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SECURITY AGREEMENT
among
AMERICREDIT MTN RECEIVABLES TRUST,
as the Debtor
AMERICREDIT FINANCIAL SERVICES, INC.,
Individually and as the Servicer
AMERICREDIT MTN CORP.,
Individually
and
THE CHASE MANHATTAN BANK
as the Collateral Agent and as the Securities Intermediary
Dated as of
December 18, 2000
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TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS; THE NOTE................................................................................1
SECTION 1.1. Certain Defined Terms.......................................................................1
SECTION 1.2. Other Terms................................................................................30
SECTION 1.3. Computation of Time Periods................................................................30
SECTION 1.4. Form of Notes..............................................................................30
SECTION 1.5. Execution, Authentication and Delivery.....................................................30
SECTION 1.6. Registration; Registration of Transfer and Exchange........................................31
SECTION 1.7. Mutilated, Destroyed, Lost or Stolen Notes.................................................32
SECTION 1.8. Persons Deemed Owner.......................................................................33
SECTION 1.9. Cancellation...............................................................................33
SECTION 1.10. Maintenance of Office or Agency............................................................33
ARTICLE II GRANT OF SECURITY INTEREST AND SETTLEMENTS.........................................................34
SECTION 2.1. Grant of Security Interest.................................................................34
SECTION 2.2. Note Interest, Premium Amounts, Fees and Other Costs and Expenses..........................34
SECTION 2.3. Monthly Flow of Funds......................................................................35
SECTION 2.4. Prepayments. On each Payment Date the Collateral Agent shall apply an amount on
deposit in the Collection Account, to the extent of the Prepayment Amount, as
directed by the Servicer as follows:.......................................................37
SECTION 2.5. Liquidation Settlement Procedures..........................................................37
SECTION 2.6. Protection of Interest of the Collateral Agent.............................................37
SECTION 2.7. Deemed Collections; Application of Payments................................................39
SECTION 2.8. Payments and Computations, Etc.............................................................39
SECTION 2.9. Reports....................................................................................40
SECTION 2.10. Collection Account.........................................................................40
SECTION 2.11. Funding Account............................................................................41
SECTION 2.12. Yield Supplement Account; Withdrawals; Releases............................................43
SECTION 2.13. [Intentionally Omitted]....................................................................45
SECTION 2.14. [Intentionally Omitted]....................................................................45
SECTION 2.15. Reserve Account; Withdrawals; Releases.....................................................45
SECTION 2.16. Optional Release...........................................................................46
SECTION 2.17. Delivery of Collateral. With respect to the Collateral, the Debtor and the
Collateral Agent hereby agree that:........................................................47
ARTICLE III REPRESENTATIONS AND WARRANTIES....................................................................48
SECTION 3.1. Representations and Warranties of the Debtor, AmeriCredit and AMTN.........................48
SECTION 3.2. Representations and Warranties of the Servicer.............................................51
ARTICLE IV CONDITIONS PRECEDENT...............................................................................53
SECTION 4.1. Conditions to Closing......................................................................53
ARTICLE V COVENANTS ..........................................................................................56
SECTION 5.1. Affirmative Covenants of the Debtor and AmeriCredit........................................56
SECTION 5.2. Negative Covenants of Debtor, AMTN and AmeriCredit.........................................60
SECTION 5.3. Hedging Arrangements.......................................................................63
SECTION 5.4. Affirmative Covenants of the Servicer......................................................64
SECTION 5.5. Negative Covenants of the Servicer.........................................................65
ARTICLE VI TERMINATION AND AMORTIZATION EVENTS; OPTIONAL TERMINATION..........................................66
SECTION 6.1. Termination and Amortization Events........................................................66
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SECTION 6.2. Termination................................................................................70
SECTION 6.3. Optional Redemption of Note................................................................70
SECTION 6.4. Optional Purchase of All Receivables.......................................................70
SECTION 6.5. Proceeds...................................................................................71
ARTICLE VII THE COLLATERAL AGENT..............................................................................71
SECTION 7.1. Duties of the Collateral Agent.............................................................71
SECTION 7.2. Compensation and Indemnification of Collateral Agent.......................................72
SECTION 7.3. [Intentionally Omitted]....................................................................72
SECTION 7.4. Liability of the Collateral Agent..........................................................72
SECTION 7.5. [Intentionally Omitted]....................................................................75
SECTION 7.6. Limitation on Liability of the Collateral Agent and Others.................................75
ARTICLE VIII THE SECURITIES INTERMEDIARY......................................................................75
SECTION 8.1. Duties of the Securities Intermediary......................................................75
SECTION 8.2. Representations, Warranties and Covenants of the Securities Intermediary...................75
SECTION 8.3. Governing Law for Certain Securities Intermediary Matters..................................76
