EXHIBIT 4.3
EXECUTION COPY
SALE AND SERVICING
AGREEMENT
among
AMERICREDIT AUTOMOBILE RECEIVABLES TRUST 2005-1,
Issuer,
AFS SENSUB CORP.,
Seller,
AMERICREDIT FINANCIAL SERVICES, INC.,
Servicer,
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,
Trust Collateral Agent,
and
SYSTEMS & SERVICES TECHNOLOGIES, INC.,
Backup Servicer
Dated as of April 6, 2005
TABLE OF CONTENTS
Page
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ARTICLE I Definitions ...................................................................................1
SECTION 1.1. Definitions........................................................................1
SECTION 1.2. Other Definitional Provisions.....................................................18
ARTICLE II Conveyance of Receivables....................................................................19
SECTION 2.1. Conveyance of Receivables.........................................................19
SECTION 2.2. [Reserved]........................................................................20
SECTION 2.3. Further Encumbrance of Trust Property.............................................20
ARTICLE III The Receivables.............................................................................20
SECTION 3.1. Representations and Warranties of Seller..........................................20
SECTION 3.2. Repurchase upon Breach............................................................21
SECTION 3.3. Custody of Receivables Files......................................................22
ARTICLE IV Administration and Servicing of Receivables..................................................23
SECTION 4.1. Duties of the Servicer and the Backup Servicer....................................23
SECTION 4.2. Collection of Receivable Payments; Modifications of Receivables; Lockbox
Agreements........................................................................24
SECTION 4.3. Realization upon Receivables......................................................27
SECTION 4.4. Insurance.........................................................................29
SECTION 4.5. Maintenance of Security Interests in Vehicles.....................................30
SECTION 4.6. Covenants, Representations, and Warranties of Servicer............................31
SECTION 4.7. Purchase of Receivables Upon Breach of Covenant...................................31
SECTION 4.8. Total Servicing Fee; Payment of Certain Expenses by Servicer......................32
SECTION 4.9. Servicer's Certificate............................................................33
SECTION 4.10. Annual Statement as to Compliance, Notice of Servicer Termination Event...........33
SECTION 4.11. Annual Independent Accountants' Report............................................34
SECTION 4.12. Access to Certain Documentation and Information Regarding Receivables.............34
SECTION 4.13. Monthly Tape......................................................................34
SECTION 4.14. [Reserved]........................................................................35
SECTION 4.15. Fidelity Bond and Errors and Omissions Policy.....................................35
ARTICLE V Trust Accounts; Distributions; Statements to Noteholders......................................35
SECTION 5.1. Establishment of Trust Accounts...................................................35
SECTION 5.2. [Reserved]........................................................................38
SECTION 5.3. Certain Reimbursements to the Servicer............................................38
SECTION 5.4. Application of Collections........................................................38
SECTION 5.5. [Reserved]........................................................................38
SECTION 5.6. Additional Deposits...............................................................38
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SECTION 5.7. Distributions.....................................................................39
SECTION 5.8. Reserve Account...................................................................42
SECTION 5.9. Statements to Noteholders.........................................................43
ARTICLE VI [Reserved]...................................................................................44
ARTICLE VII The Seller..................................................................................44
SECTION 7.1. Representations of Seller.........................................................44
SECTION 7.2. Corporate Existence...............................................................46
SECTION 7.3. Liability of Seller; Indemnities..................................................47
SECTION 7.4. Merger or Consolidation of, or Assumption of the Obligations of, Seller...........48
SECTION 7.5. Limitation on Liability of Seller and Others......................................48
SECTION 7.6. Ownership of the Certificates or Notes............................................48
ARTICLE VIII The Servicer and the Backup Servicer.......................................................49
SECTION 8.1. Representations of Servicer.......................................................49
SECTION 8.2. Representations of Backup Servicer................................................50
SECTION 8.3. Liability of Servicer and Backup Servicer; Indemnities............................51
SECTION 8.4. Merger or Consolidation of, or Assumption of the Obligations of the
Servicer or Backup Servicer.......................................................53
SECTION 8.5. Limitation on Liability of Servicer, Backup Servicer and Others...................54
SECTION 8.6. Delegation of Duties..............................................................55
SECTION 8.7. Servicer and Backup Servicer Not to Resign........................................55
ARTICLE IX Default......................................................................................56
SECTION 9.1. Servicer Termination Event........................................................56
SECTION 9.2. Consequences of a Servicer Termination Event......................................57
SECTION 9.3. Appointment of Successor..........................................................58
SECTION 9.4. Notification to Noteholders.......................................................59
SECTION 9.5. Waiver of Past Defaults...........................................................59
SECTION 9.6. Backup Servicer Termination.......................................................59
ARTICLE X Termination...................................................................................60
SECTION 10.1. Optional Purchase of All Receivables..............................................60
ARTICLE XI Administrative Duties of the Servicer........................................................60
SECTION 11.1. Administrative Duties.............................................................60
SECTION 11.2. Records...........................................................................63
SECTION 11.3. Additional Information to be Furnished to the Issuer..............................63
ARTICLE XII Miscellaneous Provisions....................................................................63
SECTION 12.1. Amendment.........................................................................63
SECTION 12.2. Protection of Title to Trust......................................................64
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SECTION 12.3. Notices...........................................................................66
SECTION 12.4. Assignment........................................................................66
SECTION 12.5. Limitations on Rights of Others...................................................66
SECTION 12.6. Severability......................................................................67
SECTION 12.7. Separate Counterparts.............................................................67
SECTION 12.8. Headings..........................................................................67
SECTION 12.9. Governing Law.....................................................................67
SECTION 12.10. Assignment to Trust Collateral Agent..............................................67
SECTION 12.11. Nonpetition Covenants.............................................................67
SECTION 12.12. Limitation of Liability of Owner Trustee and Trust Collateral Agent...............68
SECTION 12.13. Independence of the Servicer......................................................68
SECTION 12.14. No Joint Venture..................................................................68
SECTION 12.15. State Business Licenses...........................................................68
SCHEDULES
Schedule A Schedule of Receivables
Schedule B Representations and Warranties of the Seller
Schedule C Servicing Policies and Procedures
EXHIBITS
Exhibit A Form of Servicer's Certificate
ANNEXES
Annex A Modified Backup Servicer Provisions
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SALE AND SERVICING AGREEMENT dated as of April 6, 2005, among
AMERICREDIT AUTOMOBILE RECEIVABLES TRUST 2005-1, a Delaware statutory trust (the
"Issuer"), AFS SENSUB CORP., a Nevada corporation (the "Seller"), AMERICREDIT
FINANCIAL SERVICES, INC., a Delaware corporation (the "Servicer"), JPMORGAN
CHASE BANK, NATIONAL ASSOCIATION, a national banking association, in its
capacity as Trust Collateral Agent and SYSTEMS & SERVICES TECHNOLOGIES, INC., a
Delaware corporation, in its capacity as Backup Servicer.
WHEREAS the Issuer desires to purchase a portfolio of
receivables arising in connection with motor vehicle retail installment sale
contracts made by AmeriCredit Financial Services, Inc. or acquired by
AmeriCredit Financial Services, Inc. through motor vehicle dealers and third
party lenders;
WHEREAS the Seller has purchased such receivables from
AmeriCredit Financial Services, Inc. and is willing to sell such receivables to
the Issuer;
WHEREAS the Servicer is willing to service all such receivables;
WHEREAS the Backup Servicer is willing to provide backup
servicing for all such receivables;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.1. Definitions. Whenever used in this Agreement,
the following words and phrases shall have the following meanings:
"Accelerated Principal Amount" for a Distribution Date will
equal the lesser of
(x) the excess, if any, of the amount of Available
Funds on such Distribution Date over the amounts payable on such
Distribution Date pursuant to clauses (i) through (xix) of
Section 5.7(a); and
(y) the excess, if any, on such Distribution Date of
(i) the Pro Forma Note Balance for such Distribution Date over
(ii) the Required Pro Forma Note Balance for such Distribution
Date.
"Accountants' Report" means the report of a firm of nationally
recognized independent accountants described in Section 4.11.
"Accounting Date" means, with respect to any Collection Period
the last day of such Collection Period.
"Affiliate" means, with respect to any specified Person, any
other Person controlling or controlled by or under common control with such
specified Person. For the purposes of this definition, "control" when used with
respect to any Person means the power to direct the management and policies of
such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Aggregate Principal Balance" means, with respect to any date of
determination, the sum of the Principal Balances for all Receivables (other than
(i) any Receivable that became a Liquidated Receivable prior to the end of the
related Collection Period and (ii) any Receivable that became a Purchased
Receivable prior to the end of the related Collection Period) as of the date of
determination.
"Aggregate Principal Parity Amount" means, with respect to any
Distribution Date, the sum of the Class A Principal Parity Amount, the Class B
Principal Parity Amount, the Class C Principal Parity Amount, the Class D
Principal Parity Amount and the Class E Principal Parity Amount on that
Distribution Date.
"Agreement" means this Sale and Servicing Agreement, as the same
may be amended and supplemented from time to time.
"AmeriCredit" means AmeriCredit Financial Services, Inc.
"Amount Financed" means, with respect to a Receivable, the
aggregate amount advanced under such Receivable toward the purchase price of the
Financed Vehicle and any related costs, including amounts advanced in respect of
accessories, insurance premiums, service and warranty contracts, other items
customarily financed as part of motor vehicle retail installment sale contracts
or promissory notes, and related costs.
"Annual Percentage Rate" or "APR" of a Receivable means the
annual percentage rate of finance charges or service charges, as stated in the
related Contract.
"Auto Loan Purchase and Sale Agreement" means any agreement
between a Third-Party Lender and AmeriCredit relating to the acquisition of
Receivables from a Third-Party Lender by AmeriCredit.
"Available Funds" means, with respect to any Distribution Date,
the sum of (i) the Collected Funds for the related Collection Period, (ii) all
Purchase Amounts deposited in the Collection Account during the related
Collection Period, plus Investment Earnings with respect to the Collection
Account and the Note Distribution Account for the related Collection Period,
(iii) following the acceleration of the Notes pursuant to Section 5.2 of the
Indenture, the amount of money or property collected pursuant to Section 5.3 of
the Indenture since the preceding Distribution Date by the Trust Collateral
Agent or the Majority Noteholders for distribution pursuant to Section 5.6 and
Section 5.8 of the Indenture, (iv) the proceeds of any purchase or sale of the
assets of the Trust described in Section 10.1 and (v) amounts, if any, released
from the Reserve Account pursuant to Section 5.8(a)(iii)(B) hereof on such
Distribution Date.
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"Backup Servicer" means Systems & Services Technologies, Inc.,
or if Systems & Services Technologies, Inc. is unwilling to perform the duties
of the Backup Servicer hereunder even though it is legally able to do so,
JPMorgan Chase Bank, National Association, so long as it is the Indenture
Trustee hereunder.
"Base Servicing Fee" means, with respect to any Collection
Period, the fee payable to the Servicer for services rendered during such
Collection Period, which shall be equal to (a) with respect to AmeriCredit, as
Servicer, one-twelfth of the Servicing Fee Rate multiplied by the Pool Balance
as of the opening of business on the first day of such Collection Period, (b)
with respect to Systems & Services Technologies, Inc. as successor Servicer, the
amounts set forth in Schedule 1 to Annex A hereto and (c) with respect to any
successor Servicer other than Systems & Services Technologies, Inc., the amount
determined pursuant to Section 9.3(c).
"Basic Documents" means this Agreement, the Certificate of
Trust, the Trust Agreement, the Indenture, the Custodian Agreement, the Lockbox
Agreement, the Underwriting Agreement, the Note Purchase Agreement and other
documents and certificates delivered in connection therewith.
"Business Day" means a day other than a Saturday, a Sunday, a
legal holiday or other day on which commercial banking institutions in the
states of Delaware, Texas, Missouri or New York or in the city which the
corporate trust office of the Trustee under the Indenture or the Owner Trustee
under the Trust Agreement is located are authorized or obligated by law or
executive order to be closed.
"Calendar Quarter" means the three-month period ending on the
last day of March, June, September or December.
"Certificate" means the trust certificate evidencing the
beneficial interest of the Certificateholder in the Trust.
"Certificateholder" means the Person in whose name the
Certificate is registered.
"Class" means the Class A-1 Notes, the Class A-2 Notes, the
Class A-3 Notes, the Class B Notes, the Class C Notes, the Class D Notes and the
Class E Notes, as the context requires.
"Class A Principal Parity Amount" means, with respect to any
Distribution Date, the lesser of (I) the excess, if any, of (x) the aggregate
remaining principal balance of the Class A Notes immediately prior to such
Distribution Date over (y) the Pool Balance as of the end of the immediately
preceding Collection Period and (II) the amount of Total Available Funds
remaining on deposit in the Collection Account after the funding of the items
described in clauses (i) through (iii) of Section 5.7(a) on such Distribution
Date.
"Class A-1 Notes" has the meaning assigned to such term in the
Indenture.
"Class A-2 Notes" has the meaning assigned to such term in the
Indenture.
"Class A-3 Notes" has the meaning assigned to such term in the
Indenture.
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"Class B Notes" has the meaning assigned to such term in the
Indenture.
"Class B Principal Parity Amount" means, with respect to any
Distribution Date, the lesser of (I) the excess of (A) the excess, if any, of
(x) the aggregate remaining principal balance of the Class A Notes and of the
Class B Notes, in each case immediately prior to such Distribution Date over (y)
the Pool Balance as of the end of the immediately preceding Collection Period
over (B) the Class A Principal Parity Amount for such Distribution Date and (II)
the amount of Total Available Funds remaining on deposit in the Collection
Account after the funding of the items described in clauses (i) through (vi) of
Section 5.7(a) on such Distribution Date.
"Class C Notes" has the meaning assigned to such term in the
Indenture.
"Class C Principal Parity Amount" means, with respect to any
Distribution Date, the lesser of (I) the excess of (A) the excess, if any, of
(x) the aggregate remaining principal balance of the Class A Notes, of the Class
B Notes and of the Class C Notes, in each case immediately prior to such
Distribution Date over (y) the Pool Balance as of the end of the immediately
preceding Collection Period over (B) the sum of the Class A Principal Parity
Amount and the Class B Principal Parity Amount for such Distribution Date and
(II) the amount of Total Available Funds remaining on deposit in the Collection
Account after the funding of the items described in clauses (i) through (ix) of
Section 5.7(a) on such Distribution Date.
"Class D Notes" has the meaning assigned to such term in the
Indenture.
"Class D Principal Parity Amount" means, with respect to any
Distribution Date, the lesser of (I) the excess of (A) the excess, if any, of
(x) the aggregate remaining principal balance of the Class A Notes, of the Class
B Notes, of the Class C Notes and of the Class D Notes, in each case immediately
prior to such Distribution Date over (y) the Pool Balance as of the end of the
immediately preceding Collection Period over (B) the sum of the Class A
Principal Parity Amount, the Class B Principal Parity Amount and the Class C
Parity Amount for such Distribution Date and (II) the amount of Total Available
Funds remaining on deposit in the Collection Account after the funding of the
items described in clauses (i) through (xii) of Section 5.7(a) on such
Distribution Date.
"Class E Notes" has the meaning assigned to such term in the
Indenture.
"Class E Principal Parity Amount" means, with respect to any
Distribution Date, the lesser of (I) the excess of (A) the excess, if any, of
(x) the aggregate remaining principal balance of the Class A Notes, of the Class
B Notes, of the Class C Notes, of the Class D Notes and of the Class E Notes, in
each case immediately prior to such Distribution Date over (y) the Pool Balance
as of the end of the immediately preceding Collection Period over (B) the sum of
the Class A Principal Parity Amount, the Class B Principal Parity Amount, the
Class C Principal Parity Amount and the Class D Principal Parity Amount for such
Distribution Date and (II) the amount of Total Available Funds remaining on
deposit in the Collection Account after the funding of the items described in
clauses (i) through (xv) of Section 5.7(a) on such Distribution Date.
"Closing Date" means April 14, 2005.
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"Collateral Insurance" shall have the meaning set forth in
Section 4.4(a).
"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.
"Collection Period" means, with respect to the first
Distribution Date, the period beginning on the close of business on April 6,
2005 and ending on the close of business on April 30, 2005 and with respect to
each subsequent Distribution Date, "Collection Period" means the period
beginning on the close of business on the last day of the second preceding
calendar month and ending on the close of business on the last day of the
immediately preceding calendar month. Any amount stated "as of the close of
business of the last day of a Collection Period" shall give effect to the
following calculations as determined as of the end of the day on such last day:
(i) all applications of collections and (ii) all distributions.
"Collection Records" means all manually prepared or computer
generated records relating to collection efforts or payment histories with
respect to the Receivables.
"Computer Tape" means the computer tapes or other electronic
media furnished by the Servicer to the Issuer and its assigns describing certain
characteristics of the Receivables as of the Cutoff Date.
"Contract" means a motor vehicle retail installment sale
contract or promissory note.
"Controlling Party" means the Trust Collateral Agent, acting for
the benefit of the Noteholders.
"Corporate Trust Office" means (i) with respect to the Owner
Trustee, the principal corporate trust office of the Owner Trustee, which at the
time of execution of this agreement is Xxxxxx Square Xxxxx-0000 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000-0000, and (ii) with respect to the Trustee
and the Trust Collateral Agent, the principal office thereof at which at any
particular time its corporate trust business shall be administered, which at the
time of execution of this agreement is 4 Xxx Xxxx Xxxxx, 0xx Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Institutional Trust Services, AmeriCredit 2005-1.
"Cram Down Loss" means, with respect to a Receivable that has
not become a Liquidated 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.
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"Custodian" means AmeriCredit and any other Person named from
time to time as custodian in any Custodian Agreement acting as agent for the
Trust Collateral Agent.
"Custodian Agreement" means any Custodian Agreement from time to
time in effect between the Custodian named therein and the Trust Collateral
Agent, as the same may be amended, supplemented or otherwise modified from time
to time in accordance with the terms thereof.
"Cutoff Date" means April 6, 2005.
"Dealer" means a dealer who sold a Financed Vehicle and who
originated and assigned the respective Receivable to AmeriCredit under a Dealer
Agreement or pursuant to a Dealer Assignment.
"Dealer Agreement" means any agreement between a Dealer and
AmeriCredit relating to the acquisition of Receivables from a Dealer by
AmeriCredit.
"Dealer Assignment" means, with respect to a Receivable, the
executed assignment executed by a Dealer conveying such Receivable to
AmeriCredit.
"Delivery" when used with respect to Trust Account Property
means:
(a) with respect to bankers' acceptances, commercial paper,
negotiable certificates of deposit and other obligations that constitute
"instruments" within the meaning of Section 9-102(a)(47) of the UCC and are
susceptible of physical delivery, transfer thereof to the Trust Collateral Agent
by physical delivery to the Trust Collateral Agent endorsed to, or registered in
the name of, the Trust Collateral Agent or endorsed in blank, and, with respect
to a certificated security (as defined in Section 8-102(a)(4) of the UCC),
transfer thereof (i) by delivery of such certificated security endorsed to, or
registered in the name of, the Trust Collateral Agent or (ii) by delivery
thereof to a "clearing corporation" (as defined in Section 8-102(a)(5) of the
UCC) and the making by such clearing corporation of appropriate entries on its
books reducing the appropriate securities account of the transferor and
increasing the appropriate securities account of the Trust Collateral Agent by
the amount of such certificated security and the identification by the clearing
corporation of the certificated securities for the sole and exclusive account of
the Trust Collateral Agent (all of the foregoing, "Physical Property"), and, in
any event, any such Physical Property in registered form shall be in the name of
the Trust Collateral Agent or its nominee; and such additional or alternative
procedures as may hereafter become appropriate to effect the complete transfer
of ownership of any such Trust Account Property to the Trust Collateral Agent or
its nominee or custodian, consistent with changes in applicable law or
regulations or the interpretation thereof;
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(b) with respect to any security issued by the U.S.
Treasury, the Federal Home Loan Mortgage Corporation or by the Federal National
Mortgage Association that is a book-entry security held through the Federal
Reserve System pursuant to federal book-entry regulations, the following
procedures, all in accordance with applicable law, including applicable Federal
regulations and Articles 8 and 9 of the UCC: book-entry registration of such
Trust Account Property to an appropriate book-entry account maintained with a
Federal Reserve Bank by a securities intermediary that is also a "depository"
pursuant to applicable federal regulations; the making by such securities
intermediary of entries in its books and records crediting such Trust Account
Property to the Trust Collateral Agent's securities account at the securities
intermediary and identifying such book-entry security held through the Federal
Reserve System pursuant to federal book-entry regulations as belonging to the
Trust Collateral Agent; and such additional or alternative procedures as may
hereafter become appropriate to effect complete transfer of ownership of any
such Trust Account Property to the Trust Collateral Agent, consistent with
changes in applicable law or regulations or the interpretation thereof;
(c) with respect to any item of Trust Account Property that
is an uncertificated security under Article 8 of the UCC and that is not
governed by clause (b) above, registration on the books and records of the
issuer thereof in the name of the Trust Collateral Agent or its nominee or
custodian who either (i) becomes the registered owner on behalf of the Trust
Collateral Agent or (ii) having previously become the registered owner,
acknowledges that it holds for the Trust Collateral Agent; and
(d) with respect to any item of Trust Account Property that
is a security entitlement under Article 8 of the UCC and that is not governed by
clause (b) above, causing the securities intermediary to indicate on its books
and records that such security entitlement has been credited to a securities
account of the Trust Collateral Agent.
"Depositor" shall mean the Seller in its capacity as Depositor
under the Trust Agreement.
"Determination Date" means, with respect to any Collection
Period, the second Business Day preceding the Distribution Date in the next
calendar month and with respect to the first Distribution Date, May 4, 2005.
"Distribution Date" means, with respect to each Collection
Period, the sixth day of the following calendar month, or, if such day is not a
Business Day, the immediately following Business Day, commencing May 6, 2005.
"Electronic Ledger" means the electronic master record of the
retail installment sales contracts or installment loans of the Servicer.
"Eligible Deposit Account" means a segregated trust account with
the corporate trust department of a depository institution organized under the
laws of the United States of America or any one of the states thereof or the
District of Columbia (or any domestic branch of a foreign bank), having
corporate trust powers and acting as trustee for funds deposited in such
account, so long as (i) any of the securities of such depository institution
have a credit rating from each Rating Agency in one of its generic rating
categories which signifies investment grade and (ii) such depository
institutions' deposits are insured by the FDIC.
"Eligible Investments" mean book-entry securities, negotiable
instruments or securities represented by instruments in bearer or registered
form which evidence:
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(a) direct obligations of, and obligations fully guaranteed
as to timely payment by, the United States of America;
(b) demand deposits, time deposits or certificates of
deposit of any depository institution or trust company incorporated under the
laws of the United States of America or any state thereof or the District of
Columbia (or any domestic branch of a foreign bank) and subject to supervision
and examination by federal or state banking or depository institution
authorities (including depository receipts issued by any such institution or
trust company as custodian with respect to any obligation referred to in clause
(a) above or portion of such obligation for the benefit of the holders of such
depository receipts); provided, however, that at the time of the investment or
contractual commitment to invest therein (which shall be deemed to be made again
each time funds are reinvested following each Distribution Date), the commercial
paper or other short-term senior unsecured debt obligations (other than such
obligations the rating of which is based on the credit of a Person other than
such depository institution or trust company) of such depository institution or
trust company shall have a credit rating from Standard & Poor's of A-1+ and from
Moody's of Prime-1;
(c) commercial paper and demand notes investing solely in
commercial paper having, at the time of the investment or contractual commitment
to invest therein, a rating from Standard & Poor's of A-1+ and from Moody's of
Prime-1;
(d) investments in money market funds (including funds for
which the Trust Collateral Agent or the Owner Trustee in each of their
individual capacities or any of their respective Affiliates is investment
manager, controlling party or advisor) having a rating from Standard & Poor's of
AAA-m or AAAm-G and from Moody's of Aaa;
(e) bankers' acceptances issued by any depository
institution or trust company referred to in clause (b) above;
(f) repurchase obligations with respect to any security that
is a direct obligation of, or fully guaranteed by, the United States of America
or any agency or instrumentality thereof the obligations of which are backed by
the full faith and credit of the United States of America, in either case
entered into with a depository institution or trust company (acting as
principal) referred to in clause (b) above;
(g) any other investment which would satisfy the Rating
Agency Condition and is consistent with the ratings of the Securities 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; and
(h) cash denominated in United States dollars.
Any of the foregoing Eligible Investments may be purchased by or
through the Owner Trustee or the Trust Collateral Agent or any of their
respective Affiliates.
"FDIC" means the Federal Deposit Insurance Corporation.
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"Final Scheduled Distribution Date" means with respect to (i)
the Class A-1 Notes, the April 6, 2006 Distribution Date, (ii) the Class A-2
Notes, the August 6, 2008 Distribution Date, (iii) the Class A-3 Notes, the May
6, 2009 Distribution Date, (iv) the Class B Notes, the November 6, 2009
Distribution Date, (v) the Class C Notes, the July 6, 2010 Distribution Date,
(vi) the Class D Notes, the May 6, 2011 Distribution Date and (vii) the Class E
Notes, the June 6, 2012 Distribution Date.
"Financed Vehicle" means an automobile or light-duty truck van
or minivan, together with all accessions thereto, securing an Obligor's
indebtedness under the respective Receivable.
"Force-Placed Insurance" has the meaning ascribed thereto in
Section 4.4 hereof.
"Indenture" means the Indenture dated as of April 6, 2005, among
the Issuer and JPMorgan Chase Bank, National Association, as Trust Collateral
Agent and Trustee, as the same may be amended and supplemented from time to
time.
"Initial Purchasers" means Credit Suisse First Boston LLC and
Deutsche Bank Securities Inc. as initial purchases of the Class E Notes pursuant
to the Note Purchase Agreement.
"Insolvency Event" means, with respect to a specified Person,
(a) the filing of a petition against such Person or the entry of a decree or
order for relief by a court having jurisdiction in the premises in respect of
such Person or any substantial part of its property in an involuntary case under
any applicable federal or state bankruptcy, insolvency or other similar law now
or hereafter in effect, or appointing a receiver, liquidator, assignee,
custodian, trustee, sequestrator, or similar official for such Person or for any
substantial part of its property, or ordering the winding-up or liquidation or
such Person's affairs, and such petition, decree or order shall remain unstayed
and in effect for a period of 60 consecutive days; or (b) the commencement by
such Person of a voluntary case under any applicable federal or state
bankruptcy, insolvency or other similar law now or hereafter in effect, or the
consent by such Person to the entry of an order for relief in an involuntary
case under any such law, or the consent by such Person to the appointment of or
taking possession by, a receiver, liquidator, assignee, custodian, trustee,
sequestrator, or similar official for such Person or for any substantial part of
its property, or the making by such Person of any general assignment for the
benefit of creditors, or the failure by such Person generally to pay its debts
as such debts become due, or the taking of action by such Person in furtherance
of any of the foregoing.
"Insurance Add-On Amount" means the premium charged to the
Obligor in the event that the Servicer obtains Force-Placed Insurance pursuant
to Section 4.4.
"Insurance 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 Distribution Date,
the period from and including the most recent Distribution Date on which
interest has been paid (or in the case of the first Distribution Date, from and
including the Closing Date) to, but excluding, the following Distribution Date.
In the case of the first Distribution Date, the Interest Period shall be 22 days
for all Classes of Notes.
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"Interest Rate" means, with respect to (i) the Class A-1 Notes,
3.1425% per annum (computed on the basis of a 360-day year and the actual number
of days elapsed in the applicable Interest Period), (ii) the Class A-2 Notes,
3.82% per annum (computed on the basis of a 360-day year consisting of twelve
30-day months), (iii) the Class A-3 Notes, 4.26% per annum (computed on the
basis of a 360-day year consisting of twelve 30-day months), (iv) the Class B
Notes, 4.48% per annum (computed on the basis of a 360-day year consisting of
twelve 30-day months), (v) the Class C Notes, 4.73% per annum (computed on the
basis of a 360-day year consisting of twelve 30-day months), (vi) the Class D
Notes, 5.04% per annum (computed on the basis of a 360-day year consisting of
twelve 30-day months) and (vii) the Class E Notes, 5.82% per annum (computed on
the basis of a 360-day year consisting of twelve 30-day months).
"Investment Earnings" means, with respect to any date of
determination and Trust Account, the investment earnings on amounts on deposit
in such Trust Account on such date.
"Issuer" means AmeriCredit Automobile Receivables Trust 2005-1.
"Lien" means a security interest, lien, charge, pledge, equity,
or encumbrance of any kind, other than tax liens, mechanics' liens and any liens
that attach to the respective Receivable by operation of law as a result of any
act or omission by the related Obligor.
