Date.
"Aggregate Noteholders' Principal Distributable Amount" means, for any Monthly
Payment Date, the sum of (i) the Noteholders' Principal Distributable Amounts
for all Classes of Offered Notes and Class VPN Loans for such Monthly Payment
Date and (ii) the Noteholders' Principal Carryover Shortfall for such Monthly
Payment Date.
"Aggregate Principal Balance" means, with respect to any date of determination,
the sum of the Principal Balances for all Receivables (other than (i) any
Receivable that became a Liquidated Receivable prior to the end of the related
Collection Period, (ii) any Receivable that became a Sold Receivable prior to
the end of the related Collection Period, and (iii) any Receivable that became a
Purchased Receivable prior to the end of the related Collection Period) as of
the date of determination.
"Aggregate Principal Distributable Amount" means, with respect to any Monthly
Payment Date, the sum of the Principal Distributable Amount and the Principal
Distributable Carryover Amount, in each case, for such Monthly Payment Date.
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"AmeriCredit Canada" means AmeriCredit Financial Services of Canada Ltd., and
its successors and assigns.
"Amortization Period" means a Sequential Amortization Period or a Non-Sequential
Amortization Period.
"Amount Financed" with respect to a Receivable means the aggregate amount
advanced under such Receivable toward the purchase price of the Financed Vehicle
and any related costs, including amounts advanced at the time the Receivable is
originated in respect of accessories, insurance premiums, service, car club and
warranty contracts and other items customarily financed as part of retail
automobile instalment sale contracts and related costs.
"Annual Percentage Rate" or "APR" of a Receivable means the annual rate of
finance charges or service charges stated in the related Contract.
"Assignment" means the document of assignment attached to the Agreement as
Exhibit A.
"Available Funds" means, with respect to any Monthly Payment Date, the sum of
(i) the Collected Funds for the related Collection Period, (ii) all Purchase
Amounts deposited in the Collection Account on that Monthly Payment Date for or
in respect of the related Collection Period, (iii) the Investment Earnings with
respect to the Series Accounts for such Monthly Payment Date, (iv) the Monthly
Capitalized Interest Amount with respect to such Monthly Payment Date, (v) the
net amount, if any, paid by the Class VPN Swap Counterparty to the Issuer
pursuant to the Class VPN Swap on such Monthly Payment Date, (vi) the net
amount, if any, payable by the Class A-1 Swap Counterparty to the issuer
pursuant to the Class A-1 Swap or such Monthly Payment Date; (vii) following the
acceleration of the Offered Notes and Class VPN Loans pursuant to the Trust
Indenture, the amount of money or property collected from any realization upon
the Collateral pursuant to the Trust Indenture since the preceding Monthly
Payment Date by the Indenture Trustee for distribution pursuant to the Trust
Indentures and (viii) the proceeds of any purchase or sale of the assets of the
Issuer upon any optional purchase of the Receivables and other Collateral by the
Servicer as described herein; provided, however, that the Available Funds for
any Monthly Payment Date shall not include (x) all payments and proceeds
(including Liquidation Proceeds) of any Receivables that are Purchased
Receivables for such Monthly Payment Date or a prior Monthly Payment Date, (y)
amounts previously deposited in the Collection Account but later determined by
the Servicer to have resulted from mistaken deposits or postings or cheques
returned for insufficient funds and in respect of which the Servicer is entitled
to reimbursement, and (z) any amounts paid by Obligors and deposited to the
Collection Account during the preceding Collection Period that did not relate to
principal and interest payments due on the Receivables or fees or expenses
related to extensions due on the Receivables.
"BA 1 Month Rate" for any Monthly Payment Date and any Class VPN Loan shall mean
that per annum rate (based on a year of 365 days) expressed as a percentage,
equal to the average "BA 1 Month" interest rates for Canadian dollar bankers
acceptances displayed and identified as such on the "Reuters Screen CDOR Page"
(as defined in the 2000 ISDA Definitions, as published by The International
Swaps and Derivatives Association, Inc., as modified, amended or replaced from
time to time) as of 10:00 a.m., Toronto time, on the preceding Monthly Payment
Date (or the date of advance of that Class VPN Loan, in the case of the initial
Monthly Payment Date for that Class VPN Loan). If such rates do not appear on
the Reuters Screen
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CDOR Page as contemplated, then the "BA 1 Month Rate" for such Monthly Payment
Date shall be calculated based upon the arithmetic mean of the applicable rates
for 30 day Canadian dollar bankers acceptances quoted by four major Canadian
Schedule I chartered banks as of 10:00 a.m., Toronto time, on the preceding
Monthly Payment Date or date of advance, as applicable: (initially the following
(i) Bank of Montreal, (ii) Canadian Imperial Bank of Commerce, (iii) Royal Bank
of Canada and (iv) The Toronto-Dominion Bank). If less than four such quotations
are available, then the "BA 1 Month Rate" will be the arithmetic mean (rounded
upwards as provided below) of such available quotations; provided, however, that
if fewer than two quotations are available, the "BA 1 Month Rate" will be the BA
1 Month Rate in effect for the previous Monthly Payment Date or date of advance,
as applicable. The arithmetic average of any rates or quotations to be
calculated hereunder shall be rounded, if necessary, to the nearest 1/100,000 of
one per cent (.00001%), with five one millionths of one percent being rounded
upwards. All dollar amounts used in or resulting from any calculation based on
the BA 1 Month Rate will be rounded to the nearest cent (with one-half of one
cent being rounded upwards).
"BA 3 Month Rate" for any Monthly Payment Date and the Class A-1 Notes shall
mean that per annum rate (based on a year of 365 days) expressed as a
percentage, equal to the average "BA 3 Month" interest rates for Canadian dollar
bankers acceptances displayed and identified as such on the "Reuters Screen CDOR
Page" (as defined in the 2000 ISDA Definitions, as published by The
International Swaps and Derivatives Association, Inc., as modified, amended or
replaced from time to time) as of 10:00 a.m., Toronto time, on the immediately
preceding Class A Note Payment Date (or the Closing Date, in the case of the
initial Class A Note Payment Date for the Class A-1 Notes). If such rates do not
appear on the Reuters Screen CDOR Page as contemplated, then the "BA 3 Month
Rate" for such Class A Note Payment Date shall be calculated based upon the
arithmetic mean of the applicable rates for 90 day Canadian dollar bankers
acceptances quoted by four major Canadian Schedule I chartered banks as of 10:00
a.m., Toronto time, on the preceding Class A Note Payment Date or the Closing
Date, as applicable: (initially the following (i) Bank of Montreal, (ii)
Canadian Imperial Bank of Commerce, (iii) Royal Bank of Canada and (iv) The
Toronto-Dominion Bank). If less than four such quotations are available, then
the "BA 3 Month Rate" will be the arithmetic mean (rounded upwards as provided
below) of such available quotations; provided, however, that if fewer than two
quotations are available, the "BA 3 Month Rate" will be the BA 3 Month Rate in
effect for the previous Class A Note Payment Date or Closing Date, as
applicable. The arithmetic average of any rates or quotations to be calculated
hereunder shall be rounded, if necessary, to the nearest 1/100,000 of one per
cent (.00001%), with five one millionths of one percent being rounded upwards.
All dollar amounts used in or resulting from any calculation based on the BA 3
Month Rate will be rounded to the nearest cent (with one-half of one cent being
rounded upwards).
"Basic Documents" means the Declaration of Trust, the Agreement, the Indenture,
the Series Supplement, the Class VPN Loan Agreements, the Class VPN Swap, the
Class A-1 Swap, the Administration Agreement, Custodian Agreement and other
documents and certificates delivered in connection therewith.
"Business Day" means any day other than a Saturday, a Sunday or a day on which
banking institutions or trust companies in Toronto, Ontario and Fort Worth,
Texas are authorized or obligated by law, regulation or executive order to
remain closed.
"Capitalized Interest Account" means the account designated as such, established
and maintained pursuant to the Sale and Servicing Agreement.
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"Capitalized Interest Account Initial Deposit" means $6,526 deposited into the
Capitalized Interest Account on the Closing Date from the proceeds of the
Initial Class VPN Loan.
`Capitalized Interest Amount" means an amount for each Collection Period
calculated by the Servicer as the difference (if positive) between (a) the
product of (i) the Noteholders' Interest Distributable Amount multiplied by (ii)
the Pre-Funded Percentage minus (b) the Pre-Funding Account Investment Earnings.
"Class" means (a) each class of Class A Notes, (b) each Class VPN Loan having
the same date of advance and (c) the Class B Notes, the Class C Notes and the
Class D Notes.
