SERVICING AND
CUSTODIAN AGREEMENT
among
AMERICREDIT FINANCIAL SERVICES, INC.,
as Servicer and Custodian,
AMERICREDIT MTN RECEIVABLES TRUST,
as Debtor,
and
THE CHASE MANHATTAN BANK,
as Collateral Agent
dated as of
December 18, 2000
TABLE OF CONTENTS
ARTICLE I DEFINITIONS......................................................................................2
Section 1.1. Definitions............................................................................2
Section 1.2. Other Definitional Provisions..........................................................5
ARTICLE II ADMINISTRATION AND SERVICING OF RECEIVABLES.....................................................6
Section 2.1. Duties of the Servicer.................................................................6
Section 2.2. Collection of Receivable Payments; Modifications of Receivables; Lock-Box Agreements...7
Section 2.3. Realization upon Receivables...........................................................9
Section 2.4. Insurance.............................................................................10
Section 2.5. Maintenance of Security Interests in Vehicles.........................................11
Section 2.6. Covenants, Representations, and Warranties of Servicer................................12
Section 2.7. Purchase of Receivables Upon Breach of Covenant or Representation and Warranty........14
Section 2.8. Total Servicing Fee; Payment of Certain Expenses by Servicer..........................15
Section 2.9. Servicer's Certificate................................................................15
Section 2.10. Annual Statement as to Compliance, Notice of Servicer Termination Event...............15
Section 2.11. Access to Certain Documentation and Information Regarding Receivables.................16
Section 2.12. Monthly Tape..........................................................................16
Section 2.13. Fidelity Bond and Errors and Omissions Policy.........................................17
ARTICLE III THE SERVICER..................................................................................17
Section 3.1. Liability of Servicer; Indemnities....................................................17
Section 3.2. Merger or Consolidation of, or Assumption of the Obligations of the Servicer..........18
Section 3.3. Limitation on Liability of Servicer and Others........................................19
Section 3.4. Delegation of Duties..................................................................19
Section 3.5. Servicer Not to Resign................................................................20
Section 3.6. Administrative Duties of Servicer.....................................................20
ARTICLE IV SERVICER TERMINATION...........................................................................21
Section 4.1. Servicer Termination Event............................................................21
Section 4.2. Consequences of a Servicer Termination Event..........................................22
Section 4.3. Appointment of Successor..............................................................23
Section 4.4. Notification to Secured Parties.......................................................23
Section 4.5. Waiver of Past Defaults...............................................................23
ARTICLE V THE CUSTODIAN...................................................................................23
Section 5.1. Appointment of Custodian; Acknowledgment of Receipt...................................23
Section 5.2. Maintenance of Records at Office......................................................24
Section 5.3. Duties of Custodian...................................................................24
Section 5.4. Instructions; Authority to Act........................................................25
Section 5.5. Custodian Fee.........................................................................25
Section 5.6. Indemnification by the Custodian......................................................25
Section 5.7. Advice of Counsel.....................................................................26
Section 5.8. Effective Period, Termination, and Amendment; Interpretive and Additional Provisions..26
Section 5.9. Representations, Warranties and Covenants of Custodian................................26
ARTICLE VI MISCELLANEOUS..................................................................................28
Section 6.1. Governing Law.........................................................................28
Section 6.2. Notices...............................................................................28
Section 6.3. Binding Effect........................................................................29
Section 6.4. Severability..........................................................................29
Section 6.5. Separate Counterparts.................................................................30
Section 6.6. Limitation of Liability of Trustee....................................................30
EXHIBITS AND SCHEDULES
Exhibit A - Form of Servicer's Certificate
Exhibit B Form of Monthly Exception Report
Schedule A - Form of Custodian's Acknowledgment
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THIS SERVICING AND CUSTODIAN AGREEMENT, dated as of December
18, 2000, is between AmeriCredit Financial Services, Inc. ("AMERICREDIT"), as
Servicer (in such capacity, the "SERVICER") and as Custodian (in such capacity,
the "CUSTODIAN"), AmeriCredit MTN Receivables Trust (the "TRUST") and The Chase
Manhattan Bank as Collateral Agent (in such capacity, the "COLLATERAL AGENT").
W I T N E S S E T H
WHEREAS, AmeriCredit MTN Receivables Trust (the "TRUST"),
AmeriCredit, MBIA Insurance Corporation, as Administrative Agent, and Meridian
Funding Company, LLC ("MERIDIAN") have entered into a Note Purchase Agreement,
dated as of the date hereof (the "NOTE PURCHASE AGREEMENT");
WHEREAS, the Trust, AmeriCredit, AmeriCredit MTN Corp.
("AMTN") and the Collateral Agent have entered into a Security Agreement dated
as of the date hereof (the "SECURITY AGREEMENT");
WHEREAS, AmeriCredit, AmeriCredit MTN Corp., the Collateral
Agent, and the Trust have entered into a Master Receivables Purchase Agreement,
dated as of the date hereof (the "RECEIVABLES PURCHASE AGREEMENT"), pursuant to
which the Sellers (as defined in the Receivables Purchase Agreement) agree to
sell, transfer and assign to the Trust all of their right, title and interest in
and to the Receivables described in the Schedules of Receivables attached to the
Supplements (as defined below);
WHEREAS, pursuant to the Receivables Purchase Agreement, the
Sellers and the Trust will enter into Supplements to the Receivables Purchase
Agreement from time to time (each a "SUPPLEMENT"), whereby the Sellers will
sell, transfer and assign to the Trust on the applicable Receivables Transfer
Date (as defined in the Receivables Purchase Agreement) all of their right,
title and interest in and to Receivables listed on the Schedules of Receivables
attached to such Supplements;
WHEREAS, pursuant to the Security Agreement, the Trust will
pledge to the Collateral Agent for the benefit of the Secured Parties all of its
right, title and interest in the Collateral, including, but not limited to, the
Receivables and the Other Conveyed Property (as defined in the Receivables
Purchase Agreement);
WHEREAS, the Servicer is willing to service the Receivables;
and
WHEREAS, the Collateral Agent wishes to appoint the Custodian
to hold the Receivable Files as the custodian on behalf of the Collateral Agent.
NOW, THEREFORE, in consideration of the mutual agreements
herein contained and of other good and valuable consideration the receipt and
adequacy of which are hereby acknowledged, the parties 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:
"ACCOUNTING DATE" means, with respect to any Settlement Period
the last day of such Settlement Period.
"AGREEMENT" means this Agreement, as the same may be amended
and supplemented from time to time.
"AMERICREDIT" means AmeriCredit Financial Services, Inc.
"AMOUNT FINANCED" means, with respect to a Receivable, the
aggregate amount advanced under such Receivable toward the purchase price of the
Financed Vehicle and any related costs, including amounts advanced in respect of
accessories, insurance premiums, service and warranty contracts, other items
customarily financed as part of retail automobile installment sale contracts or
promissory notes, and related costs.
"ANNUAL PERCENTAGE RATE" of a Receivable means the annual
percentage rate of finance charges or service charges, as stated in the related
Contract.
"COLLATERAL AGENT" means The Chase Manhattan Bank, in its
capacity as Collateral Agent under the Security Agreement.
"COLLATERAL INSURANCE" shall have the meaning set forth in
Section 2.4(a).
"COLLECTION RECORDS" means all manually prepared or computer
generated records relating to collection efforts or payment histories with
respect to the Receivables.
"CRAM DOWN LOSS" means, with respect to a Receivable, if a
court of appropriate jurisdiction in a proceeding related to an Insolvency Event
shall have issued an order reducing the amount owed on a Receivable or otherwise
modifying or restructuring the Scheduled Receivables Payments to be made on a
Receivable, an amount equal to (i) the excess of the Outstanding Balance of such
Receivable immediately prior to such order over the Outstanding 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
Outstanding Balance of such Receivable immediately prior to such order over the
net present value (using as the discount rate the higher of the Annual
Percentage Rate 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.
"CUSTODIAN" means AmeriCredit acting as agent for the
Collateral Agent and any successor Custodian selected pursuant to Section 4.3(a)
hereof.
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"CUSTODIAN'S ACKNOWLEDGMENT" means an acknowledgment from the
Custodian substantially in the form of Schedule A.
"DEALER" means a dealer who sold a Financed Vehicle and who
originated and assigned the respective Receivable to AmeriCredit under a Dealer
Agreement or pursuant to a Dealer Assignment.
"DEALER AGREEMENT" means any agreement between a Dealer and
AmeriCredit relating to the acquisition of Receivables from a Dealer by
AmeriCredit.
"DEALER ASSIGNMENT" means, with respect to a Receivable, the
executed assignment executed by a Dealer conveying such Receivable to
AmeriCredit.
"DEALER UNDERWRITING GUIDE" means the underwriting manual used
by AmeriCredit in the purchase of Receivables as amended from time to time.
"FORCE-PLACED INSURANCE" has the meaning ascribed thereto in
Section 2.4 hereof.
"INDEPENDENT ACCOUNTANTS" means a firm of nationally
recognized independent certified public accountants.
"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 of
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 2.4.
"INSURANCE POLICY" means, with respect to a Receivable, any
insurance policy (including the insurance policies described in Section 2.4
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.
"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
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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.