ARTICLE IX MISCELLANEOUS......................................................................................77
SECTION 9.1. Term of Agreement..........................................................................77
SECTION 9.2. Waivers; Amendments........................................................................77
SECTION 9.3. Notices....................................................................................77
SECTION 9.4. Governing Law; Submission to Jurisdiction; Waiver of Jury Trial; Integration;
Appointment of Agent for Service of Process................................................80
SECTION 9.5. Counterparts; Severability.................................................................80
SECTION 9.6. Successors and Assigns.....................................................................81
SECTION 9.7. Waiver of Confidentiality..................................................................81
SECTION 9.8. Confidentiality Agreement..................................................................81
SECTION 9.9. No Bankruptcy Petition Against the Purchaser, AMTN, or the Debtor..........................81
SECTION 9.10. Further Assurances.........................................................................81
SECTION 9.11. Characterization of the Transactions Contemplated by the Agreement; Tax Treatment..........82
SECTION 9.12. Responsibilities of the Debtor.............................................................82
SECTION 9.13. Headings...................................................................................82
SECTION 9.14. Limitation on Liability....................................................................82
SECTION 9.15. Binding Effect.............................................................................83
SECTION 9.16. Effect of Note Insurer Default.............................................................83
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EXHIBITS
EXHIBIT A List of Lock-Box Banks and Lock-Box Accounts
EXHIBIT B Form of Lock-Box Agreement
EXHIBIT C Form of Note
EXHIBIT D Form of Investor Representation Letter
EXHIBIT E List of Actions and Suits
EXHIBIT F Schedule of Locations of Records
EXHIBIT G List of Subsidiaries, Divisions and Tradenames
EXHIBIT H Intentionally Omitted
EXHIBIT I Form of Secretary's Certificate
EXHIBIT J [Intentionally Omitted]
EXHIBIT K Form of Take-Out Notice
EXHIBIT L Form of Delivery Notice
EXHIBIT M Cumulative Net Loss Ratio Table
EXHIBIT N Delinquency Ratio Table
EXHIBIT O Default Ratio Table
EXHIBIT P Collateral Agent's Fee Schedule
EXHIBIT Q Trustee's Fee Schedule
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SECURITY AGREEMENT
SECURITY AGREEMENT (as amended, supplemented or otherwise
modified from time to time, this "AGREEMENT"), dated as of December 18, 2000, by
and among AMERICREDIT MTN RECEIVABLES TRUST, a Delaware business trust, as
debtor (in such capacity, the "DEBTOR"), AMERICREDIT FINANCIAL SERVICES, INC., a
Delaware corporation ("AMERICREDIT"), individually and in its capacity as
Servicer (in such capacity, the "SERVICER"), AMERICREDIT MTN CORP., a Delaware
limited liability company ("AMTN"), individually, and THE CHASE MANHATTAN BANK,
a New York banking corporation ("The Chase Manhattan Bank"), individually and as
collateral agent for the Secured Parties (in such capacity, the "COLLATERAL
AGENT") and as securities intermediary (in such capacity, the "SECURITIES
INTERMEDIARY").
PRELIMINARY STATEMENTS
WHEREAS, subject to the terms and conditions of this
Agreement, the Debtor desires to grant a security interest in and to the
Receivables and related property including the Debtor's interest in certain
retail automotive installment sales contracts and loans or promissory notes
secured by automobiles;
WHEREAS, pursuant to the Note Purchase Agreement, the Debtor
has issued the Note to the Purchaser and will be obligated to the holder of the
Note to pay the principal of and interest on the Note in accordance with the
terms thereof;
MBIA Insurance Corporation (the "NOTE INSURER"), a New York
stock insurance company, has issued and delivered a note guaranty insurance
policy, dated the Closing Date (with endorsements and exhibits, the "NOTE
POLICY"), pursuant to which the Note Insurer guarantees Insured Payments, as
defined in the Note Policy.
As an inducement to the Note Insurer to issue and deliver the
Note Policy, the Debtor and the Note Insurer have executed and delivered the
Insurance Agreement, dated as of December 18, 2000 (as amended from time to
time, the "INSURANCE AGREEMENT"), among the Note Insurer, the Debtor,
AmeriCredit, the Servicer, the Collateral Agent and AMTN.
As an additional inducement to the Note Insurer to issue the
Note Policy, and as security for the performance by the Debtor of its
obligations hereunder the Debtor has agreed to assign the Collateral (as defined
below) as collateral to the Collateral Agent for the benefit of the Secured
Parties, as their respective interests may appear.
NOW, THEREFORE, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS; THE NOTE
SECTION 1.1. CERTAIN DEFINED TERMS. As used in this Agreement, the
following terms shall have the following meanings:
"ABS" means the assumed rate of prepayments on the Receivables
for each Settlement Period based upon the "Absolute Prepayment Model", applied
in accordance with current market standards.
"ACCOUNT(S)" means, singularly, each of the Lock-Box Account,
the Collection Account, the Funding Account, the Reserve Account and the Yield
Supplement Account, and, collectively, all such Accounts.
"ACCRUAL PERIOD" means, with respect to each MTN Payment Date
other than the first MTN Payment Date, the period commencing on the prior MTN
Payment Date and ending on the day immediately preceding such MTN Payment Date
and, with respect to the first MTN Payment Date, the period commencing on the
Closing Date and ending on the day immediately preceding such first MTN Payment
Date.
"ADJUSTED EBITDA" means, with respect to AmeriCredit Corp.,
earnings before interest, taxes, depreciation, and amortization, plus cash
distributions from the trusts created in connection with securitizations
sponsored by AmeriCredit (i.e., residual interest income) minus any non-cash
gain on the sale of receivables.
"ADMINISTRATIVE AGENT" means MBIA, as agent for the Purchaser,
and any successor thereto appointed pursuant to the Note Purchase Agreement.
"ADVERSE CLAIM" means a lien, security interest, charge or
encumbrance, or other right or claim in, of or on any Person's assets or
properties in favor of any other Person (including any UCC financing statement
or any similar instrument filed against such Person's assets or properties).
"AFFECTED ASSETS" means, collectively, the Receivables and the
Related Security, Collections and Proceeds relating thereto.