"Class A Note Payment Date" means, for each Outstanding Class of Class A Notes
(i) in the case of the Class A-1 Notes, the Monthly Payment Date in March, June,
September and December of each year commencing ▇▇▇▇▇ ▇, ▇▇▇▇, (▇▇) in the case
of the Class A-2 Notes, the Monthly Payment Date in June and December of each
year commencing June 6, 2003 on their respective Targeted Final Payment Dates
or, if any such date is not a Business Day, on the next succeeding Business Day,
(iv) during a Sequential Amortization Period, each Monthly Payment Date
(including the Targeted Final Payment Date for the Class) on which principal is
payable on such Class, and (v) during a Non-Sequential Amortization Period, each
Monthly Payment Date.
"Class A Note Percentage" means, with respect to the Class A Notes and any
Monthly Payment Date, the quotient (expressed as a percentage) of (i) the sum of
the Outstanding Amounts of the Class A Notes divided by (ii) the sum of the
Outstanding Amounts of the Class A Notes and the Class VPN Loans, in each case,
as of the close of the immediately preceding Monthly Payment Date.
"Class A Notes" means the Class A-1 Notes and the Class A-2 Notes created and
issued pursuant to the Series Supplement.
"Class A-1 Notes" means the Class A-1 Notes created and issued Pursuant to the
Series Supplement.
"Class A-1 Swap" means the interest rate swap entered into between the Class A-1
Swap Counterparty and the Issue on the Closing Date relating to the Class A-1
Notes.
"Class A-1 Swap Counterparty" means ▇▇▇▇▇▇ ▇▇▇▇▇ Capital Services Inc. in its
capacity as swap counterparty pursuant to the Class A-1 Swap.
"Class A-2 Notes" means the Class A-2 Notes created and issued pursuant to the
Series Supplement.
"Class B Notes" means the Class B Notes created and issued pursuant to the
Series Supplement.
"Class B/C Note Payment Date" means, for each Outstanding Class of Class B and
Class C Notes, (i) the Monthly Payment Date in June and December of each year
commencing June 6, 2003, (ii) the Final Scheduled Payment Date for the Class or,
if any such date is not a Business Day, on the next succeeding Business Day,
(iii) during a Sequential Amortization Period for such Class, on each Monthly
Payment Date on which principal is payable on such Class, and (iv) during a
Non-Sequential Amortization Period, each Monthly Payment Date.
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"Class C Notes" means the Class C Notes created and issued pursuant to the
Series Supplement.
"Class D Notes" means the Class D Notes created and issued pursuant to the
Series Supplement.
"Class VPN Lender" means each Person (which may include the Seller or the
Servicer) party to a Class VPN Loan Agreement, as lender, together with its
successors and assigns in such capacity.
"Class VPN Loan" means each loan made by a Class VPN Lender to the Issuer
pursuant to a Class VPN Loan Agreement to partially fund the acquisition of the
Receivables on the Closing Date or fund the repayment of the Outstanding Amount
of a Class of Class A Notes on its Targeted Final Payment Date or any subsequent
Class A Note Payment Date for the Class.
"Class VPN Loan Agreement" means any Class VPN Loan Agreement entered into by
the Issuer, AmeriCredit Canada and any Person as lender.
"Class VPN Loan Percentage" means, with respect to the Class VPN Loans and any
Monthly Payment Date, 100% minus the Class A Note Percentage for such Monthly
Payment Date.
"Class VPN Loan Proceeds" means, with respect to any Monthly Payment Date, the
proceeds of any Class VPN Loan received by the Issuer for that Monthly Payment
Date.
"Class VPN Swap" means the interest rate swap entered into between the Class VPN
Swap Counterparty and the Issuer on the Closing Date relating to the Class VPN
Loans.
"Class VPN Swap Counterparty" means ▇▇▇▇▇▇ ▇▇▇▇▇ Capital Services Inc., in its
capacity as interest rate swap counterparty pursuant to the Class VPN Swap.
"Clearing Agency" means an organization registered as a "clearing agency"
pursuant to the Securities Act (Ontario).
"Closing Date" means November 22, 2002, or such other date as the Seller, the
Issuer and the Underwriter shall agree but not later than November 29, 2002.
"Collateral Insurance" is defined in Section 4.4(a) of the Agreement.
"Collected Funds" means, with respect to any Collection Period, the amount of
funds in the Collection Account representing collections on the Receivables
during such Collection Period, including all Net Liquidation Proceeds collected
during such Collection Period (but excluding any Purchase Amounts).
"Collection Account" means the account designated as such, established and
maintained pursuant to Section 5.1 of the Agreement.
"Collection Period" means, with respect to any Monthly Payment Date, the
calendar month preceding the calendar month in which the Monthly Payment Date
occurs; provided, however, that the first Collection Period shall begin on the
day after the Initial Cut-Off Date. 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.
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"Collection Records" means all manually prepared or computer generated records
relating to collection efforts or payment histories with respect to the
Receivables.
"Computer Tape" means the computer tapes or other electronic media furnished by
the Seller to the Issuer and its assigns describing certain characteristics of
the Initial Receivables as of the Initial Cut-Off Date and of Subsequent
Receivables as of the related Cut-off Date.
"Contract" means a motor vehicle retail instalment sales contract.
"Corporate Trust Office" means, (a) with respect to the Indenture Trustee, the
principal office of the Indenture Trustee located at BNY Trust Company of
Canada, ▇▇▇▇-▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇, Attention: Senior
Trust Officer, Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇/1722; or at such other address as
the Indenture Trustee may designate from time to time by notice to the Series
C2002-1 Debtholders, the other Related Specified Creditors, the Servicer, the
Issuer and the Seller, or the principal corporate trust office of any successor
Indenture Trustee (the address of which the successor Indenture Trustee will
notify the Series C2002-1 Debtholders, the other Related Specified Creditors,
the Servicer, the Issuer and the Seller); and (b) with respect to the Trustee,
the principal corporate trust office of the Trustee located at CIBC Mellon Trust
Company, ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇, Attention: Director,
Corporate Trust, Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇; or at such other address as the
Trustee may designate from time to time by notice to the Series C2002-1
Debtholders, the other Related Specified Creditors, the Servicer, the Indenture
Trustee and the Seller, or the principal corporate trust office of any successor
Trustee (the address of which the successor Issuer will notify the Series
C2002-1 Debtholders, the other Related Specified Creditors, the Servicer, the
Indenture Trustee and the Seller).
"Cram Down Loss" means, with respect to a Receivable, if a court of appropriate
jurisdiction in a proceeding related to an Insolvency Event shall have issued an
order reducing the amount owed on a Receivable or otherwise modifying or
restructuring the Scheduled Receivables Payments to be made on a Receivable, an
amount equal to (i) the excess of the principal balance of such Receivable
immediately prior to such order over the principal balance of such Receivable as
so reduced and/or (ii) if such court shall have issued an order reducing the
effective rate of interest on such Receivable, the excess of the principal
balance of such Receivable immediately prior to such order over the net present
value (using as the discount rate the higher of the APR on such Receivable or
the rate of interest, if any, specified by the court in such order) of the
Scheduled Receivables Payments as so modified or restructured. A "Cram Down
Loss" shall be deemed to have occurred on the date of issuance of such order.
"Curable Sequential Amortization Period" means a Sequential Amortization Period
which is not, or has not become, an Extended Sequential Amortization Period.
"Custodian" means AmeriCredit Financial Services, Inc. and any other Person
named from time to time as custodian in any Custodian Agreement acting as agent
for the Indenture Trustee.
"Custodian Agreement" means the Custodian Agreement dated as of November 15,
2002 between the Custodian named therein, the Servicer and the Indenture Trustee
and includes any other Custodian Agreement from time to time in effect between
the Custodian named therein, the Servicer and the Indenture Trustee, in each
case, as the same may be amended, supplemented or otherwise modified from time
to time in accordance with the terms thereof.
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"Cut-Off Date" means with respect to the Initial Receivables, the Initial
Cut-Off Date, and with respect to Subsequent Receivables, the Subsequent Cut-Off
Date determined by the Seller with respect to such Subsequent Receivables.
"DBRS" means Dominion Bond Rating Service Limited, or its successor.
"Dealer" means the dealer who sold a Financed Vehicle and who originated and
assigned the respective Receivable to the Seller under a Dealer Agreement or a
Dealer Assignment.
"Dealer Agreement" means the agreement between the applicable Dealer and the
Seller which governs the terms of sales of Receivables from that Dealer to the
Seller.
"Dealer Assignment" means, with respect to a Receivable, the executed assignment
conveying such Receivable to the Seller.
"Declaration of Trust" means the declaration of trust dated as of September 30,
2002, made by the Trustee, as the same may be amended, supplemented or restated
from time to time.