"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 Outstanding Balance; original term; Annual Percentage Rate; current
Outstanding Balance; current remaining term; origination date; first payment
date; final scheduled payment date; next payment due date; date of most recent
payment; new/used classification; collateral description; days currently
delinquent; number of contract extensions (months) to date; amount of Scheduled
Receivables Payment; current Insurance Policy expiration date; and past due late
charges.
"NET LIQUIDATION PROCEEDS" means, with respect to a Defaulted
Receivable, all amounts realized with respect to such Receivable 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 INSURER" means MBIA Insurance Corporation
"OPINION OF COUNSEL" means a written opinion of counsel
addressed to and acceptable to the Note Insurer.
"PURCHASE AMOUNT" means, with respect to a Receivable, the
Outstanding Balance and all accrued and unpaid interest on the Receivable, after
giving effect to the receipt of any moneys collected (from whatever source) on
such Receivable, if any.
"PURCHASED RECEIVABLE" means a Receivable purchased as of the
close of business on the last day of a Settlement Period by AmeriCredit pursuant
to Section 2.7.
"RATING AGENCY" means Moody's and Standard & Poor's.
"RECEIVABLE FILES" means the following documents:
(i) the fully executed original of the retail installment
contract, promissory note, security agreement, or similar document evidencing
such Receivable (together with any agreements modifying the Receivable,
including without limitation any extension agreements);
(ii) the original credit application, or a copy thereof, of
each Obligor, fully executed by each such Obligor on AmeriCredit's customary
form, or on a form approved by AmeriCredit, for such application; and
(iii) the original certificate of title (when received) and
otherwise such documents, if any, that AmeriCredit keeps on file in accordance
with its customary procedures
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indicating that the Financed Vehicle is owned by the Obligor and subject to
the interest of AmeriCredit as first lienholder or secured party (including
any Lien Certificate received by AmeriCredit), or, if such original
certificate of title has not yet been received, a copy of the application
therefor, showing AmeriCredit as secured party.
"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.
"RESPONSIBLE OFFICER" means any officer in the corporate trust
office of the Trustee or any agent of the Trustee under a power of attorney with
direct responsibility for the administration of this Agreement or any of the
other Transaction Documents on behalf of the Trustee.
"SCHEDULED RECEIVABLES PAYMENT" means, with respect to any
Settlement Period for any Receivable, the amount set forth in such Receivable as
required to be paid by the Obligor in such Settlement Period. If after the
Closing Date, the Obligor's obligation under a Receivable with respect to a
Settlement Period has been modified so as to differ from the amount specified in
such Receivable as a result of (i) the order of a court in an insolvency
proceeding involving the Obligor, (ii) pursuant to the Soldiers' and Sailors'
Civil Relief Act of 1940 or (iii) modifications or extensions of the Receivable
permitted by Section 2.2(b), the Scheduled Receivables Payment with respect to
such Settlement Period shall refer to the Obligor's payment obligation with
respect to such Settlement Period as so modified.
"SERVICER" means AmeriCredit Financial Services, Inc., as the
servicer of the Receivables, and each successor Servicer pursuant to Section
4.3.
"SERVICER TERMINATION EVENT" means an event specified in
Section 4.1.
"SERVICER'S CERTIFICATE" means an Officers' Certificate of the
Servicer delivered pursuant to Section 2.9, substantially in the form of Exhibit
A.
Section 1.2. OTHER DEFINITIONAL PROVISIONS.
(a) Capitalized terms used herein and not otherwise defined
herein have meanings assigned to them in the Security Agreement or the Note
Purchase 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
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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."
(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
ADMINISTRATION AND SERVICING OF RECEIVABLES
Section 2.1. DUTIES OF THE 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. 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 Lock-Box Agreement, accounting for collections
and furnishing monthly and annual statements to the Collateral Agent with
respect to distributions, monitoring the status of Insurance Policies with
respect to the Financed Vehicles and performing the other duties specified
herein.
(b) The Servicer shall also administer and enforce all rights
and responsibilities of the holder of the Receivables provided for in the Dealer
Agreements and Third Party Loan Purchase Agreements (and shall maintain
possession of the Dealer Agreements and Third Party Loan Purchase Agreements, to
the extent it is necessary to do so), the Dealer Assignments, Third Party Lender
Assignments and the Insurance Policies, to the extent that such Dealer
Agreements, Third Party Loan Purchase Agreements, Dealer Assignments, Third
Party Lender Assignments
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and Insurance Policies relate to the Receivables, the Financed Vehicles or the
Obligors. 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.
(c) The Servicer is hereby authorized to commence, in it's
own name or in the name of the Trust, a legal proceeding to enforce a
Receivable pursuant to Section 2.3 or to commence or participate in any other
legal proceeding (including, without limitation, a bankruptcy proceeding)
relating to or involving a Receivable, an Obligor or a Financed Vehicle. If the
Servicer commences or participates in such a legal proceeding in its own name,
the 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 Collateral Agent
shall, in its reasonable discretion, furnish the Servicer with any limited
powers of attorney and other documents which the Servicer may reasonably
request and which the Servicer deems necessary or appropriate and take any
other steps which the Servicer may deem necessary or appropriate to enable the
Servicer to carry out its servicing and administrative duties under this
Agreement.
Section 2.2. COLLECTION OF RECEIVABLE PAYMENTS; MODIFICATIONS
OF RECEIVABLES; LOCK-BOX AGREEMENTS.
(a) Consistent with the standards, policies and procedures
required by this Agreement and the Credit and Collection Policy, the Servicer
shall make reasonable efforts to collect all payments called for under the
terms and provisions of the Receivables as and when the same shall become due,
and shall follow such collection procedures as it follows with respect to all
comparable automobile receivables that it services for itself or others and
otherwise act with respect to the Receivables, the Dealer Agreements, the
Dealer Assignments, the Third Party Loan Purchase Agreements, the Third Party
Lender Assignments, the Insurance Policies and the Other Conveyed Property in
such manner as will, in the reasonable judgment of the Servicer, maximize the
amount to be received by the Trust with respect thereto. The Servicer is
authorized in its discretion to waive any prepayment charge, late payment
charge or any other similar fees that may be collected in the ordinary course
of servicing any Receivable.
(b) So long as no Servicer Termination Event shall have
occurred and be continuing, and in accordance with the Credit and Collection
Policy, the Servicer may at any time agree to a modification or amendment of a
Receivable in order to (i) change the Obligor's regular due date to a date
within the Settlement Period in which such due date occurs or (ii) re-amortize
the Scheduled Receivables Payments on the Receivable following a partial
prepayment
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of principal, in accordance with its customary procedures if the Servicer
believes in good faith that such extension, modification or amendment is
necessary to avoid a default on such Receivable, will maximize Collections with
respect to such Receivable, and is otherwise in the best interests of the Trust.
(c) So long as no Servicer Termination Event shall have
occurred and be continuing, and in accordance with the Credit and Collection
Policy, the Servicer may grant payment extensions on, or other modifications or
amendments to, a Receivable (in addition to those modifications permitted by
Section 2.2(b)) in accordance with its customary procedures if the Servicer
believes in good faith that such extension, modification or amendment is
necessary to avoid a default on such Receivable, will maximize Collections with
respect to such Receivable, and is otherwise in the best interests of the Trust;
PROVIDED, THAT any such amendment, modification or extension shall be delivered
by the Servicer to the Custodian promptly after execution thereof.
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
Lock-Box Banks, acting as agent for the Collateral Agent, on behalf of the
Secured Parties pursuant to a Lock-Box Agreement. The Servicer shall use its
best efforts to notify or direct any Lock-Box Bank to deposit all payments on
the Receivables in the Lock-Box Account no later than the Business Day after
receipt, and to cause all amounts credited to the Lock-Box 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 Lock-Box Account shall
be a demand deposit account held by the Lock-Box Bank, or at the request of the
Note Insurer, an Eligible Deposit Account.
Notwithstanding any Lock-Box Agreement, or any of the
provisions of this Agreement relating to the Lock-Box Agreement, the Servicer
shall remain obligated and liable to the Trust, the Collateral Agent and
Secured Parties for servicing and administering the Receivables and the Other
Conveyed Property in accordance with the provisions of this Agreement without
diminution of such obligation or liability by virtue thereof.
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 Lock-Box 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 Lock-Box Agreement to the same extent as if such
Lock-Box 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 Lock-Box Bank under such Lock-Box
Agreement. The outgoing Servicer shall, upon request of the Collateral Agent,
but at the expense of the outgoing Servicer, deliver to the successor Servicer
all documents and records relating to each such Lock-Box Agreement and an
accounting of amounts collected and held by the Lock-Box Bank and otherwise use
its best efforts to effect the orderly and efficient transfer of any Lock-Box
Agreement to the successor Servicer. In the event that the Note Insurer elects
to change the identity of the Lock-Box Bank, the outgoing Servicer, at its
expense, shall cause the Lock-Box Bank to deliver, at the direction of the Note
Insurer to the Collateral Agent
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or a successor Lock-Box Bank, all documents and records relating to the
Receivables and all amounts held (or thereafter received) by the Lock-Box Bank
(together with an accounting of such amounts) and shall otherwise use its best
efforts to effect the orderly and efficient transfer of the Lock-Box
arrangements and the Servicer shall notify the Obligors to make payments to the
Lock-Box established by the successor.