"AFFILIATE" means, with respect to any Person, any other
Person directly or indirectly controlling, controlled by, or under direct or
indirect common control with, such Person. A Person shall be deemed to control
another Person if the controlling Person possesses, directly or indirectly, the
power to direct or cause the direction of the management or policies of the
controlled Person, whether through ownership of voting stock, by contract or
otherwise.
"AGGREGATE OUTSTANDING BALANCE" means, with respect to any
group of Receivables as of any date, the sum of the Outstanding Balances of all
such Receivables as of the close of business on the immediately preceding date.
"AMTN" means AmeriCredit MTN Corp., a Delaware corporation,
and its successors and assigns.
"AMERICREDIT" means AmeriCredit Financial Services, Inc., a
Delaware corporation, and its successors and assigns.
"AMERICREDIT CORP." means AmeriCredit Corp., a Texas
corporation, and its successors and assigns.
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"AMERICREDIT SCORE" means, with respect to a Receivable, the
credit score for the related Obligor, determined in accordance with the Credit
and Collection Policy.
"AMORTIZATION PERIOD" means the period commencing on the
earlier to occur of (i) the date on which the Regular Amortization Period
commences or (ii) the date on which the Rapid Amortization Period commences and
ending on the later of (x) the date on which the Net Investment is reduced to
zero and there are no amounts outstanding to the Note Insurer and (y) the Final
Maturity Date.
"AMORTIZATION PERIOD RESERVE PERCENTAGE" means,
(x) with respect to any date of determination which
occurs after the commencement of the Amortization
Period and prior to the seventh (7th) Remittance
Date during the Amortization Period:
(i) 7.0% if the Portfolio Net Loss Ratio
calculated as of the most recent
Determination Date is less than 5.00%.
(ii) 8.0%, if the Portfolio Net Loss Ratio
calculated as of the most recent
Determination Date is greater than or
equal to 5.00% but less than 6.00%.
(iii) 9.0%, if the Portfolio Net Loss Ratio
calculated as of the most recent
Determination Date is greater than or
equal to 6.00% but less than 7.00%.
(iv) 10.0%, if the Portfolio Net Loss Ratio
calculated as of the most recent
Determination Date is greater than or
equal to 7.00% but less than 7.50%.
(v) 11.0%, if the Portfolio Net Loss Ratio
calculated as of the most recent
Determination Date is greater than or
equal to 7.50%; and
(y) with respect to any date of determination occurring
on and after the seventh (7th) Remittance Date
during the Amortization Period, the applicable
percentage set forth in the numbered clauses (i)
through (v) in paragraph (x) above calculated with
respect to the (6th) Remittance Date.
"AMOUNT FINANCED" means, with respect to a Receivable, the
aggregate amount of credit extended under the Contract related to such
Receivable to pay, or to refinance, the purchase price of or outstanding balance
with respect to the Financed Vehicle and 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 sales contracts or promissory notes, and related costs.
"ANNUALIZED NET LOSS RATIO" means, as of any date of
determination, the ratio (expressed as a percentage), computed by dividing "A"
by "B", and then multiplying the result by "C" where:
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"A" is equal to the Monthly Net Losses for all Receivables
held as Collateral which have occurred during six Settlement
Periods immediately preceding such date divided by the average
Aggregate Outstanding Balance of all Receivables held as
Collateral during such six-month period;
"B" is equal to the actual number of days in such six-month
period; and
"C" is equal to the actual number of days in the Servicer's
fiscal year in which the most recently-ended Settlement Period
occurred.
"ANNUAL PERCENTAGE RATE" or "APR" means, with respect to a
Receivable, the rate per annum of finance charges stated in the Contract related
to such Receivable as the "annual percentage rate" (within the meaning of the
Federal Truth-in-Lending Act). If, after the applicable Delivery Date, the rate
per annum with respect to a Receivable as of such Delivery Date is reduced as a
result of (a) an insolvency proceeding involving the related Obligor or (b)
pursuant to the Soldiers' and Sailors' Civil Relief Act of 1940, "Annual
Percentage Rate" or "APR" shall refer to such reduced rate.
"AUTHORIZED OFFICER" means, with respect to the Debtor, any
officer, or agent acting pursuant to a power of attorney of the Debtor, who is
authorized to act for the Debtor, in matters relating to the Debtor and who is
identified on the list of Authorized Officers delivered by the Debtor to the
Collateral Agent on the Closing Date (as such list may be modified or
supplemented from time to time thereafter).
"AVAILABLE FUNDS" means, with respect to any Remittance Date,
the aggregate amount then on deposit in the Collection Account which represents
the amounts described in clause (i), (ii), (iii) and (iv) of Section 2.10(a)
hereof on such Remittance Date.
"BANKRUPTCY CODE" means the Bankruptcy Reform Act of 1978 (11
U.S.C.) Section 101 et seq., as amended.
"BENEFIT PLAN" means any employee benefit plan as defined in
Section 3(3) of ERISA in respect of which the Debtor, AmeriCredit, AMTN or any
ERISA Affiliate of the Debtor, AmeriCredit or AMTN is, or at any time during the
immediately preceding six years was, an "employer" as defined in Section 3(5) of
ERISA.