"Default" means any occurrence that is, or with notice or the lapse of time or
both would become, an Event of Default.
"Delivery" when used with respect to Series Account Property means:
(a) with respect to Series Account Property consisting of bankers'
acceptances, commercial paper, negotiable notes of deposit and
other obligations that constitute "instruments" within the
meaning of the PPSA as in effect in the Province of Ontario and
are susceptible of physical delivery, transfer thereof to the
Issuer or its nominee or custodian by physical delivery to the
Issuer or its nominee or custodian endorsed to, or registered in
the name of, the Issuer or its nominee or custodian or endorsed
in blank; and
(b) with respect to Series Account Property consisting of a
certificated security (as defined in the PPSA as in effect in the
Province of Ontario) transfer thereof by delivery of such
certificated security endorsed to, or registered in the name of,
the Issuer or its nominee or custodian or endorsed in blank to a
financial intermediary and the making by such financial
intermediary of entries on its books and records identifying such
certificated securities as belonging to the Issuer or its nominee
or custodian and the sending by such financial intermediary of a
confirmation of the purchase of such certificated security by the
Issuer or its nominee or custodian; and
(c) with respect to Series Account Property consisting of a
certificated security or an uncertificated security (within the
meaning of the PPSA as in effect in the Province of Ontario) in
the custody or registered in the name of a "clearing agency" (as
defined in Section 53(1) of the Business Corporations Act
(Ontario)), by the making by such clearing agency of appropriate
entries on its books reducing the appropriate securities account
of the transferor and increasing the appropriate securities
account of the transferee by the amount of such certificated or
uncertificated security, the identification by the clearing
agency of the
- 9 -
certificated securities for the sole and exclusive account of the
transferee, the maintenance of such certificated securities by
such clearing agency or its nominee or custodian subject to the
clearing agency's exclusive control, the sending of a
confirmation by the transferee of the purchase by the Issuer or
its nominee or custodian of such securities and the making by
such transferee of entries on its books and records identifying
such certificated securities as belonging to the Issuer 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 Issuer 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 Series Account Property to the Issuer or its nominee
or custodian, consistent with changes in applicable law or
regulations or the interpretation thereof; and
(d) with respect to any item of Series Account Property that is an
uncertificated security under the PPSA as in effect in the
Province of Ontario and that is not governed by clause (c) above,
registration on the books and records of the issuer thereof in
the name of (i) the Issuer or its nominee or custodian, or (ii) a
financial intermediary, the sending of a confirmation by the
financial intermediary of the purchase by the Issuer or its
nominee or custodian of such uncertificated security, and the
making by such financial intermediary of entries on its books and
records identifying such uncertificated securities as belonging
to the Issuer or its nominee or custodian.
"Depository Account" means an account maintained on behalf of the Seller and
Servicer by the Depository Bank pursuant to Section 4.2(d).
"Depository Account Agreement" means the Account Control Agreement by and among
AmeriCredit Canada and the Depository Bank, as such agreement may be amended,
supplemented or replaced from time to time, and entered into by the Servicer and
the Depository Bank with respect to the Depository Account.
"Depository Bank" means the bank, trust company or other financial or depository
institution named by the Servicer to be party to the Depository Agreement.
"Determination Date" means, with respect to any Monthly Payment Date, the second
Business Day immediately preceding such Monthly Payment Date.
"Early Termination Date" has the meaning specified in the Class VPN Swap or the
Class A-1 Swap, as applicable.
"Eligible Deposit Account" means either: (a) a segregated trust account with the
corporate trust department of the Indenture Trustee or (b) segregated account
with an Eligible Institution.
"Eligible Hedge Counterparty" means any Canadian chartered bank, financial
institution or other person (including the Seller) satisfactory to the
Administrator and having (i) a short-term credit rating of at least R-1 (middle)
by DBRS, P-1 by ▇▇▇▇▇'▇ and A-1 by S&P and (ii) a long-term credit rating of at
least A1 by ▇▇▇▇▇'▇.
- 10 -
"Eligible Institution" means (a) for any purpose other than a Hedging Contract,
(i) a bank or trust company incorporated under the laws of Canada or any
province thereof or (ii) a domestic Canadian branch of an authorized foreign
bank (as defined in the Bank Act (Canada)) and which bank or trust company at
all times has (A) a long-term unsecured debt rating acceptable to the Rating
Agency or (B) a short-term unsecured debt rating or certificate of deposit
rating acceptable to the Rating Agency and (b) for the purposes of a Hedging
Contract, an Eligible Hedge Counterparty. Notwithstanding the previous sentence
any institution the appointment of which satisfies the Rating Agency Condition
will be considered an Eligible Institution.
"Eligible Investments" at any time of determination, means 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 Government of Canada or any agency or
instrumentality thereof the obligations of which are backed by
the full faith and credit of the Government of Canada;
(b) demand deposits, time deposits or certificates of deposit of any
chartered bank or trust company or credit union or co-operative
credit society incorporated under the laws of Canada or any
province thereof having a maturity date of 30 days or less and
subject to supervision and examination by federal banking or
depository institution authorities; provided, however, that at
the time of the investment or contractual commitment to invest
therein, 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 an entity other than
such depository institution or trust company) of such depository
institution or trust company shall have a credit rating of: (i)
A-1+ from S&P, (ii) R-1 (high) from DBRS, and (iii) if such
commercial paper or other short-term senior unsecured debt
obligations are rated by ▇▇▇▇▇'▇, a rating of Prime-1 from
▇▇▇▇▇'▇;
(c) call loans and notes or banker's acceptances issued or accepted
by any bank, trust company, credit union or co-operative credit
society described in paragraph (b) above;
(d) commercial paper having, at the time of the investment or
contractual commitment to invest therein, a rating of (i) A-1+
from S&P, (ii) R-1 (high) from DBRS, and (iii) if such commercial
paper is rated by ▇▇▇▇▇'▇, a rating of Prime-1 by ▇▇▇▇▇'▇;
(e) investments in money market funds (including funds for which the
Indenture Trustee or the Issuer in its individual capacity or any
of its affiliates is investment manager, controlling party or
advisor) having a rating of: (i) AAA-m or AAAm-G from S&P, (ii)
AAA from DBRS, and (iii) if such investments are rated by
▇▇▇▇▇'▇, a rating of Aaa by ▇▇▇▇▇'▇;
(f) securities subject to repurchase obligations (including tri-party
repurchase obligations) where the security is a direct obligation
of, or fully guaranteed by, the Government of Canada or any
agency or instrumentality thereof the obligations of which are
backed by the full faith and credit of the Government of Canada,
in
- 11 -
either case entered into with a bank 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 Offered
Notes, or any other investment that by its terms converts to cash
within a finite period, if the Rating Agency Condition is
satisfied with respect thereto.
"Event of Default" is defined in Section 7.1 of the Indenture.
"Event of Default Proceeds" is defined in Section 9.2 of the Agreement.
"Event of Default Sale" is defined in Section 9.2 of the Agreement.
"Extended Sequential Amortization Period" means a Sequential Amortization Period
which (i) commenced as a result of the termination of the Class VPN Swap or (ii)
commenced as a result of the failure to pay the outstanding principal balance of
a Class of Class A Notes in full on its Targeted Final Payment Date and which
has continued beyond the Targeted Final Payment Date for the Class of Class A
Notes with the next highest numerical designation.
"Final Monthly Payment Date" means the earlier of (a) the Monthly Payment Date
upon which the Series C2002-1 Debt Obligations are paid in full, (b) the Monthly
Payment Date upon which the Seller exercises its option to repurchase the
Receivables, or (c) the date on which all Receivables are liquidated in full or
written off as uncollectible.
"Final Scheduled Payment Date" means, for each Class of Series C2002-1 Notes and
the Class VPN Loans, the December 2009 Payment Date:
"Financed Vehicles" means an automobile, light-duty truck, van or mini-van,
together with all accessions thereto, securing an Obligor's indebtedness under
the respective Receivable.
"Financing Statements" is defined in Section 10.2(a) of the Agreement.
"Force-Placed Insurance" is defined in Section 4.4(b) of the Agreement.
"Hedging Contract" shall mean (i) any interest rate swap transaction, basis
swap, forward rate transaction, interest rate option, foreign exchange
transaction, cap transaction, floor transaction, collar transaction, currency
swap transaction, cross-currency rate swap transaction, currency option or
similar transaction, (ii) any option with respect to any transactions described
in clause (i), (iii) any combination of any transactions or agreements described
in clauses (i) or (ii), or (iv) any option to sell or buy marketable securities,
in each case, entered into from time to time by the Issuer and any Eligible
Hedge Counterparty in connection with or related to the Class VPN Loans or the
Class A-1 Notes.