(d) The Servicer shall remit all payments by or on behalf of
the Obligors received directly by the Servicer to the Lock-Box Bank for deposit
into the Lock-Box Account and for transfer to the Collection Account in
accordance with Section 2.2(c) here of, in either case, without deposit into
any intervening account and as soon as practicable, but in no event later than
the Business Day after receipt thereof.
Section 2.3. REALIZATION UPON RECEIVABLES.
(a) Consistent with the standards, policies and procedures
required by this Agreement and the Credit and Collection Policy, the Servicer
shall use its best efforts to repossess (or otherwise comparably convert the
ownership of) and liquidate any Financed Vehicle securing a Receivable with
respect to which the Servicer has determined that payments thereunder are not
likely to be resumed, as soon as is practicable after default on such
Receivable but in no event later than the date on which all or any portion of a
Scheduled Receivables Payment has become 91 days delinquent; PROVIDED, HOWEVER,
that the Servicer may elect not to repossess a Financed Vehicle within such
time period if in its good faith judgment it determines that the proceeds
ultimately recoverable with respect to such Receivable would be increased by
forbearance. The Servicer is authorized to follow such customary practices and
procedures as it shall deem necessary or advisable, consistent with the
standard of care required by Section 2.1, which practices and procedures may
include reasonable efforts to realize upon any recourse to Dealers 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 reasonable discretion that such repair and/or repossession
shall increase the proceeds of liquidation of the related Receivable by an
amount greater than the amount of such expenses. All amounts received upon
liquidation of a Financed Vehicle shall be remitted by the Servicer to the
Collection Account as soon as practicable, but in no event later than the
Business Day after receipt thereof. The Servicer shall be entitled to recover
all reasonable expenses incurred by it in the course of repossessing and
liquidating a Financed Vehicle into cash proceeds, but only out of the cash
proceeds of such Financed Vehicle, any deficiency obtained from the Obligor
with respect to such Financed Vehicle or any amounts received from the related
Dealer and Third Party Lender with respect to such Financed Vehicle, which
amounts in reimbursement may be retained by the Servicer to the extent of such
expenses. The Servicer shall pay on behalf of the Trust any personal property
taxes assessed on repossessed Financed Vehicles.
(b) If the Servicer elects to commence a legal proceeding to
enforce a Dealer Agreement, Third Party Loan Purchase Agreement, Dealer
Assignment or Third Party Lender Assignment, the act of commencement shall be
deemed to be an automatic assignment from the
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Trust to the Servicer of the rights under such Dealer Agreement, Third Party
Loan Purchase Agreement, Dealer Assignment and 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,
Third Party Loan Purchase 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, Third Party Loan Purchase Agreement,
Dealer Assignment or Third Party Lender Assignment, the Sellers, at the
Sellers' expense, shall take such steps as the Servicer deems reasonably
necessary to enforce the Dealer Agreement, Third Party Loan Purchase Agreement,
Dealer Assignment or Third Party Lender Assignment, including bringing suit in
its name or the name of the Sellers or of the Trust. All amounts recovered in
any legal proceeding shall be remitted directly by the Servicer to the Lock-Box
Bank as provided in Section 2.2(d). Notwithstanding anything to the contrary
contained herein, (i) the Note Insurer may, in its reasonable discretion,
direct the Servicer (whether the Servicer is AmeriCredit or any other Person)
to commence or settle any legal action to enforce collection of any Receivable
or to foreclose upon or repossess any Related Security and (ii) the Servicer
shall not make the Collateral Agent or the Secured Parties a party to any
litigation without the prior written consent of such Person; provided, however,
that in the case of subsection (i) of this sentence, the Servicer may decline
or refuse to act on instructions provided by the Note Insurer if, in the
reasonable determination of the Servicer, such action is not consistent with
any Requirements of Law (as defined in the Note Purchase Agreement) or the
Credit and Collection Policy (as defined in the Security Agreement), or could
result in legal or regulatory action against the Servicer.
Section 2.4. 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 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
(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. The Servicer will
administer the filing of claims under the Insurance Policies.
(b) The Servicer may, if an Obligor fails to obtain or
maintain a physical loss
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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 2.4(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 Outstanding Balance of such Receivable, and amounts allocable
thereto will not be available for distribution on the Note. 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 Outstanding Balance and accrued interest on such
Receivable (until reduced to zero) and then to pay the related Insurance Add-On
Amount. If an Obligor under a Receivable with respect to which the Servicer has
placed Force-Placed Insurance fails to make scheduled payments of such
Insurance Add-On Amount as due, and the Servicer has determined that eventual
payment of the Insurance Add-On Amount is unlikely, the Servicer may, but shall
not be required to, purchase such Receivable from the Trust for the Purchase
Amount on any subsequent 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 sue 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 Sellers, at the Sellers' 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.
(e) The Servicer will cause itself and may cause the
Collateral Agent on behalf of the Secured Parties to be named as named insured
under all policies of Collateral Insurance.
Section 2.5. MAINTENANCE OF SECURITY INTERESTS IN VEHICLES.
(a) Consistent with the policies and procedures required by
this Agreement, the
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Servicer shall take such steps on behalf of the Trust as are necessary to
maintain perfection of the security interest created by each Contract in the
related Financed Vehicle with respect to each Receivable, 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 Contracts. The Servicer shall take all action required under Section
2.1 and 2.6 of the Security Agreement with respect to the notation of Contracts
and the marking of records of the Trust. The Collateral Agent hereby authorizes
the Servicer, and the Servicer agrees, to take any and all steps necessary to
re-perfect such security interest on behalf of the Trust as necessary because
of the relocation of a Financed Vehicle or for any other reason. In the event
that the assignment of a Receivable to the Trust is insufficient, without a
notation on the related Financed Vehicle's certificate of title, or without
fulfilling any additional administrative requirements under the laws of the
state in which the Financed Vehicle is located, to perfect a security interest
in the related Financed Vehicle in favor of the Trust, the Servicer hereby
agrees that AmeriCredit's designation as the secured party on the certificate
of title is in its capacity as Servicer as agent of the Trust.
(b) Upon the occurrence of a Termination and Amortization
Event, the Note Insurer may instruct the Collateral Agent and the Servicer to
take or cause to be taken such action as may, in the discretion of the Note
Insurer, 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 to name the Collateral Agent on
behalf of the Secured Parties as lienholder or by such other reasonable means
as may, in the opinion of counsel to the Note Insurer, be necessary or prudent.
Any costs associated with such retitling shall be paid by the Servicer and to
the extent not so paid, the Note Insurer shall have the option to pay such
costs and shall be entitled to reimbursement therefor pursuant to Section
2.3(a)(ix) of the Security Agreement and the Collateral Agent shall not be
responsible for any such costs.
Section 2.6. COVENANTS, REPRESENTATIONS, AND WARRANTIES OF
SERVICER.
(a) The Servicer covenants as follows:
(i) LIENS IN FORCE. The Financed Vehicle securing each
Receivable shall not be released in whole or in part from the security
interest granted by the related Contract, except upon payment in full
of the Receivable or as otherwise contemplated herein;
(ii) NO IMPAIRMENT. The Servicer shall do nothing to impair
the rights of the Trust or the Secured Parties in the Receivables, the
Dealer Agreements, the Third Party Loan Purchase 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 2.2; 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
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(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 Collateral
Agent for the benefit of the Secured Parties and the restrictions on
transferability imposed by this Agreement or (ii) sign or file under
the Uniform Commercial Code of any jurisdiction any financing
statement 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 Collateral Agent, for the benefit of the
Secured Parties.
(b) The Servicer represents and warrants as follows:
(i) REPRESENTATIONS AND WARRANTIES. Each Receivable is an
Eligible Receivable;
(ii) ORGANIZATION AND GOOD STANDING. The Servicer has been
duly organized and is validly existing and in good standing under the
laws of its jurisdiction of organization, with power, authority and
legal right to own its properties and to conduct its business as such
properties are currently owned and such business is currently
conducted, and had at all relevant times, and now has, all power,
authority and legal right required to enter into and perform its
obligations under this Agreement and each of the other Transaction
Documents to which it is a party;
(iii) DUE QUALIFICATION. The Servicer is duly qualified to do
business as a foreign corporation, is in good standing and has obtained
all necessary licenses and approvals, in all jurisdictions in which the
ownership or lease of property or the conduct of its business
(including the servicing of the Receivables as required by this
Agreement) requires or shall require such qualification;
(iv) POWER AND AUTHORITY. The Servicer has the full power and
authority to execute and deliver this Agreement and the other
Transaction Documents to which it is a party and to carry out its terms
and their terms, respectively, and the execution, delivery and
performance of this Agreement and the other Transaction Documents to
which it is a party have been duly authorized by the Servicer by all
necessary corporate action;
(v) BINDING OBLIGATION. This Agreement and the other
Transaction Documents to which the Servicer is a party shall constitute
legal, valid and binding obligations of the Servicer enforceable 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;
(vi) NO VIOLATION. The consummation of the transactions
contemplated by this Agreement and the other Transaction Documents to
which the Servicer is a party, and the fulfillment of the terms of this
Agreement and the Transaction Documents to which the Servicer is a
party, shall not conflict with, result in any breach of any of the
terms and
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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 and do not
require any action by or require the consent of or the filing of any
notice with any Official Body or other Person;
(vii) NO PROCEEDINGS. There are no proceedings or
investigations pending or, to the Servicer's knowledge, threatened
against the Servicer, before any court, regulatory body, administrative
agency or other tribunal or governmental instrumentality having
jurisdiction over the Servicer or its properties (A) asserting the
invalidity of this Agreement or any of the Transaction Documents, (B)
seeking to prevent the consummation of any of the transactions
contemplated by this Agreement or any of the Transaction Documents, or
(C) seeking any determination or ruling that might materially and
adversely affect the performance by the Servicer of its obligations
under, or the validity or enforceability of, this Agreement or any of
the Transaction Documents or (D) that could have a Material Adverse
Effect on the Receivables; and
(viii) NO CONSENTS. The Servicer is not required to obtain the
consent of any other party or any consent, license, approval or
authorization, or registration or declaration with, any governmental
authority, bureau or agency in connection with the execution, delivery,
performance, validity or enforceability of this Agreement which has not
already been obtained.