"BORROWING BASE" means, as of any Borrowing Base Determination
Date, the sum of (x) the product of (i) 95% and (ii) the Net Receivables Balance
as of the close of business on such Borrowing Base Determination Date after
taking into account all Facility Activity on such Borrowing Base Determination
Date plus (y) the amount on deposit in the Funding Account at the close of
business on such Borrowing Base Determination Date after taking into account all
Facility Activity on such Borrowing Base Determination Date plus (z) the amount
on deposit in the Collection Account with respect to principal at the close of
business on such Borrowing Base Determination Date after taking into account all
Facility Activity on such Borrowing Base Determination Date.
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"BORROWING BASE DETERMINATION DATE" means each of the
following dates: (i) the last day of each Settlement Period, (ii) each Take-Out
Date and (iii) each Receivables Delivery Date.
"BUSINESS DAY" means any day excluding Saturday, Sunday and
any day on which banks in New York, New York, Fort Worth, Texas or London
England are authorized or required by law to close.
"CAPITALIZED LEASE" of a Person means any lease of property by
such Person as lessee which would be capitalized on a balance sheet of such
Person prepared in accordance with GAAP.
"CERTIFICATEHOLDERS" means the holders of the Class A
Certificates and the Class B Certificates issued under the Trust Agreement. The
Debtor shall inform the Collateral Agent and the Note Insurer in writing of the
identity of the Certificateholders.
"CLASS A CERTIFICATES" means the Class A Certificates issued
under the Trust Agreement.
"CLASS B CERTIFICATES" means the Class B Certificates issued
under the Trust Agreement.
"CLOSING DATE" means December 18, 2000.
"CODE" means the Internal Revenue Code of 1986, as amended.
"COLLATERAL" has the meaning specified in Section 2.1 hereof.
"COLLATERAL AGENT" means The Chase Manhattan Bank, as
collateral agent for the Secured Parties, and its successors and assigns.
"COLLATERAL AGENT ACCOUNTS" has the meaning described in
Section 8.2(i) hereof.
"COLLECTION ACCOUNT" means the account established by the
Collateral Agent, for the benefit of the Secured Parties, pursuant to Section
2.10.
"COLLECTIONS" means, with respect to any Receivable, all cash
collections and other cash proceeds (including liquidation proceeds) of such
Receivable, including, without limitation, all Finance Charges, if any, and any
refunded portion of extended warranty protection plan costs or of insurance
costs (for example, physical damage, credit life or disability) included in the
original amount financed under such Receivable, and cash proceeds of Related
Security with respect to such Receivable.
"CONTRACT" means any and all retail installment sales
contracts or installment notes and security agreements relating to the sale or
refinancing of a new or used automobile, light duty truck, van or minivan and
other writings related thereto now existing and hereafter created or acquired by
AmeriCredit or AMTN and assigned from time to time to the Debtor pursuant to the
Master Receivables Purchase Agreement.
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"CRAM DOWN LOSS" has the meaning given such term in the
Servicing and Custodian Agreement.
"CREDIT AND COLLECTION POLICY" means the Servicer's credit and
collection policy or policies and practices relating to automobile installment
sales contracts, existing on the date hereof and in effect from time to time in
compliance with Section 5.2(d).
"CREDIT SCORE BASED RESERVE PERCENTAGE" means, with respect to
the Amortization Period, the applicable percentage set forth in the numbered
clauses (i) through (v) below:
(i) 7% if the Weighted Average AmeriCredit Score of all
Eligible Receivables as of the commencement of the Amortization Period,
after taking into account all Facility Activity on such date is greater
than or equal to 227.00; or
(ii) 8%, if the Weighted Average AmeriCredit Score of all
Eligible Receivables as of the commencement of the Amortization Period,
after taking into account all Facility Activity on such date is greater
than or equal to 226.00 but less than 227.00; or
(iii) 9%, if the Weighted Average AmeriCredit Score of all
Eligible Receivables as of the commencement of the Amortization Period,
after taking into account all Facility Activity on such date is greater
than or equal to 224.00 but less than 226.00; or
(iv) 10%, if the Weighted Average AmeriCredit Score of all
Eligible Receivables as of the commencement of the Amortization Period,
after taking into account all Facility Activity on such date is greater
than or equal to 222.00 but less than 224.00; or
(v) 11%, if the Weighted Average AmeriCredit Score of all
Eligible Receivables as of the commencement of the Amortization Period,
after taking into account all Facility Activity on such date is less than
222.00.
"CUMULATIVE NET LOSS" means, for any Receivables Pool or the
Regular Amortization Receivables Pool, as appropriate, the positive difference
between (i) the sum of (A) the Aggregate Outstanding Balance of all Liquidated
Receivables plus (B) aggregate Cram Down Losses minus (ii) Liquidation Proceeds
received with respect to the Receivables described in clause (i).
"CUMULATIVE NET LOSS RATIO" means, for any Receivables Pool,
the ratio, expressed as a percentage, computed by dividing:
(a) the sum (without duplication) of (i) Cumulative Net Losses
and (ii) the product of (x) 0.50 and (y) the Aggregate
Outstanding Balance of all Receivables which are more than
ninety (90) days past due as of the end of the related
Settlement Period;
BY
(b) the aggregate initial principal balance for the related
Receivables Pool.
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"DEBTOR" means AmeriCredit MTN Receivables Trust, a Delaware
business trust, and its successors and permitted assigns.
"DEBTOR ORDER" means a written order or request signed in the
name of the Debtor by any one of its Authorized Officers and delivered to the
Collateral Agent.