"Indenture" means the Indenture, dated September 30, 2002, between the Issuer
and the Indenture Trustee, as the same may be amended, supplemented or restated
from time to time.
"Indenture Trustee" means BNY Trust Company of Canada, a federally incorporated
trust company, not in its individual capacity but solely as Indenture Trustee
under the Indenture, or any successor Indenture Trustee under the Indenture.
- 12 -
"Independent Accountants" is defined in Section 4.11 of the Agreement.
"Initial Class VPN Loan" means the Class VPN Loan made to the Issuer by the
Initial Class VPN Lender on the Closing Date pursuant to the Initial Class VPN
Loan Agreement.
"Initial Class VPN Loan Agreement" means the Class VPN Loan Agreement entered
into by the Issuer and the Initial Class VPN Lender on or before the Closing
Date.
"Initial Class VPN Lender" means The Trust Company of Bank of Montreal, in its
capacity of Gemini Trust, as lender under the Initial Class VPN Loan Agreement.
"Initial Cut-Off Date" means November 15, 2002.
"Initial Purchase Price" is defined in Section 2.4(a) of the Agreement.
"Initial Receivables" means any Contract listed on the Schedule of Receivables
on the Closing Date.
"Insolvency Event" is defined in the Indenture.
"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 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.
"Interest Period" means, with respect to any Monthly Payment Date and any Class
of Notes or Class VPN Loans, the period from and including the immediately
preceding Monthly Payment Date (or in the case of the first Monthly Payment Date
for such Class, from and including the Closing Date or the date of advance of
such Class VPN Loans, as applicable) to, but excluding, that Monthly Payment
Date.
"Interest Rate" means, (a) with respect to the Class A-1 Notes and any Monthly
Payment Date for such Class, the BA 3 Month Rate for such Monthly Payment Date
plus 0.20% per annum (computed on the basis of a 365-day year and the actual
number of days elapsed in the applicable Interest Period), (b) with respect to
the Class A-2 Notes, the Class B Notes, the Class C Notes and the Class D Notes,
a rate equivalent to the annual rate of 4.084%, 7.395%, 8.539% and 15%,
respectively (computed on a semi-annual equivalent basis), (c) with respect to
VPN Loans and any Monthly Payment Date, the BA 1 Month Rate for such Monthly
Payment Date plus the fixed percentage spread (not exceeding 1.50% per annum)
determined pursuant to the related Class VPN Loan Agreement or at the time of
advance of the Class VPN Loan based on market conditions (computed on the basis
of a 365-day year and the actual number of days elapsed in the applicable
Interest Period). Notwithstanding the foregoing, (A) on each Monthly Payment
Date on or after the termination of the Class VPN Swap, the Interest Rate for
all Class VPN Loans shall be 4.43% per annum (being the fixed rate payable by
the Issuer under the Class VPN Swap) and (B) on each Monthly Payment Date after
the termination of the Class A-1 Swap, the Interest
- 13 -
Rate for the Class A-1 Notes shall be 3.21% per annum (being the fixed rate
payable by the issuer under the Class A-1 Swap).
"Investment Earnings" means, with respect to any Monthly Payment Date, the
interest and other investment earnings (net of losses and investment expenses)
on amounts on deposit in the Series Accounts to be deposited into the Collection
Account on the related Determination Date and applied as Available Funds
pursuant to the Agreement.
"Issuer" means CIBC Mellon Trust Company, in its capacity as trustee of the
Issuer, until a successor replaces it and, thereafter, means the successor.
"Issuer Order" and "Issuer Request" means a written order or request,
respectively, signed in the name of the Issuer by any one of its Responsible
Officers and delivered to the Indenture Trustee.
"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 related Receivable by operation of law as a result of any act or omission by
the related Obligor.
"Limited Guarantee" means the limited guarantee executed by AmeriCredit Corp. in
favour of the Trustee on the Closing Date guaranteeing the servicing obligations
of the Servicer, and the repurchase obligations of AmeriCredit Canada, under
this Agreement.
"Liquidated Receivable" means, with respect to any Collection Period, a
Receivable (i) as to which 90 days have elapsed since the Servicer repossessed
the Financed Vehicle; provided, however, that in no case shall 5% or more of a
Scheduled Receivable Payment have become 210 or more days delinquent in the case
of a repossessed Financed Vehicle, and which is not a Sold Receivable (ii) as to
which the Servicer has determined in good faith that all amounts it expects to
recover have been received, and which is not a Sold Receivable, (iii) as to
which 5% or more of a Scheduled Receivables Payment shall have become 120 or
more days delinquent, except in the case of a repossessed Financed Vehicle, and
which is not a Sold Receivable, or (iv) that is a Sold Receivable.
"Liquidation Proceeds" means, with respect to any Liquidated Receivable, all
moneys collected in respect thereof from whatever source (including the proceeds
of insurance policies with respect to the related Financed Vehicles or Obligor,
payments made by a Dealer pursuant to the related Dealer Agreement with respect
to such Receivable and Recoveries), net of the sum of any amounts expended by a
Servicer in connection with such liquidation and any amounts required by law to
be remitted to the Obligor on such Liquidated Receivable.
"Liquidity Advance" means an advance made by the Servicer in accordance with
Section 2.9(a)(i) of the Agreement.
"Maturity Advance" means an advance made by the Servicer in accordance with
Section 2.9(a)(ii) of the Agreement.
"Maximum Capitalized Interest Carry Amount" means the product of (i) the
difference between (a) the weighted average of the Interest Rates on the Offered
Notes and the Class VPN Loans (assuming the BA 1 Month and BA 3 Month Rate are
equal to the Fixed Rate under and as
- 14 -
defined in the Class VPN Swap and the A-1 Swap, respectively) minus (b) 1.25%,
multiplied by (ii) the amount on deposit in the Pre-Funding Account multiplied
by (iii) the fraction of a year represented by the number of days until the
January 2003 Monthly Payment Date (calculated on the basis of a 365-day year).
"Minimum Sale Price" means (i) with respect to a Receivable (x) that has become
60 to 210 days delinquent or (y) that has become greater than 210 days
delinquent and with respect to which the related Financed Vehicle has been
repossessed by the Servicer and has not yet been sold at auction, the greater of
(A) 55% multiplied by the Principal Balance of such Receivable and (B) the
product of the three month rolling average recovery rate (expressed as a
percentage) for the Servicer in its liquidation of all receivables for which it
acts as Servicer, either pursuant to this Agreement or otherwise, multiplied by
the Principal Balance of such Receivable or (ii) with respect to a Receivable
(x) with respect to which the related Financed Vehicle has been repossessed by
the Servicer and has been sold at auction or (y) that has become greater than
210 days delinquent and with respect to which the related Financed Vehicle has
not been repossessed by the Servicer, $1.00.
"Monthly Capitalized Interest Amount" means in the case of the January 2003
Monthly Payment Date, an amount equal to the difference between (i) the product
of (x) a fraction the numerator of which is the actual number of days elapsed in
the initial Interest Period and the denominator of which is 365, (y) the daily
weighted average of the Interest Rates for the Offered Notes and the Class VPN
Loans (calculated assuming that each of the BA 1 Month Rate and the BA 3 Month
Rate is equal to the fixed rate of interest payable by the Issuer under, and as
set forth in, the Class VPN Swap and the Class A-1 Swap, respectively) for the
initial Interest Period and (z) the difference between (A) the average daily
aggregate Outstanding Amount of the Offered Notes and the Class VPN Loans during
the intial Interest Period and (B) the excess of (1) the average daily Original
Pool Balance over (2) the average daily aggregate Outstanding Amount of the
Class D Notes, in each case, during the initial Interest Period and (ii) the sum
of the Pre-Funding Account Investment Earnings and Investment Earnings on
amounts on deposit in the Capitalized Interest Account for such Monthly Payment
Date.
"Monthly Payment Date" means the sixth day of each calendar month or if any such
day is not a Business Day, the next succeeding Business Day (with the first
Monthly Payment Date being January 6, 2003); provided, however, that the initial
Monthly Payment Date for any Class VPN Loan made after the Closing Date shall be
the second Monthly Payment Date following the date of advance of such Class VPN
Loan.
"Monthly Records" means all records and data maintained by the Servicer with
respect to the Receivables, including the following with respect to each
Receivable: the account number; the originating Dealer; Obligor name; Obligor
address; Obligor home phone number; Obligor business phone number; original
Principal Balance; original term; Annual Percentage Rate; current Principal
Balance; current remaining term; origination date; first payment date; final
scheduled payment date; next payment due date; date of most recent payment;
new/used classification; collateral description; days currently delinquent;
number of contract extensions (months) to date; amount of Scheduled Receivables
Payment; current Insurance Policy expiration date; and past due late charges.