Section 2.7. PURCHASE OF RECEIVABLES UPON BREACH OF COVENANT
OR REPRESENTATION AND WARRANTY. Upon discovery by either of the Servicer or a
Responsible Officer of the Note Insurer of a breach of any of the covenants set
forth in Sections 2.5(a), 2.6(a), 5.1, 5.2, 5.3 or 5.9, the party discovering
such breach shall give prompt written notice to all of the parties hereto;
PROVIDED, HOWEVER, that the failure to give any such notice shall not affect
any obligation of 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 2.5(a), 2.6(a), 5.1, 5.2, 5.3 or 5.9 which
materially and adversely affects the interests of the Secured Parties in any
Receivable (including any Defaulted 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 by the last day of the second Settlement Period after such breach,
purchase from the Trust the Receivable affected by such breach and, on the
related Determination Date, AmeriCredit shall pay the related Purchase Amount
to the Trust. It is understood and agreed that the obligation of AmeriCredit to
purchase any Receivable (including any Defaulted Receivable) with respect to
which such a breach has occurred and is continuing shall, if such obligation is
fulfilled, constitute the sole remedy against AmeriCredit for such breach
available to the Secured Parties or the Collateral Agent except as otherwise
provided in the Insurance Agreement; PROVIDED, HOWEVER, that AmeriCredit shall
indemnify the Trust, the Collateral Agent and the Secured Parties from and
against all costs,
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expenses, losses, damages, claims and liabilities, including reasonable fees
and expenses of counsel, which may be asserted against or incurred by any of
them as a result of third party claims arising out of the events or facts
giving rise to such breach.
Section 2.8. TOTAL SERVICING FEE; PAYMENT OF CERTAIN EXPENSES
BY SERVICER. On each Remittance Date, the Servicer shall to the extent provided
in Section 2.3(a) of the Security Agreement be entitled to receive out of the
Collection Account the Servicing Fee for the related Settlement Period. The
Servicer shall be required to pay all expenses incurred by it in connection
with its activities under this Agreement (including taxes imposed on the
Servicer, expenses incurred in connection with distributions and reports made
by the Servicer to Secured Parties and all other fees and expenses of the
Collateral Agent (to the extent such fees and expenses are not paid pursuant to
Section 2.3(a) of the Security Agreement), 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 Custodian, the Collateral Agent, the
Lock-Box Bank (and any fees under the Lock-Box Agreement) and the Independent
Accountants.
Section 2.9. SERVICER'S CERTIFICATE. No later than 5 p.m.
Eastern time on each Determination Date, the Servicer shall deliver (facsimile
delivery being acceptable) to the Trust, the Note Insurer and the Collateral
Agent a Servicer's Certificate executed by a Responsible Officer of the
Servicer in the form attached hereto as Exhibit A. Receivables purchased by the
Servicer or by the Sellers on the related Accounting Date and each Receivable
which became a Defaulted Receivable or which was paid in full during the
related Settlement Period shall be identified by account number (as set forth
in the Schedule of Receivables). In addition to the information set forth in
the preceding sentence, the Servicer's Certificate shall also state whether to
the knowledge of the Servicer a Termination and Amortization Event or Potential
Termination and Amortization Event has occurred.
Section 2.10. ANNUAL STATEMENT AS TO COMPLIANCE, NOTICE OF
SERVICER TERMINATION EVENT.
(a) The Servicer shall deliver to the Note Insurer, the
Trust, and the Collateral Agent, on or before September 30 (or 90 days after
the end of the Servicer's fiscal year, if other than June 30) of each year,
beginning on September 30, 2001, an officer's certificate signed by any
Responsible Officer of the Servicer, dated as of June 30 (or other applicable
date) of such year, stating that (i) a review of the activities of the Servicer
during the preceding 12-month period (or such other period as shall have
elapsed from the Closing Date to the date of the first such certificate) and of
its performance under this Agreement has been made under such officer's
supervision, and (ii) to such officer's knowledge, based on such review, the
Servicer has fulfilled all its obligations under this Agreement throughout such
period, or, if there has been a default in the fulfillment of any such
obligation, specifying each such default known to such officer and the nature
and status thereof.
(b) The Servicer shall deliver to the Trust, the Note Insurer
and the Collateral Agent, 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
15
giving of notice or lapse of time, or both, would become a Servicer Termination
Event under Section 4.1(a). The Servicer shall, and shall cause the Sellers to,
deliver to the Note Insurer, the Collateral Agent and the Servicer 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 4.1.
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, to deliver to the Trustee, the
Collateral Agent, the Note Insurer and each Rating Agency, on or before October
31 (or 120 days after the end of the Servicer's fiscal year, if other than June
30) of each year, beginning on October 31, 2001, with respect to the twelve
months ended the immediately preceding June 30 (or other applicable date) (or
such other period as shall have elapsed from the Closing Date to the date of
such certificate (which period shall not be less than six months)), a statement
(the "ACCOUNTANTS' REPORT") addressed to the Board of Directors of the
Servicer, to the Trustee, the Collateral Agent, and to the Note Insurer, to the
effect that such firm has audited the books and records of AmeriCredit Corp.,
in which the Servicer is included as a consolidated subsidiary, and issued its
report thereon in connection with the audit report on the consolidated
financial statements of AmeriCredit Corp. and that (1) such audit was made in
accordance with generally accepted auditing standards, and accordingly included
such tests of the accounting records and such other auditing procedures as such
firm considered necessary in the circumstances; (2) the firm is independent of
the Servicer within the meaning of the Code of Professional Ethics of the
American Institute of Certified Public Accountants, and (3) includes a report
on the application of agreed upon procedures to three randomly selected
Servicer's Certificates including the delinquency, default and loss statistics
required to be specified therein noting whether any exceptions or errors in the
Servicer's Certificates were found. Without otherwise limiting the scope of the
examination, the Note Insurer may, using generally accepted audit procedures,
verify the status of each Receivable and review the Receivable Files and
records relating thereto for conformity to the Servicer's Certificates prepared
pursuant to Section 2.09 hereof, conformity with the Dealer Underwriting Guide
and with the Credit and Collection Policy and compliance with the servicing
standards and the Credit and Collection Policy pursuant to this Agreement.
Section 2.12. ACCESS TO CERTAIN DOCUMENTATION AND INFORMATION
REGARDING RECEIVABLES. The Servicer shall provide to representatives of the
Collateral Agent and the Note Insurer reasonable access to the documentation
regarding the Receivables. In each case, such access shall be afforded without
charge and, provided no Servicer Termination Event or Potential Termination and
Amortization Event shall have occurred, 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 2.13. MONTHLY TAPE. On or before the Remittance Date,
the Servicer will deliver to the Collateral Agent and the Note Insurer a
computer tape or a diskette (or any other electronic transmission acceptable to
the Collateral Agent) in a format acceptable to the Collateral Agent containing
the information with respect to the Receivables as of the preceding
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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. The Collateral Agent shall use such tape
or diskette (or other electronic transmission acceptable to the Collateral
Agent) to (i) confirm that the Servicer's Certificate is complete, (ii) confirm
that such tape, diskette or other electronic transmission is in readable form,
(iii) verify the mathematical accuracy of all calculations contained within the
Servicer's Certificate and (iv) calculate and confirm any amounts distributed.
The Collateral Agent shall certify to the Note Insurer that it has verified the
Servicer's Certificate in accordance with this Section and shall notify the
Servicer and the Note Insurer of any discrepancies, in each case, on or before
the second Business Day following the Remittance Date. In the event that the
Collateral Agent reports any discrepancies, the Servicer and the Collateral
Agent shall attempt to reconcile such discrepancies prior to the next
succeeding Remittance 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 Remittance Date. In the event
that the Collateral Agent and the Servicer are unable to reconcile
discrepancies with respect to a Servicer's Certificate by the next succeeding
Remittance 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 the next
succeeding Remittance Date, and/or 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 Note Insurer,
deliver to the Collateral Agent 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 Collateral Agent
shall have no obligations hereunder, including, without limitation, to
supervise, verify, monitor or administer the performance of the Servicer. The
Collateral Agent shall have no liability for any actions taken or omitted by
the Servicer.