"DEFAULTED RECEIVABLE" means a Receivable with respect to
which (i) all or any portion in excess of 5% of a Scheduled Payment is more than
90 days past due, (ii) the Servicer has repossessed the related Financed Vehicle
(and any applicable redemption period has expired), or (iii) such Receivable is
in default and the Servicer has charged-off such Receivable in accordance with
the Credit and Collection Policy or otherwise has determined in good faith that
payments thereunder are not likely to be resumed.
"DEFAULT RATIO" means a fraction, expressed as a percentage,
the numerator of which is the Aggregate Outstanding Balance of all Defaulted
Receivables since the commencement of the Regular Amortization Period and the
denominator of which is the Initial Regular Amortization Receivables Pool
Balance.
"DEFICIENCY AMOUNT" has the meaning specified in the Note
Policy.
"DELINQUENCY RATIO" means, the ratio (expressed as a
percentage) computed by dividing:
(a) the Aggregate Outstanding Balance of all Receivables which
were Delinquent Receivables as of the close of business on the
last day of the related Settlement Period.
BY
(b) the sum of the Aggregate Outstanding Balance of all
Receivables as of the close of business on the first day of
the related Settlement Period.
"DELINQUENT RECEIVABLE" means a Receivable with respect to
which 5% or more of a scheduled payment is more than sixty (60) days past due
(excluding (i) Receivables which the Servicer has repossessed the related
Financed Vehicle and (ii) Receivables which have become Liquidated Receivables).
"DELIVERY" when used with respect to Collateral means:
(a) with respect to bankers' acceptances, commercial
paper, negotiable certificates of deposit and other
obligations that constitute instruments and are susceptible
of physical delivery ("Physical Property"):
(i) transfer of possession thereof to the
Collateral Agent, endorsed to, or registered
in the name of, the Collateral Agent or its
nominee or endorsed in blank;
(b) with respect to a certificated security:
7
(i) delivery thereof in bearer form to the
Collateral Agent; or
(ii) delivery thereof in registered form to the
Collateral Agent; and
(A) the certificate is endorsed to the
Collateral Agent or in blank by effective
endorsement; or
(B) the certificate is registered in the
name of the Collateral Agent, upon original
issue or registration of transfer by the
issuer;
(c) with respect to an uncertificated security:
(i) the delivery of the uncertificated security
to the Collateral Agent; or
(ii) the issuer has agreed that it will comply
with instructions originated by the Collateral Agent
without further consent by the registered owner;
(d) with respect to any security issued by the U.S.
Treasury that is a book-entry security held through the
Federal Reserve System pursuant to Federal book-entry
regulations:
(i) a Federal Reserve Bank by book entry credits
the book-entry security to the securities account (as
defined in 31 CFR Part 357) of a participant (as
defined in 31 CFR Part 357) which is also a
Securities Intermediary; and
(ii) the participant indicates by book entry that
the book-entry security has been credited to the
Collateral Agent's securities account;
(e) with respect to a security entitlement:
(i) the Collateral Agent becomes the entitlement
holder; or
(ii) the Securities Intermediary has agreed that
it will comply with entitlement orders originated by
the Collateral Agent without further consent by the
entitlement holder;
(f) for the purpose of clauses (b) and (c) hereof
"delivery" means:
(i) with respect to a certificated security:
(A) the Collateral Agent acquires possession
thereof;
(B) another person (other than a Securities
Intermediary) either acquires possession
thereof on behalf of the Collateral Agent
or, having previously acquired possession
thereof, acknowledges that it holds for the
Collateral Agent; or
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(C) a Securities Intermediary acting on
behalf of the Collateral Agent acquires
possession of thereof, only if the
certificate is in registered form and has
been specially endorsed to the Collateral
Agent by an effective endorsement;
(ii) with respect to an uncertificated security:
(A) the issuer registers the Collateral
Agent as the registered owner, upon original
issue or registration of transfer; or
(B) another person (other than a Securities
Intermediary) either becomes the registered
owner thereof on behalf of the Collateral
Agent or, having previously become the
registered owner, acknowledges that it holds
for the Collateral Agent;
(g) for purposes of this definition, except as otherwise
indicated, the following terms shall have the meaning assigned
to each such term in the UCC:
(i) "certificated security";
(ii) "effective endorsement";
(iii) "entitlement holder";
(iv) "instrument";
(v) "securities account";
(vi) "securities entitlement";
(vii) "Securities Intermediary"; and
(viii) "uncertificated security";
(h) in each case of Delivery contemplated herein, the
Collateral Agent shall make appropriate notations on its
records, and shall cause the same to be made on the records of
its nominees, indicating that securities are held in trust
pursuant to and as provided in this Agreement.
"DELIVERY DATE" means the date on which a Receivables Delivery
occurs.
"DELIVERY NOTICE" means the notice, substantially in the form
attached hereto as Exhibit L, furnished by the Debtor in accordance with Section
2.11(b)(1).
"DEPOSITARY" has the meaning set forth in 31 C.F.R. 306.118 or
similar federal regulations governing the transfer of securities issued by the
United States Treasury which are maintained in book-entry form.
9
"DETERMINATION DATE" means, with respect to each Remittance
Date, the second Business Day preceding such Remittance Date, notwithstanding
anything else to the contrary herein, the Determination Date for any month in
which any repayment of principal is to be made by the Debtor (currently expected
to begin in December 2003) shall be the 11th Business Day prior to the MTN
Payment Date in such month.
"ELIGIBLE COLLATERAL" means, collectively, Eligible
Receivables, Eligible Investments credited to the Funding Account, and Eligible
Investments credited to the Collection Account.