"Lien Certificate" means, with respect to a Financed Vehicle, an
original certificate of title, certificate of lien or other notification issued
by the Registrar of Titles of the applicable state to a secured party which
indicates that the lien of the secured party on the Financed Vehicle is recorded
on the original certificate of title. In any jurisdiction in which the original
certificate of title is required to be given to the Obligor, the term "Lien
Certificate" shall mean only a certificate or notification issued to a secured
party. For Financed Vehicles registered in states which only issue confirmation
of the lienholder's interest electronically, the "Lien Certificate" may consist
of notification of an electronic recordation, by either a third party service
provider or the relevant Registrar of Titles of the applicable state, which
indicates that the lien of the secured party on the Financed Vehicle is recorded
on the original certificate of title on the electronic lien and title system of
the applicable state.
"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 10% or
more of a Scheduled Receivables Payment have become 210 or more days delinquent
in the case of a repossessed Financed Vehicle, (ii) as to which the Servicer has
determined in good faith that all amounts it expects to recover have been
received, (iii) as to which 10% or more of a Scheduled Receivables Payment shall
have become 120 or more days delinquent, except in the case of a repossessed
Financed Vehicle, or (iv) that is, without duplication, a Sold Receivable.
"Liquidation Proceeds" means, with respect to a Liquidated
Receivable, all amounts realized with respect to such Receivable and, with
respect to a Sold Receivable, the related Sale Amount.
"Lockbox Account" means an account maintained on behalf of the
Trust Collateral Agent by the Lockbox Bank pursuant to Section 4.2(d).
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"Lockbox Agreement" means the Tri-Party Remittance Processing
Agreement, dated as of April 6, 2005, by and among AmeriCredit, JPMorgan Chase
Bank, National Association, with offices at Phoenix, Arizona and the Trust
Collateral Agent, as such agreement may be amended or supplemented from time to
time, unless the Trust Collateral Agent shall cease to be a party thereunder, or
such agreement shall be terminated in accordance with its terms, in which event
"Lockbox Agreement" shall mean any replacement agreement therefor among the
Servicer, the Trust Collateral Agent and the Lockbox Bank.
"Lockbox Bank" means a depository institution named by the
Servicer.
"Majority Noteholders" means the Holders of Notes representing a
majority of the principal balance of the most senior Class of Notes then
outstanding.
"Matured Principal Shortfall" means, with respect to any
Distribution Date and for any Class of Notes which would have a remaining
principal balance greater than zero on such Distribution Date, after taking into
account the payment of all other principal amounts to such Class on such
Distribution Date, and as to which such Distribution Date is either the Final
Scheduled Distribution Date for such Class, or a Distribution Date subsequent to
such Final Scheduled Distribution Date, the remaining principal balance of such
Class on such Distribution Date, after taking into account the payment of all
other principal amounts to such Class on such Distribution Date.
"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 and the Net Liquidation Proceeds have
been deposited in the Collection Account, 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 despite the Servicer's diligent efforts,
consistent with its servicing obligations, to repossess the Financed Vehicle,
$1.
"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; and past due late charges.
"Moody's" means Xxxxx'x Investors Service, or its successor.
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"Net Liquidation Proceeds" means, with respect to a Liquidated
Receivable, Liquidation Proceeds 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 Net Liquidation Proceeds with respect to any Receivable shall in no
event be less than zero.
"Note Distribution Account" means the account designated as
such, established and maintained pursuant to Section 5.1.
"Note Pool Factor" for each Class of Notes as of the close of
business on any date of determination means a seven-digit decimal figure equal
to the outstanding principal amount of such Class of Notes divided by the
original outstanding principal amount of such Class of Notes.
"Note Purchase Agreement" means the Note Purchase Agreement
dated as of April 5, 2005, among the Initial Purchasers, the Seller and the
Servicer.
"Noteholders' Distributable Amount" means, with respect to any
Distribution Date, the sum of the Noteholders' Principal Distributable Amount
and the Noteholders' Interest Distributable Amount.
"Noteholders' Interest Carryover Amount" means, with respect to
any Class of Notes and any date of determination, all or any portion of the
Noteholders' Interest Distributable Amount for the immediately preceding
Distribution Date which remains unpaid as of such date of determination, plus
interest on such unpaid amount, to the extent permitted by law, at the
respective Interest Rate borne by each Class of Notes from such immediately
preceding Distribution Date to but excluding such date of determination.
"Noteholders' Interest Distributable Amount" means, with respect
to any Distribution Date and Class of Notes, the sum of the Noteholders' Monthly
Interest Distributable Amount for such Distribution Date and Class of Notes and
the Noteholders' Interest Carryover Amount, if any for such Distribution Date
and such Class. Interest on the Class A-1 Notes shall be computed on the basis
of a 360-day year and the actual number of days elapsed in the applicable
Interest Period; interest on all other Classes of Notes shall be computed on the
basis of a 360-day year of twelve 30-day months.
"Noteholders' Monthly Interest Distributable Amount" means, with
respect to any Distribution Date and any Class of Notes, interest accrued at the
respective Interest Rate during the applicable Interest Period on the principal
amount of the Notes of such Class outstanding as of the end of the prior
Distribution Date (or, in the case of the first Distribution Date, as of the
Closing Date), calculated (x) for the Class A-1 Notes on the basis of a 360-day
year and the actual number of days elapsed in the applicable Interest Period and
(y) for all other Classes of Notes on the basis of a 360-day year of twelve
30-day months.
"Noteholders' Principal Carryover Amount" means, as of any date
of determination, all or any portion of the Noteholders' Principal Distributable
Amount from the preceding Distribution Date which remains unpaid as of such date
of determination.
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"Noteholders' Principal Distributable Amount" means, with
respect to any Distribution Date, (other than the Final Scheduled Distribution
Date for any Class of Notes), the sum of the Principal Distributable Amount for
such Distribution Date and the Noteholders' Principal Carryover Amount, if any,
as of the close of the preceding Distribution Date. The Noteholders' Principal
Distributable Amount on the Final Scheduled Distribution Date for any Class of
Notes will equal the sum of (i) the Principal Distributable Amount for such
Distribution Date, (ii) the Noteholders' Principal Carryover Amount as of such
Distribution Date, and (iii) the excess of the outstanding principal amount of
such Class of Notes, if any, over the amounts described in clauses (i) and (ii).
"Obligor" on a Receivable means the purchaser or co-purchasers
of the Financed Vehicle and any other Person who owes payments under the
Receivable.
"Officers' Certificate" means a certificate signed by the chief
executive officer, the president, any executive vice president, any senior vice
president, any vice president, any assistant vice president, any treasurer, any
assistant treasurer, any secretary or any assistant secretary of the Seller or
the Servicer, as appropriate.
"Opinion of Counsel" means a written opinion of counsel
satisfactory in form and substance to the Trust Collateral Agent.
"Original Pool Balance" means the Pool Balance as of the Cutoff
Date.
"Other Conveyed Property" means all property conveyed by the
Seller to the Trust pursuant to Section 2.1(b) through (i) of this Agreement.
"Owner Trust Estate" has the meaning assigned to such term in
the Trust Agreement.
"Owner Trustee" means Wilmington Trust Company, not in its
individual capacity but solely as Owner Trustee under the Trust Agreement, its
successors in interest or any successor Owner Trustee under the Trust Agreement.
"Person" means any individual, corporation, estate, partnership,
joint venture, association, joint stock company, trust (including any
beneficiary thereof), unincorporated organization or government or any agency or
political subdivision thereof.
"Physical Property" has the meaning assigned to such term in the
definition of "Delivery" above.
"Pool Balance" means, as of any date of determination, the
aggregate Principal Balance of the Receivables (excluding Purchased Receivables
and Liquidated Receivables) as of the close of business on the last day of the
preceding calendar month.
"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
Distribution Date, the amount equal to the excess, if any, of (x) the sum of (i)
the principal portion of all Collected Funds received during the immediately
preceding Collection Period (other than Liquidated Receivables and Purchased
Receivables), (ii) the Principal Balance of all Receivables that became
Liquidated Receivables during the related Collection Period (other than
Purchased Receivables), (iii) the principal portion of the Purchase Amounts
received with respect to all Receivables that became Purchased Receivables
during the related Collection Period, (iv) the aggregate amount of Cram Down
Losses that shall have occurred during the related Collection Period; and (v)
following the acceleration of the Notes pursuant to Section 5.2 of the
Indenture, the amount of money or property collected pursuant to Section 5.4 of
the Indenture since the preceding Determination Date by the Trust Collateral
Agent for distribution pursuant to Section 5.7 hereof over (y) the Step-Down
Amount, if any, for such Distribution Date.
"Pro Forma Note Balance" means, with respect to any Distribution
Date, the aggregate remaining principal amount of the Notes outstanding on such
Distribution Date, after giving effect to distributions pursuant to clauses (i)
through (xviii) of Section 5.7(a) hereof.
"Purchase Agreement" means the Purchase Agreement between the
Seller and AmeriCredit, dated as of April 6, 2005, pursuant to which the Seller
acquired the Receivables, as such Agreement may be amended from time to time.
"Purchase Amount" means, with respect to a Purchased Receivable,
the Principal Balance and all accrued and unpaid interest on the Purchased
Receivable, after giving effect to the receipt of any moneys collected (from
whatever source) on such Receivable, if any.
"Purchased Receivable" means a Receivable purchased as of the
close of business on the last day of a Collection Period by the Servicer
pursuant to Sections 4.2, 4.4(c), 4.7 or 10.1(a) or repurchased by the Seller or
AmeriCredit pursuant to Section 3.2.
"Rating Agency" means Moody's and Standard & Poor's. If no such
organization or successor maintains a rating on the Securities, "Rating Agency"
shall be a nationally recognized statistical rating organization or other
comparable Person designated by the Seller, notice of which designation shall be
given to the Trust Collateral Agent, the Owner Trustee and the Servicer.
"Rating Agency Condition" means, with respect to any action,
that each Rating Agency shall have been given 10 days' (or such shorter period
as shall be acceptable to each Rating Agency) prior notice thereof and that each
of the Rating Agencies shall have notified the Seller, the Servicer, the Owner
Trustee and the Trust Collateral Agent in writing that such action will not
result in a reduction or withdrawal of the then current rating of any Class of
Notes.
"Realized Losses" means, with respect to any Receivable that
becomes a Liquidated Receivable, the excess of the Principal Balance of such
Liquidated Receivable over Net Liquidation Proceeds to the extent allocable to
principal.
"Receivable" means any Contract listed on Schedule A attached
hereto (which Schedule may be in the form of microfiche or a disk).
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"Receivable Files" means the documents specified in Section 3.3.
"Record Date" means, with respect to each Distribution Date, the
Business Day immediately preceding such Distribution Date, unless otherwise
specified in the Indenture.
"Registrar of Titles" means, with respect to any state, the
governmental agency or body responsible for the registration of, and the
issuance of certificates of title relating to, motor vehicles and liens thereon.
"Required Pro Forma Note Balance" means, with respect to any
Distribution Date, a dollar amount equal to the difference between (x) the Pool
Balance as of the end of the prior calendar month minus (y) the lesser of (A)
the sum of (i) 17.50% of the Pool Balance as of the end of the prior calendar
month plus (ii) the aggregate, cumulative amount of principal paid to the
holders of the Class E Notes pursuant to clause 5.7(a)(xxi) hereof on all prior
Distribution Dates minus (iii) the Specified Reserve Balance, or (B) 30.0% of
the Pool Balance.
"Reserve Account" means the account designated as such,
established and maintained pursuant to Section 5.1(a)(iii) hereof.
"Reserve Account Deposit Amount" means, with respect to any
Distribution Date, the lesser of (x) the excess of (i) the Specified Reserve
Balance over (ii) the amount on deposit in the Reserve Account on such
Distribution Date, after taking into account the amount of any Reserve Account
Withdrawal Amount on such Distribution Date and (y) the amount remaining in the
Collection Account after taking into account the distributions therefrom
described in clauses (i) through (xviii) of Section 5.7(a).
"Reserve Account Withdrawal Amount" means, with respect to any
Distribution Date, the lesser of (x) any shortfall in the amount of Available
Funds available to pay the amounts specified in clauses (i) through (xvii) of
Section 5.7(a) (taking into account application of Available Funds to the
priority of payments specified in Section 5.7(a) and ignoring any provision
hereof which otherwise limits the amounts described in such clauses to the
amount of funds available) and (y) the amount on deposit in the Reserve Account
on such Distribution Date prior to application of amounts on deposit therein
pursuant to Section 5.8.
"Sale Amount" means, with respect to any Sold Receivable, the
amount received from the related third-party purchaser as payment for such Sold
Receivable.
"Schedule of Receivables" means the schedule of all motor
vehicle retail installment sales contracts and promissory notes originally held
as part of the Trust which is attached as Schedule A.
"Schedule of Representations" means the Schedule of
Representations and Warranties attached hereto as Schedule B.
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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, (ii) pursuant to the Servicemembers Civil
Relief Act or (iii) modifications or extensions of the Receivable permitted by
Section 4.2(b), 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 AFS SenSub Corp., a Nevada corporation, and its
successors in interest to the extent permitted hereunder.
"Service Contract" means, with respect to a Financed Vehicle,
the agreement, if any, financed under the related Receivable that provides for
the repair of such Financed Vehicle.
"Servicer" means AmeriCredit Financial Services, Inc., as the
servicer of the Receivables, and each successor Servicer pursuant to Section
9.3.
"Servicer Termination Event" means an event specified in Section
9.1.
"Servicer's Certificate" means an Officers' Certificate of the
Servicer delivered pursuant to Section 4.9, substantially in the form of Exhibit
A.
"Servicing Fee" has the meaning specified in Section 4.8.
"Servicing Fee Rate" means 2.25% per annum.
"Simple Interest Method" means the method of allocating a fixed
level payment on an obligation between principal and interest, pursuant to which
the portion of such payment that is allocated to interest is equal to the
product of the fixed rate of interest on such obligation multiplied by the
period of time (expressed as a fraction of a year, based on the actual number of
days in the calendar month and 365 days in the calendar year) elapsed since the
preceding payment under the obligation was made.
"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 and in accordance with the provisions of Section 4.3(c)
hereof.
"Specified Reserve Balance" means, with respect to any
Distribution Date, $15,915,119.98; provided, that the Specified Reserve Balance
will in no event exceed the outstanding principal amount of the Notes on such
Distribution Date after giving effect to distributions pursuant to clauses (i)
through (xxi) of Section 5.7(a) hereof.
"Standard & Poor's" means Standard & Poor's, a Division of The
XxXxxx-Xxxx Companies Inc., or its successor.
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"Step-Down Amount" means, with respect to any Distribution Date,
the excess, if any, of (x) the Required Pro Forma Note Balance over (y) the Pro
Forma Note Balance on such Distribution Date, calculated for this purpose only
without deduction for any Step-Down Amount (i.e., assuming that the entire
amount described in clause (x) of the definition of "Principal Distributable
Amount" is distributed as principal on the Notes); provided, however, that the
Step-Down Amount in no event may exceed the amount that would reduce the
positive difference, if any, of the Pool Balance minus the Pro Forma Note
Balance, to an amount less than $3,978,779.99, which is 0.5% of the initial Pool
Balance.
"Supplemental Servicing Fee" means, with respect to any
Collection Period, all administrative fees, expenses and charges paid by or on
behalf of Obligors, including late fees, prepayment fees and liquidation fees
collected on the Receivables during such Collection Period but excluding any
fees or expenses related to extensions.
"Third-Party Lender" means an entity that originated a loan to a
consumer for the purchase of a motor vehicle and sold the loan to AmeriCredit
pursuant to an Auto Loan Purchase and Sale Agreement.
"Third-Party Lender Assignment" means, with respect to a
Receivable, the executed assignment executed by a Third-Party Lender conveying
such Receivable to AmeriCredit.
"Titled Third-Party Lender" means a Third-Party Lender having a
short term debt rating of at least A-1/P-1 from Standard & Poor's and Xxxxx'x,
respectively, that has agreed to assist AmeriCredit, to the extent necessary,
with any repossession or legal action in respect of Financed Vehicles with
respect to which such Third-Party Lender has assigned its full interest therein
to AmeriCredit and is listed as first lienholder or secured party on the Lien
Certificate relating to such Financed Vehicle.
"Total Available Funds" has the meaning assigned thereto in
Section 5.7(a).
"Trust" means the Issuer.
"Trust Account Property" means the Trust Accounts, all amounts
and investments held from time to time in any Trust Account (whether in the form
of deposit accounts, Physical Property, book-entry securities, uncertificated
securities or otherwise), and all proceeds of the foregoing.
"Trust Accounts" has the meaning assigned thereto in Section
5.1.
"Trust Agreement" means the Trust Agreement dated as of March
15, 2005, between the Seller and the Owner Trustee, as amended and restated as
of April 6, 2005, as the same may be amended and supplemented from time to time.
"Trust Collateral Agent" means the Person acting as Trust
Collateral Agent hereunder, its successors in interest and any successor Trust
Collateral Agent hereunder.
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"Trust Officer" means, (i) in the case of the Trust Collateral
Agent, 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 president, any vice president, assistant vice president, the
secretary, any assistant secretary, the treasurer, any assistant treasurer, the
cashier, any assistant cashier, any trust officer or assistant trust officer,
the controller and any assistant controller or any other officer of the Trust
Collateral Agent customarily performing functions similar to those performed by
any of the above designated officers and also means, with respect to a
particular corporate trust matter, any other officer to whom such matter is
referred because of such officer's knowledge of and familiarity with the
particular subject, and (ii) in the case of the Owner Trustee, any officer in
the corporate trust office of the Owner Trustee or any agent of the Owner
Trustee under a power of attorney with direct responsibility for the
administration of this Agreement or any of the Basic Documents on behalf of the
Owner Trustee.
"Trust Property" means the property and proceeds conveyed
pursuant to Section 2.1, together with certain monies paid on or after the
Cutoff Date, the Collection Account (including all Eligible Investments therein
and all proceeds therefrom), the Lockbox Account, the Reserve Account (including
all Eligible Investments therein and all proceeds therefrom), the Note
Distribution Account (including all Eligible Investments therein and all
proceeds therefrom), and certain other rights under this Agreement.
"Trustee" means the Person acting as Trustee under the
Indenture, its successors in interest and any successor trustee under the
Indenture.
"UCC" means the Uniform Commercial Code as in effect in the
relevant jurisdiction on the date of the Agreement.
SECTION 1.2. Other Definitional Provisions.
(a) Capitalized terms used herein and not otherwise defined
herein have meanings assigned to them in the Indenture, or, if not defined
therein, in the Trust Agreement.
(b) All terms defined in this Agreement shall have the
defined meanings when used in any instrument governed hereby and in any
certificate or other document made or delivered pursuant hereto unless otherwise
defined therein.
(c) As used in this Agreement, in any instrument governed
hereby and in any certificate or other document made or delivered pursuant
hereto or thereto, accounting terms not defined in this Agreement or in any such
instrument, certificate or other document, and accounting terms partly defined
in this Agreement or in any such instrument, certificate or other document to
the extent not defined, shall have the respective meanings given to them under
generally accepted accounting principles as in effect on the date of this
Agreement or any such instrument, certificate or other document, as applicable.
To the extent that the definitions of accounting terms in this Agreement or in
any such instrument, certificate or other document are inconsistent with the
meanings of such terms under generally accepted accounting principles, the
definitions contained in this Agreement or in any such instrument, certificate
or other document shall control.
(d) The words "hereof," "herein," "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement; Section, Schedule
and Exhibit references contained in this Agreement are references to Sections,
Schedules and Exhibits in or to this Agreement unless otherwise specified; and
the term "including" shall mean "including without limitation."
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(e) The definitions contained in this Agreement are
applicable to the singular as well as the plural forms of such terms and to the
masculine as well as to the feminine and neuter genders of such terms.
(f) Any agreement, instrument or statute defined or referred
to herein or in any instrument or certificate delivered in connection herewith
means such agreement, instrument or statute as from time to time amended,
modified or supplemented and includes (in the case of agreements or instruments)
references to all attachments thereto and instruments incorporated therein;
references to a Person are also to its permitted successors and assigns.
ARTICLE II
Conveyance of Receivables
SECTION 2.1. Conveyance of Receivables. In consideration of
the Issuer's delivery to or upon the order of the Seller on the Closing Date of
the net proceeds from the sale of the Notes and the other amounts to be
distributed from time to time to the Seller in accordance with the terms of this
Agreement, the Seller does hereby sell, transfer, assign, set over and otherwise
convey to the Issuer, without recourse (subject to the obligations set forth
herein), all right, title and interest of the Seller in and to:
(a) the Receivables and all moneys received thereon after
the Cutoff Date;
(b) the security interests in the Financed Vehicles granted
by Obligors pursuant to the Receivables and any other
interest of the Seller in such Financed Vehicles;
(c) any proceeds and the right to receive proceeds with
respect to the Receivables from claims on any physical damage, credit life or
disability insurance policies covering Financed Vehicles or Obligors and any
proceeds from the liquidation of the Receivables;
(d) any proceeds from any Receivable repurchased by a Dealer
pursuant to a Dealer Agreement or a Third-Party Lender pursuant to an Auto Loan
Purchase and Sale Agreement as a result of a breach of representation or
warranty in the related Dealer Agreement or Auto Loan Purchase and Sale
Agreement;
(e) all rights under any Service Contracts on the related
Financed Vehicles;
(f) the related Receivable Files;
(g) all of the Seller's right, title and interest in its
rights and benefits, but none of its obligations or burdens, under the Purchase
Agreement, including the Seller's rights under the Purchase Agreement, and the
delivery requirements, representations and warranties and the cure and
repurchase obligations of AmeriCredit under the Purchase Agreement;
(h) all of the Seller's (i) Accounts, (ii) Chattel Paper,
(iii) Documents, (iv) Instruments and (v) General Intangibles (as such terms are
defined in the UCC) relating to the property described in (a) through (g); and
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(i) all proceeds and investments with respect to items (a)
through (h).
It is the intention of the Seller that the transfer and
assignment contemplated by this Agreement shall constitute a sale of the
Receivables and Other Conveyed Property from the Seller to the Issuer and the
beneficial interest in and title to the Receivables and the Other Conveyed
Property shall not be part of the Seller's estate in the event of the filing of
a bankruptcy petition by or against the Seller under any bankruptcy law. In the
event that, notwithstanding the intent of the Seller, the transfer and
assignment contemplated hereby is held by a court of competent jurisdiction not
to be a sale, this Agreement shall constitute a grant of a security interest by
the Seller to the Issuer in the property referred to in this Section, whether
now owned or existing or hereafter acquired or arising, and this Agreement shall
constitute a security agreement under applicable law.
SECTION 2.2. [Reserved]
SECTION 2.3. Further Encumbrance of Trust Property.
(a) Immediately upon the conveyance to the Trust by the
Seller of any item of the Trust Property pursuant to Section 2.1, all right,
title and interest of the Seller in and to such item of Trust Property shall
terminate, and all such right, title and interest shall vest in the Trust, in
accordance with the Trust Agreement and Sections 3802 and 3805 of the Statutory
Trust Statute (as defined in the Trust Agreement).
(b) Immediately upon the vesting of the Trust Property in
the Trust, the Trust shall have the sole right to pledge or otherwise encumber,
such Trust Property. Pursuant to the Indenture, the Trust shall grant a security
interest in the Trust Property to the Trust Collateral Agent securing the
repayment of the Notes. The Certificates shall represent the beneficial
ownership interest in the Trust Property, and the Certificateholders shall be
entitled to receive distributions with respect thereto as set forth herein.
(c) Following the payment in full of the Notes and the
release and discharge of the Indenture, all covenants of the Issuer under
Article III of the Indenture shall, until payment in full of the Certificates,
remain as covenants of the Issuer for the benefit of the Certificateholders,
enforceable by the Certificateholders to the same extent as such covenants were
enforceable by the Noteholders prior to the discharge of the Indenture. Any
rights of the Trustee under Article III of the Indenture, following the
discharge of the Indenture, shall vest in Certificateholders.
(d) The Trust Collateral Agent shall, at such time as there
are no Securities outstanding and all sums due to (i) the Trustee pursuant to
the Indenture, (ii) the Trust Collateral Agent pursuant to this Agreement and
(iii) the Backup Servicer pursuant to this Agreement, have been paid, release
any remaining portion of the Trust Property to the Seller.
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ARTICLE III
The Receivables
SECTION 3.1. Representations and Warranties of Seller. The
Seller hereby represents and warrants that each of the representations and
warranties set forth on the Schedule of Representations attached hereto as
Schedule B is true and correct on which the Issuer is deemed to have relied in
acquiring the Receivables. Such representations and warranties speak as of the
execution and delivery of this Agreement and as of the Closing Date, but shall
survive the sale, transfer and assignment of the Receivables to the Issuer and
the pledge thereof to the Trust Collateral Agent pursuant to the Indenture and
shall not be waived.
SECTION 3.2. Repurchase upon Breach.
(a) The Seller, the Servicer, the Backup Servicer, the Trust
Collateral Agent or the Owner Trustee, as the case may be, shall inform the
other parties to this Agreement promptly, by notice in writing, upon the
discovery of any breach of the Seller's representations and warranties made
pursuant to Section 3.1. As of the last day of the second (or, if the Seller so
elects, the first) month following the discovery by the Seller or receipt by the
Seller of notice of such breach, unless such breach is cured by such date, the
Seller shall have an obligation to repurchase any Receivable in which the
interests of the Noteholders are materially and adversely affected by any such
breach as of such date. The "second month" shall mean the month following the
month in which discovery occurs or notice is given, and the "first month" shall
mean the month in which discovery occurs or notice is given. In consideration of
and simultaneously with the repurchase of the Receivable, the Seller shall
remit, or cause AmeriCredit to remit, to the Collection Account the Purchase
Amount in the manner specified in Section 5.6 and the Issuer shall execute such
assignments and other documents reasonably requested by such person in order to
effect such repurchase. The sole remedy of the Issuer, the Owner Trustee, the
Trust Collateral Agent, the Trustee, the Backup Servicer or the Noteholders with
respect to a breach of representations and warranties pursuant to Section 3.1
and the agreement contained in this Section shall be the repurchase of
Receivables pursuant to this Section, subject to the conditions contained herein
or to enforce the obligation of AmeriCredit to the Seller to repurchase such
Receivables pursuant to the Purchase Agreement. Neither the Owner Trustee, the
Trust Collateral Agent nor the Trustee shall have a duty to conduct any
affirmative investigation as to the occurrence of any conditions requiring the
repurchase of any Receivable pursuant to this Section.
In addition to the foregoing and notwithstanding whether the
related Receivable shall have been purchased by the Seller, the Seller shall
indemnify the Trust, the Trustee, the Backup Servicer, the Trust Collateral
Agent and the officers, directors, agents and employees thereof, and the
Noteholders against all costs, expenses, losses, damages, claims and
liabilities, including reasonable fees and expenses of counsel, which may be
asserted against or incurred by any of them as a result of third party claims
arising out of the events or facts giving rise to such breach.
(b) Pursuant to Section 2.1 of this Agreement, the Seller
conveyed to the Trust all of the Seller's right, title and interest in its
rights and benefits, but none of its obligations or burdens, under the Purchase
Agreement including the Seller's rights under the Purchase Agreement and the
delivery requirements, representations and warranties and the cure or repurchase
obligations of AmeriCredit thereunder. The Seller hereby represents and warrants
to the Trust that such assignment is valid, enforceable and effective to permit
the Trust to enforce such obligations of AmeriCredit under the Purchase
Agreement. Any purchase by AmeriCredit pursuant to the Purchase Agreement shall
be deemed a purchase by the Seller pursuant to this Section 3.2 and the
definition of Purchased Receivable.
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SECTION 3.3. Custody of Receivables Files.
(a) In connection with the sale, transfer and assignment of
the Receivables and the Other Conveyed Property to the Trust pursuant to this
Agreement and simultaneously with the execution and delivery of this Agreement,
the Trust Collateral Agent shall enter into the Custodian Agreement with the
Custodian, dated as of April 6, 2005, pursuant to which the Trust Collateral
Agent shall revocably appoint the Custodian, and the Custodian shall accept such
appointment, to act as the agent of the Trust Collateral Agent as custodian of
the following documents or instruments in its possession which shall be
delivered to the Custodian as agent of the Trust Collateral Agent on or before
the Closing Date (with respect to each Receivable):
(i) The fully executed original of the Receivable
(together with any agreements modifying the Receivable);
(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; and
(iii) The Lien Certificate (when received) and
otherwise such documents, if any, that AmeriCredit keeps on file
in accordance with its customary procedures indicating that the
Financed Vehicle is owned by the Obligor and subject to the
interest of AmeriCredit (or a Titled Third-Party Lender) as
first lienholder or secured party (including any Lien
Certificate received by AmeriCredit), or, if such Lien
Certificate has not yet been received, a copy of the application
therefor, showing AmeriCredit (or, with respect to Lien
Certificates provided by the State of Maine, the Issuer) (or a
Titled Third-Party Lender) as secured party.
(b) If the Trust Collateral Agent is acting as the Custodian
pursuant to Section 8 of the Custodian Agreement, the Trust Collateral Agent
shall be deemed to have assumed the obligations of the Custodian (except for any
liabilities incurred by the predecessor Custodian) specified in the Custodian
Agreement until such time as a successor Custodian has been appointed. 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. Upon the sale of any
Receivable pursuant to Section 4.3(c) hereof, 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 sale which are required to be deposited in the Collection
Account pursuant to Section 4.3(c) have been so deposited) and shall request
delivery of the Receivable and Receivable File to the purchaser of such
Receivable. 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, 4.2 or 4.7.