Section 2.14. 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 III
THE SERVICER
Section 3.1. LIABILITY OF SERVICER; INDEMNITIES.
(a) The Servicer (in its capacity as such) shall be liable
hereunder only to the extent of the obligations in this Agreement and the
Security Agreement specifically undertaken by the Servicer and the
representations made by the Servicer herein and therein.
(b) The Servicer shall defend, indemnify and hold harmless
the Trust, the Trustee, the Collateral Agent, the Note Insurer, the Secured
Parties and their respective officers,
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directors, agents and employees, from and against any and all costs, expenses,
losses, damages, claims and liabilities, including reasonable fees and expenses
of counsel and expenses of litigation arising out of or resulting from the use,
ownership or operation by the Servicer or any Affiliate thereof of any Financed
Vehicle;
AmeriCredit shall indemnify, defend and hold harmless the
Trust, the Trustee, the Collateral Agent, the Note Insurer, the Secured Parties
and their respective officers, directors, agents and employees from and against
any taxes that may at any time be asserted against any of such parties with
respect to the transactions contemplated in this Agreement, including, without
limitation, any sales, gross receipts, tangible or intangible personal
property, privilege or license taxes (but not including any 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) and costs and expenses in defending against the same;
(c) The Servicer shall indemnify, defend and hold harmless
the Trust, the Trustee, and the Collateral Agent, the Secured Parties and their
respective officers, directors, agents and employees from and against any and
all costs, expenses, losses, claims, damages, and liabilities to the extent
that such cost, expense, loss, claim, damage, or liability arose out of, or was
imposed upon the Trust, the Trustee, the Collateral Agent or the Secured
Parties by reason of the breach of this Agreement by the Servicer, the
negligence, misfeasance, or bad faith of the Servicer in the performance of its
duties under this Agreement or by reason of reckless disregard of its
obligations and duties under this Agreement;
(d) AmeriCredit shall indemnify the Collateral Agent, the
Trustee and their officers, directors, agents and employees thereof against any
and all loss, liability or expense, (other than overhead and expenses incurred
in the normal course of business) incurred by each of them in connection with
the acceptance or administration of the Trust and the performance of their
duties under the Transaction Documents other than if such loss, liability or
expense is conclusively determined by a judicial proceeding to have been
incurred by the Collateral Agent as a result of any such entity's willful
misconduct, bad faith or negligence; and
(e) Indemnification under this Article shall survive the
termination of the Transaction Documents or the resignation and removal of the
Trustee and the Collateral Agent and shall include, without limitation,
reasonable fees and expenses of counsel and expenses of litigation. If the
Servicer has made any indemnity payments pursuant to this Article and the
recipient thereafter collects any of such amounts from others, the recipient
shall promptly repay such amounts collected to the Servicer, without interest.
Section 3.2. MERGER OR CONSOLIDATION OF, OR ASSUMPTION OF THE
OBLIGATIONS OF THE SERVICER. 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 Note Insurer in the Note Insurer's sole discretion.
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
18
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 Collateral Agent and the Secured
Parties. 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 2.6
shall have been breached (for purposes hereof, such representations and
warranties shall speak as of the date of the consummation of such transaction)
and no Termination and Amortization Event or Potential Termination and
Amortization Event shall have occurred and be continuing, (y) AmeriCredit shall
have delivered to the Collateral Agent and the Note Insurer an Officer's
Certificate and an Opinion of Counsel each stating that such consolidation,
merger or succession and such agreement of assumption comply with this Section
and that all conditions precedent, if any, provided for in this Agreement
relating to such transaction have been complied with, and (z) AmeriCredit shall
have delivered to the Collateral Agent and the Note Insurer an Opinion of
Counsel, stating in the opinion of such counsel, either (A) all financing
statements and continuation statements and amendments thereto have been
executed and filed that are necessary to preserve and protect the interest of
the Trust in the Receivables and the Other Conveyed Property and reciting the
details of the filings or (B) no such action shall be necessary to preserve and
protect such interest.
Section 3.3. LIMITATION ON LIABILITY OF SERVICER AND OTHERS.
None of AmeriCredit nor any of the directors or officers or employees or agents
of AmeriCredit shall be under any liability to the Trust or the Secured
Parties, except as provided in this Agreement, for any action taken or for
refraining from the taking of any action pursuant to this Agreement; provided,
however, that this provision shall not protect AmeriCredit or any such person
against any liability that would otherwise be imposed by reason of a breach of
this Agreement or willful misfeasance, bad faith or negligence in the
performance of duties; provided further that this provision shall not affect
any liability to indemnify the Collateral Agent for costs, taxes, expenses,
claims, liabilities, losses or damages paid by the Collateral Agent, in its
individual capacity. AmeriCredit and any director, officer, employee or agent
of AmeriCredit may rely in good faith on the written advice of counsel selected
by it with due care or on any document of any kind prima facie properly
executed and submitted by any Person respecting any matters arising under this
Agreement.
Section 3.4. DELEGATION OF DUTIES. The Servicer may delegate
duties under this Agreement to an Affiliate of AmeriCredit with the prior
written consent of the Note Insurer. The Servicer also may at any time perform
through sub-contractors the specific duties of (i) repossession of Financed
Vehicles, (ii) tracking Financed Vehicles' insurance and (iii) pursuing the
collection of deficiency balances on certain Defaulted Receivables, in each
case, without the consent of the Note Insurer and may perform other specific
duties through such sub-contractors in accordance with Servicer's customary
servicing policies and procedures, with the prior consent of the Note Insurer;
PROVIDED, HOWEVER, that no such delegation or sub-contracting duties by the
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Servicer shall relieve the Servicer of its responsibility with respect to such
duties. Neither AmeriCredit or any party acting as Servicer hereunder shall
appoint any subservicer hereunder without the prior written consent of the Note
Insurer.
Section 3.5. SERVICER NOT TO RESIGN. Subject to the
provisions of Section 3.2, the Servicer shall not resign from the obligations
and duties imposed on it by this Agreement as Servicer except upon a
determination that by reason of a change in legal requirements the performance
of its duties under this Agreement would cause it to be in violation of such
legal requirements in a manner which would have a material adverse effect on
the Servicer and the Note Insurer does not elect to waive the obligations of
the Servicer to perform the duties which render it legally unable to act or to
delegate those duties to another Person. Any such determination permitting the
resignation of the Servicer shall be evidenced by an Opinion of Counsel to such
effect delivered and acceptable to the Note Insurer. No resignation of the
Servicer shall become effective until a successor Servicer that is an eligible
servicer as approved by the Note Insurer, shall have assumed the
responsibilities and obligations of the Servicer.
Section 3.6. ADMINISTRATIVE DUTIES OF SERVICER. (a) DUTIES
WITH RESPECT TO THE TRANSACTION DOCUMENTS. The Servicer shall perform the
duties of the Debtor under the Transaction Documents. In furtherance of the
foregoing, the Servicer shall consult with the Trustee as the Servicer deems
appropriate regarding the duties of the Debtor under the Transaction Documents.
The Servicer shall monitor the performance of the Debtor and shall advise the
Trustee when action is necessary to comply with the Debtor's duties under the
Transaction Documents. The Servicer shall prepare for execution by the 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 Debtor or the Trustee to prepare, file or deliver pursuant
to the Transaction Documents.
(b) DUTIES WITH RESPECT TO THE DEBTOR.
(i) In addition to the duties of the Servicer set forth in
this Agreement or any of the Transaction Documents, the Servicer shall perform
such calculations and shall prepare, or shall cause the preparation, for
execution by the Trustee or other appropriate Persons of all such documents,
reports, filings, instruments, certificates and opinions as it shall be the
duty of the Debtor to prepare, file or deliver pursuant to state and federal
tax and securities laws. The Servicer shall administer, perform or supervise
the performance of such other activities in connection with the Debtor as are
not covered by any of the foregoing provisions and as are expressly requested
by the Trustee and are reasonably within the capability of the Servicer.
(ii) Notwithstanding anything in this Agreement or any of the
Transaction Documents to the contrary, the Servicer shall be responsible for
promptly notifying the Trustee in the event that any withholding tax is imposed
on the Debtor's payments (or allocations of income) to a Certificateholder. Any
such notice shall be in writing and specify the amount of any withholding tax
required to be withheld by the Trustee pursuant to such provision.
(c) RECORDS. The Servicer shall maintain appropriate books of
account and records relating to services performed under this Agreement and as
required by the Transaction
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Documents, which books of account and records shall be accessible for
inspection by the Trustee and the Note Insurer at any time during normal
business hours.
(d) ADDITIONAL INFORMATION TO BE FURNISHED TO THE TRUSTEE AND
THE NOTE INSURER. The Servicer shall furnish to the Trustee from time to time
such additional information regarding the Debtor or the Transaction Documents
as the Trustee and the Note Insurer shall reasonably request.