"ELIGIBLE DEPOSIT ACCOUNT" means a segregated trust account
with the corporate trust department of a depository institution acceptable to
the Note Insurer organized under the laws of the United States of America or any
one of the states thereof or the District of Columbia (or any domestic branch of
a foreign bank), having corporate trust powers and acting as trustee for funds
deposited in such account, so long as any of the securities of such depository
institution have a long term unsecured debt rating of "AA" or higher from S&P
and "Aa2" or higher by Moody's and in the highest short-term rating category by
S&P and Moody's or is otherwise acceptable to the Note Insurer. Each Eligible
Deposit Account created hereunder shall be established as follows: "[name of
account], The Chase Manhattan Bank, as Collateral Agent".
"ELIGIBLE INVESTMENTS" means any of the following (a)
negotiable instruments or securities represented by instruments in bearer or
registered or in book-entry form which evidence (i) obligations fully guaranteed
by the United States; (ii) time deposits in, or bankers acceptances issued by,
any depository institution or trust company incorporated under the laws of the
United States or any state thereof and subject to supervision and examination by
Federal or state banking or depository institution authorities; PROVIDED,
HOWEVER, that at the time of investment or contractual commitment to invest
therein, the certificates of deposit or short-term deposits, if any, or
long-term unsecured debt obligations (other than such obligation whose rating is
based on collateral or on the credit of a Person other than such institution or
trust company) of such depository institution or trust company has a credit
rating from Moody's and S&P of at least "P-1" and "A-1", respectively, in the
case of the certificates of deposit or short-term deposits, or a rating not
lower than one of the two highest investment categories granted by Moody's and
by S&P; (iii) certificates of deposit having, at the time of investment or
contractual commitment to invest therein, a rating from Moody's and S&P of at
least "P-1" and "A-1", respectively; or (iv) investments in money market funds
rated in the highest investment category or otherwise approved in writing by the
applicable rating agencies; (b) demand deposits in any depository institution or
trust company referred to in (a)(ii) above; (c) commercial paper (having
original or remaining maturities of no more than 31 days) having, at the time of
investment or contractual commitment to invest therein, a credit rating from
Moody's and S&P of at least "P-1" and "A-1", respectively; (d) Eurodollar time
deposits having a credit rating from Moody's and S&P of at least "P-1" and
"A-1", respectively; and (e) repurchase agreements involving any of the Eligible
Investments described in clauses (a)(i), (a)(iii) and (d) hereof, so long as the
other party to the repurchase agreement has at the time of investment therein, a
rating from Moody's and S&P of at least "P-1" and "A-1", respectively.
10
"ELIGIBLE RECEIVABLE" means, at any time, any Receivable:
(i) (A) which shall have been originated by
AmeriCredit directly with an Obligor or through an automobile dealer or Third
Party Lender approved in accordance with AmeriCredit's standard operating
procedures and which has been acquired from a Dealer by means of a Dealer
Agreement or a Dealer Assignment (as defined in the Servicing Agreement), which
dealer shall be located in the United States and which, together with the
Contract related thereto, if originated by a dealer, shall have been validly
assigned by such dealer to AmeriCredit and which assignment, if part of a bulk
sale by such dealer to AmeriCredit, shall have been approved in writing by the
Note Insurer, or pursuant to the terms of such Contract, for the retail sale or
refinancing of the related Financed Vehicle in the ordinary course of its
business, shall have been fully and properly executed by the parties thereto,
and shall have been advanced directly to or for the benefit of the Obligor for
the purchase or refinancing of the related Financed Vehicle, (B) which shall
have been sold by AmeriCredit or AMTN to the Debtor pursuant to the Master
Receivables Purchase Agreement, and to which the Debtor has good and marketable
title thereto, free and clear of all Adverse Claims, and (C) the Contract
related to which contains customary and enforceable provisions such that the
rights and remedies of the holder thereof shall be adequate for the realization
against the collateral of the benefits of the security provided thereby;
(ii) which (together with the Collections and
Related Security related thereto) has been the subject of the grant of a first
priority perfected security interest therein (and in the Collections and
Related Security related thereto) to the Collateral Agent for the benefit of
the Secured Parties, effective until the termination of this Agreement;
(iii) the Obligor of which (A) is a United States
resident and is recorded in the Servicer's records as having a United States
billing address or is a member of the U.S. military and is recorded in the
Servicer's records as having an overseas U.S. military base address, (B) is a
natural person, (C) is not an Affiliate of any of the parties hereto, and (D)
is not a government or a governmental subdivision or agency or any other
governmental entity;
(iv) which is not a Defaulted Receivable at the time
of the related Receivables Delivery hereunder;
(v) (A) during the Revolving Period with respect to
which 5% or more of a scheduled payment is not more than thirty (30) days past
due and (B) during the Amortization Period, with respect to which 5% or more of
a scheduled payment is not more than 30 days past due as of the date the
Amortization Period commences;
(vi) the Contract related to which provides for
level monthly payments (PROVIDED that the payment in the first or last month in
the life of the Receivable may be minimally different from such level payment)
that fully amortizes the Amount Financed over the original term and yields
interest at the related APR;
(vii) the Contract related to which provides for the
calculation of interest payable thereunder under either the "simple interest"
or "Rule of 78's" or the "sum of the periodic time balances" method;
11
(viii) the Contract related to which provides for no
more than 72 monthly payments;
(ix) which is an "eligible asset" as defined in Rule
3a-7 under the Investment Company Act of 1940, as amended;
(x) which is "chattel paper" within the meaning of