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ARTICLE IV
Administration and Servicing of Receivables
SECTION 4.1. Duties of the Servicer and the Backup Servicer
(a) The Servicer is hereby authorized to act as agent for
the Trust and in such capacity shall manage, service, administer and make
collections on the Receivables, and perform the other actions required by the
Servicer under this Agreement. The Servicer agrees that its servicing of the
Receivables shall be carried out in accordance with customary and usual
procedures of institutions which service motor vehicle retail installment sales
contracts and, to the extent more exacting, the degree of skill and attention
that the Servicer exercises from time to time with respect to all comparable
motor vehicle receivables that it services for itself or others. In performing
such duties, so long as AmeriCredit is the Servicer, it shall 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 Lockbox Agreement, accounting for collections and furnishing monthly and
annual statements to the Trust Collateral Agent and the Trustee with respect to
distributions, monitoring the status of Insurance Policies with respect to the
Financed Vehicles and performing the other duties specified herein.
The Servicer, or if AmeriCredit is no longer the Servicer,
AmeriCredit, at the request of the Servicer, shall also administer and enforce
all rights and responsibilities of the holder of the Receivables provided for in
the Dealer Agreements and Auto Loan Purchase and Sale Agreements (and shall
maintain possession of the Dealer Agreements and Auto Loan Purchase and Sale
Agreements, to the extent it is necessary to do so), the Dealer Assignments, the
Third-Party Lender Assignments and the Insurance Policies, to the extent that
such Dealer Agreements, Auto Loan Purchase and Sale Agreements, Dealer
Assignments, Third-Party Lender Assignments and Insurance Policies relate to the
Receivables, the Financed Vehicles or the Obligors. To the extent consistent
with the standards, policies and procedures otherwise required hereby, the
Servicer shall follow its customary standards, policies, and procedures and
shall have full power and authority, acting alone, to do any and all things in
connection with such managing, servicing, administration and collection that it
may deem necessary or desirable. Without limiting the generality of the
foregoing, the Servicer is hereby authorized and empowered by the Trust to
execute and deliver, on behalf of the Trust, any and all instruments of
satisfaction or cancellation, or of partial or full release or discharge, and
all other comparable instruments, with respect to the Receivables and with
respect to the Financed Vehicles; provided, however, that notwithstanding the
foregoing, the Servicer shall not, except pursuant to an order from a court of
competent jurisdiction, release an Obligor from payment of any unpaid amount
under any Receivable or waive the right to collect the unpaid balance of any
Receivable from the Obligor, except in accordance with the Servicer's customary
practices as reflected in the Servicing Policies and Procedures attached hereto
as Schedule C.
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The Servicer is hereby authorized to commence, in its own name
or in the name of the Trust, a legal proceeding to enforce a Receivable pursuant
to Section 4.3 or to commence or participate in any other legal proceeding
(including, without limitation, a bankruptcy proceeding) relating to or
involving a Receivable, an Obligor or a Financed Vehicle. If the Servicer
commences or participates in such a legal proceeding in its own name, the Trust
shall thereupon be deemed to have automatically assigned such Receivable to the
Servicer solely for purposes of commencing or participating in any such
proceeding as a party or claimant, and the Servicer is authorized and empowered
by the Trust to execute and deliver in the Servicer's name any notices, demands,
claims, complaints, responses, affidavits or other documents or instruments in
connection with any such proceeding. The Trust Collateral Agent and the Owner
Trustee shall furnish the Servicer with any 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.
As set forth in Section 9.3, in the event the Servicer fails to
perform its obligations hereunder, the Backup Servicer shall be responsible for
the Servicer's duties in this Agreement as if it were the Servicer, except as
expressly set forth in Annex A hereto, provided that the Backup Servicer shall
not be liable for the Servicer's breach of its obligations.
(b) The Backup Servicer shall have the following duties: (i)
prior to or within 45 days after the Closing Date, the Backup Servicer shall
have conducted an onsite inspection of the Servicer's operations, and shall
conduct additional onsite inspections not less frequently than every 12 months
thereafter. Each on-site inspection shall be at the cost of AmeriCredit. Within
10 days of each such inspection, the Backup Servicer shall deliver a certificate
(in the form to be agreed on in good faith between the Backup Servicer and the
Controlling Party and with a copy to the Servicer) (the "Backup Servicer's
Certificate") certifying that the Backup Servicer has conducted an inspection
consistent with this Section 4.1(b). During each such inspection, the Backup
Servicer shall perform certain review procedures as agreed to between the
Controlling Party and the Backup Servicer including, without limitation, such
review procedures as the Backup Servicer may require in order to be put in a
position to assume the servicing responsibilities of the Servicer if and to the
extent required hereunder; and (ii) within 45 days of the Closing Date, the
Backup Servicer shall complete all data mapping, and, upon receipt of Monthly
Tapes pursuant to Section 4.13: (A) electronically compile the Monthly Tape data
in the Backup Servicer's "off-line" computer, and (B) update or amend the
data-mapping pursuant to any updated or amended fields in the Monthly Tapes.
SECTION 4.2. Collection of Receivable Payments; Modifications
of Receivables; Lockbox Agreements.
(a) Consistent with the standards, policies and procedures
required by this Agreement, the Servicer shall make reasonable efforts to
collect all payments called for under the terms and provisions of the
Receivables as and when the same shall become due, and shall follow such
collection procedures as it follows with respect to all comparable automobile
receivables that it services for itself or others and otherwise act with respect
to the Receivables, the Dealer Agreements, the Dealer Assignments, the Auto Loan
Purchase and Sale Agreements, the Third-Party Lender Assignments, the Insurance
Policies and the Other Conveyed Property in such manner as will, in the
reasonable judgment of the Servicer, maximize the amount to be received by the
Trust with respect thereto, including directing the Issuer to sell the
Receivables pursuant to Section 4.3(c) hereof. 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.
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(b) The Servicer may (A) at any time agree to a modification
or amendment of a Receivable in order to (i) not more than once per year, change
the Obligor's regular monthly due date to a date that shall in no event be later
than 30 days after the original monthly due date of that Receivable or (ii)
re-amortize the Scheduled Receivables Payments on the Receivable (x) following a
partial prepayment of principal, in accordance with its customary procedures or
(y) following the Obligor's reinstatement based on local laws or (B) may direct
the Issuer to sell the Receivables pursuant to Section 4.3 hereof 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 Trust with respect to such Receivable, and is
otherwise in the best interests of the Trust.
(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) hereof), in accordance with its customary procedures
if the Servicer believes in good faith that such extension, modification or
amendment is necessary to avoid a default on such Receivable, will maximize the
amount to be received by the Trust with respect to such Receivable, and is
otherwise in the best interests of the Trust; provided, however, that:
(i) The aggregate period of all extensions on a
Receivable shall not exceed eight months; and
(ii) In no event may a Receivable be extended beyond
the Collection Period immediately preceding the latest Final
Scheduled Distribution Date.
(d) The Servicer shall use its best efforts to notify or
direct Obligors to make all payments on the Receivables, whether by check or by
direct debit of the Obligor's bank account, to be made directly to one or more
Lockbox Banks, acting as agent for the Trust pursuant to a Lockbox Agreement.
The Servicer shall use its best efforts to notify or direct any Lockbox Bank to
deposit all payments on the Receivables in the Lockbox Account no later than the
Business Day after receipt, and to cause all amounts credited to the Lockbox
Account on account of such payments to be transferred to the Collection Account
no later than the second Business Day after receipt of such payments. The
Lockbox Account shall be a demand deposit account held by the Lockbox Bank.
Prior to the Closing Date, the Servicer shall have notified each
Obligor that makes its payments on the Receivables by check to make such
payments thereafter directly to the Lockbox Bank (except in the case of Obligors
that have already been making such payments to the Lockbox Bank), and shall have
provided each such Obligor with remittance invoices in order to enable such
Obligors to make such payments directly to the Lockbox Bank for deposit into the
Lockbox Account, and the Servicer will continue, not less often than every three
months, to so notify those Obligors who have failed to make payments to the
Lockbox Bank. If at any time, an Obligor's bank account cannot be accessed by
direct debit and if such inability is not cured within 15 days or cannot be
cured by execution by the Obligor of a new authorization for automatic payment,
the Servicer shall notify such Obligor that it cannot make payment by direct
debit and must thereafter make payment by check.
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Notwithstanding any Lockbox Agreement, or any of the provisions
of this Agreement relating to the Lockbox Agreement, the Servicer shall remain
obligated and liable to the Trust, the Trust Collateral Agent and Noteholders
for servicing and administering the Receivables and the Other Conveyed Property
in accordance with the provisions of this Agreement without diminution of such
obligation or liability by virtue thereof; provided, however, that the foregoing
shall not apply to any Backup Servicer for so long as a Lockbox Bank is
performing its obligations pursuant to the terms of a Lockbox Agreement.
In the event of a termination of the Servicer, the successor
Servicer shall assume all of the rights and obligations of the outgoing Servicer
under the Lockbox Agreement subject to the terms hereof. In such event, the
successor Servicer shall be deemed to have assumed all of the outgoing
Servicer's interest therein and to have replaced the outgoing Servicer as a
party to each such Lockbox Agreement to the same extent as if such Lockbox
Agreement had been assigned to the successor Servicer, except that the outgoing
Servicer shall not thereby be relieved of any liability or obligations on the
part of the outgoing Servicer to the Lockbox Bank under such Lockbox Agreement.
The outgoing Servicer shall, upon request of the Trust Collateral Agent, but at
the expense of the outgoing Servicer, deliver to the successor Servicer all
documents and records relating to each such Lockbox Agreement and an accounting
of amounts collected and held by the Lockbox Bank and otherwise use its best
efforts to effect the orderly and efficient transfer of any Lockbox Agreement to
the successor Servicer. In the event that the Majority Noteholders elect to
change the identity of the Lockbox Bank, the outgoing Servicer, at its expense,
shall cause the Lockbox Bank to deliver, at the direction of the Majority
Noteholders to the Trust Collateral Agent and a successor Lockbox Bank, all
documents and records relating to the Receivables and all amounts held (or
thereafter received) by the Lockbox Bank (together with an accounting of such
amounts) and shall otherwise use its best efforts to effect the orderly and
efficient transfer of the lockbox arrangements and the Servicer shall notify the
Obligors to make payments to the Lockbox established by the successor.
(e) The Servicer shall remit all payments by or on behalf of
the Obligors received directly by the Servicer to the Lockbox Bank as soon as
practicable, but in no event later than the second Business Day after receipt
thereof, and such amounts shall be deposited into the Lockbox Account and
transferred from the Lockbox Account to the Collection Account in accordance
with Section 4.2(d) hereof.
(f) The Servicer shall not cause or permit the substitution
of the Financed Vehicle relating to a Receivable unless: (i) the substitution is
a replacement of the Financed Vehicle originally financed under the related
Receivable; (ii) the Financed Vehicle originally financed under the related
Receivable was either (x) insured under an Insurance Policy as required under
Section 4.4(a) at the time of a casualty loss that is treated as a total loss
under such Insurance Policy, (y) deemed to be a "lemon" pursuant to applicable
state law and repurchased by the related Dealer or (z) is the subject of an
order by a court of competent jurisdiction directing the Servicer to substitute
another vehicle under the related Receivable; (iii) the related Receivable is
not more than 30 days delinquent; (iv) the Obligor is deemed to be in "good
standing" by the Servicer and is not in breach of any requirement under the
related Receivable; (v) the replacement
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Financed Vehicle has a book value (N.A.D.A.) at least equal to the book value
(N.A.D.A.) of the Financed Vehicle that is being replaced, measured immediately
before the casualty loss or replacement by the Dealer and (vi) as of the date of
such substitution, the replacement Financed Vehicle's mileage is no greater than
the mileage on the Financed Vehicle that is being replaced; provided, however,
that if the substitution is made pursuant to clause (ii)(z), above, clauses
(iii) through (vi) inclusive, shall not be applicable. The Servicer shall not
cause or permit the substitution of Financed Vehicles relating to Receivables
having an original aggregate Principal Balance greater than two percent (2%) of
the Original Pool Balance, (the "Substitution Limit"). In the event that the
Substitution Limit is exceeded for any reason, (i) AmeriCredit shall, on or
before the next following Accounting Date, repurchase a sufficient number of
such Receivables to cause the aggregate original Principal Balances of such
Receivables to be less than the Substitution Limit or (ii) if AmeriCredit is not
the Servicer and the Servicer has caused substitutions to be made hereunder
pursuant to the circumstances described in clause (ii)(x), above, the Servicer
shall, on or before the next following Accounting Date, repurchase a sufficient
number of such Receivables to cause the aggregate original Principal Balances of
such Receivables to be less than the Substitution Limit.
SECTION 4.3. Realization upon Receivables.
(a) In addition to the Servicer's ability to direct the
Issuer to sell Receivables pursuant to Section 4.3(c) hereof, and 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 judgment it determines that
the proceeds ultimately recoverable with respect to such Receivable would be
increased by forbearance or if it instead elects to direct the Issuer to sell
the Receivables pursuant to Section 4.3(c). 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 and Third-Party Lenders, the sale of the related Financed Vehicle at
public or private sale, the submission of claims under an Insurance Policy and
other actions by the Servicer in order to realize upon such a Receivable. The
foregoing is subject to the provision that, in any case in which the Financed
Vehicle shall have suffered damage, the Servicer shall not expend funds in
connection with any repair or towards the repossession of such Financed Vehicle
unless it shall determine in its discretion that such repair and/or repossession
shall increase the proceeds of liquidation of the related Receivable by an
amount greater than the amount of such expenses. All amounts received upon
liquidation of a Financed Vehicle shall be remitted directly by the Servicer to
the Collection Account without deposit into any intervening account as soon as
practicable, but in no event later than the Business Day after receipt thereof.
The Servicer shall be entitled to recover all reasonable expenses incurred by it
in the course of repossessing and liquidating a Financed Vehicle into cash
proceeds, but only out of the cash proceeds of such Financed Vehicle, any
deficiency obtained from the Obligor or any amounts received from the related
Dealer or Third-Party Lender, which amounts in reimbursement may be retained by
the Servicer (and shall not be required to be deposited as provided in Section
4.2(e)) to the extent of such expenses. The Servicer shall pay on behalf of the
Trust any personal property taxes assessed on repossessed Financed Vehicles. The
Servicer shall be entitled to reimbursement of any such tax from Net Liquidation
Proceeds with respect to such Receivable.
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(b) If the Servicer, or if AmeriCredit is no longer the
Servicer, AmeriCredit at the request of the Servicer, elects to commence a legal
proceeding to enforce a Dealer Agreement, Auto Loan Purchase and Sale Agreement,
Dealer Assignment or Third-Party Lender Assignment, the act of commencement
shall be deemed to be an automatic assignment from the Trust to the Servicer, or
to AmeriCredit at the request of the Servicer, of the rights under such Dealer
Agreement, Auto Loan Purchase and Sale Agreement, Dealer Assignment or
Third-Party Lender Assignment for purposes of collection only. If, however, in
any enforcement suit or legal proceeding it is held that the Servicer or
AmeriCredit, as appropriate, may not enforce a Dealer Agreement, Auto Loan
Purchase and Sale Agreement, Dealer Assignment or Third-Party Lender Assignment
on the grounds that it is not a real party in interest or a Person entitled to
enforce the Dealer Agreement, Auto Loan Purchase and Sale Agreement, Dealer
Assignment or Third-Party Lender Assignment, the Owner Trustee and/or the Trust
Collateral Agent, at AmeriCredit'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, Auto Loan Purchase and Sale Agreement, Dealer
Assignment or Third-Party Lender Assignment, including bringing suit in its name
or the name of the Seller or of the Trust and the Owner Trustee and/or the Trust
Collateral Agent for the benefit of the Noteholders. 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 no more than 20% of
the number of Receivables in the pool as of the Cutoff Date may be sold by the
Issuer pursuant to this Section 4.3(c) in the aggregate; 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 judgment the Servicer
determines that the proceeds ultimately recoverable with respect to such
Receivable would be increased by forbearance. In selecting Receivables to be
sold to a third party purchaser pursuant to this Section 4.3(c), the Servicer
shall use commercially reasonable efforts to locate purchasers for the most
delinquent Receivables first. In any event, the Servicer shall not use any
procedure in selecting Receivables to be sold to third party purchasers which is
materially adverse to the interest of the Noteholders. The Issuer shall sell
each Sold Receivable for the greatest market price possible; provided, however,
that aggregate Sale 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 Account without deposit into any
intervening account as soon as practicable, but in no event later than the
Business Day after receipt thereof.
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SECTION 4.4. Insurance.
(a) The Servicer shall require, in accordance with its
customary servicing policies and procedures, that each Financed Vehicle be
insured by the related Obligor under the Insurance Policies referred to in
Paragraph 24 of the Schedule of Representations and Warranties and shall monitor
the status of such physical loss and damage insurance coverage thereafter, in
accordance with its customary servicing procedures. Each Receivable requires the
Obligor to maintain such physical loss and damage insurance, naming AmeriCredit
and its successors and assigns as additional insureds, and permits the holder of
such Receivable to obtain physical loss and damage insurance at the expense of
the Obligor if the Obligor fails to maintain such insurance. If the Servicer
shall determine that an Obligor has failed to obtain or maintain a physical loss
and damage Insurance Policy covering the related Financed Vehicle which
satisfies the conditions set forth in clause (i)(a) of such Paragraph 24
(including, without limitation, during the repossession of such Financed
Vehicle) the Servicer may enforce the rights of the holder of the Receivable
under the Receivable to require the Obligor to obtain such physical loss and
damage insurance in accordance with its customary servicing policies and
procedures. The Servicer may maintain a vendor's single interest or other
collateral protection insurance policy with respect to all Financed Vehicles
("Collateral Insurance") which policy shall by its terms insure against physical
loss and damage in the event any Obligor fails to maintain physical loss and
damage insurance with respect to the related Financed Vehicle. All policies of
Collateral Insurance shall be endorsed with clauses providing for loss payable
to the Servicer. Costs incurred by the Servicer in maintaining such Collateral
Insurance shall be paid by the Servicer.
(b) The Servicer may, if an Obligor fails to obtain or
maintain a physical loss and damage Insurance Policy, obtain insurance with
respect to the related Financed Vehicle and advance on behalf of such Obligor,
as required under the terms of the insurance policy, the premiums for such
insurance (such insurance being referred to herein as "Force-Placed Insurance").
All policies of Force-Placed Insurance shall be endorsed with clauses providing
for loss payable to the Servicer. Any cost incurred by the Servicer in
maintaining such Force-Placed Insurance shall only be recoverable out of
premiums paid by the Obligors or Net Liquidation Proceeds with respect to the
Receivable, as provided in Section 4.4(c).
(c) In connection with any Force-Placed Insurance obtained
hereunder, the Servicer may, in the manner and to the extent permitted by
applicable law, require the Obligors to repay the entire premium to the
Servicer. In no event shall the Servicer include the amount of the premium in
the Amount Financed under the Receivable. For all purposes of this Agreement,
the Insurance Add-On Amount with respect to any Receivable having Force-Placed
Insurance will be treated as a separate obligation of the Obligor and will not
be added to the Principal Balance of such Receivable, and amounts allocable
thereto will not be available for distribution on the Notes and the
Certificates. The Servicer shall retain and separately administer the right to
receive payments from Obligors with respect to Insurance Add-On Amounts or
rebates of Forced-Placed Insurance premiums. If an Obligor makes a payment with
respect to a Receivable having Force-Placed Insurance, but the Servicer is
unable to determine whether the payment is allocable to the Receivable or to the
Insurance Add-On Amount, the payment shall be applied first to any unpaid
Scheduled 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
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Receivable with respect to which the Servicer has placed Force-Placed Insurance
fails to make scheduled payments of such Insurance Add-On Amount as due, and the
Servicer has determined that eventual payment of the Insurance Add-On Amount is
unlikely, the Servicer may, but shall not be required to, purchase such
Receivable from the Trust for the Purchase Amount on any subsequent
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 xxx to enforce or collect upon the
Insurance Policies, in its own name, if possible, or as agent of the Trust. If
the Servicer elects to commence a legal proceeding to enforce an Insurance
Policy, the act of commencement shall be deemed to be an automatic assignment of
the rights of the Trust under such Insurance Policy to the Servicer for purposes
of collection only. If, however, in any enforcement suit or legal proceeding it
is held that the Servicer may not enforce an Insurance Policy on the grounds
that it is not a real party in interest or a holder entitled to enforce the
Insurance Policy, the Owner Trustee and/or the Trust Collateral Agent, at the
Servicer's expense, or the Seller, at the Seller's expense, shall take such
steps as the Servicer deems necessary to enforce such Insurance Policy,
including bringing suit in its name or the name of the Trust and the Owner
Trustee and/or the Trust Collateral Agent for the benefit of the Noteholders.
(e) The Servicer will cause itself and may cause the Trust
Collateral Agent to be named as named insured under all policies of Collateral
Insurance.
SECTION 4.5. Maintenance of Security Interests in Vehicles.
(a) Consistent with the policies and procedures required by
this Agreement, the Servicer shall take such steps on behalf of the Trust as are
necessary to maintain perfection of the security interest created by each
Receivable in the related Financed Vehicle, including, but not limited to,
obtaining the execution by the Obligors and the recording, registering, filing,
re-recording, re-filing, and re-registering of all security agreements,
financing statements and continuation statements as are necessary to maintain
the security interest granted by the Obligors under the respective Receivables.
The Trust Collateral Agent hereby authorizes the Servicer, and the Servicer
agrees, to take any and all steps necessary to re-perfect such security interest
on behalf of the Trust as necessary because of the relocation of a Financed
Vehicle or for any other reason. In the event that the assignment of a
Receivable to the Trust is insufficient, without a notation on the related
Financed Vehicle's certificate of title, or without fulfilling any additional
administrative requirements under the laws of the state in which the Financed
Vehicle is located, to perfect a security interest in the related Financed
Vehicle in favor of the Trust, the Servicer hereby agrees that the designation
of AmeriCredit (or a Titled Third-Party Lender) as the secured party on the Lien
Certificate is in its capacity as Servicer as agent of the Trust.
(b) Upon the occurrence of a Servicer Termination Event, the
Trust Collateral Agent and the Servicer shall take or cause to be taken such
action as may, in the opinion of counsel to the Majority Noteholders, be
necessary to perfect or re-perfect the security interests in the Financed
Vehicles securing the Receivables in the name of the Trust by amending the title
documents of such Financed Vehicles or by such other reasonable means as may, in
the opinion of counsel to the Majority Noteholders, be necessary or prudent.
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AmeriCredit hereby agrees to pay all expenses related to such
perfection or reperfection and to take all action necessary therefor.
AmeriCredit hereby appoints the Trust Collateral Agent as its attorney-in-fact
to take any and all steps required to be performed by AmeriCredit pursuant to
this Section 4.5(b) (it being understood that and agreed that the Trust
Collateral Agent 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 has paid all expenses), including
execution of Lien Certificates or any other documents in the name and stead of
AmeriCredit, and the Trust Collateral Agent hereby accepts such appointment.
SECTION 4.6. Covenants, Representations, and Warranties of
Servicer. By its execution and delivery of this Agreement, the Servicer makes
the following representations, warranties and covenants on which the Trust
Collateral Agent relies in accepting the Receivables and on which the 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 Trust or the Noteholders in the
Receivables, the Dealer Agreements, the Auto Loan Purchase and
Sale Agreements, the Dealer Assignments, the Third-Party Lender
Assignments, the Insurance Policies or the Other Conveyed
Property 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 favor
of the Trust Collateral Agent for the benefit of the Noteholders
and the restrictions on transferability imposed by this
Agreement or (ii) sign or file under the Uniform Commercial Code
of any jurisdiction any financing statement which names
AmeriCredit or the Servicer as a debtor, or sign any security
agreement authorizing any secured party thereunder to file such
financing statement, with respect to the Receivables, except in
each case any such instrument solely securing the rights and
preserving the Lien of the Trust Collateral Agent, for the
benefit of the Noteholders.
(b) The Servicer represents, warrants and covenants as of
the Closing Date as to itself that the representations and warranties set forth
on the Schedule of Representations attached hereto as Schedule B are true and
correct; provided that such representations and warranties contained therein and
herein shall not apply to any entity other than AmeriCredit.
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SECTION 4.7. Purchase of Receivables Upon Breach of Covenant.
Upon discovery by any of the Servicer, a Responsible Officer of the Trust
Collateral Agent, the Owner Trustee, a Responsible Officer of the Backup
Servicer or a Responsible Officer of the Trustee of a breach of any of the
covenants set forth in Sections 1, 2 or 3 of the Custodian Agreement or in
Sections 4.5(a) or 4.6 hereof, the party discovering such breach shall give
prompt written notice to the others; provided, however, that the failure to give
any such notice shall not affect any obligation of AmeriCredit as Servicer under
this Section. As of the second Accounting Date following its discovery or
receipt of notice of any breach of any covenant set forth in Sections 4.5(a) or
4.6 which materially and adversely affects the interests of the Noteholders in
any Receivable (including any Liquidated Receivable) (or, at AmeriCredit's
election, the first Accounting Date so following) or the related Financed
Vehicle, AmeriCredit shall, unless such breach shall have been cured in all
material respects, purchase from the Trust the Receivable affected by such
breach and, on the related Determination Date, AmeriCredit shall pay the related
Purchase Amount. It is understood and agreed that the obligation of AmeriCredit
to purchase any Receivable (including any Liquidated Receivable) with respect to
which such a breach has occurred and is continuing shall, if such obligation is
fulfilled, constitute the sole remedy against AmeriCredit for such breach
available to the Noteholders, the Owner Trustee, the Backup Servicer or the
Trust Collateral Agent; provided, however, that AmeriCredit shall indemnify the
Trust, the Backup Servicer, the Owner Trustee, the Trust Collateral Agent, the
Trustee and the Noteholders from and against all costs, expenses, losses,
damages, claims and liabilities, including reasonable fees and expenses of
counsel, which may be asserted against or incurred by any of them as a result of
third party claims arising out of the events or facts giving rise to such
breach. Notwithstanding anything to the contrary contained herein, AmeriCredit
will not be required to repurchase Receivables due solely to the Servicer's not
having received Lien Certificates that have been properly applied for from the
Registrar of Titles in the applicable states for such Receivables unless (i)
such Lien Certificates shall not have been received with respect to Receivables
with Principal Balances which total more than 1.0% of the Aggregate Principal
Balance as of the 180th day after the Closing Date, in which case AmeriCredit
shall be required to repurchase a sufficient number of such Receivables to cause
the aggregate Principal Balances of the remaining Receivables for which no such
Lien Certificate shall have been received to be no greater than 1.0% of the
Aggregate Principal Balance as of such date or (ii) such Lien Certificates shall
not have been received as of the 240th day after the Closing Date. This section
shall survive the termination of this Agreement and the earlier removal or
resignation of the Trustee and/or the Trust Collateral Agent and/or the Backup
Servicer.
SECTION 4.8. Total Servicing Fee; Payment of Certain Expenses
by Servicer. On each Distribution Date, the Servicer shall be entitled to
receive out of the Collection Account the Base Servicing Fee and any
Supplemental Servicing Fee for the related Collection Period (together, the
"Servicing Fee") pursuant to Section 5.7. The Servicer shall be required to pay
all expenses incurred by it in connection with its activities under this
Agreement (including taxes imposed on the Servicer, expenses incurred in
connection with distributions and reports made by the Servicer to the
Noteholders and all other fees and expenses of the Owner Trustee, the Backup
Servicer, the Trust Collateral Agent or the Trustee, except taxes levied or
assessed against the Trust, and claims against the Trust in respect of
indemnification, which taxes and claims in respect of indemnification against
the Trust are expressly stated to be for the account of AmeriCredit). The
Servicer shall be liable for the fees and expenses of the Owner Trustee, the
Backup Servicer, the Trust Collateral Agent, the Trustee, the Custodian, the
Lockbox Bank (and any fees under the Lockbox Agreement) and the Independent
Accountants. Notwithstanding the foregoing, if the Servicer shall not be
AmeriCredit, a successor to AmeriCredit as Servicer including the Backup
Servicer permitted by Section 9.3 shall not be liable for taxes levied or
assessed against the Trust or claims against the Trust in respect of
indemnification, or the fees and expenses referred to above.
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SECTION 4.9. Servicer's Certificate.
No later than noon Eastern time on each Determination Date, the
Servicer shall deliver (facsimile delivery being acceptable) to the Trustee, the
Owner Trustee, the Trust Collateral Agent, 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 Trust Collateral Agent to make the distributions required by Sections 5.7(a)
and 5.7(b); (ii) a listing of all Purchased Receivables and Sold Receivables
purchased by the Servicer or sold by the Issuer as of the related Accounting
Date, identifying the Receivables so purchased by the Servicer or sold by the
Issuer, (iii) all information necessary to enable the Backup Servicer to verify
the items specified in Section 4.13(iii) (as set forth in the Monthly Tape
delivered pursuant to Section 4.13); (iv) all information necessary to enable
the Trust Collateral Agent to send the statements to Noteholders required by
Section 5.9, and (v) all information necessary to enable the Trust Collateral
Agent to reconcile the aggregate cash flows, the Collection Account for the
related Collection Period and Distribution Date. 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).