ARTICLE IV
SERVICER TERMINATION
Section 4.1. SERVICER TERMINATION EVENT. For purposes of this
Agreement, each of the following shall constitute a "Servicer Termination
Event":
(a) Any failure by the Servicer to deliver to the Collateral
Agent for distribution to Secured Parties payment required to be so delivered
under the terms of the Transaction Documents;
(b) Failure on the part of the Servicer duly to observe or
perform in any material respect any covenant or agreement set forth in this
Agreement or any other Transaction Document to which it is a party, which
failure continues unremedied for a period of 10 days;
(c) Any representation, warranty, certification or statement
made by the Servicer (including AmeriCredit, if it is the Servicer) or the
Trust, any Seller or any Affiliate of the Trust or any Seller (in the event
that the Trust, any Seller or such Affiliate is then acting as the Servicer) in
this Agreement, the Receivables Purchase Agreement or in any of the other
Transaction Documents or in any certificate or report delivered by it pursuant
to any of the foregoing shall prove to have been incorrect in any material
respect when made or deemed made;
(d) The Servicer shall materially modify the Credit and
Collection Policy, unless it has given the Note Insurer prompt notification of
such modification and the Note Insurer has determined in its reasonable
discretion that such modification is not a material adverse change;
(e) The occurrence of a Termination and Amortization Event
listed in Section 6.1 of the Security Agreement;
(f) Any Event of Bankruptcy shall occur with respect to the
Servicer or any of its Subsidiaries or Affiliates;
(g) There shall have occurred a Material Adverse Effect with
respect to the Servicer since the end of the last fiscal year ending prior to
the date of its appointment as Servicer hereunder or any other event shall have
occurred which, in the commercially reasonable judgment of the Note Insurer,
materially and adversely affects the Servicer's ability to either collect the
Receivables or to perform under this Agreement; and
(h) Failure of the Servicer or any Subsidiary of the Servicer
to pay when due
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any amounts due under any agreement to which any such Person is a party and
under which any Indebtedness greater than $5,000,000, in the case of
AmeriCredit or any Subsidiary of AmeriCredit (other than the Debtor), is
governed; or the default by the Servicer or any Subsidiary of the Servicer in
the performance of any term, provision or condition contained in any agreement
to which any such Person is a party and under which any Indebtedness owing by
the Servicer or any Subsidiary of the Servicer greater than such respective
amounts was created or is governed, regardless of whether such event is an
"event of default" or "default" under any such agreement; or any Indebtedness
owing by the Servicer or any Subsidiary of the Servicer greater than such
respective amounts shall be declared to be due and payable or required to be
prepaid (other than by a regularly scheduled payment) prior to the date of
maturity thereof.
Section 4.2. CONSEQUENCES OF A SERVICER TERMINATION EVENT. If
a Servicer Termination Event shall occur and be continuing, the Collateral
Agent, with the consent of the Note Insurer, by notice given in writing to the
Servicer may, or at the direction of the Note Insurer shall, 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 Receivables or
the Other Conveyed Property (as defined in the Master Receivables Purchase
Agreement) or otherwise, automatically shall pass to, be vested in and become
obligations and responsibilities of a successor Servicer acceptable to the Note
Insurer); PROVIDED, HOWEVER, that the successor Servicer shall have no
liability with respect to any obligation which was required to be performed by
the terminated Servicer prior to the date that the successor Servicer becomes
the Servicer or any claim of a third party based on any alleged action or
inaction of the terminated Servicer. The successor Servicer is authorized and
empowered by this Agreement to execute and deliver, on behalf of the terminated
Servicer, as attorney-in-fact or otherwise, any and all documents and other
instruments and to do or accomplish all other acts or things necessary or
appropriate to effect the purposes of such notice of termination, whether to
complete the transfer and endorsement of the Receivables and the Other Conveyed
Property and related documents to show the Trust as lienholder or secured party
on the related Lien Certificates, or otherwise. The terminated Servicer agrees
to cooperate with the successor Servicer in effecting the termination of the
responsibilities and rights of the terminated Servicer under this Agreement,
including, without limitation, the transfer to the successor Servicer for
administration by it of all cash amounts that shall at the time be held by the
terminated Servicer for deposit, or have been deposited by the terminated
Servicer, in the Collection Account or thereafter received with respect to the
Receivables and the delivery to the successor Servicer of all Receivable Files,
Monthly Records and Collection Records and a computer tape in readable form as
of the most recent Business Day containing all information necessary to enable
the successor Servicer or a successor Servicer to service the Receivables and
the Other Conveyed Property. If requested by the Note Insurer, the successor
Servicer shall terminate the Lock-Box 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 2.2(d)), or to a Lock-Box Account established by the successor Servicer
at the direction of the Note Insurer, at the successor Servicer's expense. The
terminated Servicer shall grant the Collateral Agent, the successor Servicer
and the Note Insurer reasonable access to the terminated Servicer's premises at
the terminated Servicer's expense.
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Section 4.3. APPOINTMENT OF SUCCESSOR.
(a) On and after the time the Servicer receives a notice of
termination pursuant to Section 4.2, or upon the resignation of the Servicer,
the Collateral Agent shall appoint an alternate successor Servicer upon written
direction from the Note Insurer, provided that any successor Servicer may not
be an Affiliate (as defined in the Security Agreement) of the Note Insurer, who
shall be subject to all the rights, responsibilities, restrictions, duties,
liabilities and termination provisions relating thereto placed on the Servicer
by the terms and provisions of this Agreement except as otherwise stated
herein. The Collateral Agent and such successor shall take such action,
consistent with this Agreement, as shall be necessary to effectuate any such
succession. If a successor Servicer is acting as Servicer hereunder, it shall
be subject to termination under Section 4.2 upon the occurrence of any Servicer
Termination Event applicable to it as Servicer.
(b) Any successor Servicer shall be entitled to such
compensation (whether payable out of the Collection Account or otherwise) as
the Servicer would have been entitled to under this Agreement if the Servicer
had not resigned or been terminated hereunder. The Collateral Agent and such
successor Servicer may agree on additional reasonable compensation to be paid
to such successor Servicer. In addition, any successor Servicer shall be
entitled to reasonable transition expenses incurred in acting as successor
Servicer.
Section 4.4. NOTIFICATION TO SECURED PARTIES. Upon any
termination of, or appointment of a successor to, the Servicer, the Collateral
Agent shall give prompt written notice thereof to each Secured Party.
Section 4.5. WAIVER OF PAST DEFAULTS. The Agent may, on
behalf of all Secured Parties, waive any default by the Servicer in the
performance of its obligations hereunder and its consequences. Upon any such
waiver of a past default, such default shall cease to exist, and any Servicer
Termination Event arising therefrom shall be deemed to have been remedied for
every purpose of this Agreement. No such waiver shall extend to any subsequent
or other default or impair any right consequent thereto.
ARTICLE V
THE CUSTODIAN
Section 5.1. APPOINTMENT OF CUSTODIAN; ACKNOWLEDGMENT OF
RECEIPT; MONTHLY EXCEPTION REPORTS. Subject to the terms and conditions hereof,
the Collateral Agent hereby revocably appoints the Custodian and the Custodian
hereby accepts such appointment, as custodian and bailee on behalf of the
Collateral Agent (for the benefit of the Secured Parties) to maintain exclusive
custody of the Receivable Files relating to the Receivables from time to time
held as part of the Collateral; PROVIDED, HOWEVER, that neither the Collateral
Agent nor any Secured Party shall be responsible for the acts or omissions of
the Custodian. In performing its duties hereunder, the Custodian agrees to act
with that degree of care, skill and attention that a commercial bank acting in
the capacity of a custodian would exercise with respect to files relating to
comparable automotive or other receivables that it services or holds for itself
or others, and, in any event, to exercise at least that degree of care, skill
and attention that it
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exercises with respect to its own assets. The Custodian, as of each Receivables
Transfer Date with respect to the Receivables sold on such date, hereby
acknowledges receipt of the Receivable File for each Receivable listed in the
Schedules of Receivables attached to the related Supplement, subject to any
exceptions noted on the applicable Custodian's Acknowledgment. As evidence of
its acknowledgement of such receipt of such Records, the Custodian shall
execute and deliver to the Collateral Agent and the Note Insurer on each
Receivables Transfer Date with respect to the Receivables sold on such date,
the Custodian's Acknowledgement in the form attached hereto as Schedule A. In
addition, the Custodian shall deliver to the Collateral Agent and the Note
Insurer a monthly exception report in the form attached as Exhibit B hereto.
AmeriCredit shall be required to repurchase the Receivables listed on the
monthly exception report pursuant to Section 2.7 hereof, in the event that the
related Lien Certificates are indicated as not having been received by the
181st day following the date of origination of the related Receivables.
Section 5.2. MAINTENANCE OF RECORDS AT OFFICE. The Custodian
agrees to maintain the Receivable Files at 4001 Embarcadero Drive, Arlington,
Texas 76014 or at such other office as shall from time to time be identified to
the Collateral Agent and the Note Insurer, and the Custodian will hold the
Receivable Files in such office on behalf of the Collateral Agent (for the
benefit of the Secured Parties), clearly identified on its records as being
separate from any other instruments and files, including other instruments and
files held by the Custodian, and in compliance with Section 5.3(b) hereof.
Section 5.3. DUTIES OF CUSTODIAN.