- 15 -
"Monthly Residual Purchase Price Amount" means, for any Monthly Payment Date,
the amount, if any, by which (i) the Available Funds for such Monthly Payment
Date exceeds (ii) the sum of the Servicing Fee, plus the Administration and
Trustee Fees, plus the Aggregate Noteholders' Interest Distributable Amount,
plus the Aggregate Principal Distributable Amount, plus the net amounts, if any,
payable by the Issuer under the Class VPN Swap and the Class A-1 Swap, plus the
Additional Class VPN Loan Amounts, if any, plus the accrued and unpaid interest
on the Subordinated Reserve Account Loans, in each case, for such Monthly
Payment Date, plus the sum of $100 plus the excess, if any, of (x) the Principal
Balance of all Receivables that became Liquidated Receivables during the
preceding Collection Period over (y) the Principal Balance of all Liquidated
Receivables for the preceding Collection Period described in clauses (ii) and
(iv) of the definition of Liquidated Receivables.
"Moody's" means ▇▇▇▇▇'▇ 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 Reserve Account) 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 tan zero.
"Non-Sequential Amortization Commencement Date" means, if the Class A Notes and
Class VPN Loans have not been paid in full, the Monthly Payment Date on or after
the date on which the outstanding principal balances of the Class A Notes and
Class VPN Loans has been declared immediately due and payable following the
occurrence of an Event of Default under Sections 5.1(i), (ii) (iii) or (iv) of
the Series Supplement.
"Non-Sequential Amortization Period" means the period from and including a
Non-Sequential Amortization Commencement Date to and including the Final Monthly
Payment Date.
"Note Distribution Account" means the account designated as such, established
and maintained pursuant to Section 5.1 of the Agreement.
"Note Pool Factor" means, as of the close of business on any Payment Date with
respect to any Class of Series C2002-1 Notes, the Outstanding Amount of that
Class of Series C2002-1 Notes divided by the original Outstanding Amount of that
Class of Series C2002-1 Notes (carried out to the fifth decimal place). The Note
Pool Factor for each Class will be 1.00000 as of the Closing Date, and,
thereafter, will decline to reflect reductions in the Outstanding Amount of the
Series C2002-1 Notes.
"Note Register" and "Note Registrar" have, for the Series C2002-1 Notes, the
respective meanings specified in the Indenture.
"Noteholders' Deficit Amount" means, with respect to any Monthly Payment Date,
the excess, if any, of (x) the aggregate remaining principal balance of the
Offered Notes and the Class VPN Loans outstanding less the Accumulation Amount
(if any) on such Monthly Payment Date, after giving effect to all reductions in
such aggregate principal balance from sources other than the Reserve Account
over (y) the Pool Balance at the end of the related Collection Period.
- 16 -
"Noteholders' Distributable Amount" means, with respect to any Monthly Payment
Date, the sum of the Aggregate Noteholders' Principal Distributable Amount and
the Aggregate Noteholders' Interest Distributable Amount for that date.
"Noteholders' Interest Carryover Amount" means, with respect to any Class of
Offered Notes or Class VPN Loans and any date of determination, the sum of (a)
the excess of (i) all or any portion of the Noteholders' Monthly Interest
Distributable Amount for such Class for the immediately preceding Monthly
Payment Date and any outstanding Noteholders' Interest Carryover Amount on such
immediately preceding Monthly Payment Date over (ii) the amount that was
actually deposited to the Note Distribution Account in respect of the
Noteholders' Interest Distributable Amount for the Class on such preceding
Monthly Payment Date plus (b) if such preceding Monthly Payment Date was a
Payment Date for such Class, an amount equal to interest on such excess at the
Interest Rate of the Class from and including such preceding Payment Date to but
excluding the date of determination.
"Noteholders' Interest Distributable Amount" means, with respect to any Monthly
Payment Date and Class of Offered Notes or Class VPN Loans, the sum of the
Noteholders' Monthly Interest Distributable Amount for such Monthly Payment Date
and such Class and the Noteholders' Interest Carryover Amount, if any, for such
Monthly Payment Date and such Class. Interest on the Offered Notes and the Class
VPN Loans shall be computed on the basis of a 365-day year.
"Noteholders' Monthly Interest Distributable Amount" means, for any Monthly
Payment Date and any Class of Offered Notes or Class VPN Loans, an amount equal
to:
(a) in the case of the Class A-2 Notes, the Class B Notes and the
Class C Notes and (x) any Monthly Payment Date on or before the
initial Payment Date for such Class, an amount equal to the
product of (A) the outstanding principal amount of the Notes of
that Class as of the close of the preceding Monthly Payment Date
(or the Closing Date in the case of the first Monthly Payment
Date) and (B) the Interest Rate of the Class and (C) the number
of days in the related Interest Period for such Class divided by
365, and (y) any Monthly Payment Date after the initial Payment
Date for such Class, an amount equal to the product of (A) the
outstanding principal amount of the Offered Notes of the Class as
of the close of the preceding Monthly Payment Date and (B) one
twelfth of the Interest Rate of the Class; provided, however,
that for each Payment Date for the Class A Notes of a Class
during an Amortization Period for that Class, the Noteholders'
Interest Distributable Amount for such Class of Class A Notes
will be equal to the product (A) the outstanding principal amount
of the Notes of that Class as of the close of the preceding
Monthly Payment Date and (B) the interest rate which is the
monthly equivalent interest rate to the Interest Rate of the
Class; and
(b) in the case of the Class A-1 Notes and the Class VPN Loans of any
Class, an amount equal to the product of (x) the outstanding
principal amount of those Notes or Class VPN Loans as of the
close of the preceding Monthly Payment Date (or the date of
advance of such Class VPN Loans in the case of the first Monthly
Payment Date following that date of advance), (y) the Interest
Rate of the Class for such Monthly Payment Date, and (z) a
fraction, the numerator of
- 17 -
which is the number of days in the related Interest Period for
such Class and the denominator of which is 365.
"Noteholders' Principal Distributable Amount" means, with respect to:
(a) the Class A Notes and any Monthly Payment Date:
(i) except during a Sequential Amortization Period:
(A) for a Class of Class A Notes on its Targeted Final Monthly
Payment Date, the Noteholders' Principal Distributable
Amount for that Class of Class A Notes is the lesser of :
(1) the outstanding principal balance of that Class as of
the close of the immediately preceding Monthly Payment
Date; and
(2) the Total Noteholders' Principal Payment Amount; and
(B) if the Monthly Payment Date is not a Targeted Final
Payment Date for any Class of Class A Notes, the
Noteholders' Principal Distributable Amount for a Class of
Class A Notes is zero.
(ii) during a Sequential Amortization Period, the Noteholders'
Principal Distributable Amount for a Monthly Payment Date for a
Class of Class A Notes is the lesser of:
(A) the outstanding principal balance of that Class as of the
close of the immediately preceding Monthly Payment Date;
and
(B) the remainder of:
(1) the Class A Note Percentage of the Total Noteholders'
Principal Payment Amount for such Monthly Payment Date
minus,
(2) the outstanding principal balance for each Class of
Class A Notes with a lower numerical designation as of
the close of the immediately preceding Monthly Payment
Date.
(b) for the Class VPN Loans and any Monthly Payment Date,
(i) except during a Sequential Amortization Period:
(A) if the Monthly Payment Date is a Targeted Final Payment
Date for a Class of Class A Notes, the Noteholders'
Principal Distributable Amount for the Class VPN Loans is
the remainder of:
(1) the Total Noteholders' Principal Payment Amount for
that Monthly Payment Date, minus
- 18 -
(2) the Noteholders' Principal Distributable Amount for
the Class of Class A Notes that has its Targeted Final
Payment Date on such Monthly Payment Date determined
as described in (1) above,
but in no event more than the outstanding principal balance of the
Class VPN Loans as of the close of business on the immediately
preceding Monthly Payment Date;
(B) if the Monthly Payment Date is not a Targeted Final
Payment Date for a Class of Class A Notes, the
Noteholders' Principal Distributable Amount for the Class
VPN Loans is the lesser of:
(1) the outstanding principal balance of the Class VPN
Loans as of the close of business on the immediately
preceding Monthly Payment Date; and
(2) the Total Noteholders' Principal Payment Amount for
such Monthly Payment Date.
(ii) during a Sequential Amortization Period, the Noteholders'
Principal Distributable Amount for the Class VPN Loans on a
Monthly Payment Date is the lesser of:
(A) the outstanding principal balance of the Class VPN Loans
as of the close of business on the immediately preceding
Monthly Payment Date; and
(B) the Class VPN Loan Percentage of the Total Noteholders' Principal Payment
Amount.