Article 9 of the UCC of all applicable jurisdictions and, which is secured by a
first priority perfected lien on the related Financed Vehicle, free and clear
of any Adverse Claim or for which all necessary steps to result in such a first
priority perfected lien shall have been taken as of the Delivery Date;
(xi) which is denominated and payable only in United
States dollars in the United States;
(xii) which arises under a Contract that, together
with the Receivable related thereto, is in full force and effect and
constitutes the legal, valid and binding obligation of the related Obligor
enforceable against such Obligor in accordance with its terms, is the complete,
accurate and entire financing agreement with the Obligor relating to the
Financed Vehicle, is not subject to any litigation, dispute, offset,
counterclaim or other defense and the provisions of which have not been
extended, waived or modified except in accordance with the Credit and
Collection Policy or upon the written instructions of the Note Insurer;
(xiii) which, together with the Contract related
thereto, does not contravene in any material respect any laws, rules or
regulations applicable thereto (including, without limitation, laws, rules and
regulations relating to usury, truth in lending, fair credit billing, fair
credit reporting, equal credit opportunity, fair debt collection practices and
privacy) and with respect to which no part of the Contract related thereto is
in violation of any such law, rule or regulation in any material respect;
(xiv) which (A) satisfies all applicable
requirements of the Credit and Collection Policy and is identified on the
Servicer's master servicing records as a automobile installment sales contract
or installment note, (B) arises under a Contract which is assignable without
the consent of, or notice to, the Obligor thereunder, and which does not
contain a confidentiality provision that purports to restrict the ability of
the Servicer to exercise its rights under this Agreement, including, without
limitation, its right to review the Contract, and (C) arises under a Contract
with respect to which AmeriCredit, AMTN and the Debtor have each performed all
obligations required to be performed by them thereunder, and, in the event such
Contract is an installment sales contract, delivery of the Financed Vehicle to
the related Obligor has occurred;
(xv) which was generated in the ordinary course of
AmeriCredit's business;
(xvi) the assignment of which under the Master
Receivables Purchase Agreement by AmeriCredit or AMTN to the Debtor and the
grant of a security interest with respect thereto hereunder by the Debtor to
the Collateral Agent does not violate, conflict or contravene any applicable
laws, rules, regulations, orders or writs or any contractual or other
restriction, limitation or encumbrance;
12
(xvii) with respect to which AmeriCredit or any
Affiliate thereof has not advanced any funds to or for the benefit of the
related Obligor in order to make such Receivable an "Eligible Receivable";
(xviii) the Obligor of which has been or will be
directed to make all payments to a specified account of the Servicer with
respect to which there shall be a Lock-Box Agreement in effect;
(xix) with respect to which there is only one
original Contract which original Contract has been delivered to the Custodian;
(xx) with respect to which the Amount Financed does
not exceed $60,000;
(xxi) the APR of which is no less than 8.0%;
(xxii) the Contract related to which provides that
any prepayment in full of such Receivable fully pays all remaining principal
and all interest due at the applicable APR as of such date of prepayment, in
each case with respect to such Receivable;
(xxiii) which is not, at the time of an initial
creation of an interest therein hereunder, subject to any right of rescission,
cancellation, set-off, claim, counterclaim or defense (including the defense of
usury) of the Obligor;
(xxiv) which is secured by a valid, existing and
enforceable first priority perfected security interest in favor of the
Receivable's originator in the related Financed Vehicle, which security
interest has been validly assigned by the originator to AmeriCredit (if such
Receivable is not originated by, or the security interest is not initially
perfected in favor of, AmeriCredit) and either (A) by AmeriCredit to the Debtor
or (B) by AmeriCredit to AMTN and by AMTN to the Debtor, and by the Debtor to
the Collateral Agent;
(xxv) the Contract related to which requires it to
be insured by an individual physical damage insurance policy; and
(xxvi) provides for enforcement of the lien or the
clear legal right of repossession as applicable on the Financed Vehicle
securing such Receivable, and the certificate of title names the Servicer as
the secured party, or an application for a certificate of title naming the
Servicer as secured party has been filed with the relevant jurisdiction.
"ENTITLEMENT ORDER" shall have the meaning given such term in
Section 8-102(a)(8) of the UCC.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated thereunder.
"ERISA AFFILIATE" means, with respect to any Person, (i) any
corporation which is a member of the same controlled group of corporations
(within the meaning of Section 414(b) of the Code) as such Person; (ii) a trade
or business (whether or not incorporated) under common
13
control (within the meaning of Section 414(c) of the Code) with such Person; or
(iii) a member of the same affiliated service group (within the meaning of
Section 414(n) of the Code) as such Person, any corporation described in clause
(i) above or any trade or business described in clause (ii) above.
"EVENT OF BANKRUPTCY" means, with respect to any Person, (i)
that such Person (a) shall generally not pay its debts as such debts become due
or (b) shall admit in writing its inability to pay its debts generally or (c)
shall make a general assignment for the benefit of creditors; (ii) any
proceeding shall be instituted by or against such Person seeking to adjudicate
it as bankrupt or insolvent, or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief or composition of
it or its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors, or seeking the entry of an order for
relief or the appointment of a receiver, trustee or other similar official for
it or any substantial part of its property or (iii) if such Person is a
corporation, such Person or any Subsidiary shall take any corporate action to
authorize any of the actions set forth in the preceding clauses (i) or (ii).