SECTION 4.10. Annual Statement as to Compliance, Notice of
Servicer Termination Event.
(a) The Servicer shall deliver to the Trustee, the Owner
Trustee, the Trust Collateral Agent, the Backup Servicer 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, 2006, 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 fulfillment of any such
obligation, specifying each such default known to such officer and the nature
and status thereof.
(b) The Servicer shall deliver to the Trustee, the Owner
Trustee, the Trust Collateral Agent, the Backup Servicer and each Rating Agency,
promptly after having obtained knowledge thereof, but in no event later than two
(2) Business Days thereafter, written notice in an officer's certificate of any
event which with the giving of notice or lapse of time, or both, would become a
Servicer Termination Event under Section 9.1(a). The Seller or the Servicer
shall deliver to the Trustee, the Owner Trustee, the Trust Collateral Agent, the
Backup Servicer, the Servicer or the Seller (as applicable) and each Rating
Agency promptly after having obtained knowledge thereof, but in no event later
than two (2) Business Days thereafter, written notice in an officer's
certificate of any event which with the giving of notice or lapse of time, or
both, would become a Servicer Termination Event under any other clause of
Section 9.1.
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SECTION 4.11. Annual Independent Accountants' Report. The
Servicer shall cause a firm of nationally recognized independent certified
public accountants (the "Independent Accountants"), who may also render other
services to the Servicer or to the Seller, (1) to deliver to the Trustee, the
Owner Trustee, the Trust Collateral Agent, the Backup Servicer and each Rating
Agency, on or before October 31 (or 120 days after the end of the Servicer's
fiscal year, if other than June 30) of each year, beginning on October 31, 2006,
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 copy of the Form 10-K filed with the United States
Securities and Exchange Commission for AmeriCredit Corp., which filing includes
a statement that such audit was made in accordance with generally accepted
auditing standards, and accordingly included such tests of the accounting
records and such other auditing procedures as such firm considered necessary in
the circumstances and (2) upon request of the Trustee, the Owner Trustee, the
Trust Collateral Agent or the Backup Servicer, to issue an acknowledgement 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 pursuant to item (1) of this section and that the accounting
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.
SECTION 4.12. Access to Certain Documentation and Information
Regarding Receivables. The Servicer shall provide to representatives of the
Trustee, the Owner Trustee, the Trust Collateral Agent and the Backup Servicer
reasonable access to the documentation regarding the Receivables. In each case,
such access shall be afforded without charge but only upon reasonable request
and during normal business hours. Nothing in this Section shall 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.
SECTION 4.13. Monthly Tape. No later than the second Business
Day after each Distribution Date, the Servicer will deliver to the Backup
Servicer a computer tape and a diskette (or any other electronic transmission
acceptable to the Backup Servicer) in a format acceptable to the Backup Servicer
containing the information with respect to the Receivables as of the preceding
Accounting Date necessary for preparation of the Servicer's Certificate relating
to the immediately preceding Determination Date and necessary to review the
application of collections as provided in Section 5.4 (the "Monthly Tape"). The
Backup Servicer shall use such tape or diskette (or other electronic
transmission acceptable to the Backup Servicer) to (i) confirm that the
Servicer's Certificate is complete on its face, (ii) confirm that such tape,
diskette or other electronic transmission is in readable form, (iii) calculate
and confirm (A) the aggregate amount distributable as principal on the related
Distribution Date to each Class of Notes, (B) the aggregate amount distributable
as interest on the related Distribution Date to each Class of Notes, (C) any
amounts distributable on the related Distribution Date which are to be paid with
funds withdrawn from the Reserve Account, (D) the outstanding principal amount
of each Class of Notes after giving effect to all distributions made pursuant to
clause (A), above, (E) the Note Pool Factor for each Class of Notes after giving
effect to all distributions made pursuant to
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clause (A), above, and (F) the aggregate Noteholders' Principal Carryover Amount
and the aggregate Noteholders' Interest Carryover Amount on such Distribution
Date after giving effect to all distributions made pursuant to clauses (A) and
(B), above, respectively. The Backup Servicer shall certify to the Trustee that
it has verified the Servicer's Certificate in accordance with this Section and
shall notify the Servicer and the Trustee of any discrepancies, in each case, on
or before the fifth Business Day following the Distribution Date. In the event
that the Backup Servicer reports any discrepancies, the Servicer and the Backup
Servicer shall attempt to reconcile such discrepancies prior to the next
succeeding Distribution Date, but in the absence of a reconciliation, the
Servicer's Certificate shall control for the purpose of calculations and
distributions with respect to the next succeeding Distribution Date. In the
event that the Backup Servicer and the Servicer are unable to reconcile
discrepancies with respect to a Servicer's Certificate by the next succeeding
Distribution Date, the Servicer shall cause the Independent Accountants, at the
Servicer's expense, to audit the Servicer's Certificate and, prior to the last
day of the month after the month in which such Servicer's Certificate was
delivered, reconcile the discrepancies. The effect, if any, of such
reconciliation shall be reflected in the Servicer's Certificate for such next
succeeding Determination Date. In addition, upon the occurrence of a Servicer
Termination Event the Servicer shall, if so requested by the Controlling Party
(acting at the written direction of the Majority Noteholders), deliver to the
Backup Servicer or any replacement Servicer its Collection Records and its
Monthly Records within 15 days after demand therefor and a computer tape
containing as of the close of business on the date of demand all of the data
maintained by the Servicer in computer format in connection with servicing the
Receivables. Other than the duties specifically set forth in this Agreement, the
Backup Servicer shall have no obligations hereunder, including, without
limitation, to supervise, verify, monitor or administer the performance of the
Servicer. The Backup Servicer shall have no liability for any actions taken or
omitted by the Servicer.
SECTION 4.14. [Reserved]
SECTION 4.15. Fidelity Bond and Errors and Omissions Policy.
The Servicer has obtained, and shall continue to maintain in full force and
effect, a Fidelity Bond and Errors and Omissions Policy of a type and in such
amount as is customary for servicers engaged in the business of servicing
automobile receivables.
ARTICLE V
Trust Accounts; Distributions; Statements to Noteholders
SECTION 5.1. Establishment of Trust Accounts.
(a) (i) The Trust Collateral Agent, on behalf of the
Noteholders, shall establish and maintain in its own name an
Eligible Deposit Account (the "Collection Account"), bearing a
designation clearly indicating that the funds deposited therein
are held for the benefit of the Trust Collateral Agent on behalf
of the Noteholders. The Collection Account shall initially be
established with the Trust Collateral Agent.
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(ii) The Trust Collateral Agent, on behalf of the
Noteholders, shall establish and maintain in its own name an
Eligible Deposit Account (the "Note Distribution Account"),
bearing a designation clearly indicating that the funds
deposited therein are held for the benefit of the Trust
Collateral Agent on behalf of the Noteholders. The Note
Distribution Account shall initially be established with the
Trust Collateral Agent.
(iii) The Trust Collateral Agent, on behalf of the
Noteholders, shall establish and maintain in its own name an
Eligible Deposit Account (the "Reserve Account"), bearing a
designation clearly indicating that the funds deposited therein
are held for the benefit of the Trust Collateral Agent on behalf
of the Noteholders. The Reserve Account shall initially be
established with the Trust Collateral Agent.
(b) Funds on deposit in the Collection Account, the Reserve
Account and the Note Distribution Account (collectively, the "Trust Accounts")
shall be invested by the Trust Collateral Agent (or any custodian with respect
to funds on deposit in any such account) in Eligible Investments selected in
writing by the Servicer (pursuant to standing instructions or otherwise). All
such Eligible Investments shall be held by or on behalf of the Trust Collateral
Agent for the benefit of the Noteholders. Other than as permitted by the Rating
Agencies, funds on deposit in any Trust Account shall be invested in Eligible
Investments that will mature so that such funds will be available at the close
of business on the Business Day immediately preceding the following Distribution
Date (except that if such Eligible Investments are obligations of the
institution that maintains such Trust Account or a fund for which such
institution or an Affiliate thereof serves as an investment advisor,
administrator, shareholder servicing agent, custodian and/or sub-custodian, then
such Eligible Investment shall be permitted to mature on the Distribution Date).
Funds deposited in a Trust Account on the day immediately preceding a
Distribution Date upon the maturity of any Eligible Investments are required to
be invested overnight. All Eligible Investments will be held to maturity. Each
institution at which the relevant Trust Account is maintained shall invest the
funds therein as directed in writing by the Servicer in Eligible Investments.
(c) All investment earnings of moneys deposited in each
Trust Account shall be deposited (or caused to be deposited) on each
Distribution Date by the Trust Collateral Agent in such Trust Account, and any
loss resulting from such investments shall be charged to such Trust Account. The
Servicer will not direct the Trust Collateral Agent to make any investment of
any funds held in any of the Trust Accounts unless the security interest granted
and perfected in such account will continue to be perfected in such investment,
in either case without any further action by any Person, and, in connection with
any direction to the Trust Collateral Agent to make any such investment, if
requested by the Trust Collateral Agent, the Servicer shall deliver to the Trust
Collateral Agent an Opinion of Counsel, acceptable to the Trust Collateral
Agent, to such effect.
(d) The Trust Collateral Agent shall not in any way be held
liable by reason of any insufficiency in any of the Trust Accounts resulting
from any loss on any Eligible Investment included therein except for losses
attributable to the Trust Collateral Agent's negligence or bad faith or its
failure to make payments on such Eligible Investments issued by the Trust
Collateral Agent, in its commercial capacity as principal obligor and not as
trustee, in accordance with their terms.
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(e) If (i) the Servicer shall have failed to give investment
directions in writing for any funds on deposit in the Trust Accounts to the
Trust Collateral Agent by 1:00 p.m. Eastern Time (or such other time as may be
agreed by the Issuer and Trust Collateral Agent) on any Business Day; or (ii) a
Default or Event of Default shall have occurred and be continuing with respect
to the Notes but the Notes shall not have been declared due and payable, or, if
such Notes shall have been declared due and payable following an Event of
Default, but amounts collected or received from the Trust Property are being
applied as if there had not been such a declaration; then the Trust Collateral
Agent shall hold such funds in JPMorgan Prime Money Market Fund # 3605 or any
successor fund, so long as such fund remains an Eligible Investment as defined
herein.
(f) (i) The Trust Collateral Agent shall possess all
right, title and interest in all funds on deposit from time to
time in the Trust Accounts and in all proceeds thereof for the
benefit of the Noteholders and all such funds, investments,
proceeds and income shall be part of the Owner Trust Estate.
Except as otherwise provided herein, the Trust Accounts shall be
under the sole dominion and control of the Trust Collateral
Agent for the benefit of the Noteholders. If, at any time, any
of the Trust Accounts ceases to be an Eligible Deposit Account,
the Trust Collateral Agent (or the Servicer on its behalf) shall
within five Business Days (or such longer period as to which
each Rating Agency may consent) establish a new Trust Account as
an Eligible Deposit Account and shall transfer any cash and/or
any investments to such new Trust Account. In connection with
the foregoing, the Servicer agrees that, in the event that any
of the Trust Accounts are not accounts with the Trust Collateral
Agent, the Servicer shall notify the Trust Collateral Agent in
writing promptly upon any of such Trust Accounts ceasing to be
an Eligible Deposit Account.
(ii) With respect to the Trust Account Property, the
Trust Collateral Agent agrees that:
(A) any Trust Account Property that is held
in deposit accounts shall be held solely in the Eligible
Deposit Accounts; and, except as otherwise provided
herein, each such Eligible Deposit Account shall be
subject to the exclusive custody and control of the
Trust Collateral Agent, and the Trust Collateral Agent
shall have sole signature authority with respect
thereto;
(B) any Trust Account Property that
constitutes Physical Property shall be delivered to the
Trust Collateral Agent in accordance with paragraph (a)
of the definition of "Delivery" and shall be held,
pending maturity or disposition, solely by the Trust
Collateral Agent or a securities intermediary (as such
term is defined in Section 8-102(14) of the UCC) acting
solely for the Trust Collateral Agent;
(C) the "securities intermediary's
jurisdiction" for purposes of Section 8-110 of the UCC
shall be the State of New York;
(D) any Trust Account Property that is a
book-entry security held through the Federal Reserve
System pursuant to Federal book-entry regulations shall
be delivered in accordance with paragraph (b) of the
definition of "Delivery" and shall be maintained by the
Trust Collateral Agent, pending maturity or disposition,
through continued book-entry registration of such Trust
Account Property as described in such paragraph; and
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(E) any Trust Account Property that is an
"uncertificated security" or a "security entitlement"
under Article 8 of the UCC and that is not governed by
clause (D) above shall be delivered to the Trust
Collateral Agent in accordance with paragraph (c) or
(d), if applicable, of the definition of "Delivery" and
shall be maintained by the Trust Collateral Agent,
pending maturity or disposition, through continued
registration of the Trust Collateral Agent's (or its
nominee's) ownership of such security.
(g) The Servicer shall have the power to instruct the Trust
Collateral Agent to make withdrawals and payments from the Trust Accounts for
the purpose of permitting the Servicer and the Trust Collateral Agent to carry
out its respective duties hereunder.
SECTION 5.2. [Reserved]
SECTION 5.3. Certain Reimbursements to the Servicer. The
Servicer will be entitled to be reimbursed from amounts on deposit in the
Collection Account with respect to a Collection Period for amounts previously
deposited in the Collection Account but later determined by the Servicer to have
resulted from mistaken deposits or postings or checks returned for insufficient
funds. The amount to be reimbursed hereunder shall be paid to the Servicer on
the related Distribution Date pursuant to Section 5.7(a)(i) upon certification
by the Servicer of such amounts and the provision of such information to the
Trust Collateral Agent. 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 Lockbox Account
but that do not relate to (i) principal and interest payments due on the
Receivables and (ii) any fees or expenses related to extensions due on the
Receivables.
SECTION 5.4. Application of Collections. All collections for
the Collection Period shall be applied by the Servicer as follows:
With respect to each Receivable (other than a Purchased
Receivable or a Sold Receivable), payments by or on behalf of the Obligor,
(other than Supplemental Servicing Fees with respect to such Receivable, to the
extent collected) shall be applied to interest and principal in accordance with
the Simple Interest Method.
All amounts collected that are payable to the Servicer as
Supplemental Servicing Fees hereunder shall be deposited in the Collection
Account and paid to the Servicer in accordance with Section 5.7(a).
SECTION 5.5. [Reserved]
SECTION 5.6. Additional Deposits.
(a) The Servicer and the Seller, as applicable, shall
deposit or cause to be deposited in the Collection Account on the Determination
Date on which such obligations are due the aggregate Purchase Amount with
respect to Purchased Receivables and the aggregate Sale Amounts with respect to
Sold Receivables.
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(b) The proceeds of any purchase or sale of the assets of
the Trust described in Section 10.1 hereof shall be deposited in the Collection
Account.
SECTION 5.7. Distributions.
(a) On each Distribution Date, the Trust Collateral Agent
shall (based solely on the information contained in the Servicer's Certificate
delivered with respect to the related Determination Date) apply or cause to be
applied the sum of (x) the Available Funds (after withdrawing amounts deposited
in error and Liquidation Proceeds relating to Purchased Receivables) for the
related Collection Period and (y) the Reserve Account Withdrawal Amount for such
Distribution Date (such sum, the "Total Available Funds") to make the following
distributions from the Collection Account in the listed order of priority:
(i) to the Servicer, (1) the Base Servicing Fee for
the related Collection Period, (2) any Supplemental Servicing
Fees for the related Collection Period, (3) any amounts
specified in Section 5.3, to the extent the Servicer has not
reimbursed itself in respect of such amounts pursuant to Section
5.3, (4) to the extent not retained by the Servicer, to pay to
AmeriCredit any amounts paid by Obligors during the preceding
calendar month that did not relate to (i) principal and interest
payments due on the Receivables and (ii) any fees or expenses
related to extensions due on the Receivables and (5) to any
successor Servicer, transition fees not to exceed $100,000
(including boarding fees) in the aggregate;
(ii) to each of the Lockbox Banks, the Trustee, the
Trust Collateral Agent, the Backup Servicer (in its capacity as
either Backup Servicer or successor Servicer) and the Owner
Trustee, their respective accrued and unpaid fees, expenses and
indemnities (in each case, to the extent such fees, expenses and
indemnities have not been previously paid by the Servicer, and
provided that such fees, expenses and indemnities shall not
exceed (x) $100,000 in the aggregate in any calendar year to the
Owner Trustee and (y) $300,000 in the aggregate in any calendar
year to the Lockbox Banks, the Trust Collateral Agent, the
Backup Servicer (in its capacity as either Backup Servicer or
successor Servicer) and the Trustee;
(iii) to the Class A Noteholders, pari passu, the
Noteholders' Interest Distributable Amount for the Class A Notes
for such Distribution Date;
(iv) for distribution as provided in paragraph (b)
below, the Class A Principal Parity Amount;
(v) for distribution as provided in paragraph (b)
below, any Matured Principal Shortfall on account of the Class A
Notes;
(vi) to the Class B Noteholders, the Noteholders'
Interest Distributable Amount for the Class B Notes for such
Distribution Date;
(vii) for distribution as provided in paragraph (b)
below, the Class B Principal Parity Amount;
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(viii) for distribution as provided in paragraph (b)
below, any Matured Principal Shortfall on account of the Class B
Notes;
(ix) to the Class C Noteholders, the Noteholders'
Interest Distributable Amount for the Class C Notes for such
Distribution Date;
(x) for distribution as provided in paragraph (b)
below, the Class C Principal Parity Amount;
(xi) for distribution as provided in paragraph (b)
below, any Matured Principal Shortfall on account of the Class C
Notes;
(xii) to the Class D Noteholders, the Noteholders'
Interest Distributable Amount for the Class D Notes for such
Distribution Date;
(xiii) for distribution as provided in paragraph (b)
below, the Class D Principal Parity Amount;
(xiv) for distribution as provided in paragraph (b)
below, any Matured Principal Shortfall on account of the Class D
Notes;
(xv) to the Class E Noteholders, the Noteholders'
Interest Distributable Amount for the Class E Notes for such
Distribution Date;
(xvi) for distribution as provided in paragraph (b)
below, the Class E Principal Parity Amount;
(xvii) for distribution as provided in paragraph (b)
below, any Matured Principal Shortfall on account of the Class E
Notes;
(xviii) for distribution as provided in paragraph (b)
below, the Noteholders' Principal Distributable Amount;
(xix) to the Reserve Account, the Reserve Account
Deposit Amount for such Distribution Date;
(xx) for distribution as provided in paragraph (b)
below, the Accelerated Principal Amount;
(xxi) to the Class E Noteholders, all remaining
amounts, until the outstanding principal balance of the Class E
Notes has been reduced to zero, or, if the Class E Notes are no
longer outstanding, to pay each of the Indenture Trustee, Owner
Trustee, Trust Collateral Agent, Backup Servicer and successor
servicer any fees, expenses and indemnities then due to such
party that are in excess of the related cap or annual limitation
specified in clause (ii) above; and
(xxii) to the Certificateholders, the aggregate amount
remaining in the Collection Account.
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(b) On each Distribution Date the Trust Collateral Agent
shall apply or cause to be applied the aggregate of the amounts described in
clause (iv), (v), (vii), (viii), (x), (xi), (xiii), (xiv), (xvi), (xvii),
(xviii) and (xx) of paragraph (a) above on that Distribution Date in the listed
order of priority:
(i) to the Class A-1 Noteholders in reduction of the
remaining principal balance of the Class A-1 Notes, until the
outstanding principal balance thereof has been reduced to zero;
(ii) to the Class A-2 Noteholders in reduction of the
remaining principal balance of the Class A-2 Notes, until the
outstanding principal balance thereof has been reduced to zero;
(iii) to the Class A-3 Noteholders in reduction of the
remaining principal balance of the Class A-3 Notes, until the
outstanding principal balance thereof has been reduced to zero;
(iv) to the Class B Noteholders in reduction of the
remaining principal balance of the Class B Notes, until the
outstanding principal balance thereof has been reduced to zero;
(v) to the Class C Noteholders in reduction of the
remaining principal balance of the Class C Notes, until the
outstanding principal balance thereof has been reduced to zero;
(vi) to the Class D Noteholders in reduction of the
remaining principal balance of the Class D Notes, until the
outstanding principal balance thereof has been reduced to zero;
(vii) to the Class E Noteholders in reduction of the
remaining principal balance of the Class E Notes, until the
outstanding principal balance thereof has been reduced to zero;
provided, however, that, (A) following an acceleration of the Notes pursuant to
the Indenture, (B) the occurrence of an Event of Default pursuant to Section
5.1(i), 5.1(ii), 5.1(iv) or 5.1(v) of the Indenture or (C) the receipt of
Insolvency Proceeds pursuant to Section 10.1(b), amounts deposited in the Note
Distribution Account (including any such Insolvency Proceeds) shall be paid to
the Noteholders, pursuant to Section 5.6 of the Indenture.
(c) In the event that the Collection Account is maintained
with an institution other than the Trust Collateral Agent, the Servicer shall
instruct and cause such institution to make all deposits and distributions
pursuant to Sections 5.7(a) and 5.7(b) on the related Distribution Date.
(d) In the event that any withholding tax is imposed on the
Trust's payment (or allocations of income) to a Noteholder, such tax shall
reduce the amount otherwise distributable to the Noteholder in accordance with
this Section. The Trust Collateral Agent is hereby authorized and directed to
retain from amounts otherwise distributable to the Noteholders sufficient funds
for the payment of any tax attributable to the Trust (but such authorization
shall not prevent the Trust Collateral Agent from contesting any such tax in
appropriate proceedings, and withholding payment of such tax, if permitted by
law, pending the outcome of such proceedings).
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The amount of any withholding tax imposed with respect to a Noteholder shall be
treated as cash distributed to such Noteholder at the time it is withheld by the
Trust and remitted to the appropriate taxing authority. If there is a
possibility that withholding tax is payable with respect to a distribution (such
as a distribution to a non-US Noteholder), the Trust Collateral Agent may in its
sole discretion withhold such amounts in accordance with this clause (c). In the
event that a Noteholder wishes to apply for a refund of any such withholding
tax, the Trust Collateral Agent shall reasonably cooperate with such Noteholder
in making such claim so long as such Noteholder agrees to reimburse the Trust
Collateral Agent for any out-of-pocket expenses (including legal fees and
expenses) incurred.
(e) Distributions required to be made to Noteholders on any
Distribution Date shall be made to each Noteholder of record on the preceding
Record Date either by (i) wire transfer, in immediately available funds, to the
account of such Holder at a bank or other entity having appropriate facilities
therefore, if such Noteholder shall have provided to the Note Registrar
appropriate written instructions at least five Business Days prior to such
Distribution Date or (ii) by check mailed to such Noteholder at the address of
such holder appearing in the Note Register. Notwithstanding the foregoing, the
final distribution in respect of any Note (whether on the Final Scheduled
Distribution Date or otherwise) will be payable only upon presentation and
surrender of such Note at the office or agency maintained for that purpose by
the Note Registrar pursuant to Section 2.4 of the Indenture.
(f) Subject to Section 5.1 and this section, monies received
by the Trust Collateral Agent hereunder need not be segregated in any manner
except to the extent required by law and may be deposited under such general
conditions as may be prescribed by law, and the Trust Collateral Agent shall not
be liable for any interest thereon.
SECTION 5.8. Reserve Account.
(i) On the Closing Date, the Seller shall deposit
the Specified Reserve Balance into the Reserve Account. Amounts
held from time to time in the Reserve Account shall be held by
the Trust Collateral Agent for the benefit of the Noteholders.
(ii) The Seller may, from time to time after the date
hereof, request each Rating Agency to approve a formula for
determining the Specified Reserve Balance that is different from
the formula set forth herein, which may result in a decrease in
the amount of the Specified Reserve Balance or change the manner
by which the Reserve Account is funded. Notwithstanding any
other provision of this Agreement, if each Rating Agency then
rating the Notes notifies the Trust Collateral Agent and the
Seller in writing that the use of any such new formula, and any
decrease in the amount of the Specified Reserve Balance or
change in the manner by which the Reserve Account is funded,
will not result in the qualification, reduction or withdrawal of
its then current rating of the Notes then the Specified Reserve
Balance will be determined in accordance with such new formula
and this Agreement will be amended to reflect such new formula
without the consent of any Noteholder.
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(iii) On each Distribution Date, the Servicer shall
instruct the Trust Collateral Agent (based on the information
contained in the Servicer's Certificate delivered on the related
Determination Date) (A) if the amount on deposit in the Reserve
Account (without taking into account any amount on deposit in
the Reserve Account representing net investment earnings) is
less than the Specified Reserve Balance, in which case the Trust
Collateral Agent shall, after payment of any amounts required to
be distributed pursuant to clauses (i) through (xviii) of
Section 5.7(a) deposit in the Reserve Account the Reserve
Account Deposit Amount pursuant to Section 5.7(a)(xix), and (B)
if the amount on deposit in the Reserve Account (taking into
account any net investment earnings on such amounts), after
giving effect to all other deposits thereto and withdrawals
therefrom to be made on such Distribution Date is greater than
the Specified Reserve Balance, in which case the Trust
Collateral Agent shall distribute the amount such excess as part
of Available Funds on such Distribution Date.
(b) On each Distribution Date, the Servicer shall instruct
the Trust Collateral Agent (based on the information contained in the Servicer's
Certificate delivered on the related Determination Date) to withdraw the Reserve
Account Withdrawal Amount from the Reserve Account and deposit such amounts in
the Collection Account to be included as Total Available Funds for that
Distribution Date.
(c) Amounts properly received by the Certificateholders
pursuant to this Agreement shall not be available to the Trust Collateral Agent
or the Trust for the purpose of making deposits to the Reserve Account, or
making payments to the Noteholders, nor shall the Certificateholders be required
to refund any amount properly received by it.
SECTION 5.9. Statements to Noteholders.
(a) On or prior to each Distribution Date, the Trust
Collateral Agent shall provide each Noteholder of record (with a copy to the
Rating Agencies) a statement setting forth at least the following information as
to the Notes to the extent applicable:
(i) the amount of such distribution allocable to
principal of each Class of Notes;
(ii) the amount of such distribution allocable to
interest on or with respect to each Class of Notes;
(iii) the Required Reserve Account Withdrawal Amount
or any excess released from the Reserve Account and included in
Available Funds;
(iv) the Pool Balance as of the close of business on
the last day of the preceding Collection Period;
(v) the aggregate outstanding principal amount of
each Class of the Notes and the Note Pool Factor for each such
Class after giving effect to payments allocated to principal
reported under (i) above;
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(vi) the amount of the Servicing Fee paid to the
Servicer with respect to the related Collection Period and/or
due but unpaid with respect to such Collection Period or prior
Collection Periods, as the case may be;
(vii) the Noteholders' Interest Carryover Amount and
the Noteholders' Principal Carryover Amount;
(viii) the amount of the aggregate Realized Losses, if
any, for the second preceding Collection Period;
(ix) the aggregate Purchase Amounts for Receivables,
if any, that were repurchased by the Servicer or the Seller in
such period; and
(x) the aggregate Sale Amounts for Sold Receivables,
if any, that were sold by the Issuer in such period.
Each amount set forth pursuant to paragraph (i), (ii), (iii), (vi) and (vii)
above shall be expressed as a dollar amount per $1,000 of the initial principal
balance of the Notes (or Class thereof).
(b) The Trust Collateral Agent will make the statements
referred to in Section 5.9(a) above (and, at its option, any additional files
containing the same information in an alternative format) available each month
via the Trust Collateral Agent's internet website, which is presently located at
xxx.xxxxxxxx.xxx/xxx. Persons that are entitled to receive such statements but
are unable to use the above website are entitled to have a paper copy mailed to
them via first class mail by calling the Trust Collateral Agent at (212)
623-5600. The Trust Collateral Agent shall have the right to change the way the
statements referred to in Section 5.9(a) above are distributed in order to make
such distribution more convenient and/or more accessible to the parties entitled
to receive such statements. The Trust Collateral Agent shall provide
notification of any such change to all parties entitled to receive such
statements in the manner described in Section 12.3 hereof, Section 11.4 of the
Indenture or Section 11.5 of the Indenture, as appropriate.
ARTICLE VI
[Reserved]
ARTICLE VII
The Seller
SECTION 7.1. 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 Trustee, Trust Collateral Agent and
Backup Servicer may rely. The representations speak as of the execution and
delivery of this Agreement and as of the Closing Date, and shall survive the
sale of the Receivables to the Issuer and the pledge thereof to the Trust
Collateral Agent pursuant to the Indenture.
(a) Schedule of Representations. The representations and
warranties set forth on the Schedule of Representations attached hereto as
Schedule B are true and correct.