(c) the Class B Notes and any Monthly Payment Date:
(i) if (A) the Monthly Payment Date is on or after the Targeted Final
Monthly Payment Date for the Class B Notes and prior to a
Sequential Amortization Period, or (B) the Monthly Payment Date
occurs during a Sequential Amortization Period, the Noteholders'
Principal Distributable Amount for the Class B Notes is the
lesser of :
(1) the outstanding principal balance of the Class B Notes as
of the close of the immediately preceding Monthly Payment
Date; and
(2) the remainder, if any, of:
A. the Total Noteholders' Principal Payment Amount for
that Monthly Payment Date; minus
B. the aggregate outstanding principal balance of the
Class A Notes and the Class VPN Loans as of the close
of the immediately preceding Monthly Payment Date.
(ii) if the Monthly Payment Date is not the Targeted Final
Payment Date for the Class B Notes and occurs prior to a
Sequential Amortization Period,, the Noteholders'
Principal Distributable Amount for the Class B Notes is
zero.
- 19 -
(d) the Class C Notes and any Monthly Payment Date:
(i) if (A) the Monthly Payment Date is on after the Targeted Final
Monthly Payment Date for the Class C Notes and prior to a
Sequential Amortization Period, or (B) the Monthly Payment Date
occurs during a Sequential Amortization Period, the Noteholders'
Principal Distributable Amount for the Class C Notes is the
lesser of:
(1) the outstanding principal balance of the Class B Notes as
of the close of the immediately preceding Monthly Payment
Date; and
(2) the remainder, if any, of:
A. the Total Noteholders' Principal Payment Amount for
that Monthly Payment Date; minus
B. the aggregate outstanding principal balance of the
Class A Notes, the Class VPN Loans and the Class B
Notes as of the close of the immediately preceding
Monthly Payment Date.
(ii) if the Monthly Payment Date is not the Targeted Final Payment
Date for the Class C Notes and occurs prior to a Sequential
Amortization Period, the Noteholders' Principal Distributable
Amount for the Class C Notes is zero.
Notwithstanding the foregoing, on the Final Scheduled Payment Date for any Class
of Offered Notes or Class VPN Loans, the Noteholders' Principal Distributable
Amount for such Class will equal the outstanding principal balance of such Class
as of the close of business on the immediately preceding Monthly Payment Date.
"Noteholders' Principal Carryover Amount" means, with respect to any Monthly
Payment Date, the excess of the Noteholders' Principal Distributable Amount for
the preceding Monthly Payment Date over the amount that was actually deposited
in the Note Distribution Account in respect of the Noteholders' Principal
Distributable Amount on such preceding Monthly Payment Date.
"Obligor" on a Receivable means the purchaser or co-purchasers of the Financed
Vehicles and any other Person who owes payments under the Receivables.
"Offered Notes" means the Class A Notes, Class B Notes and Class C Notes.
"Opinion of Counsel" means a written opinion of counsel satisfactory in form and
substance to the Indenture Trustee.
"Original Pool Balance" means the sum, as of any date, of the Pool Balance as of
the Initial Cut-Off Date, plus the aggregate Principal Balance of the Subsequent
Receivables, if any, sold to the Issuer, as of their respective Subsequent
Cut-Off Dates.
"Paying Agent" means, with respect to the Series C2002-1 Debt Obligations, the
Indenture Trustee or any other Person that meets the eligibility standards for
the Indenture Trustee
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specified in Section 12.1(1) of the Indenture and authorized by the Issuer to
make the payments to and distributions from the Distribution Account, including
payment of principal of or interest on the Series C2002-1 Notes on behalf of the
Issuer.
"Payment Date" means (a) for any Class of Class A Notes, each Class A Note
Payment Date, (b) for the Class B Notes and the Class C Notes, each Class B/C
Note Payment Date, and (c) for the Class VPN Loans and the Class D Notes, each
Monthly Payment Date.
"Person" means any individual, corporation, limited liability company, estate,
partnership, joint venture, association, joint stock company, trust (including
any beneficiary thereof), unincorporated organization or government or any
agency or political subdivision thereof.
"Pool Balance" means, as of any date of determination, the aggregate Principal
Balance of the Receivables (excluding Purchased Receivables, Sold Receivables
and Liquidated Receivables).
"PPSA" means (a) the personal property security legislation, as amended,
supplemented or replaced from time to time, as in effect in each Province of
Canada (other than Quebec), (b) the Uniform Commercial Code, as amended,
supplemented or replaced from time to time, as in effect in the State of Texas,
and (c) the Quebec Civil Code, as amended, supplemented or replaced from time to
time, as in effect in Quebec.
"Pre-Funded Amount" means, with respect to any date, the amount on deposit in
the Pre-Funding Account on such date.
"Pre-Funded Percentage" means, for each Collection Period, the quotient
(expressed as a percentage) of: (i) the Pre-Funded Amount divided by (ii) the
sum of the Pool Balance and the Pre-Funded Amount, after taking into account all
transfers of Subsequent Receivables during such Collection Period.
"Pre-Funding Account" means the account designated as such, established and
maintained pursuant to the Sale and Servicing Agreement.
"Pre-Funding Account Investment Earnings" means, with respect to any Monthly
Payment Date, the interest and other investment earnings (net of losses and
investment expenses) on amounts on deposit in the Pre-Funding Account to be
deposited into the Collection Account on the related Determination Date pursuant
to the Sale and Servicing Agreement.
"Pre-Funding Period" means the period from and including the Closing Date and
ending on the earliest of: (a) the Determination 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 or before such Determination 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 Event occurs with respect to the Seller or the
Servicer and (d) January 6, 2003.
"Principal Balance" means, with respect to any Receivable, as of any date, the
sum of (x) the Amount Financed minus (i) that portion of all amounts received on
or prior to such date and allocable to principal in accordance with the terms of
the Receivable and (ii) any Cram Down Loss in respect of such Receivable plus
(y) the accrued and unpaid interest on such Receivable.
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"Principal Distributable Amount" means, with respect to any Monthly Payment
Date, the amount equal to the excess, if any, of (a) the sum of (i) the
principal portion of all Collected Funds received during the immediately
preceding Collection Period (other than Sold Receivables, 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 and Sold 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) the aggregate amount of
Cram Down Losses that shall have occurred during the related Collection Period;
and (v) following the acceleration of the Offered Notes and the Class VPN Loans
pursuant to the Trust Indenture, the amount of money or property collected
pursuant to the Trust Indenture since the preceding Determination Date by the
Indenture Trustee for distribution pursuant to the Sale and Servicing Agreement
over (b) the Step-Down Amount, if any, for such Monthly Payment Date.
"Principal Distributable Carryover Amount" means, with respect to any Monthly
Payment Date, the excess of the Aggregate Principal Distributable Amount for the
preceding Monthly Payment Date over the amount that was actually deposited in
the Note Distribution Account in respect of the Aggregate Principal
Distributable Amount on such preceding Monthly Payment Date.
"Pro Forma Note Balance" means, with respect to any Monthly Payment Date, the
excess, if any, of (i) the aggregate remaining principal balance of the Offered
Notes and the Class VPN Loans outstanding as of the opening of such Monthly
Payment Date over (ii) the sum of (x) Accumulation Amount as of the opening of
such Monthly Payment Date and (y) the Aggregate Principal Distributable Amount
for such Monthly Payment Date.
"Prospectus" means the Short Form Prospectus of the Issuer dated November 18,
2002 relating to the Series C2002-1 Notes and includes all documents
incorporated therein by reference.
"Purchase Amounts" means, for any Purchased Receivable, the Principal Balance as
of the date of purchase and for any Sold Receivable, the Principal Balance as of
the date of sale.
"Purchase Price" is defined in Section 2.4(a) of the Agreement.
"Purchased Assets" means the Receivables and all other property conveyed to the
Issuer by the Seller pursuant to Sections 2.1 and 2.2 of the Agreement and the
Assignment.
"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
of the Agreement or by the Seller pursuant to Section 3.2 of the Agreement, or
as of the first day of a Collection Period by the Servicer pursuant to Section
9.1 of the Agreement.
"Quebec Assignment" means the Quebec Assignment attached to the Agreement as
Exhibit A-2.
"Rating Agency" means each of DBRS, Standard & Poor's and Moody's. If any of
such organizations or its successor is no longer in existence, the Administrator
shall designate a nationally recognized statistical rating organization or other
comparable Person as a substitute
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Rating Agency, notice of which designation shall be given to the Indenture
Trustee, the Issuer and the Servicer.
"Rating Agency Condition" means, with respect to any action, that each Rating
Agency shall have been given 10 days' prior notice thereof and that each of the
Rating Agencies shall have notified the Seller, the Servicer, the Issuer and the
Indenture Trustee in writing that such action will not result in a reduction or
withdrawal of the then current rating of any Class of Series C2002-1 Notes.