(a) SAFEKEEPING. (i) The Custodian shall hold the Receivable
Files on behalf of the Collateral Agent (for the benefit of the Secured
Parties) clearly identified as being separate from all other files or records
maintained by the Custodian, whether at the same or any other location, and
shall maintain such accurate and complete accounts, records or computer systems
pertaining to each Receivable File as are required to comply with the terms and
conditions of the Note Purchase Agreement. Each Contract shall be stamped on
both of the first page and the signature page (if different) in accordance with
the requirements of any Opinion of Counsel or as otherwise is deemed necessary
or desirable by the Collateral Agent and the Note Insurer. Each Receivable
shall be identified on the books and records of the Custodian in an manner that
(x) is consistent with the practices of a commercial bank acting in the
capacity of custodian with respect to similar receivables, (y) indicates that
the Receivables are held by the Custodian on behalf of the Collateral Agent and
(z) is otherwise necessary, as reasonably determined by the Custodian, to
comply with the terms of this Agreement. The Custodian shall conduct, or cause
to be conducted, periodic physical inspections of the Receivable Files held by
it under this Agreement, and of the related accounts, records and computer
systems, in such a manner as shall enable the Collateral Agent, the Note
Insurer and the Custodian to verify the accuracy of the Custodian's inventory
and recordkeeping. Such inspections shall be conducted at such times, in such
manner and by such persons, including, without limitation, independent
accountants, as the Collateral Agent and the Note Insurer may request and the
cost of such inspections shall be borne by the Custodian. The Custodian shall
promptly report to the Collateral Agent and the Note Insurer any failure on the
Custodian's part to hold the Receivable Files and maintain its accounts,
records and computer systems as herein provided and the Custodian shall
promptly take appropriate action to remedy any such failure.
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(ii) Notwithstanding the above paragraph (i), upon a Servicer
Termination Event, at the direction of the Note Insurer, the Custodian shall
deliver the Receivable Files within 30 days of such notice to the Collateral
Agent and the Collateral Agent shall hold such Receivable Files on behalf of
the Secured Parties. Subject to Section 5.3(c) hereof and the preceding
sentence, the Custodian shall at all times maintain the original of the fully
executed original retail installment sales contract or promissory note and of
the Lien Certificate or application therefore, if no such Lien Certificate has
yet been issued, relating to each Receivable in a fire resistant vault.
(b) ACCESS TO RECORDS. The Custodian shall, subject only to
the Custodian's security requirements applicable to its own employees having
access to similar records held by the Custodian, which requirements shall be
consistent with the practices of a commercial bank acting in the capacity of
custodian with respect to similar files or records, and at such times as may be
reasonably imposed by the Custodian, permit only the Secured Parties and the
Collateral Agent or their duly authorized representatives, attorneys or
auditors to inspect the Receivable Files and the related accounts, records, and
computer systems maintained by the Custodian pursuant hereto at such times as
any of the Secured Parties or the Collateral Agent may reasonably request.
(c) RELEASE OF DOCUMENTS. The Custodian shall release such
Receivable Files to the Servicer only (1) upon payment in full of such
Receivable or (2) as required from time to time as appropriate for servicing
and enforcing any Receivable but, in the case of clause (1) or (2), only as is
consistent with the terms of the Note Purchase Agreement and the Security
Agreement.
(d) ADMINISTRATION; REPORTS. The Custodian shall, in general,
attend to all ministerial matters in connection with maintaining custody of the
Receivable Files on behalf of the Collateral Agent. In addition, the Custodian
shall assist the Collateral Agent or the Servicer, as the case may be, in the
preparation of any routine reports to Secured Parties or to regulatory bodies,
to the extent necessitated by the Custodian's custody of the Receivable Files.
Section 5.4. INSTRUCTIONS; AUTHORITY TO ACT. The Custodian
shall be deemed to have received proper instructions with respect to the
Receivable Files upon its receipt of written instructions signed by a
Responsible Officer of the Collateral Agent. Such instructions may be general
or specific in terms.
Section 5.5. CUSTODIAN FEE. For its services under this
Agreement, the Custodian shall be entitled to reasonable compensation to be
paid by the Servicer.
Section 5.6. INDEMNIFICATION BY THE CUSTODIAN. The Custodian
agrees to indemnify the Secured Parties, the Trust, the Note Insurer, the
Trustee and the Collateral Agent for any and all liabilities, obligations,
losses, damage, payments, costs or expenses of any kind whatsoever (including
the fees and expenses of counsel) that may be imposed on, incurred or asserted
against any of the Secured Parties, the Trust, the Note Insurer and/or the
Collateral Agent as the result of any act or omission in any way relating to
the maintenance and custody by the Custodian of the Receivable Files or any
default by the Custodian of its obligations hereunder; PROVIDED, HOWEVER, that
the Custodian shall not be liable to any party indemnified
25
hereunder for any portion of any such liabilities, obligations, losses,
damages, payments or costs or expenses as are due to the willful misfeasance,
bad faith or gross negligence of such indemnified party.
Section 5.7. ADVICE OF COUNSEL. The Custodian shall be
entitled to rely and act upon advice of counsel selected by it with due care
with respect to its performance hereunder as custodian and shall be without
liability for any action reasonably taken in good faith pursuant to such advice,
provided that such action is not in violation of applicable federal or state
law.
Section 5.8. EFFECTIVE PERIOD, TERMINATION, AND AMENDMENT;
INTERPRETIVE AND ADDITIONAL PROVISIONS. This Agreement shall become effective as
of the date hereof and shall continue in full force and effect until terminated
as hereinafter provided. This Agreement may be amended at any time by agreement
of the Collateral Agent, the Note Insurer and the Custodian and the rights and
obligations of the Servicer and the Custodian may be terminated by the Note
Insurer following a Termination and Amortization Event; PROVIDED so long as
AmeriCredit is Custodian, the Custodian shall not resign from the obligations
and duties imposed on it by this Agreement, except upon a determination that by
reason of a change in legal requirements, the performance of its duties under
this Agreement would cause it to be in violation of such legal requirements in a
manner which would have a material adverse effect on it and the Note Insurer
does not elect to waive the obligations of the Custodian to perform the duties
which render it legally unable to act or to delegate those duties to another
Person; PROVIDED, FURTHER, that any such determination permitting the
resignation of the Custodian shall be evidenced by an Opinion of Counsel to such
effect delivered to the Note Insurer and the Collateral Agent that is acceptable
to the Note Insurer. So long as AmeriCredit is serving as Custodian, any
termination of AmeriCredit as Servicer under the Note Purchase Agreement or the
Security Agreement shall terminate AmeriCredit as Custodian under this
Agreement. Immediately after receipt of notice of termination of this Agreement,
the Custodian shall deliver the Receivable Files to the Collateral Agent on
behalf of the Secured Parties, at such place or places as the Collateral Agent
may designate, and the Collateral Agent, or its agent, as the case may be, shall
act as custodian for such Records on behalf of the Secured Parties until such
times as a successor custodian acceptable to the Note Insurer has been appointed
by the Collateral Agent. (For the avoidance of doubt, during any such period,
the Collateral Agent shall be acting in its capacity as Collateral Agent,
including the standard of care and liability in such capacity, and not as a
successor "CUSTODIAN" hereunder.) If, within 30 days after the termination of
this Agreement, the Custodian has not delivered the Receivable Files in
accordance with the preceding sentence, the Collateral Agent may enter the
premises of the Custodian and remove the Receivable Files from such premises. In
connection with the administration of this Agreement, the parties may agree from
time to time upon the interpretation of the provisions of this Agreement as may
in their joint opinion be consistent with the general tenor and purposes of this
Agreement, any such interpretation to be signed by all parties and annexed
hereto.
Section 5.9. REPRESENTATIONS, WARRANTIES AND COVENANTS OF
CUSTODIAN.
(a) The Custodian hereby represents and warrants to, and
covenants with, the Collateral Agent and the Secured Parties that as of the date
hereof and as of each Receivables Transfer Date:
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(i) The Custodian is duly organized, validly existing and in
good standing under the laws of the state of its incorporation;
(ii) The Custodian has the full power and authority to hold
each Receivable File on behalf of the Collateral Agent, and to execute,
deliver and perform, and to enter into and consummate all transactions
contemplated by this Agreement, has duly authorized the execution,
delivery and performance of this Agreement, has duly executed and
delivered this Agreement, and this Agreement constitutes a legal, valid
and binding obligation of the Custodian, enforceable against it in
accordance with its terms, except as enforcement of such terms may be
limited by bankruptcy, insolvency or similar laws affecting the
enforcement of creditors' rights generally and by the availability of
equitable remedies;
(iii) The consummation of the transactions contemplated by
this Agreement and the Transaction Documents to which the Custodian is
a Party, and the fulfillment of the terms of this Agreement and the
Transaction Documents to which the Custodian is a Party, shall not
conflict with, result in any breach of any of the terms and provisions
of, or constitute (with or without notice or lapse of time) a default
under, the articles of incorporation or bylaws of the Custodian, or any
indenture, agreement, mortgage, deed of trust or other instrument to
which the Custodian is a party or by which it is bound, or result in
the creation or imposition of any Lien upon any of its properties
pursuant to the terms of any such indenture, agreement, mortgage, deed
of trust or other instrument, other than this Agreement, or violate any
law, order, rule or regulation applicable to the Custodian of any court
or of any federal or state regulatory body, administrative agency or
other governmental instrumentality having jurisdiction over the
Custodian or any of its properties and do not require any action by or
require the consent of or the filing of any notice with any Official
Body or other Person;
(iv) There is no litigation pending or, to the Custodian's
knowledge, threatened, which if determined adversely to the Custodian,
would adversely affect the execution, delivery or enforceability of
this Agreement, or any of the duties or obligations of the Custodian
thereunder, or which would have a material adverse effect on the
financial condition of the Custodian;
(v) No consent, approval, authorization or order of any
court or governmental agency or body is required for the execution,
delivery and performance by the Custodian of or compliance by the
Custodian with this Agreement or the consummation of the transactions
contemplated hereby or thereby;
(vi) Upon written request of the Collateral Agent or the Note
Insurer, the Custodian shall take such steps as requested by the
Collateral Agent or the Note Insurer to protect or maintain any
interest in any Receivable; and
(vii) The Custodian has not been notified by any party that
any third party claims an interest in the Receivables or is requesting
the Custodian to act as a bailee with respect to the Records, except
such interests that are created under the Master Receivables Purchase
Agreement, the Security Agreement, the Note Purchase Agreement
27
and any Supplement.