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(b) Organization and Good Standing. The Seller has been duly
organized and is validly existing as a corporation in good standing under the
laws of the State of Nevada, with power and authority to own its properties and
to conduct its business as such properties are currently owned and such business
is currently conducted, and had at all relevant times, and now has, power,
authority and legal right to acquire, own and sell the Receivables and the Other
Conveyed Property transferred to the Trust.
(c) Due Qualification. The Seller is duly qualified to do
business as a foreign corporation in good standing and has obtained all
necessary licenses and approvals in all jurisdictions where the failure to do so
would materially and adversely affect Seller's ability to transfer the
Receivables and the Other Conveyed Property to the Trust pursuant to this
Agreement, or the validity or enforceability of the Receivables and the Other
Conveyed Property or to perform Seller's obligations hereunder and under the
Seller's Basic Documents.
(d) Power and Authority. The Seller has the power and
authority to execute and deliver this Agreement and its Basic Documents and to
carry out its terms and their terms, respectively; the Seller has full power and
authority to sell and assign the Receivables and the Other Conveyed Property to
be sold and assigned to and deposited with the Trust by it and has duly
authorized such sale and assignment to the Trust by all necessary corporate
action; and the execution, delivery and performance of this Agreement and the
Seller's Basic Documents have been duly authorized by the Seller by all
necessary corporate action.
(e) Valid Sale, Binding Obligations. This Agreement effects
a valid sale, transfer and assignment of the Receivables and the Other Conveyed
Property, enforceable against the Seller and creditors of and purchasers from
the Seller; and this Agreement and the Seller's Basic Documents, when duly
executed and delivered, shall constitute legal, valid and binding obligations of
the Seller enforceable in accordance with their respective terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization or other
similar laws affecting the enforcement of creditors' rights generally and by
equitable limitations on the availability of specific remedies, regardless of
whether such enforceability is considered in a proceeding in equity or at law.
(f) No Violation. The consummation of the transactions
contemplated by this Agreement and the Basic Documents and the fulfillment of
the terms of this Agreement and the Basic Documents shall not conflict with,
result in any breach of any of the terms and provisions of or constitute (with
or without notice, lapse of time or both) a default under the certificate of
incorporation or by-laws of the Seller, or any indenture, agreement, mortgage,
deed of trust or other instrument to which the Seller is a party or by which it
is bound, or result in the creation or imposition of any Lien upon any of its
properties pursuant to the terms of any such indenture, agreement, mortgage,
deed of trust or other instrument, other than this Agreement, or violate any
law, order, rule or regulation applicable to the Seller of any court or of any
federal or state regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Seller or any of its properties.
45
(g) No Proceedings. There are no proceedings or
investigations pending or, to the Seller's knowledge, threatened against the
Seller, before any court, regulatory body, administrative agency or other
tribunal or governmental instrumentality having jurisdiction over the Seller or
its properties (A) asserting the invalidity of this Agreement or any of the
Basic Documents, (B) seeking to prevent the issuance of the Securities or the
consummation of any of the transactions contemplated by this Agreement or any of
the Basic Documents, (C) seeking any determination or ruling that might
materially and adversely affect the performance by the Seller of its obligations
under, or the validity or enforceability of, this Agreement or any of the Basic
Documents, or (D) seeking to adversely affect the federal income tax or other
federal, state or local tax attributes of the Securities.
(h) No Consents. The Seller is not required to obtain the
consent of any other party or any consent, license, approval or authorization,
or registration or declaration with, any governmental authority, bureau or
agency in connection with the execution, delivery, performance, validity or
enforceability of this Agreement which has not already been obtained.
(i) True Sale. The Receivables are being transferred with
the intention of removing them from the Seller's estate pursuant to Section 541
of the Bankruptcy Code, as the same may be amended from time to time.
(j) Chief Executive Office. The chief executive office of
the Seller is at 0000X Xxxxxxxxxxx Xxxxx, Xxxxx 00, Xxx Xxxxx, Xxxxxx 00000.
SECTION 7.2. Corporate Existence.
(a) During the term of this Agreement, the Seller will keep
in full force and effect its existence, rights and franchises as a corporation
under the laws of the jurisdiction of its incorporation and will obtain and
preserve its qualification to do business in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, the Basic Documents and each other instrument
or agreement necessary or appropriate to the proper administration of this
Agreement and the transactions contemplated hereby.
(b) During the term of this Agreement, the Seller shall
observe the applicable legal requirements for the recognition of the Seller as a
legal entity separate and apart from its Affiliates, including as follows:
(i) the Seller shall maintain corporate records and
books of account separate from those of its Affiliates;
(ii) except as otherwise provided in this Agreement,
the Seller shall not commingle its assets and funds with those
of its Affiliates;
(iii) the Seller shall hold such appropriate meetings
of its board of directors, or adopt resolutions pursuant to a
unanimous written consent of the board of directors as are
necessary to authorize all the Seller's corporate actions
required by law to be authorized by the board of directors,
shall keep minutes of such meetings and of meetings of its
stockholder(s) and observe all other customary corporate
formalities (and any successor Seller not a corporation shall
observe similar procedures in accordance with its governing
documents and applicable law);
46
(iv) the Seller shall at all times hold itself out to
the public under the Seller's own name as a legal entity
separate and distinct from its Affiliates; and
(v) all transactions and dealings between the Seller
and its Affiliates will be conducted on an arm's-length basis.
SECTION 7.3. Liability of Seller; Indemnities. The Seller
shall be liable in accordance herewith only to the extent of the obligations
specifically undertaken by the Seller under this Agreement.
(a) The Seller shall indemnify, defend and hold harmless the
Owner Trustee, the Trust, the Trustee, the Backup Servicer and the Trust
Collateral Agent and its officers, directors, employees and agents from and
against any taxes that may at any time be asserted against any such Person with
respect to the transactions contemplated in this Agreement and any of the Basic
Documents (except any income taxes arising out of fees paid to the Owner
Trustee, the Trust Collateral Agent and the Trustee and except any taxes to
which the Owner Trustee, the Trust Collateral Agent or the Trustee may otherwise
be subject to, without regard to the transactions contemplated hereby),
including any sales, gross receipts, general corporation, tangible personal
property, privilege or license taxes (but, in the case of the Issuer, not
including any taxes asserted with respect to, federal or other income taxes
arising out of distributions on the Notes) and costs and expenses in defending
against the same.
(b) The Seller shall indemnify, defend and hold harmless the
Owner Trustee, the Trust, the Trustee, the Backup Servicer and the Trust
Collateral Agent and the officers, directors, employees and agents thereof and
the Noteholders from and against any loss, liability or expense incurred by
reason of (i) the Seller's willful misfeasance, bad faith or negligence in the
performance of its duties under this Agreement, or by reason of reckless
disregard of its obligations and duties under this Agreement and (ii) the
Seller's or the Issuer's violation of federal or state securities laws in
connection with the offering and sale of the Notes.
(c) The Seller shall indemnify, defend and hold harmless the
Owner Trustee, Trustee, Trust Collateral Agent and Backup Servicer and the
officers, directors, employees and agents thereof from and against any and all
costs, expenses, losses, claims, damages and liabilities arising out of, or
incurred in connection with the acceptance or performance of the trusts and
duties set forth herein and in the Basic Documents except to the extent that
such cost, expense, loss, claim, damage or liability shall be due to the willful
misfeasance, bad faith or negligence (except for errors in judgment) of the
Owner Trustee, Trustee, Trust Collateral Agent and Backup Servicer,
respectively.
Indemnification under this Section shall survive the resignation
or removal of the Owner Trustee, the Trustee, the Backup Servicer or the Trust
Collateral Agent and the termination of this Agreement or the Indenture or the
Trust Agreement, as applicable, and shall include reasonable fees and expenses
of counsel and other expenses of litigation. If the Seller shall have made any
indemnity payments pursuant to this Section and the Person to or on behalf of
whom such payments are made thereafter shall collect any of such amounts from
others, such Person shall promptly repay such amounts to the Seller, without
interest.
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SECTION 7.4. Merger or Consolidation of, or Assumption of the
Obligations of, Seller. Any Person (a) into which the Seller may be merged or
consolidated, (b) which may result from any merger or consolidation to which the
Seller shall be a party or (c) which may succeed to the properties and assets of
the Seller substantially as a whole, which Person in any of the foregoing cases
executes an agreement of assumption to perform every obligation of the Seller
under this Agreement, shall be the successor to the Seller hereunder without the
execution or filing of any document or any further act by any of the parties to
this Agreement; provided, however, that (i) immediately after giving effect to
such transaction, no representation or warranty made pursuant to Section 3.1
shall have been breached and no Servicer Termination Event, and no event which,
after notice or lapse of time, or both, would become a Servicer Termination
Event shall have happened and be continuing, (ii) the Seller shall have
delivered to the Owner Trustee, the Trust Collateral Agent, the Backup Servicer
and the 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, (iii)
the Rating Agency Condition shall have been satisfied with respect to such
transaction and (iv) the Seller shall have delivered to the Owner Trustee, the
Trust Collateral Agent, the Backup Servicer and the Trustee an Opinion of
Counsel stating that, in the opinion of such counsel, either (A) all financing
statements and continuation statements and amendments thereto have been executed
and filed that are necessary fully to preserve and protect the interest of the
Trust Collateral Agent, the Owner Trustee and the Trustee, respectively, in the
Receivables and reciting the details of such filings or (B) no such action shall
be necessary to preserve and protect such interest. Notwithstanding anything
herein to the contrary, the execution of the foregoing agreement of assumption
and compliance with clauses (i), (ii), (iii) and (iv) above shall be conditions
to the consummation of the transactions referred to in clauses (a), (b) or (c)
above.
SECTION 7.5. Limitation on Liability of Seller and Others.
The Seller and any director or officer or employee or agent of the Seller may
rely in good faith on the advice of counsel or on any document of any kind,
prima facie properly executed and submitted by any Person respecting any matters
arising under any Basic Document. The Seller shall not be under any obligation
to appear in, prosecute or defend any legal action that shall not be incidental
to its obligations under this Agreement, and that in its opinion may involve it
in any expense or liability.
SECTION 7.6. Ownership of the Certificates or Notes. The
Seller and any Affiliate thereof may in its individual or any other capacity
become the owner or pledgee of Certificates or Notes with the same rights as it
would have if it were not the Seller or an Affiliate thereof, except as
expressly provided herein or in any Basic Document. Notes or Certificates so
owned by the Seller or such Affiliate shall have an equal and proportionate
benefit under the provisions of the Basic Documents, without preference,
priority, or distinction as among all of the Notes or Certificates; provided,
however, that any Notes or Certificates owned by the Seller or any Affiliate
thereof, during the time such Notes or Certificates are owned by them, shall be
without voting rights for any purpose set forth in the Basic Documents. The
Seller shall notify the Owner Trustee, the Trustee and the Trust Collateral
Agent with respect to any other transfer of any Certificate.
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ARTICLE VIII
The Servicer and the Backup Servicer
SECTION 8.1. Representations of Servicer. The Servicer 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 this Agreement and as of the Closing Date, and shall survive the
sale of the Receivables to the Issuer and the pledge thereof to the Trust
Collateral Agent pursuant to the Indenture.
(a) Representations and Warranties. The representations and
warranties set forth on the Schedule of Representations attached hereto as
Schedule B are true and correct; provided that such representations and
warranties contained therein and herein shall not apply to any entity other than
AmeriCredit;
(b) Organization and Good Standing. The Servicer has been
duly organized and is validly existing and in good standing under the laws of
its jurisdiction of organization, with power, authority and legal right to own
its properties and to conduct its business as such properties are currently
owned and such business is currently conducted, and had at all relevant times,
and now has, power, authority and legal right to enter into and perform its
obligations under this Agreement;
(c) Due Qualification. The Servicer is duly qualified to do
business as a foreign corporation in good standing and has obtained all
necessary licenses and approvals, in all jurisdictions in which the ownership or
lease of property or the conduct of its business (including the servicing of the
Receivables as required by this Agreement) requires or shall require such
qualification;
(d) Power and Authority. The Servicer has the power and
authority to execute and deliver this Agreement and its Basic Documents and to
carry out its terms and their terms, respectively, and the execution, delivery
and performance of this Agreement and the Servicer's Basic Documents have been
duly authorized by the Servicer by all necessary corporate action;
(e) Binding Obligation. This Agreement and the Servicer's
Basic Documents shall constitute legal, valid and binding obligations of the
Servicer enforceable in accordance with their respective terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization, or
other similar laws affecting the enforcement of creditors' rights generally and
by equitable limitations on the availability of specific remedies, regardless of
whether such enforceability is considered in a proceeding in equity or at law;
(f) No Violation. The consummation of the transactions
contemplated by this Agreement and the Servicer's Basic Documents, and the
fulfillment of the terms of this Agreement and the Servicer's Basic Documents,
shall not conflict with, result in any breach of any of the terms and provisions
of, or constitute (with or without notice or lapse of time) a default under, the
articles of incorporation or bylaws of the Servicer, or any indenture,
agreement, mortgage, deed of trust or other instrument to which the Servicer is
a party or by which it is bound, or result in the creation or imposition of any
Lien upon any of its properties pursuant to the terms of any such indenture,
agreement, mortgage, deed of trust or other instrument, other than this
Agreement, or violate any law, order, rule or regulation applicable to the
Servicer of any court or of any federal or state regulatory body, administrative
agency or other governmental instrumentality having jurisdiction over the
Servicer or any of its properties;
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(g) No Proceedings. There are no proceedings or
investigations pending or, to the Servicer's knowledge, threatened against the
Servicer, before any court, regulatory body, administrative agency or other
tribunal or governmental instrumentality having jurisdiction over the Servicer
or its properties (A) asserting the invalidity of this Agreement or any of the
Basic Documents, (B) seeking to prevent the issuance of the Securities or the
consummation of any of the transactions contemplated by this Agreement or any of
the Basic Documents, (C) seeking any determination or ruling that might
materially and adversely affect the performance by the Servicer of its
obligations under, or the validity or enforceability of, this Agreement or any
of the Basic Documents or (D) seeking to adversely affect the federal income tax
or other federal, state or local tax attributes of the Securities;
(h) No Consents. The Servicer is not required to obtain the
consent of any other party or any consent, license, approval or authorization,
or registration or declaration with, any governmental authority, bureau or
agency in connection with the execution, delivery, performance, validity or
enforceability of this Agreement which has not already been obtained.
SECTION 8.2. Representations of Backup Servicer. The Backup
Servicer 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 this Agreement and as of the Closing Date, and shall
survive the sale of the Receivables to the Issuer and the pledge thereof to the
Trust Collateral Agent pursuant to the Indenture.
(a) Organization and Good Standing. The Backup Servicer has
been duly organized and is validly existing and in good standing under the laws
of its jurisdiction of organization, with power, authority and legal right to
own its properties and to conduct its business as such properties are currently
owned and such business is currently conducted, and had at all relevant times,
and now has, power, authority and legal right to enter into and perform its
obligations under this Agreement;
(b) Due Qualification. The Backup Servicer is duly qualified
to do business as a foreign corporation in good standing and has obtained all
necessary licenses and approvals, in all jurisdictions in which the ownership or
lease of property or the conduct of its business (including the servicing of the
Receivables as required by this Agreement) requires or shall require such
qualification;
(c) Power and Authority. The Backup Servicer has the power
and authority to execute and deliver this Agreement and its Basic Documents and
to carry out its terms and their terms, respectively, and the execution,
delivery and performance of this Agreement and the Backup Servicer's Basic
Documents have been duly authorized by the Backup Servicer by all necessary
corporate action;
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(d) Binding Obligation. This Agreement and the Backup
Servicer's Basic Documents shall constitute legal, valid and binding obligations
of the Backup Servicer enforceable in accordance with their respective terms,
except as enforceability may be limited by bankruptcy, insolvency,
reorganization, or other similar laws affecting the enforcement of creditors'
rights generally and by equitable limitations on the availability of specific
remedies, regardless of whether such enforceability is considered in a
proceeding in equity or at law;
(e) No Violation. The consummation of the transactions
contemplated by this Agreement and the Backup Servicer's Basic Documents, and
the fulfillment of the terms of this Agreement and the Backup Servicer's Basic
Documents, shall not conflict with, result in any breach of any of the terms and
provisions of, or constitute (with or without notice or lapse of time) a default
under, the articles of incorporation or bylaws of the Backup Servicer, or any
indenture, agreement, mortgage, deed of trust or other instrument to which the
Backup Servicer is a party or by which it is bound, or result in the creation or
imposition of any Lien upon any of its properties pursuant to the terms of any
such indenture, agreement, mortgage, deed of trust or other instrument, other
than this Agreement, or violate any law, order, rule or regulation applicable to
the Backup Servicer of any court or of any federal or state regulatory body,
administrative agency or other governmental instrumentality having jurisdiction
over the Backup Servicer or any of its properties;
(f) No Proceedings. There are no proceedings or
investigations pending or, to the Backup Servicer's knowledge, threatened
against the Backup Servicer, before any court, regulatory body, administrative
agency or other tribunal or governmental instrumentality having jurisdiction
over the Backup Servicer or its properties (A) asserting the invalidity of this
Agreement or any of the Basic Documents, (B) seeking to prevent the issuance of
the Notes or the consummation of any of the transactions contemplated by this
Agreement or any of the Basic Documents, (C) seeking any determination or ruling
that might materially and adversely affect the performance by the Backup
Servicer of its obligations under, or the validity or enforceability of, this
Agreement or any of the Basic Documents or (D) seeking to adversely affect the
federal income tax or other federal, state or local tax attributes of the Notes;
(g) No Consents. The Backup Servicer is not required to
obtain the consent of any other party or any consent, license, approval or
authorization, or registration or declaration with, any governmental authority,
bureau or agency in connection with the execution, delivery, performance,
validity or enforceability of this Agreement which has not already been
obtained.
SECTION 8.3. Liability of Servicer and Backup Servicer;
Indemnities.
(a) The Servicer (in its capacity as such) and the Backup
Servicer shall be liable hereunder only to the extent of the obligations in this
Agreement specifically undertaken by the Servicer or the Backup Servicer, as
applicable, and the representations made by the Servicer or the Backup Servicer,
as applicable.
(b) The Servicer shall defend, indemnify and hold harmless
the Trust, the Trustee, the Trust Collateral Agent, the Owner Trustee, the
Backup Servicer, their respective officers, directors, agents and employees, and
the Noteholders from and against any and all costs, expenses, losses, damages,
claims and liabilities, including reasonable fees and expenses of counsel and
expenses of litigation arising out of or resulting from the use, ownership or
operation by the Servicer or any Affiliate thereof of any Financed Vehicle.
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(c) AmeriCredit shall indemnify, defend and hold harmless
the Trust, the Trustee, the Trust Collateral Agent, the Owner Trustee, the
Backup Servicer, their respective officers, directors, agents and employees and
the Noteholders from and against any taxes that may at any time be asserted
against any of such parties with respect to the transactions contemplated in
this Agreement, including, without limitation, any sales, gross receipts,
tangible or intangible personal property, privilege or license taxes (but not
including any federal or other income taxes, including franchise taxes asserted
with respect to, and as of the date of, the sale of the Receivables and the
Other Conveyed Property to the Trust or the issuance and original sale of the
Notes) and costs and expenses in defending against the same.
(d) The Servicer shall indemnify, defend and hold harmless
the Trust, the Trustee, the Trust Collateral Agent, the Owner Trustee, the
Backup Servicer, their respective officers, directors, agents and employees and
the Noteholders from and against any and all costs, expenses, losses, claims,
damages, and liabilities to the extent that such cost, expense, loss, claim,
damage, or liability arose out of, or was imposed upon the Trust, the Trustee,
the Owner Trustee, the Trust Collateral Agent, the Backup Servicer or the
Noteholders by reason of the breach of this Agreement by the Servicer, the
negligence, misfeasance, or bad faith of the Servicer in the performance of its
duties under this Agreement or by reason of reckless disregard of its
obligations and duties under this Agreement.
(e) AmeriCredit shall indemnify, defend and hold harmless
the Trust, the Trustee, the Trust Collateral Agent, the Owner Trustee, the
Backup Servicer, their respective officers, directors, agents and employees and
the Noteholders from and against any loss, liability or expense incurred by
reason of the violation by Servicer or Seller of federal or state securities
laws in connection with the registration or the sale of the Notes. This section
shall survive the termination of this Agreement, or the earlier removal or
resignation of the Trustee, Trust Collateral Agent or the Backup Servicer.
(f) AmeriCredit shall indemnify the Trustee, the Owner
Trustee, the Trust Collateral Agent, the Backup Servicer, and the respective
officers, directors, agents and employees thereof against any and all loss,
liability or expense, (other than overhead and expenses incurred in the normal
course of business) incurred by each of them in connection with the acceptance
or administration of the Trust and the performance of their duties under the
Basic Documents other than if such loss, liability or expense was incurred by
the Trustee, the Owner Trustee or the Trust Collateral Agent as a result of any
such entity's willful misconduct, bad faith or negligence.
(g) The Backup Servicer shall defend, indemnify and hold
harmless the Trust, the Trustee, the Trust Collateral Agent, the Owner Trustee,
the Servicer, their respective officers, directors, agents and employees and the
Noteholders from and against: (i) all costs, expenses, losses, damages, claims
and liabilities, including reasonable fees and expenses of counsel and expenses
of litigation arising out of or resulting from the use, ownership or operation
by the Backup Servicer or any Affiliate thereof of any Financed Vehicle; and
(ii) any and all costs, expenses, losses, claims, damages, and liabilities to
the extent that such cost, expense, loss, claim, damage, or liability arose out
of, or was imposed upon the Trust, the Owner Trustee, the Trustee, the Servicer
or the Noteholders by reason of, the breach of this Agreement by the Backup
Servicer, the violation of federal or state securities laws by the Backup
Servicer, the negligence, misfeasance, or bad faith of the Backup Servicer in
the performance of its duties under this Agreement or by reason of reckless
disregard of its obligations and duties under this Agreement.
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(h) Indemnification under this Article shall include,
without limitation, reasonable fees and expenses of counsel and expenses of
litigation. If the Servicer has made any indemnity payments pursuant to this
Article and the recipient thereafter collects any of such amounts from others,
the recipient shall promptly repay such amounts collected to the Servicer,
without interest. Notwithstanding anything contained herein to the contrary, any
indemnification payable by the Servicer to the Backup Servicer, to the extent
not paid by the Servicer, shall be paid solely from Section 5.7(a) of this
Agreement.
(i) When the Trustee, the Trust Collateral Agent, the
Collateral Agent or the Backup Servicer incurs expenses after the occurrence of
a Servicer Termination Event specified in Section 9.1(d) or (e) with respect to
the Servicer, the expenses are intended to constitute expenses of administration
under Title 11 of the United States Code or any other applicable federal or
state bankruptcy, insolvency or similar law.
SECTION 8.4. Merger or Consolidation of, or Assumption of the
Obligations of the Servicer or Backup Servicer.
(a) AmeriCredit shall not merge or consolidate with any
other person, convey, transfer or lease substantially all its assets as an
entirety to another Person, or permit any other Person to become the successor
to AmeriCredit's business unless, after the merger, consolidation, conveyance,
transfer, lease or succession, the successor or surviving entity shall be
capable of fulfilling the duties of AmeriCredit contained in this Agreement and
shall be acceptable to the Majority Noteholders, and shall be an eligible
servicer. Any corporation (i) into which AmeriCredit may be merged or
consolidated, (ii) resulting from any merger or consolidation to which
AmeriCredit shall be a party, (iii) which acquires by conveyance, transfer, or
lease substantially all of the assets of AmeriCredit, or (iv) succeeding to the
business of AmeriCredit, in any of the foregoing cases shall execute an
agreement of assumption to perform every obligation of AmeriCredit under this
Agreement and, whether or not such assumption agreement is executed, shall be
the successor to AmeriCredit under this Agreement without the execution or
filing of any paper or any further act on the part of any of the parties to this
Agreement, anything in this Agreement to the contrary notwithstanding; provided,
however, that nothing contained herein shall be deemed to release AmeriCredit
from any obligation. AmeriCredit shall provide notice of any merger,
consolidation or succession pursuant to this Section to the Owner Trustee, the
Trust Collateral Agent, the Noteholders and each Rating Agency. Notwithstanding
the foregoing, AmeriCredit shall not merge or consolidate with any other Person
or permit any other Person to become a successor to AmeriCredit's business,
unless (x) immediately after giving effect to such transaction, no
representation or warranty made pursuant to Section 4.6 shall have been breached
(for purposes hereof, such representations and warranties shall speak as of the
date of the consummation of such transaction), (y) AmeriCredit shall have
delivered to the Owner Trustee, the Trust Collateral Agent, the Trustee, the
Backup Servicer and the Rating Agencies an Officer's Certificate and an Opinion
of Counsel each stating that such consolidation, merger or succession and such
agreement of assumption comply with this Section and that all conditions
precedent, if
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any, provided for in this Agreement relating to such transaction have been
complied with, and (z) AmeriCredit shall have delivered to the Owner Trustee,
the Trust Collateral Agent, the Trustee, the Backup Servicer and the Rating
Agencies an Opinion of Counsel, stating in the opinion of such counsel, either
(A) all financing statements and continuation statements and amendments thereto
have been executed and filed that are necessary to preserve and protect the
interest of the Trust in the Receivables and the Other Conveyed Property and
reciting the details of the filings or (B) no such action shall be necessary to
preserve and protect such interest.
(b) Any corporation (i) into which the Backup Servicer may
be merged or consolidated, (ii) resulting from any merger or consolidation to
which the Backup Servicer shall be a party, (iii) which acquires by conveyance,
transfer or lease substantially all of the assets of the Backup Servicer, or
(iv) succeeding to the business of the Backup Servicer, in any of the foregoing
cases shall execute an agreement of assumption to perform every obligation of
the Backup Servicer under this Agreement and, whether or not such assumption
agreement is executed, shall be the successor to the Backup Servicer under this
Agreement without the execution or filing of any paper or any further act on the
part of any of the parties to this Agreement, anything in this Agreement to the
contrary notwithstanding; provided, however, that nothing contained herein shall
be deemed to release the Backup Servicer from any obligation.
SECTION 8.5. Limitation on Liability of Servicer, Backup
Servicer and Others.
(a) Neither AmeriCredit, the Backup Servicer nor any of the
directors or officers or employees or agents of AmeriCredit or Backup Servicer
shall be under any liability to the Trust or the Noteholders, except as provided
in this Agreement, for any action taken or for refraining from the taking of any
action pursuant to this Agreement; provided, however, that this provision shall
not protect AmeriCredit, the Backup Servicer or any such person against any
liability that would otherwise be imposed by reason of a breach of this
Agreement or willful misfeasance, bad faith or negligence (excluding errors in
judgment) in the performance of duties; provided, further, that this provision
shall not affect any liability to indemnify the Trust Collateral Agent and the
Owner Trustee for costs, taxes, expenses, claims, liabilities, losses or damages
paid by the Trust Collateral Agent and the Owner Trustee, in their individual
capacities. AmeriCredit, the Backup Servicer and any director, officer, employee
or agent of AmeriCredit or Backup Servicer may rely in good faith on the written
advice of counsel or on any document of any kind prima facie properly executed
and submitted by any Person respecting any matters arising under this Agreement.
(b) 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 Owner Trustee, the
Trustee, the Trust Collateral Agent, the Backup Servicer, the Seller and the
Noteholders shall look only to the Servicer to perform such obligations. The
Backup Servicer, the Trust Collateral Agent, the Trustee, the Owner Trustee and
the Custodian shall have no 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 or the
Majority Noteholders, (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.
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SECTION 8.6. Delegation of Duties. The Servicer may delegate
duties under this Agreement to an Affiliate of AmeriCredit with the prior
written consent of the Trust Collateral Agent, the Owner Trustee and the Backup
Servicer. The Servicer also may at any time perform through sub-contractors the
specific duties of (i) repossession of Financed Vehicles, (ii) tracking Financed
Vehicles' insurance and (iii) pursuing the collection of deficiency balances on
certain Liquidated Receivables, in each case, without the consent of the Trust
Collateral Agent, the Owner Trustee or the Backup Servicer and may perform other
specific duties through such sub-contractors in accordance with Servicer's
customary servicing policies and procedures, with the prior consent of the Trust
Collateral Agent. Notwithstanding the foregoing AmeriCredit, as Servicer, may
delegate its duties hereunder and under any other Basic Document with respect to
the servicing of and collections on certain Receivables to AmeriCredit Financial
Services of Canada Ltd. without first obtaining the consent of any person. No
delegation or sub-contracting by the Servicer of its duties herein in the manner
described in this Section 8.6 shall relieve the Servicer of its responsibility
with respect to such duties.
SECTION 8.7. Servicer and Backup Servicer Not to Resign.