"Realized Losses" 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 the Schedule of Receivables, as such
Schedule of Receivables shall be amended to reflect the transfer of Subsequent
Receivables to the Issuer.
"Receivable Files" means the documents specified in Section 3.3 of the
Agreement.
"Record Date" means, with respect to a Payment Date or Redemption Date for the
Notes of any Class, the Business Day immediately preceding such Payment Date or
Redemption Date, or, if Definitive Notes of such Class are issued, the close of
business on the last day of the calendar month preceding the month of such
Payment Date or Redemption Date, whether or not such day is a Business Day, or
if Definitive Notes were not outstanding on such date, the date of issuance of
the Definitive Notes.
"Recoveries" means, with respect to any Liquidated Receivable, moneys collected
in respect thereof, from whatever source (other than from the sale or other
disposition of the related Financed Vehicle), after such Receivable became a
Liquidated Receivable.
"Redemption Date" means the Monthly Payment Date specified by the Servicer or
the Issuer pursuant to Section 9.1 of the Agreement and Section 4 of the Series
Supplement, as applicable.
"Redemption Price" means the unpaid principal amount of the Series C2002-1 Notes
redeemed or to be redeemed, plus accrued and unpaid interest thereon at the
applicable Interest Rate to but excluding the Redemption Date.
"Registered Holder" means the Person in whose name a Note is registered on the
Note Register on the applicable Record Date.
"Remaining Pre-Funded Amount" is defined in Section 5.8(c) of the Agreement.
"Required Overcollateralization Percentage" means, for any Monthly Payment Date,
the percentage equivalent of a fraction, the numerator of which is the excess of
(i) 20.50% of the Pool Balance as of the end of the related Collection Period
over (ii) the balance on deposit in the Reserve Account (after giving effect to
all deposits to and withdrawals from the Reserve Account on such Monthly Payment
Date) and the denominator of which is the Pool Balance as of the end of the
related Collection Period, provided, however, that on or after the date on which
the Pool Balance declines to 10% or less of the Original Pool Balance, the
Required Over-Collateralization Percentage shall be 100%.
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"Required Pro Forma Note Balance" means, with respect to any Monthly Payment
Date, a dollar amount equal to the product of (i) the Pool Balance as of the end
of the related Collection Period and (ii) 100% minus the Required
Overcollateralization Percentage for the current Monthly Payment Date.
"Reserve Account" means the account designated as such, established and
maintained pursuant this Agreement.
"Reserve Account Deposit Amount" means, with respect to any Monthly Payment
Date, the lesser of (x) the excess of (i) the Specified Reserve Account Balance
over (ii) the amount on deposit in the Reserve Account on such Monthly Payment
Date, after taking into account the amount of any Reserve Account Withdrawal
Amount on such Monthly Payment Date and (y) the amount remaining in the
Collection Account after taking into account the distributions therefrom
described in clauses (i) through (ix) of Section 5.6(c) of the Agreement.
"Reserve Account Initial Deposit" means, initially, $4,900,000 and, with respect
to each Subsequent Transfer Date, cash or Eligible Investments having a value
approximately equal to 2.00% of the aggregate Principal Balance of the
Subsequent Receivables conveyed to the Issuer on such Subsequent Transfer Date.
"Reserve Account Withdrawal Amount" means, with respect to any Monthly Payment
Date, the lesser of (x) any shortfall in the amount of Available Funds available
to pay the amounts specified in clauses (i) through (vi) of Section 5.6(c) of
the Agreement (taking into account application of Available Funds to the
priority of payments specified in Section 5.6(c) of the Agreement and ignoring
any provision hereof which otherwise limits the amounts described in such
clauses to the amount of funds available) ) plus the Noteholders' Deficit Amount
and (y) the amount on deposit in the Reserve Account on such Monthly Payment
Date prior to any application of amounts on deposit therein on such date.
"Residual Purchase Price" has the meaning specified in Section 2.4(a) of the
Agreement.
"Responsible Officer" means, with respect to any Person, the chairman or
vice-chairman of the board of directors, any managing director, the chairman or
vice-chairman of the executive committee of the board of directors, the chief
executive officer, the president, any vice president, assistant vice president,
the secretary, any assistant secretary, the treasurer, any assistant treasurer,
or any other officer of such person customarily performing functions similar to
those performed by any of the above designated officers and also means, with
respect to a particular corporate trust matter, any other officer to whom such
matter is referred because of such officer's knowledge of and familiarity with
the particular subject.
"Schedule of Receivables" means the listing of the Receivables executed,
delivered and identified by the Seller on the Closing Date as the Schedule of
Receivables pursuant to this Agreement and the Assignment (which Schedule may be
in the form of a computer diskette, computer tape or microfiche), as
supplemented as of each Subsequent Transfer Date by a Subsequent Transfer
Amendment to reflect the sale and assignment to the Issuer of Subsequent
Receivables.
"Schedule of Representations" means the Schedule of Representations and
Warranties attached hereto as Schedule A.
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"Scheduled Receivables Payment" means, with respect to any Collection Period for
any Receivable, the amount set forth in such Receivable as required to be paid
by the Obligor in such Collection Period. If after the Closing Date, the
Obligor's obligation under a Receivable with respect to a Collection Period has
been modified so as to differ from the amount specified in such Receivable as a
result of (i) the order of a court in an insolvency proceeding involving the
Obligor, or (ii) modifications or extensions of the Receivable permitted by
Section 4.2(b) of the Agreement, the Scheduled Receivables Payment with respect
to such Collection Period shall refer to the Obligor's payment obligation with
respect to such Collection Period as so modified.
"Seller" means AmeriCredit Canada in its capacity as Seller, and its successors
in interest to the extent permitted under the Agreement.
"Sequential Amortization Commencement Date" means the day following the Targeted
Final Payment Date for a Class of Class A Notes if the Outstanding Amount of
that Class is not paid in full on that Targeted Final Payment Date, unless that
Targeted Final Payment Date occurs during an Amortization Period.
"Sequential Amortization Period" means the period commencing on a Sequential
Amortization Commencement Date and ending on the Monthly Payment Date on which
there are paid in full the Outstanding Amounts of all Classes of Class A Notes
having consecutive numerical designations which were not paid in full on their
respective Targeted Final Payment Dates; provided, however that a Sequential
Amortization Period shall not so terminate on a Monthly Payment Date unless the
Issuer has received Class VPN Loan Proceeds (or Servicer Liquidity Advances) on
such Monthly Payment Date in a principal amount greater than or equal to 25% of
the initial Outstanding Amount of the Class of Class A Notes which was not paid
on its Targeted Final Payment Date and which has the highest numerical
designation on such Monthly Payment Date.
"Series C2002-1 Debtholders" or "Holder" means, with respect to a Series C2002-1
Note, the Person in whose name a Series C2202-1 Note is registered on the Note
Register, and with respect to a Class VPN Loan, the related Class VPN Lender as
specified in the related Class VPN Loan Agreement.
"Series C2002-1 Debt Obligations" means the Series C2002-1 Notes and the Class
VPN Loans. "Series C2002-1 Investor Notes" means the Class A Notes, the Class B
Notes and the Class C Notes.
"Series C2002-1 Notes" means the Class A Notes, the Class B Notes, the Class C
Notes and the Class D Notes.
"Series Account Property" means the Series Accounts, all amounts and investments
held from time to time in any Series Account (whether in the form of deposit
accounts, physical property, book-entry securities, uncertificated securities or
otherwise), and all proceeds of the foregoing.
"Series Accounts" has the meaning assigned thereto in Section 5.1(b) of the
Agreement.
"Series Supplement" means the Series C2002-1 Supplemental Indenture to the
Indenture dated the Closing Date made for the purposes of authorizing, creating
and issuing the Series C2002-1
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Debt Obligations and the other Related Obligations for the purposes of financing
the Issuer's acquisition of the Receivables and other Related Collateral, as the
same may be amended and supplemented or restated from time to time.
"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 Canada, in its capacity as the Servicer of the
Receivables.
"Servicer's Certificate" means an Officers' Certificate of the Servicer
delivered pursuant to Section 4.9 of the Agreement, substantially in the form of
Exhibit B thereto.
"Servicer Termination Event" means an event specified in Section 8.1 of the
Agreement.
"Servicing Fee" means, with respect to a Collection Period, the fee (inclusive
of goods and services taxes or other applicable taxes) payable to the Servicer
for services rendered during the respective 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 the Collection Period; provided however, that so long as
AmeriCredit Canada or an Affiliate is the Servicer, the Servicing Fee shall be
zero.