(b) The Custodian covenants and warrants to the Collateral
Agent and each of the Secured Parties that as of the date of each Custodian's
Acknowledgment: (i) it holds no adverse interest, by way of security or
otherwise, in any Receivable or Receivable File; and (ii) the execution of this
Agreement and the creation of the custodial relationship hereunder does not
create any interest, by way of security or otherwise, of the Custodian in or to
any Receivable or Receivable File, other than the Custodian's rights as
custodian hereunder.
(c) The Custodian shall, at its own expense, maintain at all
times during the existence of this Agreement and keep in full force and effect,
a fidelity bond and errors and omissions policy of a type and in such amount as
is customary for custodians engaged in the business of acting as custodian of
automobile receivables and shall maintain any other similar insurance policies
that are customarily maintained by custodians engaged in the business of acting
as custodian of automobile receivables. A certificate of the respective insurer
as to each such policy or a blanket policy for such coverage shall be furnished
to the Collateral Agent and the Note Insurer containing the insurer's statement
or endorsement that such insurance shall not terminate prior to receipt by such
party, by certified mail, of 10 days advance notice thereof.
ARTICLE VI
MISCELLANEOUS
Section 6.1. GOVERNING LAW. This Agreement shall be governed
by and construed in accordance with the laws of the State of New York without
giving effect to the conflict of law provisions thereof.
Section 6.2. NOTICES. All demands, notices and communications
hereunder shall be in writing (including bank wire, telex, telecopy or
electronic facsimile transmission or similar writing) and shall be given to the
other party at its address or telecopy number set forth below or at such other
address or telecopy number as such party may hereafter specify for the purposes
of notice to such party. Each such notice or other communication shall be
effective (i) if given by telecopy, when such telecopy is transmitted to the
telecopy number specified in this Section and confirmation is received, (ii) if
given by mail three (3) Business Days following such posting, if postage
prepaid, or if sent via U.S. certified or registered mail, (iii) if given by
overnight courier, one (1) Business Day after deposit thereof with a national
overnight courier service, or (iv) if given by any other means, when received at
the address specified in this Section.
If to the Trust:
AmeriCredit MTN Receivables Trust
c/o Bankers Trust (Delaware)
E.A. Delle Donne Corporate Center
Montgomery Building
1011 Centre Road, Suite 200
Wilmington, Delaware 19805
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Attention: Corporate Trust Administration
Telephone: (302) 636-3305
Telecopy: (302) 636-3222
with a copy to:
Bankers Trust Company
4 Albany Street
New York, New York 10006
Attention: Asset Backed Finance Unit
If to the Servicer or the Custodian:
AmeriCredit Financial Services, Inc.
801 Cherry Street
Suite 3900
Fort Worth, Texas 76102
Telephone: (817) 302-7022
Telecopy: (817) 302-7942
If to the Note Insurer:
MBIA Insurance Corporation
113 King Street
Armonk, NY 10504
Telephone: (914) 273-4545
Telecopy: (914) 765-3810
If to the Collateral Agent:
The Chase Manhattan Bank
450 W. 33rd Street
New York, NY 10001
Attention: AmeriCredit MTN Receivables Trust
Telephone: (212) 946-3651
Telecopy: (212) 946 8302
Section 6.3. BINDING EFFECT. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
successors and assigns. In addition, each of the Secured Parties shall be an
express third party beneficiary hereof entitled to enforce the terms hereof as
if it were a party hereto. Concurrently with the appointment of a successor
Collateral Agent under the Security Agreement, the parties hereto shall amend
this Agreement to make said Collateral Agent, the successor to the Collateral
Agent hereunder.
Section 6.4. 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
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such prohibition or unenforceability in any jurisdiction shall not invalidate
or render unenforceable such provision in any other jurisdiction.
Section 6.5. 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 6.6. LIMITATION OF LIABILITY OF TRUSTEE. It is
expressly understood and agreed by the parties hereto that (a) this Agreement is
executed and delivered by Bankers Trust (Delaware), not individually or
personally but solely as Trustee of the Trust, in the exercise of the powers and
authority conferred and vested in it, (b) each of the representations,
undertakings and agreements herein made on the part of the Trust is made and
intended not as personal representations, undertakings and agreements by Bankers
Trust (Delaware) but is made and intended for the purpose for binding only the
Trust, (c) nothing herein contained shall be construed as creating any liability
on Bankers Trust (Delaware), individually or personally, to perform any covenant
either expressed or implied contained herein, all such liability, if any, being
expressly waived by the parties hereto and by any Person claiming by, through or
under the parties hereto and (d) under no circumstances shall Bankers Trust
(Delaware) be personally liable for the payment of any indebtedness or expenses
of the Trust or be liable for the breach or failure of any obligation,
representation, warranty or covenant made or undertaken by the Trust under this
Agreement or any other Transaction Documents; provided, however, that no
provision of this Agreement shall be construed to relieve the Trustee from
liability for its own negligent action, its own negligent failure to act, its
action in bad faith or its own willful misconduct.
Section 6.7. WAIVERS; AMENDMENT
(a) No failure or delay on the part of the Collateral Agent,
the Note Insurer, the Note Insurer or any of the Secured Parties in exercising
any power, right or remedy under this Agreement shall operate as a waiver
thereof, nor shall any single or partial exercise of any such power, right or
remedy preclude any other further exercise thereof or the exercise of any other
power, right or remedy. The rights and remedies herein provided shall be
cumulative and nonexclusive of any rights or remedies provided by law.
(b) Any provision of this Agreement or any of the Transaction
Documents may be amended or waived if, but only if, such amendment is in writing
and is signed by the Debtor, the Collateral Agent, the Custodian, the Servicer
and the Purchaser and the Note Insurer.
Section 6.8. NONPETITION COVENANTS. None of the parties shall
petition or otherwise invoke the process of any court or government authority
for the purpose of commencing or sustaining a case against the Debtor, AMTN or
Purchaser 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 Debtor, AMTN or the Purchaser (as defined in the
Note Purchase Agreement) or any substantial part of their respective property,
or ordering the winding up or liquidation of the affairs of the Debtor, AMTN and
the Purchaser. This Section 6.8 shall be continuing and shall survive any
termination of this Agreement.
Notwithstanding anything else herein to the contrary, in no
event shall the
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Collateral Agent be liable for any servicing fee or for any differential in
the amount of the servicing fee paid hereunder and the amount necessary to
induce any successor Servicer to act as successor Servicer under this
Agreement and the transactions set forth or provided for herein.
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed in its name and on its behalf by a duly authorized
officer on the day and year first above written.
THE CHASE MANHATTAN BANK
solely in its capacity as Collateral Agent
By:
----------------------------------------
Name:
Title:
AMERICREDIT FINANCIAL SERVICES, INC.,
as Servicer and Custodian
By:
----------------------------------------
Name:
Title:
AMERICREDIT MTN RECEIVABLES TRUST
By: BANKERS TRUST (DELAWARE),
not in its individual capacity but
solely as Trustee
By:
----------------------------------------
Name:
Title:
[Servicing and Custodian Agreement]
32
SCHEDULE A
FORM OF CUSTODIAN'S ACKNOWLEDGMENT
AmeriCredit Financial Services, Inc. (the "CUSTODIAN"), acting
as Custodian under a Servicing and Custodian Agreement, dated as of December 18,
2000 (the "Servicing and Custodian Agreement"), between the Custodian,
AmeriCredit MTN Receivables Trust, as Debtor, and The Chase Manhattan Bank, as
Collateral Agent, pursuant to which the Custodian holds on behalf of the Secured
Parties certain Receivable Files (as defined in the Servicing and Custodian
Agreement), hereby acknowledges receipt of the Receivable File for each
Receivable listed in the Schedules of Receivables attached as Exhibits to the
Supplements to the Receivables Purchase Agreement, dated [INSERT DATE OF THE
RELEVANT SUPPLEMENT], except as noted in the Exception List attached as Schedule
I hereto.
IN WITNESS WHEREOF, AmeriCredit Financial Services, Inc., has
caused this acknowledgment to be executed by its duly authorized officer as of
this [____] day of [___________], [_____].
AMERICREDIT FINANCIAL SERVICES, INC.
as Custodian
By:
----------------------------------------
Name:
Title:
i