Subject to the provisions of Section 8.4, neither the Servicer nor the Backup
Servicer shall resign from the obligations and duties imposed on it by this
Agreement as Servicer or Backup Servicer except upon a determination that by
reason of a change in legal requirements the performance of its duties under
this Agreement would cause it to be in violation of such legal requirements in a
manner which would have a material adverse effect on the Servicer or the Backup
Servicer, as the case may be, if the Majority Noteholders do not elect to waive
the obligations of the Servicer or the Backup Servicer, as the case may be, to
perform the duties which render it legally unable to act or to delegate those
duties to another Person. Any such determination permitting the resignation of
the Servicer or Backup Servicer shall be evidenced by an Opinion of Counsel to
such effect delivered and acceptable to the Trust Collateral Agent and the Owner
Trustee. No resignation of the Servicer shall become effective until the Backup
Servicer or an entity acceptable to the Majority Noteholders shall have assumed
the responsibilities and obligations of the Servicer. No resignation of the
Backup Servicer shall become effective until an entity acceptable to the
Majority Noteholders shall have assumed the responsibilities and obligations of
the Backup Servicer; provided, however, that (i) 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 and (ii)
the Backup Servicer may resign with the written consent of the Majority
Noteholders.
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ARTICLE IX
Default
SECTION 9.1. Servicer Termination Event. For purposes of this
Agreement, each of the following shall constitute a "Servicer Termination
Event":
(a) Any failure by the Servicer to deliver to the Trust
Collateral Agent for distribution to Noteholders any proceeds or payment
required to be so delivered under the terms of this Agreement that continues
unremedied for a period of two Business Days after written notice is received by
the Servicer from the Trust Collateral Agent or after discovery of such failure
by a Responsible Officer of the Servicer;
(b) Failure by the Servicer to deliver to the Trust
Collateral Agent the Servicer's Certificate by the first Business Day
immediately preceding the related Distribution Date, or failure on the part of
the Servicer to observe its covenants and agreements set forth in Section
8.4(a);
(c) Failure on the part of the Servicer duly to observe or
perform any other covenants or agreements of the Servicer set forth in this
Agreement, which failure (i) materially and adversely affects the rights of
Noteholders, and (ii) continues unremedied for a period of 30 days after
knowledge thereof by the Servicer or after the date on which written notice of
such failure, requiring the same to be remedied, shall have been given to the
Servicer by the Trust Collateral Agent;
(d) The entry of a decree or order for relief by a court or
regulatory authority having jurisdiction in respect of the Servicer in an
involuntary case under the federal bankruptcy laws, as now or hereafter in
effect, or another present or future, federal bankruptcy, insolvency or similar
law, or appointing a receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of the Servicer or of any substantial
part of its property or ordering the winding up or liquidation of the affairs of
the Servicer and the continuance of any such decree or order unstayed and in
effect for a period of 60 consecutive days or the commencement of an involuntary
case under the federal bankruptcy laws, as now or hereinafter in effect, or
another present or future federal or state bankruptcy, insolvency or similar law
and such case is not dismissed within 60 days; or
(e) The commencement by the Servicer of a voluntary case
under the federal bankruptcy laws, as now or hereafter in effect, or any other
present or future, federal or state, bankruptcy, insolvency or similar law, or
the consent by the Servicer to the appointment of or taking possession by a
receiver, liquidator, assignee, trustee, custodian, sequestrator or other
similar official of the Servicer or of any substantial part of its property or
the making by the Servicer of an assignment for the benefit of creditors or the
failure by the Servicer generally to pay its debts as such debts become due or
the taking of corporate action by the Servicer in furtherance of any of the
foregoing; or
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(f) Any representation, warranty or statement of the
Servicer made in this Agreement or any certificate, report or other writing
delivered pursuant hereto shall prove to be incorrect in any material respect as
of the time when the same shall have been made, and the incorrectness of such
representation, warranty or statement has a material adverse effect on the Trust
or the Noteholders and, within 30 days after knowledge thereof by the Servicer
or after written notice thereof shall have been given to the Servicer by the
Trust Collateral Agent, the circumstances or condition in respect of which such
representation, warranty or statement was incorrect shall not have been
eliminated or otherwise cured.
SECTION 9.2. Consequences of a Servicer Termination Event. If
a Servicer Termination Event shall occur and be continuing, the Trust Collateral
Agent or the Majority Noteholders, by notice given in writing to the Servicer
(and to the Trust Collateral Agent if given by the Noteholders) may terminate
all of the rights and obligations of the Servicer under this Agreement. On or
after the receipt by the Servicer of such written notice or upon termination of
the term of the Servicer, all authority, power, obligations and responsibilities
of the Servicer under this Agreement, whether with respect to the Notes, the
Certificates or the Other Conveyed Property or otherwise, automatically shall
pass to, be vested in and become obligations and responsibilities of the Backup
Servicer (or such other successor Servicer appointed by the Majority
Noteholders); provided, however, that the successor Servicer shall have no
liability with respect to any obligation which was required to be performed by
the terminated Servicer prior to the date that the successor Servicer becomes
the Servicer or any claim of a third party based on any alleged action or
inaction of the terminated Servicer. The successor Servicer is authorized and
empowered by this Agreement to execute and deliver, on behalf of the terminated
Servicer, as attorney-in-fact or otherwise, any and all documents and other
instruments and to do or accomplish all other acts or things necessary or
appropriate to effect the purposes of such notice of termination, whether to
complete the transfer and endorsement of the Receivables and the Other Conveyed
Property and related documents to show the Trust as lienholder or secured party
on the related Lien Certificates, or otherwise. The terminated Servicer agrees
to cooperate with the successor Servicer in effecting the termination of the
responsibilities and rights of the terminated Servicer under this Agreement,
including, without limitation, the transfer to the successor Servicer for
administration by it of all cash amounts that shall at the time be held by the
terminated Servicer for deposit, or have been deposited by the terminated
Servicer, in the Collection Account or thereafter received with respect to the
Receivables and the delivery to the successor Servicer of all Receivable Files,
Monthly Records and Collection Records and a computer tape in readable form as
of the most recent Business Day containing all information necessary to enable
the Backup Servicer or a successor Servicer to service the Receivables and the
Other Conveyed Property. If requested by the Controlling Party (acting at the
written direction of the Majority Noteholders), the successor Servicer shall
terminate the Lockbox Agreement and direct the Obligors to make all payments
under the Receivables directly to the successor Servicer (in which event the
successor Servicer shall process such payments in accordance with Section
4.2(e)), or to a lockbox established by the successor Servicer at the direction
of the Majority Noteholders, at the successor Servicer's expense. The terminated
Servicer shall grant the Trust Collateral Agent, the successor Servicer and the
Majority Noteholders reasonable access to the terminated Servicer's premises at
the terminated Servicer's expense.
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SECTION 9.3. Appointment of Successor.
(a) On and after the time the Servicer receives a notice of
termination pursuant to Section 9.2 or upon the resignation of the Servicer
pursuant to Section 8.7, the Backup Servicer shall be the successor in all
respects, except as expressly set forth in Annex A hereto, to the Servicer in
its capacity as Servicer under this Agreement and the transactions set forth or
provided for in this Agreement, and shall be subject to all the rights,
responsibilities, restrictions, duties, liabilities and termination provisions
relating thereto placed on the Servicer by the terms and provisions of this
Agreement except as otherwise stated herein. The Trust Collateral Agent and such
successor shall take such action, consistent with this Agreement, as shall be
necessary to effectuate any such succession. If a successor Servicer is acting
as Servicer hereunder, it shall be subject to termination under Section 9.2 upon
the occurrence of any Servicer Termination Event applicable to it as Servicer.
(b) The Controlling Party (acting at the written direction
of the Majority Noteholders) may exercise at any time its right to appoint as
Backup Servicer or as successor to the Servicer a Person other than the Person
serving as Backup Servicer at the time, and shall have no liability to
AmeriCredit, the Seller, the Person then serving as Backup Servicer, any
Noteholders or any other Person if it does so. Notwithstanding the above, if the
Backup Servicer shall be legally unable or unwilling to act as Servicer, the
Backup Servicer, the Trust Collateral Agent or the Majority Noteholders may
petition a court of competent jurisdiction to appoint a Person that it
determines is competent to perform the duties of the Servicer hereunder as the
successor to the Servicer. Pending appointment pursuant to the preceding
sentence, the Backup Servicer shall act as successor Servicer unless it is
legally unable to do so, in which event the outgoing Servicer shall continue to
act as Servicer until a successor has been appointed and accepted such
appointment. Subject to Section 8.7, no provision of this Agreement shall be
construed as relieving the Backup Servicer of its obligation to succeed as
successor Servicer upon the termination of the Servicer pursuant to Section 9.2
or the resignation of the Servicer pursuant to Section 8.7. If upon the
termination of the Servicer pursuant to Section 9.2 or the resignation of the
Servicer pursuant to Section 8.7, the Majority Noteholders appoint a successor
Servicer other than the Backup Servicer, the Backup Servicer shall not be
relieved of its duties as Backup Servicer hereunder. In the event any successor
Servicer is terminated pursuant to Section 9.2 hereof, the Controlling Party
(acting at the written direction of the Majority Noteholders) shall appoint an
eligible servicer as successor Servicer or may petition a court of competent
jurisdiction to appoint a Person that it determines is competent to perform the
duties of the Servicer hereunder as successor Servicer. Pending appointment
pursuant to the preceding sentence, the outgoing Servicer shall continue to act
as Servicer until a successor has been appointed and accepted such appointment.
(c) Any successor Servicer shall be entitled to such
compensation (whether payable out of the Collection Account or otherwise) as the
Servicer would have been entitled to under this Agreement if the Servicer had
not resigned or been terminated hereunder or such other compensation as set
forth herein. 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 Seller and such successor Servicer may
agree on reasonable additional compensation to be paid to such successor
Servicer; provided, however, it being understood and agreed that the Seller
shall give prior notice to the Backup Servicer with respect to the
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appointment of such successor 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
Majority Noteholders and such successor Servicer may agree on additional
compensation to be paid to such successor Servicer, which additional
compensation shall in no event exceed $150,000 in the aggregate. The Backup
Servicer shall be liable for any Servicing Fee, additional compensation or other
amounts to be paid to such successor Servicer in connection with its assumption
and performance of the servicing duties described herein if, and only if, such
successor Servicer is appointed due to the Backup Servicer's refusal to act as
Servicer although legally able to do so, which additional compensation and other
amounts shall in no event exceed $150,000 in the aggregate.
(d) Notwithstanding anything contained in this Agreement to
the contrary, the Backup Servicer is authorized to accept and rely on all of the
accounting records (including computer records) and work of the prior Servicer
relating to the Receivables (collectively, the "Predecessor Servicer Work
Product") without any audit or other examination thereof, and the Backup
Servicer shall have no duty, responsibility, obligation or liability for the
acts and omissions of the prior Servicer. If any error, inaccuracy, omission or
incorrect or non-standard practice or procedure (collectively, "Errors") exist
in any Predecessor Servicer Work Product and such Errors make it materially more
difficult to service or should cause or materially contribute to the Backup
Servicer making or continuing any Errors (collectively, "Continuing Errors"),
the Backup Servicer shall have no duty, responsibility, obligation or liability
for such Continuing Errors; provided, however, that the Backup Servicer agrees
to use its best efforts to prevent further Continuing Errors. In the event that
the Backup Servicer becomes aware of Errors or Continuing Errors, it shall, with
the prior consent of the Controlling Party use its best efforts to reconstruct
and reconcile such data as is commercially reasonable to correct such Errors and
Continuing Errors and to prevent future Continuing Errors. The Backup Servicer
shall be entitled to recover its costs thereby expended in accordance with
Section 5.7(a) of this Agreement.
SECTION 9.4. Notification to Noteholders. Upon any
termination of, or appointment of a successor to, the Servicer or the Backup
Servicer, the Trust Collateral Agent shall give prompt written notice thereof to
each Noteholder and to the Rating Agencies.
SECTION 9.5. Waiver of Past Defaults. The Majority
Noteholders may, on behalf of all Noteholders, waive any default by the Servicer
or the Backup Servicer in the performance of its obligations hereunder and its
consequences. Upon any such waiver of a past default, such default shall cease
to exist, and any Servicer Termination Event arising therefrom shall be deemed
to have been remedied for every purpose of this Agreement and the Basic
Documents. No such waiver shall extend to any subsequent or other default or
impair any right consequent thereto.
SECTION 9.6. Backup Servicer Termination. Prior to an
appointment as successor Servicer, the Controlling Party may, in its discretion,
or shall, at the direction of the Majority Noteholders, (a) terminate all of the
rights and obligations of the Backup Servicer under this Agreement in the event
of a breach of any of the representations or warranties, covenants or
obligations of the Backup Servicer contained in this Agreement or (b) in its
sole discretion, without cause upon not less than 30 days' notice, terminate the
rights and obligations of the Backup Servicer. The terminated Backup Servicer
agrees to cooperate with any successor Backup Servicer appointed by the
Controlling Party in effecting the termination of the responsibilities and
rights of the terminated Backup Servicer under this Agreement, including,
without limitation, the delivery to the successor Backup Servicer of all
documents, records and electronic information related to the Receivables in the
possession of the Backup Servicer. Expenses incurred by the Backup Servicer in
respect of the foregoing sentence shall be reimbursed in accordance with Section
5.7(a).
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ARTICLE X
Termination
SECTION 10.1. Optional Purchase of All Receivables.
(a) Subject to Section 10.1(a) of the Indenture, on the last
day of any Collection Period as of which the Pool Balance shall be less than or
equal to 10% of the Original Pool Balance, the Servicer and the Seller each
shall have the option to purchase the Owner Trust Estate, other than the Trust
Accounts; provided, however, that the amount to be paid for such purchase (as
set forth in the following sentence) shall be sufficient to pay the full amount
of principal, premium, if any, and interest then due and payable on the Notes
and the Certificates. To exercise such option, the Servicer or the Seller, as
the case may be, shall deposit pursuant to Section 5.6 in the Collection Account
an amount equal to the aggregate Purchase Amount for the Receivables, plus the
appraised value of any other property held by the Trust, such value to be
determined by an appraiser mutually agreed upon by the Servicer and the Trust
Collateral Agent, and shall succeed to all interests in and to the Trust.
(b) Upon any sale of the assets of the Trust pursuant to
Section 8.1 of the Trust Agreement, the Servicer shall instruct the Trust
Collateral Agent to deposit the proceeds from such sale after all payments and
reserves therefrom (including the expenses of such sale) have been made (the
"Insolvency Proceeds") in the Collection Account.
(c) Notice of any termination of the Trust shall be given by
the Servicer or the Seller to the Owner Trustee, the Trustee, the Backup
Servicer, the Trust Collateral Agent and the Rating Agencies as soon as
practicable after the Servicer or the Seller has received notice thereof.
(d) Following the satisfaction and discharge of the
Indenture and the payment in full of the principal of and interest on the Notes,
the Certificateholders will succeed to the rights of the Noteholders hereunder
and the Owner Trustee will succeed to the rights of, and assume the obligations
of, the Trust Collateral Agent pursuant to this Agreement.
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ARTICLE XI
Administrative Duties of the Servicer
SECTION 11.1. Administrative Duties.
(a) Duties with Respect to the Indenture. The Servicer shall
perform all its duties and the duties of the Issuer under the Indenture. In
addition, the Servicer shall consult with the Owner Trustee as the Servicer
deems appropriate regarding the duties of the Issuer under the Indenture. The
Servicer shall monitor the performance of the Issuer and shall advise the Owner
Trustee when action is necessary to comply with the Issuer's duties under the
Indenture. The Servicer shall prepare for execution by the Issuer or shall cause
the preparation by other appropriate Persons of all such documents, reports,
filings, instruments, certificates and opinions as it shall be the duty of the
Issuer to prepare, file or deliver pursuant to the Indenture. In furtherance of
the foregoing, the Servicer shall take all necessary action that is the duty of
the Issuer to take pursuant to the Indenture, including, without limitation,
pursuant to Sections 2.7, 3.5, 3.6, 3.7, 3.9, 3.10, 3.17, 5.1, 5.4, 7.3, 8.3,
9.2, 9.3, 11.1 and 11.15 of the Indenture.
(b) Duties with Respect to the Issuer.
(i) In addition to the duties of the Servicer set
forth in this Agreement or any of the Basic Documents, the
Servicer shall perform such calculations and shall prepare for
execution by the Issuer or the Owner Trustee or shall cause the
preparation by other appropriate Persons of all such documents,
reports, filings, instruments, certificates and opinions as it
shall be the duty of the Issuer or the Owner Trustee to prepare,
file or deliver pursuant to this Agreement or any of the Basic
Documents or under state and federal tax and securities laws
(including any filings required pursuant to the Xxxxxxxx-Xxxxx
Act of 2002 or any rule or regulation promulgated thereunder),
and at the request of the Owner Trustee shall take all
appropriate action that it is the duty of the Issuer to take
pursuant to this Agreement or any of the Basic Documents,
including, without limitation, pursuant to Sections 2.6 and 2.11
of the Trust Agreement. In accordance with the directions of the
Issuer or the Owner Trustee, the Servicer shall administer,
perform or supervise the performance of such other activities in
connection with the Collateral (including the Basic Documents)
as are not covered by any of the foregoing provisions and as are
expressly requested by the Issuer or the Owner Trustee and are
reasonably within the capability of the Servicer. The Servicer
shall monitor the activities of the Issuer to ensure the
Issuer's compliance with Section 4.5 of the Trust Agreement and
shall take all action necessary to ensure that the Issuer is
operated in accordance with the provisions of such section.
(ii) Notwithstanding anything in this Agreement or
any of the Basic Documents to the contrary, the Servicer shall
be responsible for promptly notifying the Owner Trustee and the
Trust Collateral Agent in the event that any withholding tax is
imposed on the Issuer's payments (or allocations of income) to
an Owner (as defined in the Trust Agreement) as contemplated by
this Agreement. Any such notice shall be in writing and specify
the amount of any withholding tax required to be withheld by the
Owner Trustee or the Trust Collateral Agent pursuant to such
provision.
(iii) Notwithstanding anything in this Agreement or
the Basic Documents to the contrary, the Servicer shall be
responsible for performance of the duties of the Issuer with
respect to accounting and reports to Owners (as defined in the
Trust Agreement); provided, however, that once prepared by the
Servicer the Owner Trustee shall retain responsibility for the
distribution of any Schedule K-1s, if applicable, necessary to
enable the Certificateholders to prepare its federal and state
income tax returns.
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(iv) The Servicer shall perform the duties of the
Servicer specified in Section 9.2 of the Trust Agreement
required to be performed in connection with the resignation or
removal of the Owner Trustee, and any other duties expressly
required to be performed by the Servicer under this Agreement or
any of the Basic Documents.
(v) In carrying out the foregoing duties or any of
its other obligations under this Agreement, the Servicer may
enter into transactions with or otherwise deal with any of its
Affiliates; provided, however, that the terms of any such
transactions or dealings shall be in accordance with any
directions received from the Issuer and shall be, in the
Servicer's opinion, no less favorable to the Issuer in any
material respect.
(c) Tax Matters. The Servicer shall prepare and file, on
behalf of the Seller, all tax returns, tax elections, financial statements and
such annual or other reports attributable to the activities engaged in by the
Issuer as are necessary for preparation of tax reports, including without
limitation forms 1099. All tax returns will be signed by the Seller.
(d) Non-Ministerial Matters. With respect to matters that in
the reasonable judgment of the Servicer are non-ministerial, the Servicer shall
not take any action pursuant to this Article unless within a reasonable time
before the taking of such action, the Servicer shall have notified the Owner
Trustee and the Trustee of the proposed action and the Owner Trustee and, with
respect to items (A), (B), (C) and (D) below, the Trustee shall not have
withheld consent or provided an alternative direction. For the purpose of the
preceding sentence, "non-ministerial matters" shall include:
(A) the amendment of or any supplement to
the Indenture;
(B) the initiation of any claim or lawsuit
by the Issuer and the compromise of any action, claim or
lawsuit brought by or against the Issuer (other than in
connection with the collection of the Receivables);
(C) the amendment, change or modification of
this Agreement or any of the Basic Documents;
(D) the appointment of successor Note
Registrars, successor Paying Agents and successor
Trustees pursuant to the Indenture or the appointment of
successor Servicers or the consent to the assignment by
the Note Registrar, Paying Agent or Trustee of its
obligations under the Indenture; and
(E) the removal of the Trustee or the Trust
Collateral Agent.
(e) Exceptions. Notwithstanding anything to the contrary in
this Agreement, except as expressly provided herein or in the other Basic
Documents, the Servicer, in its capacity hereunder, shall not be obligated to,
and shall not, (1) make any payments to the Noteholders or Certificateholders
under the Basic Documents, (2) sell the Trust Property pursuant to Section 5.5
of the Indenture, (3) take any other action that the Issuer directs the Servicer
not to take on its behalf or (4) in connection with its duties hereunder assume
any indemnification obligation of any other Person.
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(f) The Backup Servicer or any successor Servicer shall not
be responsible for any obligations or duties of the Servicer under this Section
11.1 and notwithstanding any other provision of this Agreement, AmeriCredit
shall continue to perform the obligations of the Servicer under this Section
11.1.
SECTION 11.2. Records. The Servicer shall maintain appropriate
books of account and records relating to services performed under this
Agreement, which books of account and records shall be accessible for inspection
by the Issuer at any time during normal business hours.
SECTION 11.3. Additional Information to be Furnished to the
Issuer. The Servicer shall furnish to the Issuer from time to time such
additional information regarding the Collateral as the Issuer shall reasonably
request.
ARTICLE XII
Miscellaneous Provisions
SECTION 12.1. Amendment. This Agreement may be amended from
time to time by the parties hereto, with the consent of the Trustee (which
consent may not be unreasonably withheld), but without the consent of any of the
Noteholders, to cure any ambiguity, to correct or supplement any provisions in
this Agreement, to comply with any changes in the Code, or to make any other
provisions with respect to matters or questions arising under this Agreement
which shall not be inconsistent with the provisions of this Agreement; provided,
however, that such action shall not, as evidenced by an Opinion of Counsel
delivered to Owner Trustee and the Trustee, adversely affect in any material
respect the interests of any Noteholder.
This Agreement may also be amended from time to time by the
parties hereto, with the consent of the Trustee, and with the consent of the
Holders of Notes evidencing not less than a majority of the outstanding
principal amount of the Notes for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement or
of modifying in any manner the rights of the Noteholders; provided, however,
that no such amendment shall (a) increase or reduce in any manner the amount of,
or accelerate or delay the timing of, collections of payments on Receivables or
distributions that shall be required to be made for the benefit of the
Noteholders or (b) reduce the aforesaid percentage of the outstanding principal
amount of the Notes, the Holders of which are required to consent to any such
amendment, without the consent of the Holders of all the outstanding Notes of
each class affected thereby.
Promptly after the execution of any such amendment or consent,
the Trust Collateral Agent shall furnish written notification of the substance
of such amendment or consent to each Noteholder and the Rating Agencies.
It shall not be necessary for the consent of Noteholders
pursuant to this Section to approve the particular form of any proposed
amendment or consent, but it shall be sufficient if such consent shall approve
the substance thereof. The manner of obtaining such consents (and any other
consents of Noteholders provided for in this Agreement) and of evidencing the
authorization of any action by Noteholders shall be subject to such reasonable
requirements as the Trustee or the Owner Trustee, as applicable, may prescribe.
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Prior to the execution of any amendment to this Agreement, the
Owner Trustee, the Trustee, the Trust Collateral Agent and the Backup Servicer
shall be entitled to receive and conclusively rely upon an Opinion of Counsel
stating that the execution of such amendment is authorized or permitted by this
Agreement and the Opinion of Counsel referred to in Section 12.2(h)(1) has been
delivered. The Owner Trustee, the Trust Collateral Agent, the Backup Servicer
and the Trustee may, but shall not be obligated to, enter into any such
amendment which affects the Issuer's, the Owner Trustee's, the Trust Collateral
Agent's, the Backup Servicer's or the Trustee's, as applicable, own rights,
duties or immunities under this Agreement or otherwise.
SECTION 12.2. Protection of Title to Trust.
(a) The Seller shall authorize and file such financing
statements and cause to be authorized and filed such continuation statements,
all in such manner and in such places as may be required by law fully to
preserve, maintain and protect the interest of the Issuer and the interests of
the Trust Collateral Agent in the Receivables and in the proceeds thereof. The
Seller shall deliver (or cause to be delivered) to the Owner Trustee and the
Trust Collateral Agent file-stamped copies of, or filing receipts for, any
document filed as provided above, as soon as available following such filing.
(b) Neither the Seller nor the Servicer shall change its
name, identity or corporate structure in any manner that would, could or might
make any financing statement or continuation statement filed in accordance with
paragraph (a) above seriously misleading within the meaning of 9-506 of the UCC,
unless it shall have given the Owner Trustee, the Trust Collateral Agent, the
Backup Servicer and the Trustee at least five days' prior written notice thereof
and shall have promptly filed appropriate amendments to all previously filed
financing statements or continuation statements. Promptly upon such filing, the
Seller or the Servicer, as the case may be, shall deliver an Opinion of Counsel
in form and substance reasonably satisfactory to the Trust Collateral Agent,
stating either (A) all financing statements and continuation statements have
been executed and filed that are necessary fully to preserve and protect the
interest of the Trust and the Trust Collateral Agent in the Receivables, and
reciting the details of such filings or referring to prior Opinions of Counsel
in which such details are given, or (B) no such action shall be necessary to
preserve and protect such interest.
(c) Each of the Seller and the Servicer shall have an
obligation to give the Owner Trustee, the Backup Servicer, the Trust Collateral
Agent and the Trustee at least 60 days' prior written notice of any relocation
of its principal executive office or jurisdiction of organization if, as a
result of such relocation, the applicable provisions of the UCC would require
the filing of any amendment of any previously filed financing or continuation
statement or of any new financing statement and shall promptly file any such
amendment or new financing statement. The Servicer shall at all times maintain
(i) each office from which it shall service Receivables within the United States
of America or Canada, and (ii) its principal executive office within the United
States of America.
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(d) The Servicer shall maintain accounts and records as to
each Receivable accurately and in sufficient detail to permit (i) the reader
thereof to know at any time the status of such Receivable, including payments
and recoveries made and payments owing (and the nature of each) and (ii)
reconciliation between payments or recoveries on (or with respect to) each
Receivable and the amounts from time to time deposited in the Collection Account
in respect of such Receivable.
(e) The Servicer shall maintain its computer systems so
that, from and after the time of sale under this Agreement of the Receivables to
the Issuer, the Servicer's master computer records (including any backup
archives) that refer to a Receivable shall indicate clearly the interest of the
Trust in such Receivable and that such Receivable is owned by the Trust.
Indication of the Trust's interest in a Receivable shall be deleted from or
modified on the Servicer's computer systems when, and only when, the related
Receivable shall have been paid in full or repurchased or sold pursuant to 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
automotive receivables to any prospective purchaser, lender or other transferee,
the Servicer shall give to such prospective purchaser, lender or other
transferee computer tapes, records or printouts (including any restored from
backup archives) that, if they shall refer in any manner whatsoever to any
Receivable, shall indicate clearly that such Receivable has been sold and is
owned by the Trust.
(g) Upon request, the Servicer shall furnish to the Owner
Trustee, the Backup Servicer or to the Trustee, within five Business Days, a
list of all Receivables (by contract number and name of Obligor) then held as
part of the Trust, together with a reconciliation of such list to the Schedule
of Receivables and to each of the Servicer's Certificates furnished before such
request indicating removal of Receivables from the Trust.
(h) The Servicer shall deliver to the Backup Servicer, the
Owner Trustee and the Trustee:
(1) promptly after the execution and
delivery of the Agreement and, if required pursuant to
Section 12.1, of each amendment, an Opinion of Counsel
stating that, in the opinion of such Counsel, either (A)
all financing statements and continuation statements
have been authorized and filed that are necessary fully
to preserve and protect the interest of the Trust and
the Trust Collateral Agent in the Receivables, and
reciting the details of such filings or referring to
prior Opinions of Counsel in which such details are
given, or (B) no such action shall be necessary to
preserve and protect such interest; and
(2) within 90 days after the beginning of
each calendar year beginning with the first calendar
year beginning more than three months after the Cutoff
Date, an Opinion of Counsel, dated as of a date during
such 90-day period, stating that, in the opinion of such
counsel, either (A) all financing statements and
continuation statements have been authorized and filed
that are necessary fully to preserve and protect the
interest of the Trust and the Trust Collateral Agent in
the Receivables, and reciting the details of such
filings or referring to prior Opinions of Counsel in
which such details are given, or (B) no such action
shall be necessary to preserve and protect such
interest.
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Each Opinion of Counsel referred to in clause (1) or (2) above
shall specify any action necessary (as of the date of such opinion) to be taken
in the following year to preserve and protect such interest.