"Servicing Fee Rate" means 2.25% or such lesser percentage as the Issuer and any
Successor Servicer shall agree.
"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.
"Sold Receivable" means a Receivable that was more than 60 days delinquent and
was sold to an unaffiliated third party by the Issuer, at the Servicer's
direction, as of the close of business on the last day of a Collection Period in
accordance with the terms of the Sale and Servicing Agreement.
"Specified Reserve Account Balance" means, with respect to any Monthly Payment
Date, the sum of (a) $4,900,000 plus (b) 2.00% of the aggregate Principal
Balance of all Subsequent Receivables sold to the Issuer as of their respective
Subsequent Cut-off Dates.
"Standard & Poor's" means Standard & Poor's Ratings Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., or its successor.
"Step-Down Amount" means, with respect to any Monthly Payment Date, the excess,
if any, of (a) the Required Pro Forma Note Balance over (b) the Pro Forma Note
Balance on such Monthly Payment 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 Offered Notes and the Class VPN Loans).
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"Sub-Servicer" is defined in Section 7.5 of the Agreement.
"Subordinated Reserve Account Loan" is defined in Section 2.7(a) of the
Agreement.
"Subordinated Reserve Account Loan Balance" means, initially, $33,775,000 (being
the sum of (i) $28,875,000 in respect of the portion of the Purchase Price of
the Receivables referred to in Section 2.4(b)(ii) of the Sale and Servicing
Agreement and (ii) $4,900,000 in respect of the principal amount of the
Subordinated Reserve Account Loan made by the Seller to the Issuer on the
Closing Date pursuant to Section 2.9 of the Sale and Servicing Agreement) and
thereafter means the initial Subordinated Reserve Account Loan Balance plus all
Subordinated Reserve Account Loans made after the Closing Date minus all
payments to the Seller in respect of the principal amount of the Subordinated
Reserve Account Loan Balance pursuant to Section 5.7(c) of the Agreement.
"Subsequent Cut-Off Date" means the date specified as such in the related
Subsequent Transfer Amendment; provided, however, that such date shall be on or
before the Subsequent Transfer Date.
"Subsequent Purchase Price" is defined in Section 2.4(a) of the Agreement.
"Subsequent Quebec Transfer Supplement" means a supplement to the Quebec
Assignment executed and delivered by the Seller to the Issuer on a Subsequent
Transfer Date, substantially in the form of Exhibit A-3.
"Subsequent Receivables" means the Receivables transferred to the Issuer
pursuant to Section 2.2, which shall be listed in the related Subsequent
Transfer Amendment or, if applicable, the related Subsequent Quebec Transfer
Supplement.
"Subsequent Reserve Account Deposit" means, with respect to each Subsequent
Transfer Date, an amount equal to 2.0% of the aggregate principal balance of
Subsequent Receivables as of the related Subsequent Cut-Off Date transferred to
the Issuer on such Subsequent Transfer Date from amounts released from the
Pre-Funding Account.
"Subsequent Transfer Amendment" means a supplement and amendment to the Schedule
of Receivables executed and delivered by the Seller to the Issuer on a
Subsequent Transfer Date, substantially in the form of Exhibit A-1.
"Subsequent Transfer Date" means, with respect to Subsequent Receivables, any
date, occurring not more frequently than once a month, during the Pre-Funding
Period on which Subsequent Receivables are to be transferred to the Issuer
pursuant to the Agreement and (i) the Assignment and any related Subsequent
Transfer Amendment executed and delivered to the Trust or (ii) the Quebec
Assignment and any related Subsequent Quebec Transfer Supplement executed and
delivered to the Trust.
"Successor Servicer" is defined in Section 8.2(a) of the Agreement.
"Swap Counterparties" means, collectively, the Class VPN Swap Counterparty and
the Class A-1 Swap Counterparty.
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"Targeted Final Payment Date" means, for each Class of Notes:
(a) in the case of the Class A-1 Notes, the June, 2003 Payment Date;
(b) in the case of the Class A-2 Notes, the December, 2004 Payment
Date;
(c) in the case of the Class B Notes, the December, 2006 Payment
Date; and
(d) in the case of the Class C Notes, the December, 2006 Payment
Date.
"Total Noteholders' Principal Payment Amount" means, for any Monthly Payment
Date, the sum of (i) the Aggregate Principal Distributable Amount for such
Monthly Payment Date, plus (ii) the Accelerated Principal Payment Amount, if
any, for such Monthly Payment Date; plus (iii) (iii) the Class VPN Loan
Proceeds, if any, for such Monthly Payment Date, and, if such Monthly Payment
Date is the Targeted Final Payment Date for any Class of Class A Notes, the
Accumulation Amount, if any, for such Monthly Payment Date, plus (iv) on the
first Monthly Payment Date on or after (x) the Non-Sequential Amortization
Commencement Date or (y) the termination of the Class VPN Swap, the Accumulation
Amount for such Monthly Payment Date plus (v) on the first Monthly Payment Date
on or after the end of the Pre-Funding Period, the amount on deposit in the
Pre-Funding Account (after giving effect to all transfers of Subsequent
Receivables on that date) plus (vi) on the first Monthly Payment Date on or
after which the aggregate Outstanding Amount of the Series C2002-1 Debt
Obligations is less than or equal to the balance on deposit in the Reserve
Account on that date (after giving effect to all other withdrawals to be made
from the Reserve Account on such date), the amount on deposit in the Reserve
Account, plus (vii) the Liquidity Advances and Maturity Advances, if any, for
such date.
"Total Available Funds" means, for any Monthly Payment Date, the sum of (i) the
Available Funds for such Monthly Payment Date, plus (ii) the Reserve Account
Withdrawal Amount for such Monthly Payment Date (i.e. the amount of all funds
transferred by the Indenture Trustee from the Reserve Account to the Collection
Account immediately prior to such Monthly Payment Date).
"Trust Indenture" means, collectively, the Indenture and the Series Supplement.
"Trust Expenses" means, for any Monthly Payment Date, the aggregate amounts of
the fees and expenses of the Trustee and the Indenture Trustee, and all goods
and services or other sales taxes thereon, due and payable by the Issuer to the
Trustee and the Indenture Trustee, respectively, as Related Specified Creditors
of the Issuer in respect of the Series C2002-1 Notes, which are not paid by the
Seller or the Servicer to the Trustee or the Indenture Trustee in accordance
with arrangements made between the Seller and each of the Trustee and the Issuer
Trustee on or before the Closing Date or pursuant to Article 7 of the Agreement.
"Underwriting Agreement" means the Underwriting Agreement, dated November 18,
2002, among ▇▇▇▇▇▇▇ ▇▇▇▇▇ Canada Inc., as underwriter, the Issuer and
AmeriCredit Canada relating to the distribution and sale of the Offered Notes.
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PART II - RULES OF CONSTRUCTION
1. Accounting Terms. As used in this Appendix or the Basic Documents,
accounting terms which are not defined, and accounting terms partly
defined, herein or therein shall have the respective meanings given to
them under generally accepted accounting principles. To the extent that
the definitions of accounting terms in this Appendix or the Basic
Documents are inconsistent with the meanings of such terms under
generally accepted accounting principles, the definitions contained in
this Appendix or the Basic Documents will control.
2. "Hereof," etc. The words "hereof," "herein" and "hereunder" and words
of similar import when used in this Appendix or any Basic Document will
refer to this Appendix or such Basic Document as a whole and not to any
particular provision of this Appendix or such Basic Document; and
Section, Schedule and Exhibit references contained in this Appendix or
any Basic Document are references to Sections, Schedules and Exhibits
in or to this Appendix or such Basic Document unless otherwise
specified. The word "or" is not exclusive.
3. Reference To Monthly Payment Dates. With respect to any Monthly Payment
Date, the "related Collection Period,", the "related Determination
Date", the "related Determination Date", and the "related Record Date,"
will mean the Collection Period, Determination Date, Determination Date
and Record Date, respectively, immediately preceding such Monthly
Payment Date, and the relationships among Collection Periods,
Determination Dates, Determination Dates and Record Dates will be
correlative to the foregoing relationships.
4. Number and Gender. Each defined term used in this Appendix or the Basic
Documents has a comparable meaning when used in its plural or singular
form. Each gender-specific term used in this Appendix or the Basic
Documents has a comparable meaning whether used in a masculine,
feminine or gender-neutral form.
5. Including. Whenever the term "including" (whether or not that term is
followed by the phrase "but not limited to" or "without limitation" or
words of similar effect) is used in this Appendix or the Basic
Documents in connection with a listing of items within a particular
classification, that listing will be interpreted to be illustrative
only and will not be interpreted as a limitation on, or exclusive
listing of, the items within that classification.