SECTION 12.3. Notices. All demands, notices and communications
upon or to the Seller, the Servicer, the Owner Trustee, the Trustee, the Backup
Servicer or the Rating Agencies under this Agreement shall be in writing,
personally delivered, electronically delivered, mailed by certified mail, return
receipt requested, federal express or similar overnight courier service, and
shall be deemed to have been duly given upon receipt (a) in the case of the
Seller to AFS SenSub Corp., 0000X Xxxxxxxxxxx Xx., Xxxxx 00, Xxx Xxxxx, XX
00000, Attention: Chief Financial Officer, (b) in the case of the Servicer to
AmeriCredit Financial Services, Inc., 000 Xxxxxx Xxxxxx, Xxxxx 0000, Xxxx Xxxxx,
Xxxxx 00000, Attention: Chief Financial Officer, (c) in the case of the Issuer
or the Owner Trustee, at the Corporate Trust Office of the Owner Trustee,
Wilmington Trust Company, Xxxxxx Square Xxxxx--0000 Xxxxx Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxx 00000-0000, (d) in the case of the Trustee or the Trust
Collateral Agent, JPMorgan Chase Bank, National Association, at 0 Xxx Xxxx
Xxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Institutional Trust
Services, AmeriCredit 2005-1, (e) in the case of Moody's, to Xxxxx'x Investors
Service, Inc., ABS Monitoring Department, 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000; (f) in the case of Standard & Poor's, via electronic delivery to
Xxxxxxxx_xxxxxxx@xxxxx.xxx, or, for any information not available in electronic
format, to Standard & Poor's Ratings Services, 00 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000-0000, Attention: ABS Surveillance Group; and (g) in the
case of the Backup Servicer to Systems & Services Technologies, Inc., 0000
Xxxxxxx Xxxx, Xx. Xxxxxx, Xxxxxxxx 00000, Attention: Xxxxx Xxxxxxxx and Xxxxxx
Xxxx. 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 Note Register. Any notice so mailed within the time prescribed in
the Agreement shall be conclusively presumed to have been duly given, whether or
not the Noteholder shall receive such notice.
SECTION 12.4. Assignment. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective
successors and permitted assigns. Notwithstanding anything to the contrary
contained herein, except as provided in Sections 7.4 and 8.4 and as provided in
the provisions of this Agreement concerning the resignation of the Servicer,
this Agreement may not be assigned by the Seller or the Servicer without the
prior written consent of the Owner Trustee, the Trust Collateral Agent, the
Backup Servicer, the Trustee and the Majority Noteholders.
SECTION 12.5. Limitations on Rights of Others. The provisions
of this Agreement are solely for the benefit of the parties hereto, the Trustee
and the Noteholders, as third-party beneficiaries. Nothing in this Agreement,
whether express or implied, shall be construed to give to any other Person any
legal or equitable right, remedy or claim in the Owner Trust Estate or under or
in respect of this Agreement or any covenants, conditions or provisions
contained herein.
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SECTION 12.6. Severability. Any provision of this Agreement
that is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
SECTION 12.7. Separate Counterparts. This Agreement may be
executed by the parties hereto in separate counterparts, each of which when so
executed and delivered shall be an original, but all such counterparts shall
together constitute but one and the same instrument.
SECTION 12.8. Headings. The headings of the various Articles
and Sections herein are for convenience of reference only and shall not define
or limit any of the terms or provisions hereof.
SECTION 12.9. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH, AND THIS AGREEMENT AND ALL MATTERS ARISING OUT OF OR
RELATING IN ANY WAY TO THIS AGREEMENT SHALL BE GOVERNED BY, THE LAW OF THE STATE
OF NEW YORK, WITHOUT GIVING EFFECT TO ITS CONFLICT OF LAW PROVISIONS (OTHER THAN
SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW).
SECTION 12.10. Assignment to Trust Collateral Agent. The Seller
hereby acknowledges and consents to any mortgage, pledge, assignment and grant
of a security interest by the Issuer to the Trust Collateral Agent pursuant to
the Indenture for the benefit of the Noteholders of all right, title and
interest of the Issuer in, to and under the Receivables listed in Schedule A
hereto and/or the assignment of any or all of the Issuer's rights and
obligations hereunder to the Trustee.
SECTION 12.11. Nonpetition Covenants.
(a) Notwithstanding any prior termination of this Agreement,
the Servicer and the Seller shall not, prior to the date which is one year and
one day after the termination of this Agreement with respect to the Issuer,
acquiesce, petition or otherwise invoke or cause the Issuer to invoke the
process of any court or government authority for the purpose of commencing or
sustaining a case against the Issuer under any federal or state bankruptcy,
insolvency or similar law or appointing a receiver, liquidator, assignee,
trustee, custodian, sequestrator or other similar official of the Issuer or any
substantial part of its property, or ordering the winding up or liquidation of
the affairs of the Issuer.
(b) Notwithstanding any prior termination of this Agreement,
the Servicer shall not, prior to the date that is one year and one day after the
termination of this Agreement with respect to the Seller, acquiesce to, petition
or otherwise invoke or cause the Seller to invoke the process of any court or
government authority for the purpose of commencing or sustaining a case against
the Seller under any federal or state bankruptcy, insolvency or similar law,
appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator,
or other similar official of the Seller or any substantial part of its property,
or ordering the winding up or liquidation of the affairs of the Seller.
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SECTION 12.12. Limitation of Liability of Owner Trustee and
Trust Collateral Agent
(a) Notwithstanding anything contained herein to the
contrary, this Agreement has been countersigned by Wilmington Trust Company not
in its individual capacity but solely in its capacity as Owner Trustee of the
Issuer and in no event shall Wilmington Trust Company in its individual capacity
or, except as expressly provided in the Trust Agreement, as Owner Trustee have
any liability for the representations, warranties, covenants, agreements or
other obligations of the Issuer hereunder or in any of the certificates, notices
or agreements delivered pursuant hereto, as to all of which recourse shall be
had solely to the assets of the Issuer. For all purposes of this Agreement, in
the performance of its duties or obligations hereunder or in the performance of
any duties or obligations of the Issuer hereunder, the Owner Trustee shall be
subject to, and entitled to the benefits of, the terms and provisions of
Articles V, VI and VII of the Trust Agreement.
(b) Notwithstanding anything contained herein to the
contrary, this Agreement has been executed and delivered by JPMorgan Chase Bank,
National Association, not in its individual capacity but solely as Trust
Collateral Agent and in no event shall JPMorgan Chase Bank, National
Association, have any liability for the representations, warranties, covenants,
agreements or other obligations of the Issuer hereunder or in any of the
certificates, notices or agreements delivered pursuant hereto, as to all of
which recourse shall be had solely to the assets of the Issuer.
(c) In no event shall JPMorgan Chase Bank, National
Association, in any of its capacities hereunder, be deemed to have assumed any
duties of the Owner Trustee under the Delaware Statutory Trust Statute, common
law, or the Trust Agreement.
SECTION 12.13. Independence of the Servicer. For all purposes
of this Agreement, the Servicer shall be an independent contractor and shall not
be subject to the supervision of the Issuer, the Trust Collateral Agent, the
Trustee, the Backup Servicer or the Owner Trustee with respect to the manner in
which it accomplishes the performance of its obligations hereunder. Unless
expressly authorized by this Agreement, the Servicer shall have no authority to
act for or represent the Issuer or the Owner Trustee in any way and shall not
otherwise be deemed an agent of the Issuer or the Owner Trustee.
SECTION 12.14. No Joint Venture. Nothing contained in this
Agreement (i) shall constitute the Servicer and either of the Issuer or the
Owner Trustee as members of any partnership, joint venture, association,
syndicate, unincorporated business or other separate entity, (ii) shall be
construed to impose any liability as such on any of them or (iii) shall be
deemed to confer on any of them any express, implied or apparent authority to
incur any obligation or liability on behalf of the others.
SECTION 12.15. State Business Licenses. The Servicer or the
Certificateholder shall prepare and instruct the Trust to file each state
business license (and any renewal thereof) required to be filed under applicable
state law without further consent or instruction from the Instructing Party (as
defined in the Trust Agreement), including a Sales Finance Company Application
(and any renewal thereof) with the Pennsylvania Department of Banking, Licensing
Division, and a Financial Regulation Application (and any renewal thereof) with
the Maryland Department of Labor, Licensing and Regulation.
[Remainder of Page Intentionally Left Blank]
68
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their respective duly authorized
officers as of the day and the year first above written.
AMERICREDIT AUTOMOBILE RECEIVABLES
TRUST 2005-1
By: WILMINGTON TRUST COMPANY, not in
its individual capacity but solely as
Owner Trustee on behalf of the Trust.
By: /s/ Xxxxxxx X. Xxxxxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Financial Services Officer
AFS SENSUB CORP., Seller,
By: /s/ Xxxxx Xxxxxxxxxx
-----------------------------------
Name: Xxxxx Xxxxxxxxxx
Title: Assistant Vice President,
Structured Finance
AMERICREDIT FINANCIAL SERVICES, INC.,
Servicer,
By: /s/ Xxxxx X. Xxxxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Senior Vice President,
Structured Finance
[Sale and Servicing Agreement]
SYSTEMS & SERVICES TECHNOLOGIES, INC.,
not in its individual capacity but
solely as Backup Servicer
By: /s/ Xxxxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Vice President
Acknowledged and accepted by
JPMORGAN CHASE BANK,
NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Trust Collateral Agent
By: /s/ Xxxxxx X. Xxxx
---------------------------------
Name: Xxxxxx X. Xxxx
Title: Assistance Vice President
[Sale and Servicing Agreement]
SCHEDULE A
SCHEDULE OF RECEIVABLES
[On file with AmeriCredit, the Trustee and Xxxxx Xxxxxxxxxx LLP]
SCH-A-1
SCHEDULE B
REPRESENTATIONS AND WARRANTIES OF THE SELLER AND THE SERVICER
1. Characteristics of Receivables. Each Receivable (A) was
originated (i) by AmeriCredit, (ii) by a Dealer and purchased by AmeriCredit
from such Dealer under an existing Dealer Agreement or pursuant to a Dealer
Assignment with AmeriCredit and was validly assigned by such Dealer to
AmeriCredit pursuant to a Dealer Assignment or (iii) by a Third-Party Lender and
purchased by AmeriCredit from such Third-Party Lender under an existing Auto
Loan Purchase and Sale Agreement or pursuant to a Third-Party Lender Assignment
with AmeriCredit and was validly assigned by such Third-Party Lender to
AmeriCredit pursuant to a Third-Party Lender Assignment (B) was originated by
AmeriCredit, such Dealer or such Third-Party Lender for the retail sale of a
Financed Vehicle in the ordinary course of AmeriCredit's, the Dealer's or the
Third-Party Lender's business, in each case was originated in accordance with
AmeriCredit's credit policies and was fully and properly executed by the parties
thereto, and AmeriCredit, each Dealer and each Third-Party Lender had all
necessary licenses and permits to originate Receivables in the state where
AmeriCredit, each such Dealer or each such Third-Party Lender 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 or the Servicer's electronic records relating thereto.
2. Fraud or Misrepresentation. Each Receivable was originated (i)
by AmeriCredit, (ii) by a Dealer and was sold by the Dealer to AmeriCredit, or
(iii) by a Third-Party Lender and was sold by the Third-Party Lender to
AmeriCredit, and was sold by AmeriCredit to the Seller without any fraud or
misrepresentation on the part of such Dealer or Third-Party Lender or
AmeriCredit in any case.
3. Compliance with Law. All requirements of applicable federal,
state and local laws, and regulations thereunder (including, without limitation,
usury laws, the Federal Truth-in-Lending Act, the Equal Credit Opportunity Act,
the Fair Credit Billing Act, the Fair Credit Reporting Act, the Fair Debt
Collection Practices Act, the Federal Trade Commission Act, the Xxxx-Xxxxxxxx
Warranty Act, the Federal Reserve Board's Regulations "B" and "Z" (including
amendments to the Federal Reserve's Official Staff Commentary to Regulation Z,
effective October 1, 1998, concerning negative equity loans), the Servicemembers
Civil Relief Act, each applicable state Motor Vehicle Retail Installment Sales
Act, and state adaptations of the National Consumer Act and of the Uniform
Consumer Credit Code and other consumer credit laws and equal credit opportunity
and disclosure laws) in respect of the Receivables and the Financed Vehicles,
have been complied with in all material respects, and each Receivable and the
sale of the Financed Vehicle evidenced by each Receivable complied at the time
it was originated or made and now complies in all material respects with all
applicable legal requirements.
4. Origination. Each Receivable was originated in the United
States.
SCH-B-1
5. Binding Obligation. Each Receivable represents the genuine,
legal, valid and binding payment obligation of the Obligor thereon, enforceable
by the holder thereof in accordance with its terms, except (A) as enforceability
may be limited by bankruptcy, insolvency, reorganization or similar laws
affecting the enforcement of creditors' rights generally and by equitable
limitations on the availability of specific remedies, regardless of whether such
enforceability is considered in a proceeding in equity or at law and (B) as such
Receivable may be modified by the application after the Cutoff Date of the
Servicemembers Civil Relief Act, as amended; and all parties to each Receivable
had full legal capacity to execute and deliver such Receivable and all other
documents related thereto and to grant the security interest purported to be
granted thereby.
6. No Government Obligor. No Obligor is the United States of
America or any State or any agency, department, subdivision or instrumentality
thereof.
7. Obligor Bankruptcy. At the Cutoff Date no Obligor had been
identified on the records of AmeriCredit as being the subject of a current
bankruptcy proceeding.
8. Schedule of Receivables. The information set forth in the
Schedule of Receivables has been produced from the Electronic Ledger and was
true and correct in all material respects as of the close of business on the
Cutoff Date.
9. 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 to
the Seller by the Servicer and resold by the Seller to the Trust in accordance
with the terms of the Sale and Servicing Agreement.
10. Computer Tape. The Computer Tape made available by the Seller to
the Trust on the Closing Date was complete and accurate as of the Cutoff Date
and includes a description of the same Receivables that are described in the
Schedule of Receivables.
11. Adverse Selection. No selection procedures adverse to the
Noteholders were utilized in selecting the Receivables from those receivables
owned by the Seller which met the selection criteria contained in the Sale and
Servicing Agreement.
12. Chattel Paper. The Receivables constitute "tangible chattel
paper" within the meaning of the UCC as in effect in the States of Texas, New
York, Delaware and Nevada.
13. One Original. There is only one original executed copy of each
Receivable.
14. Receivable Files Complete. There exists a Receivable File
pertaining to each Receivable and such Receivable File contains (a) a fully
executed original of the Receivable, (b) the original executed credit
application, or a paper or electronic copy thereof and (c) the original Lien
Certificate or a copy of the application therefor. Each of such documents which
is required to be signed by the Obligor has been signed by the Obligor in the
appropriate spaces. All blanks on any form have been properly filled in and each
form has otherwise been correctly prepared. The complete Receivable File for
each Receivable currently is in the possession of the Custodian.
SCH-B-2
15. Receivables in Force. No Receivable has been satisfied,
subordinated or rescinded, and the Financed Vehicle securing each such
Receivable has not been released from the lien of the related Receivable in
whole or in part. No terms of any Receivable have been waived, altered or
modified in any respect since its origination, except by instruments or
documents identified in the Receivable File or the Servicer's electronic
records.
16. Lawful Assignment. No Receivable was originated in, or is
subject to the laws of, any jurisdiction the laws of which would make unlawful,
void or voidable the sale, transfer and assignment of such Receivable under this
Agreement or pursuant to transfers of the Securities.
17. Good Title. Immediately prior to the conveyance of the
Receivables to the Trust pursuant to this Agreement, the Seller was the sole
owner thereof and had good and indefeasible title thereto, free of any Lien and,
upon execution and delivery of this Agreement by the Seller, the Trust shall
have good and indefeasible title to and will be the sole owner of such
Receivables, free of any Lien. No Dealer or Third-Party Lender has a
participation in, or other right to receive, proceeds of any Receivable. The
Seller has not taken any action to convey any right to any Person that would
result in such Person having a right to payments received under the related
Insurance Policies or the related Dealer Agreements, Auto Loan Purchase and Sale
Agreements, Dealer Assignments or Third-Party Lender Assignments or to payments
due under such Receivables.
18. Security Interest in Financed Vehicle. Each Receivable created
or shall create a valid, binding and enforceable first priority security
interest in favor of AmeriCredit (or a Titled Third-Party Lender which first
priority security interest has been assigned to AmeriCredit) in the Financed
Vehicle. The Lien Certificate for each Financed Vehicle shows, or if a new or
replacement Lien Certificate is being applied for with respect to such Financed
Vehicle the Lien Certificate will be received within 180 days of the Closing
Date and will show, AmeriCredit (or, with respect to Lien Certificates provided
by the State of Maine, the Issuer) (or a Titled Third-Party Lender) named as the
original secured party under each Receivable as the holder of a first priority
security interest in such Financed Vehicle. With respect to each Receivable for
which the Lien Certificate has not yet been returned from the Registrar of
Titles, AmeriCredit has applied for or received written evidence from the
related Dealer or Third-Party Lender that such Lien Certificate showing
AmeriCredit, the Issuer or a Titled Third-Party Lender, as applicable, as first
lienholder has been applied for and any Titled Third-Party Lender's security
interest has been validly assigned by the Titled Third-Party Lender to
AmeriCredit and AmeriCredit's security interest (assigned by AmeriCredit to the
Seller pursuant to the Purchase Agreement) has been validly assigned by the
Seller to the Trust pursuant to this Agreement. This Agreement creates a valid
and continuing security interest (as defined in the UCC) in the Receivables in
favor of the Trust, which security interest is prior to all other Liens, and is
enforceable as such as against creditors of and purchasers from the Seller.
Immediately after the sale, transfer and assignment by the Seller to the Trust,
each Receivable will be secured by an enforceable and perfected first priority
security interest in the Financed Vehicle in favor of the Trust Collateral Agent
as secured party, which security interest is prior to all other Liens upon and
security interests in such Financed Vehicle which now exist or may hereafter
arise or be created (except, as to priority, for any lien for taxes, labor or
materials affecting a Financed Vehicle). As of the Cutoff Date, there were no
Liens or claims for taxes, work, labor or materials affecting a Financed Vehicle
which are or may be Liens prior or equal to the Liens of the related Receivable.
SCH-B-3
19. All Filings Made. All filings (including, without limitation,
UCC filings (including, without limitation, the filing by the Seller of all
appropriate financing statements in the proper filing office in the State of
Nevada under applicable law in order to perfect the security interest in the
Receivables granted to the Trust hereunder)) required to be made by any Person
and actions required to be taken or performed by any Person in any jurisdiction
to give the Trust and the Trust Collateral Agent a first priority perfected lien
on, or ownership interest in, the Receivables and the proceeds thereof and the
Other Conveyed Property have been made, taken or performed.
20. No Impairment. The Seller has not done anything to convey any
right to any Person that would result in such Person having a right to payments
due under the Receivable or otherwise to impair the rights of the Trust, the
Trustee, the Trust Collateral Agent and the Noteholders in any Receivable or the
proceeds thereof. Other than the security interest granted to the Trust pursuant
to this Agreement and except any other security interests that have been fully
released and discharged as of the Closing Date, the Seller has not pledged,
assigned, sold, granted a security interest in, or otherwise conveyed any of the
Receivables. The Seller has not authorized the filing of and is not aware of any
financing statements against the Seller that include a description of collateral
covering the Receivables other than any financing statement relating to the
security interest granted to the Trust hereunder or that has been terminated.
The Seller is not aware of any judgment or tax lien filings against it.
21. Receivable Not Assumable. No Receivable is assumable by another
Person in a manner which would release the Obligor thereof from such Obligor's
obligations to AmeriCredit with respect to such Receivable.
22. No Defenses. No Receivable is subject to any right of
rescission, setoff, counterclaim or defense and no such right has been asserted
or threatened with respect to any Receivable.
23. No Default. There has been no default, breach, violation or
event permitting acceleration under the terms of any Receivable (other than
payment delinquencies of not more than 30 days), and no condition exists or
event has occurred and is continuing that with notice, the lapse of time or both
would constitute a default, breach, violation or event permitting acceleration
under the terms of any Receivable, and there has been no waiver of any of the
foregoing. As of the Cutoff Date no Financed Vehicle had been repossessed.
24. Insurance. At the time of an origination of a Receivable by
AmeriCredit or a purchase of a Receivable by AmeriCredit from a Dealer or
Third-Party Lender, each Financed Vehicle is required to be covered by a
comprehensive and collision insurance policy (i) in an amount at least equal to
the lesser of (a) its maximum insurable value or (b) the principal amount due
from the Obligor under the related Receivable, (ii) naming AmeriCredit as loss
payee and (iii) insuring against loss and damage due to fire, theft,
transportation, collision and other risks generally covered by comprehensive and
collision coverage. Each Receivable requires the Obligor to maintain physical
loss and damage insurance, naming AmeriCredit and its successors and assigns as
additional insured parties, and each Receivable permits the holder thereof to
obtain physical loss and damage insurance at the expense of the Obligor if the
Obligor fails to do so. No Financed Vehicle is insured under a policy of
Force-Placed Insurance on the Cutoff Date.
SCH-B-4
25. Past Due. At the Cutoff Date no Receivable was more than 30 days
past due.
26. Remaining Principal Balance. At the Cutoff Date the Principal
Balance of each Receivable set forth in the Schedule of Receivables is true and
accurate in all material respects.
27. Certain Characteristics of the Receivables. (A) Each Receivable
had a remaining maturity, as of the Cutoff Date, of not more than 72 months; (B)
each Receivable had an original maturity, as of the Cutoff Date, of not more
than 72 months; (C) as of the Cutoff Date, not more than 40% of Receivables
(calculated by Aggregate Principal Balance) had an original term to maturity of
72 months; (D) as of the Cutoff Date, each Receivable had a remaining Principal
Balance as of the Cutoff Date of at least $250 and not more than $80,000; (E)
each Receivable has an Annual Percentage Rate of at least 1% and not more than
33%; (F) not more than 35% of the Obligors reside in Texas and California (based
on the Obligor's mailing address as of the Cutoff Date); (G) no Receivable was
more than 30 days past due as of the Cutoff Date; (H) no funds have been
advanced by AmeriCredit, any Dealer, any Third-Party Lender, or anyone acting on
behalf of any of them in order to cause any Receivable to qualify under clause
(G) above, (I) each Obligor had a billing address in the United States as of the
date of origination of the Receivable, is a natural person and is not an
Affiliate of any party to this Agreement, (J) each Receivable is denominated in,
and each Contract provides for payment in United States dollars and (K) each
Receivable arises under a Contract with respect to which AmeriCredit has
performed all obligations required to be performed by it thereunder, and in the
event such Contract is an installment sales contract, delivery of the Financed
Vehicle to the related Obligor has occurred.
28. Perfection. The Servicer has taken all steps necessary to
perfect AmeriCredit's security interest against the related Obligors in the
property securing the Receivables and will take all necessary steps on behalf of
the Trust to maintain the Trust's perfection of the security interest created by
each Receivable in the related Financed Vehicle.
29. Interest Calculation. Each Contract provides for the calculation
of interest payable thereunder under either the "simple interest" method, the
"Rule of 78's" method or the "precomputed interest" method.
30. Lockbox Account. Each Obligor has been, or will be, directed to
make all payments on their related Receivable to the Lockbox Account.
31. Lien Enforcement. Each Receivable provides for enforcement of
the lien or the clear legal right of repossession, as applicable, on the
Financed Vehicle securing such Receivable.
32. Prospectus Supplement Description. Each Receivable conforms, and
all Receivables in the aggregate conform, in all material respects to the
description thereof set forth in the Prospectus Supplement.
SCH-B-5
33. Risk of Loss. Each Contract contains provisions requiring the
Obligor to assume all risk of loss or malfunction on the related Financed
Vehicle, requiring the Obligor to pay all sales, use, property, excise and other
similar taxes imposed on or with respect to the Financed Vehicle and making the
Obligor liable for all payments required to be made thereunder, without any
setoff, counterclaim or defense for any reason whatsoever, subject only to the
Obligor's right of quiet enjoyment.
34. Consumer Leases. No Receivable constitutes a "consumer lease"
under either (a) the UCC as in effect in the jurisdiction the law of which
governs the Receivable or (b) the Consumer Leasing Act, 15 USC 1667.
SCH-B-6
SCHEDULE C
SERVICING POLICIES AND PROCEDURES
Note: Applicable Time Periods Will Vary by State
COMPLIANCE WITH STATE COLLECTION LAWS IS REQUIRED OF ALL AMERICREDIT COLLECTION
PERSONNEL. ADDITIONALLY, AMERICREDIT HAS CHOSEN TO FOLLOW THE GUIDELINES OF THE
FEDERAL FAIR DEBT COLLECTION PRACTICES ACT (FDCPA).
The Collection Process
AmeriCredit mails each customer a monthly billing statement 16 to 20 days before
payment is due.
A. All accounts are issued to the Computer Assisted Collection System
(CACS) at 5 days delinquent or at such other dates of delinquency as
determined by historical payment patterns of the account.
B. The CACS segregates accounts into two major groups: loans 5-45 days
delinquent and those over 45 days delinquent.
C. Loans delinquent up to 45 days are then further segregated into two
groups: accounts that have good phone numbers and those that do not.
D. Loans up to 45 days delinquent are transferred to the Concerto system
(AmeriCredit's predictive dialing system). The system automatically
dials the phone number related to a delinquent account for all accounts
that have good phone numbers. When a connection is made, the account is
then routed to the next available account representative.
E. Loans without good phone numbers are called manually, through the CACS
system, or in a preview dialer campaign.
F. All reasonable collection efforts are made in an attempt to prevent
these accounts from becoming 30+ days delinquent - this includes the use
of collection letters. Collection letters may be utilized between 5th
and 25th days of delinquency.
G. When an account reaches 31 days delinquent, a collector determines if
any default notification is required in the state where the debtor
lives.
H. When an account exceeds 45 days delinquent, the loan is assigned to a
46+ collection team which will continue the collection effort until
resolution. If the account cannot be resolved through normal collection
efforts (i.e., satisfactory payment arrangements) then the account may
be submitted for repossession approval. An officer must approve all
repossession requests.
I. CACS allows each collector to accurately document and update each
customer file when contact (verbal or written) is made.
SCH-C-1
Repossessions
If repossession of the collateral occurs, the following steps are taken:
A. Proper authorities are notified (if applicable).
B. An inventory of all personal property is taken and a condition report is
prepared on the vehicle.
C. Written notification, as required by state law, is sent to the
customer(s) stating their rights of redemption or reinstatement along
with information on how to obtain any personal property that was in the
vehicle at the time of repossession.
D. Written request to the originating dealer for all refunds due for dealer
adds is made.
E. Collateral disposition through public or private sale, (dictated by
state law), in a commercially reasonable manner, through a third-party
auto auction.
F. After the collateral is liquidated, the debtor(s) is notified in writing
of the deficiency balance owed, if any.
Use of Due Date Changes
Due dates may be changed subject to the following conditions:
A. The account is contractually current or will be brought current with the
due date change.
B. Due date changes cannot exceed the total of 30 days over the life of the
contract.
C. The first installment payment has been paid in full.
D. Only one due date change in a twelve month period.
An Officer must approve any exceptions to the above stated policy.
Use of Payment Deferments
A payment deferral is offered to customers who have the desire and capacity to
make future payments but who have encountered temporary financial difficulties,
with management approval.
A. Without prior approval, minimum of six payments have been made on the
account and a minimum of six payments have been made since the most
recent deferment (if any).
B. The account will be brought current with the deferment, but not paid
ahead, without management approval.
C. A deferment fee is collected on all transactions.
SCH-C-2
D. No more than eight total payments may be deferred over the life of the
loan, without management approval.
An Officer must approve any exceptions to the above stated policy.
Charge-Offs
It is AmeriCredit's policy that any account that is not successfully recovered
by 120 days delinquent is submitted to an Officer for approval and charge-off.
It is AmeriCredit's policy to carry all Chapter 13 bankruptcy accounts until 120
days delinquent. A partial charge-off is taken for the unsecured portion of the
account. On fully reaffirmed Chapter 7 bankruptcy accounts, the accounts can be
deferred current at the time of discharge.
Deficiency Collections
Collections on charged-off accounts are continued internally and/or assigned to
third party collection agencies for deficiency balances.
SCH-C-3
EXHIBIT A
SERVICER'S CERTIFICATE
AmeriCredit Automobile Receivables Trust 2005-1
Class A-1 3.1425 % Asset Backed Notes
Class A-2 3.82 % Asset Backed Notes
Class A-3 4.26 % Asset Backed Notes
Class B 4.48 % Asset Backed Notes
Class C 4.73 % Asset Backed Notes
Class D 5.04 % Asset Backed Notes
Class E 5.82 % Asset Backed Notes
Servicer's Certificate
This Servicer's Certificate has been prepared pursuant to Section 4.9 of the
Sale and Servicing Agreement among AmeriCredit Automobile Receivables Trust
2005-1, as Issuer, AmeriCredit Financial Services, Inc., as Servicer, AFS SenSub
Corp., as Seller, Systems & Services Technologies, Inc., as Backup Servicer and
JPMorgan Chase Bank as Trust Collateral Agent, dated as of April 6, 2005.
Defined terms have the meanings assigned to them in the Sale and Servicing
Agreement or in other Transaction Documents.
MONTHLY PERIOD BEGINNING:
MONTHLY PERIOD ENDING:
PREV. DISTRIBUTION/CLOSE DATE:
DISTRIBUTION DATE:
DAYS OF INTEREST FOR PERIOD:
DAYS IN COLLECTION PERIOD:
SEASONING/MONTHS SINCE CLOSING:
ORIGINAL
PURCHASES UNITS CUT-OFF DATE CLOSING DATE POOL BALANCE
---------------- ----- ------------ ------------ ------------
INITIAL PURCHASE
TOTAL
I. MONTHLY PERIOD RECEIVABLES PRINCIPAL BALANCE CALCULATION:
{1} Beginning of period Aggregate Principal Balance {1}_________
Monthly Principal Amounts
{2} Collections on Receivables outstanding at end of period {2}_________
{3} Collections on Receivables paid off during period {3}_________
{4} Receivables becoming Liquidated Receivables during period {4}_________
{5} Receivables becoming Purchased Receivables during period {5}_________
{6} Other Receivables adjustments {6}_________
{7} Less amounts allocable to Interest {7}_________
{8} Total Monthly Principal Amounts {8}_________
{9} End of period Aggregate Principal Balance {9}_________
{10} Pool Factor {10}_________
II. MONTHLY PERIOD NOTE BALANCE CALCULATION: CLASS A-1 CLASS A-2 CLASS A-3 CLASS B
--------- --------- --------- -------
{11} Original Note Balance {11}
{12} Beginning of period Note Balance {12}
{13} Noteholders' Principal Distributable Amount {13}
{14} Noteholders' Accelerated Principal Amount {14}
{15} Aggregate Principal Parity Amount {15}
{16} Matured Principal Shortfall {16}
{17} End of period Note Balance {17}
{18} Note Pool Factors {18}
CLASS C CLASS D CLASS E TOTAL
--------- --------- --------- -------
{19} Beginning of period Note Balance {19}
{20} Noteholders' Principal Distributable Amount {20}
{21} Noteholders' Accelerated Principal Amount {21}
{22} Class E Accelerated Principal Amount {22}
{23} Aggregate Principal Parity Amount {23}
{24} Matured Principal Shortfall {24}
{25} End of period Note Balance {25}
{26} Note Pool Factors {26}
A-1
III. CALCULATION OF STEP-DOWN AMOUNT:
{27} Ending Pool Balance {27} _________
{28} Lesser of (Max of 17.50% of Ending Pool Balance or $3,978,780) {28}_________
or Beg Note Balance
{29} Aggregate, Cumulative Amount paid to Class E Noteholders {29}_________
through prior period
{30} Less Specified Reserve Balance {30}_________
{31} Sum of {28}, {29}, and {30} {31}_________
{32} 30% of Ending Pool Balance {32}_________
{33} Lesser of {31} or {32} {33} _________
{34} Required Pro Forma Note Balance {27} - {33} {34} _________
{35} Beginning Note Balance {35} _________
{36} Total Monthly Principal Amount {36} _________
{37} Pro-Forma Note Balance ( Assuming 100% Pay-down) {37} _________
{38} Step-Down amount {38} _________
(Excess of Required Pro-forma over Pro-forma Note Balance)
IV. CALCULATION OF PRINCIPAL DISTRIBUTABLE AMOUNT:
{39} Total Monthly Principal Amounts {39}_________
{40} Step-down Amount {40}_________
{41} Principal Distributable Amount {41} _________
V. CALCULATION OF INTEREST DISTRIBUTABLE AMOUNT:
BEGINNING INTEREST INTEREST CALCULATED
CLASS NOTE BALANCE CARRYOVER RATE DAYS DAYS BASIS INTEREST
----------- ------------ --------- -------- ---- --------------- ----------
{42} Class A - 1 3.1425% Actual days/360
{43} Class A - 2 3.8200% 30/360
{44} Class A - 3 4.2600% 30/360
{45} Class B 4.4800% 30/360
{46} Class C 4.7300% 30/360
{47} Class D 5.0400% 30/360
{48} Class E 5.8200% 30/360
VI. RECONCILIATION OF COLLECTION ACCOUNT:
AVAILABLE FUNDS:
{49} Collections on Receivables during period (net of Liquidation {49}_________
Proceeds and Fees)
{50} Liquidation Proceeds collected during period {50}_________
{51} Purchase Amounts deposited in Collection Account {51}_________
{52} Investment Earnings - Collection Account {52}_________
{53} Investment Earnings - Transfer From Reserve Account {53}_________
{54} Collection of Supplemental Servicing - Extension Fees {54}_________
{55} Collection of Supplemental Servicing - Repo and Recovery Fees Advanced {55}_________
{56} Collection of Supplemental Servicing - Late Fees {56}_________
{57} Total Available Funds {57} _________
DISTRIBUTIONS:
{58} Base Servicing Fee {58}_________
{59} Repo and Recovery Fees - reimbursed to Servicer {59}_________
{60} Bank Service Charges - reimbursed to Servicer {60}_________
{61} Late Fees - reimbursed to Servicer {61}_________
{62} Extension Fees - reimbursed to Servicer {62}_________
{63} Agent fees {63}_________
{64} Backup Servicer {64}_________
{65} Class A-1 Noteholders' Interest Distributable Amount {65}_________
{66} Class A-2 Noteholders' Interest Distributable Amount {66}_________
{67} Class A-3 Noteholders' Interest Distributable Amount {67}_________
{68} Class A Noteholders' Principal Parity Amount or Matured Principal Shortfall {68}_________
{69} Class B Noteholders' Interest Distributable Amount {69}_________
{70} Class B Noteholders' Principal Parity Amount or Matured Principal Shortfall {70}_________
{71} Class C Noteholders' Interest Distributable Amount {71}_________
{72} Class C Noteholders' Principal Parity Amount or Matured Principal Shortfall {72}_________
{73} Class D Noteholders' Interest Distributable Amount {73}_________
{74} Class D Noteholders' Principal Parity Amount or Matured Principal Shortfall {74}_________
{75} Class E Noteholders' Interest Distributable Amount {75}_________
{76} Class E Noteholders' Principal Parity Amount or Matured Principal Shortfall {76}_________
{77} Noteholders' Principal Distributable Amount {77}_________
{78} Total distributions (Prior to Reserve Account Deposit) {78} _________
{79} Excess Available Funds {79} _________
{80} Reserve Account Withdrawal Amount {80} _________
{81} To the Reserve Account, the Reserve Account Deposit {81} _________
{82} To the Noteholders, the Accelerated Principal Amount (as calculated below) {82} _________
{83} To the Class E Noteholders, until Class E Balance is zero {83} _________
{84} To the Certificateholders, the aggregate amount remaining {84} _________
A-2
VII. CALCULATION OF PRINCIPAL PARITY AMOUNT:
(X) (Y) (I) (II)
CUMULATIVE POOL EXCESS OF AVAILABLE FUNDS LESSER OF
CLASS NOTE BALANCE BALANCE (X) - (Y) IN WATERFALL (I) OR (II)
--------- ------------ ------- ---------- --------------- -----------
{85} Class A
{86} Class B
{87} Class C
{88} Class D
{89} Class E
{90} Total
** Principal Parity Amount distributed as Noteholders Principal
Distributable in first three months of Trust
VIII. CALCULATION OF ACCELERATED PRINCIPAL AMOUNT:
{91} Excess Available Funds {91}_________
{92} Pro-Forma Note Balance (Calculated after Step-Down) {92}_________
{93} Required Pro Forma Note Balance {93}_________
{94} Excess of Pro-Forma Balance over Required Pro-Forma Balance {94}_________
{95} Lesser of Excess Available Funds or Excess of Pro-Forma Note Balance {95} _________
IX. RECONCILIATION OF RESERVE ACCOUNT: INITIAL
{96} SPECIFIED RESERVE BALANCE
{97} Beginning of period Reserve Account balance {97} _________
{98} The Reserve Account Deposit, from Collection Account {98}_________
{99} Investment Earnings {99}_________
{100} Investment Earnings - transferred to Collection Account Available Funds {100}_________
{101} Reserve Account Withdrawal Amount {101}_________
{102} End of period Reserve Account balance {102} _________
X. CALCULATION OF TOTAL OVERCOLLATERALIZATION:
{103} Aggregate Principal Balance {103}_________
{104} End of Period Note Balance {104}_________
{105} Overcollateralization (Undercollateralization) {105}_________
{106} Overcollateralization % {106} _________
XI. MONTHLY PERIOD AND CUMULATIVE NUMBER OF RECEIVABLES CALCULATION:
CUMULATIVE MONTHLY
{107} Original Number of Receivables {107}
{108} Beginning of period number of Receivables {108}
{109} Number of Receivables becoming Liquidated Receivables during period {109}
{110} Number of Receivables becoming Purchased Receivables during period {110}
{111} Number of Receivables paid off during period {111}
{112} End of period number of Receivables {112}
XII. STATISTICAL DATA: (CURRENT AND HISTORICAL):
ORIGINAL PREV. MONTH CURRENT
{113} Weighted Average APR of the Receivables {113}
{114} Weighted Average Remaining Term of the Receivables {114}
{115} Weighted Average Original Term of Receivables {115}
{116} Average Receivable Balance {116}
{117} Net Losses in Period {117}
{118} Aggregate Realized Losses {118}
{119} Aggregate Realized Loss Percentage {119}
XIII. DELINQUENCY:
Receivables with Scheduled Payment delinquent UNITS DOLLARS PERCENTAGE
{120} 31-60 days {120}
{121} 61-90 days {121}
{122} over 90 days {122}
{123} Total {123}
XIV. EXTENSIONS
{124} Principal Balance of Receivables extended during {124} _________
current period
{125} Beginning of Period Aggregate Principal Balance {125} _________
{126} Extension Rate {124} divided by {125} {126} _________
By: ______________________________
Name: ______________________________
Title: ______________________________
Date: ______________________________
A-3
ANNEX A
If, pursuant to the terms and conditions of the Sale and Servicing
Agreement, the Backup Servicer shall become the Servicer, the following Sections
shall be amended as follows unless otherwise agreed to in writing by the Backup
Servicer:
Section 1.1: The definition of "Net Liquidation Proceeds" is replaced with
the following definition:
"Net Liquidation Proceeds: means, with respect to all Receivables, the
excess, if any, of (a) Liquidation Proceeds for all such Receivables over (b)
the sum of (i) reasonable out-of-pocket expenses reimbursable to the Servicer
pursuant to Section 4.3 or 4.4 and (ii) amounts that are required to be refunded
to Obligors on such Receivables."
Section 4.3(a). The following provision shall follow the third sentence of
Section 4.3(a):
"Notwithstanding anything to the contrary contained herein, following
the repossession and sale of the related Financed Vehicle by the Servicer, the
Servicer shall not be obligated to pursue any deficiency collections against the
related Obligor except pursuant to a separate agreement between the Issuer and
the Servicer with the consent of the Controlling Party."
Section 4.3(a). The last four sentences of Section 4.3(a) shall be replaced in
their entirety by the following sentences:
"All amounts received upon liquidation of a Financed Vehicle shall be
remitted directly by the Servicer to the Lockbox Account no 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 from the Liquidation Proceeds
of such liquidation, and any remaining expenses shall be payable from
Liquidation Proceeds received with respect to any Receivable in the related, or
any future, Collection Period or as otherwise agreed to in writing by the
Servicer. The Servicer shall pay on behalf of the Issuer any personal property
taxes assessed on repossessed Financed Vehicles. The Servicer shall be entitled
to reimbursement of any such tax from the Liquidation Proceeds received with
respect to any Receivable in the related, or any future, Collection Period or as
otherwise agreed to in writing by the Servicer, and any reimbursable amounts
still owing shall be payable from Available Funds in accordance with Section
5.7(a)."
Section 4.3(b). Section 4.3(b) shall be replaced in its entirety by the
following provision:
"The Servicer shall use all reasonable efforts to enforce or collect
upon a Dealer Agreement, Auto Loan Purchase and Sale Agreement, Dealer
Assignment or Third-Party Lender Assignment. If the Servicer is unable to
enforce or collect upon any such agreement without commencing a legal
proceeding, the Servicer shall advise the Controlling Party whether, in its
reasonable judgment, commencing a legal proceeding to enforce or collect upon
such agreements is advisable, and shall only commence a legal proceeding to
enforce such agreements or commence or participate in any other legal proceeding
relating to or involving such agreements if directed to do so by the Controlling
Party. If the Servicer is directed to commence a legal proceeding to enforce a
Dealer Agreement, Auto Loan Purchase and Sale Agreement, Dealer Assignment or
Third-Party Lender Assignment, the act of commencement shall be deemed to be
Annex A-1
an automatic assignment from the Issuer to the Servicer of the rights under such
Dealer Agreement, Auto Loan Purchase and Sale Agreement, Dealer Assignment or
Third-Party Lender 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, Auto Loan Purchase and Sale Agreement, Dealer
Assignment or Third-Party Lender Assignment on the grounds that it is not a real
party in interest or a Person entitled to enforce the Dealer Agreement, Auto
Loan Purchase and Sale Agreement, Dealer Assignment or Third-Party Lender
Assignment, the Owner Trustee 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 reasonably necessary to enforce the Dealer Agreement, Auto Loan
Purchase and Sale Agreement, Dealer Assignment or Third-Party Lender Assignment,
including bringing suit in its name or the name of the Seller or of the Issuer
and the Owner Trustee and/or the Trust Collateral Agent for the benefit of the
Noteholders. The Servicer shall be reimbursed from Liquidation Proceeds or as
otherwise agreed to in writing by the Servicer, for all reasonable expenses
incurred pursuant to any legal action undertaken pursuant to this Section at the
direction of the Controlling Party."
Section 4.4(a). The first sentence of Section 4.4(a) shall be replaced in its
entirety by the following sentence:
"The Servicer shall require, in accordance with its customary servicing
procedures, that each Financed Vehicle be insured by the related Obligor under
the Insurance Policies referred to in Paragraph 24 of the Schedule of
Representations and Warranties and shall monitor the status of such physical
loss and damage insurance coverage thereafter to the extent that it receives
notice of determination or non-renewal thereof; provided, however, that in no
event will the Servicer be required to retain a third-party service to monitor
such physical loss and damage insurance coverage."
Section 4.4(d). Section 4.4(d) shall be replaced in its entirety by the
following provision:
"The Servicer shall use all reasonable efforts to enforce or collect
upon the Insurance Policies. If the Servicer is unable to enforce or collect
upon the Insurance Policies without commencing a legal proceeding, the Servicer
shall advise the Controlling Party whether, in its reasonable judgment,
commencing a legal proceeding to enforce or collect upon the Insurance Policies
is advisable, and shall only commence a legal proceeding in its own name (or, if
possible, as an agent of the Issuer) to enforce the Insurance Policies or
commence or participate in any other legal proceeding relating to or involving
the Insurance Policies if directed to do so by the Controlling Party. If the
Servicer is directed 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 Owner Trustee 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 Owner
Trustee and/or the Trust Collateral Agent for the benefit of the Noteholders.
The Servicer shall be reimbursed from Liquidation Proceeds or as otherwise
agreed to in writing by the Servicer, for all reasonable expenses incurred
pursuant to any legal action undertaken at the direction of the Controlling
Party."
Annex A-2
Section 4.5(a). The following sentence shall be added to the end of Section
4.5(a):
"The Servicer shall be entitled to recover all reasonable expenses
incurred pursuant to this Section 4.5(a) from Available Funds in accordance with
Section 5.7(a) and Section II.B. of Schedule 1 to this Annex A or as otherwise
agreed to in writing by the Servicer."
Section 4.5(b). The following sentence shall be added to the end of Section
4.5(b):
"The Servicer shall be entitled to recover all reasonable expenses
incurred pursuant to this Section 4.5(b) from Available Funds in accordance with
Section 5.7(a) and Section II.B. of Schedule 1 to this Annex A or as otherwise
agreed to in writing by the Servicer."
Section 4.11. Section 4.11 shall be replaced in its entirety by the following
sentence:
"Annual Report of Accountants.
The Servicer shall cause a firm of independent certified public
accountants, which may also render other services to the Servicer or its
affiliates, to deliver to the Trustee, the Owner Trustee and the Trust
Collateral Agent, within 120 days after the end of each fiscal year, commencing
with the fiscal year ending December 31, of the year in which the Backup
Servicer becomes the successor Servicer, (i) an opinion by a firm of nationally
recognized independent certified public accountants (the "Independent
Accountants") on the financial position of the Servicer at the end of the
relevant fiscal year and the results of operations and changes in financial
position of the Servicer for such year then ended on the basis of an examination
conducted in accordance with generally accepted auditing standards, and (ii) a
report from such independent certified public accountants to the effect that
based on an examination of certain specified documents and records relating to
the servicing of the Servicer's loan portfolio conducted substantially in
compliance with SAS 70 (the "Applicable Accounting Standards"), such firm is of
the opinion that such servicing has been conducted in compliance with the
Applicable Accounting Standards except for (a) such exceptions as such firm
shall believe to be immaterial and (b) such other exceptions as shall be set
forth in such statement."
Section 4.15. Section 4.15 shall be replaced in its entirety by the following
provision:
"Fidelity Bond and Errors and Omissions Policy. The Servicer has
obtained, and shall continue to maintain in full force and effect, a Fidelity
Bond and Errors and Omissions Policy of a type and in such amount as is
customary for servicers engaged in the business of servicing automobile
receivables; provided, however, that, with the consent of the Controlling Party
(not to be unreasonably withheld), the Servicer shall be deemed to have
fulfilled its obligation pursuant to this Section 4.15 if it has obtained and
continues to maintain in full force and effect, a self-insured Fidelity Bond and
Errors and Omissions Policy through JPMorgan Chase Bank, National Association or
any of its Affiliates."
Annex A-3
Section 5.10. Excess Servicing Fee Account. In the event the Backup Servicer
becomes the Servicer, the Trust Collateral Agent shall establish and maintain in
its own name an Eligible Deposit Account (the "Excess Servicing Fee Account"),
which account shall be initially established with the Trust Collateral Agent for
the benefit of the Noteholders, shall be a "Trust Account" for all purposes of
this Agreement and shall be invested as other Trust Accounts in accordance with
Section 5.1; provided, however, all investment earnings of moneys deposited in
the Excess Servicing Fee Account shall be retained until amounts are distributed
from such account in accordance with this Section.
(b) If the monthly fee payable to the Servicer pursuant to Section
I.B.2.b. of Schedule 1 of Annex A on any Distribution Date (the "Monthly Fee")
is less than the product of 2.25% per annum and the Principal Balance of the
Active Contracts (as defined in Schedule 1 of Annex A) with remaining terms of
less than 36 months as of the date of transfer of servicing from the Servicer to
the Backup Servicer (such product, the "Target Servicing Fee"), the excess, if
any, of the Target Servicing Fee over the Monthly Fee shall be deposited into
the Excess Servicing Fee Account on such Distribution Date and the Monthly Fee
shall be paid to the Servicer pursuant to Section 5.7(a)(i). In the event the
Monthly Fee on any Distribution Date exceeds the Target Servicing Fee for such
Distribution Date, (i) the Trust Collateral Agent shall withdraw the amount of
such excess from the Excess Servicing Fee Account to the extent of amounts on
deposit therein and distribute such amount to the Servicer and (ii) the amount
of the Monthly Fee for such Distribution Date less the amount distributed to the
Servicer pursuant to subdivision (i) shall be paid to the Servicer pursuant to
Section 5.7(a)(i).
Section 9.1. Section 9.1 shall be replaced in its entirety with the following
provision:
"Servicer Termination Event. For purposes of this Agreement, each of the
following shall constitute a "Servicer Termination Event":
(a) Any failure by the Servicer to deliver to the Trust Collateral
Agent for distribution to Noteholders any proceeds or payment required to be so
delivered under the terms of this Agreement that continues unremedied for a
period of two Business Days (one Business Day with respect to payment of
Purchase Amounts) after written notice is received by the Servicer from the
Trust Collateral Agent or after discovery of such failure by a Responsible
Officer of the Servicer; or
(b) Failure by the Servicer to deliver to the Trust Collateral Agent
the Servicer's Certificate by the first Business Day prior to the Distribution
Date, or failure on the part of the Servicer to observe its covenants and
agreements set forth in Section 8.4(a); or
(c) Failure on the part of the Servicer duly to observe or perform
any other covenants or agreements of the Servicer set forth in this Agreement,
which failure (i) materially and adversely affects the rights of Noteholders,
and (ii) continues unremedied for a period of 30 days after knowledge thereof by
the Servicer or after the date on which written notice of such failure,
requiring the same to be remedied, shall have been given to the Servicer by the
Trust Collateral Agent, or
Annex A-4
(d) The entry of a decree or order for relief by a court or
regulatory authority having jurisdiction in respect of the Servicer in an
involuntary case under the federal bankruptcy laws, as now or hereafter in
effect, or another present or future, federal bankruptcy, insolvency or similar
law, or appointing a receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of the Servicer or of any substantial
part of its property or ordering the winding up or liquidation of the affairs of
the Servicer and the continuance of any such decree or order unstayed and in
effect for a period of 60 consecutive days or the commencement of an involuntary
case under the federal bankruptcy laws, as now or hereinafter in effect, or
another present or future federal or state bankruptcy, insolvency or similar law
and such case is not dismissed within 60 days; or
(e) The commencement by the Servicer of a voluntary case under the
federal bankruptcy laws, as now or hereafter in effect, or any other present or
future, federal or state, bankruptcy, insolvency or similar law, or the consent
by the Servicer to the appointment of or taking possession by a receiver,
liquidator, assignee, trustee, custodian, sequestrator or other similar official
of the Servicer or of any substantial part of its property or the making by the
Servicer of an assignment for the benefit of creditors or the failure by the
Servicer generally to pay its debts as such debts become due or the taking of
corporate action by the Servicer in furtherance of any of the foregoing; or
(f) Any representation, warranty or statement of the Servicer made
in this Agreement (including in its prior capacity as Backup Servicer) or any
certificate, report or other writing delivered pursuant hereto shall prove to be
incorrect in any material respect as of the time when the same shall have been
made, and the incorrectness of such representation, warranty or statement has a
material adverse effect on the Trust or the Noteholders and, within 30 days
after knowledge thereof by the Servicer or after written notice thereof shall
have been given to the Servicer by the Trust Collateral Agent, the circumstances
or condition in respect of which such representation, warranty or statement was
incorrect shall not have been eliminated or otherwise cured; or
(g) The Servicer shall enter into any merger, conversion or
consolidation unless the Controlling Party has provided its prior written
consent; or
(h) JPMorgan Chase Bank, National Association shall cease to own
(directly or indirectly) 100% of the Servicer unless the Controlling Party has
provided its written consent; or
(i) The tangible net worth (as defined by generally accepted
accounting principles in effect in the United States from time to time ("GAAP")
of the Servicer, as of the last day of any Calendar Quarter, shall be less than
85% of the Shareholder's Equity (as defined below) minus Intangible Assets (as
defined below) as of the end of the quarter ended on [March 31, 2005] plus 50%
of quarterly net income (prior to dividends or distributions on an ongoing basis
with no subtraction for quarterly losses) for each quarter thereafter.
For purposes of Section 9.01(i), the following definitions shall apply:
"Intangible Assets" means all licenses, patents, copyrights, trade names,
trademarks, goodwill or any premium paid in excess of the book value of
purchased assets, experimental or organizational expenses, deferred debt
issuance costs, and all other assets which under GAAP are deemed intangible and
any write-up of assets, to the extent that any of the foregoing items were
included in total assets or deducted from total liabilities in computing total
shareholders equity; and "Shareholder's Equity" means, for the Servicer and its
subsidiaries, as of the last day of any Calendar Quarter, the total amount of
shareholder's equity determined on a consolidated basis in accordance with GAAP.
Annex A-5
Section 12.2(h). The following sentence shall be added to the end of Section
12.2(h):
"The Servicer shall be reimbursed for all reasonable expenses incurred
pursuant to this Section 12.2(h) from Available Funds in accordance with Section
5.7(a) and Section II.B. of Schedule 1 to this Annex A or as otherwise agreed to
in writing by the Servicer."
Schedule C to the Sale and Servicing Agreement shall be replaced in its
entirety by the Servicer with a schedule of servicing policies and procedures
that is acceptable to the Controlling Party.
Attached hereto as Schedule 1 is the Backup Servicer Fee Schedule.
Except as expressly set forth in this Annex A, all other terms,
provisions and conditions of the Sale and Servicing Agreement shall remain in
full force and effect.
Annex A-6
SCHEDULE 1 TO ANNEX A
SYSTEMS & SERVICES TECHNOLOGIES, INC.
A SUBSIDIARY OF JPMORGAN CHASE BANK, NATIONAL ASSOCIATION
SERVICING FEE SCHEDULE:
AMERICREDIT 2005-1 SECURITIZATION
April 14, 2005
I. FEES
A. Backup Servicing, per transaction
1. One-Time Setup Fee waived
2. Monthly Fee $ 3,500
B. Successor Servicing (1)
1. One Time Boarding Fee $ 5.00 per loan
2. Monthly Fee (2) (3)
a. Remaining term of 36 months or more at the date of
transfer of servicing to SST:
the greater of 225 bsp or
$ 13.00 per month
b. Remaining term of less than 36 months at the date
of transfer of servicing to
SST or less: $ 18.00 per month (4)
3. Minimum Monthly Fee $ 3,000
II. EXPENSES
A. Backup Servicing and Transfer Expenses
Backup Servicing fees and expenses shall be payable 1) by AmeriCredit
and 2) to the extent not timely paid by AmeriCredit, from the waterfall,
at a senior position. Any amount payable from such senior position shall
be limited on an annual basis to $300,000, as agreed upon in Section
5.7(a)(ii)(y) of the Sale and Servicing Agreement, dated as of April 6,
2005.
SST shall be reimbursed for all costs and expenses incurred in
connection with its Backup Servicing duties and the transfer of
contracts to SST for successor servicing. Such costs and expenses
include, but are not limited to, those related to travel, obligor
mailings, freight and file shipping. Transition expenses (inclusive of
boarding fees) shall not exceed $100,000.
B. Successor Servicing Expenses
SST shall be reimbursed for all reasonable out-of-pocket expenses
including, but not limited to, those associated with asset recovery,
liquidation, sales, travel, lodging, legal proceedings related to
replevin actions or obligor bankruptcies, statement and mailing costs,
title processing, bank charges, field calls, and insurance tracking, if
any. Additionally, SST shall receive an administrative fee amounting to
3% of the funds advanced by SST to cover any such expenses during any
monthly collection period. In order to avoid this administrative fee,
AmeriCredit (or another party, as appropriate) may at any time during
the term establish and fund an advance account to be utilized by SST to
cover all such expenses and costs provided in this section for any
monthly collection period. Any such advance account must be fully funded
on a monthly basis in an amount sufficient to cover the out-of-pocket
expenses projected by SST for each subsequent monthly collection period.
All transition fees (including boarding fees) payable to SST as
replacement or successor servicer pursuant to Section 5.7(a)(i) shall
not exceed $100,000 in aggregate in any calendar year (the "Capped
Servicer Expenses"). The Monthly Servicer Fees described in Section
I.B.2. of this Schedule 1 and the Capped Servicer Expenses constitute
the Base Servicing Fee.
Further, indemnified expenses not otherwise paid by AmeriCredit shall be
recoverable from a senior position in the waterfall. Any amount payable
from such senior position-whether as Backup Servicer or Successor
Servicer- shall be limited on an annual basis to $300,000 in the
aggregate, as agreed upon in Section 5.7(a)(ii)(y) of the Sale and
Servicing Agreement, dated as of April 6, 2005.
III. MISCELLANEOUS (1)
A. Claim Filing Costs
In the event SST files insurance claims in connection with any contract
serviced by SST, SST shall receive $25.00 per filing.
B. Administrative Fees/Servicing Charges
SST shall receive the Supplemental Servicing Fee.
C. Deficiency Collections
Under separate agreement, SST may provide deficiency collections
services on a contingency fee basis.
(1) These items shall only apply to SST's performance of successor servicing
duties.
(2) Basis points are annualized (i.e., applicable basis points/12) and shall
be based on beginning of month outstanding principal balance of each individual
Active Contract, as defined below.
(3) SST shall receive this fee for all "Active Contracts" for any full or
partial month where it functions as the Servicer. Active Contract is defined as
any contract other than: (i) prepaid, fully satisfied contracts; (ii) contracts
in which the asset has been liquidated and SST has posted the liquidation
proceeds or any other anticipated proceeds (e.g., credit enhancement insurance);
or (iii) contracts in which SST has completed all work in connection with
processing and receiving insurance payoffs. There shall be a $0.50 monthly
servicing fee for each contract that is not an Active Contract until such time
as SST is duly instructed to write the obligor's balance down to $0.00.
(4) To the extent that the successor servicing fee payable to SST pursuant
to Section I.B.2.b of this Schedule 1 is less than 2.25% per annum times the
principal balance of Active Contracts with remaining terms less than 36 months
as of the date of transfer of servicing to SST, certain amounts shall be
deposited into the Excess Servicing Fee Account pursuant to Section 5.10.