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
"EXECUTIVE OFFICER" means, with respect to any corporation,
the Chief Executive Officer, Chief Operating Officer, Chief Financial Officer,
President, any Executive Vice President, any Vice President, the Secretary or
the Treasurer of such corporation; and with respect to any partnership, any
general partner thereof.
"FACILITY ACTIVITY" means, with respect to any calculation as
of a specified date or time after taking into account all Facility Activity,
adjusting (x) all Accounts for any withdrawals, transfers and deposits on such
date and prior to such time, (y) for any Receivables Delivery or any Take-Out
which occurs on such date and prior to such time and (z) any amortization of
Receivables and the Net Investment on such date and prior to such time.
"FINAL MATURITY DATE" means the Remittance Date in December
2010.
"FINANCE CHARGES" means, with respect to a Contract, any
finance, interest or similar charges owing by an Obligor or another Person
pursuant to such Contract.
"FINANCED VEHICLE" means, with respect to a Receivable, any
new or used automobile, light-duty truck, van or minivan, together with all
accessories thereto, securing the related Obligor's indebtedness thereunder.
"FUNDING ACCOUNT" has the meaning specified in Section 2.11
hereof.
"GUARANTY" means, with respect to any Person any agreement by
which such Person assumes, guarantees, endorses, contingently agrees to
purchase or provide funds for the payment of, or otherwise becomes liable upon,
the obligation of any other Person, or agrees to maintain the net worth or
working capital or other financial condition of any other Person or otherwise
assures any other creditor of such other Person against loss, including,
without limitation, any comfort letter, operating agreement or take-or-pay
contract and shall include,
14
without limitation, the contingent liability of such Person in connection with
any application for a letter of credit.
"HEDGING ARRANGEMENT" means any financial arrangement
obtained by the Debtor from a counterparty rated "A" or better by S&P and "A2"
or better by Moody's satisfying the requirements of Section 5.3 hereof and
otherwise in form and substance reasonably satisfactory to the Purchaser and
the Note Insurer, the benefits of which are in favor of the Debtor and pledged
to the Collateral Agent for the benefit of the Secured Parties.
"INDEBTEDNESS" means, with respect to any Person such
Person's (i) obligations for borrowed money, (ii) obligations representing the
deferred purchase price of property other than accounts payable arising in the
ordinary course of such Person's business on terms customary in the trade,
(iii) obligations, whether or not assumed, secured by liens or payable out of
the proceeds or products of property now or hereafter owned or acquired by such
Person, (iv) obligations which are evidenced by notes, acceptances, or other
instruments, (v) Capitalized Lease obligations and (vi) obligations for which
such Person is obligated pursuant to a Guaranty.
"INITIAL REGULAR AMORTIZATION RECEIVABLES POOL BALANCE" means
the Aggregate Outstanding Balance of all Receivables held as Collateral at the
commencement of the Regular Amortization Period.
"INITIAL RESERVE PERCENTAGE" means, with respect to any
Delivery Date:
(i) 1.5% if BOTH
(a) the Weighted Average AmeriCredit Score of
all Eligible Receivables (including the
Receivables to be delivered on such
Receivables Delivery Date) is greater than
or equal to 227.00; and
(b) the most-recently calculated Portfolio Net
Loss Ratio is less than 5.00%.
(ii) 2.5%, if EITHER
(a) the Weighted Average AmeriCredit Score of
all Eligible Receivables (including the
Receivables to be delivered on such
Receivables Delivery Date) is greater than
or equal to 226.00 but less than 227.00; or
(b) the most-recently calculated Portfolio Net
Loss Ratio is greater than or equal to 5.00%
but less than 6.00%.
(iii) 3.5%, if EITHER
(a) the Weighted Average AmeriCredit Score of
all Eligible Receivables (including the
Receivables to be delivered on such
Receivables
15
Delivery Date) is greater than or equal to
224.00 but less than 226.00; or
(b) the most-recently calculated Portfolio Net
Loss Ratio is greater than or equal to 6.00%
but less than 7.00%.
(iv) 4.5%, if EITHER
(a) the Weighted Average AmeriCredit Score of
all Eligible Receivables (including the
Receivables to be delivered on such
Receivables Delivery Date) is greater than
or equal to 222.00 but less than 224.00; or
(b) the most-recently calculated Portfolio Net
Loss Ratio is greater than or equal to 7.00%
but less than 7.50%.
(v) 5.5%, if EITHER
(a) the Weighted Average AmeriCredit Score of
all Eligible Receivables (including the
Receivables to be delivered on such
Receivables Delivery Date) is less than
222.00; or
(b) the most-recently calculated Portfolio Net
Loss Ratio is greater than or equal to
7.50%.
"INSURANCE AGREEMENT" has the meaning specified in the
Recitals hereto.
"INSURANCE TERMINATION DATE" means the date on which the Net
Investment has been reduced to zero, and there are no amounts outstanding to
the Note Insurer.
"INTEREST EXPENSE" means with respect to AmeriCredit Corp.
and for any period, AmeriCredit Corp.'s interest expense during such period for
money borrowed (exclusive of any such interest expense on any "off-balance
sheet" securitizations or warehouse facilities), calculated in accordance with
GAAP.
"LATE PAYMENT RATE" has the meaning specified in the
Insurance Agreement.
"LAW" means any law (including common law), constitution,
statute, treaty, regulation, rule, ordinance, order, injunction, writ, decree
or award of any Official Body.
"LIBOR" means, with respect to any LIBOR Determination Date,
the rate for deposits in U.S. dollars for one month which appears on Telerate
Page 3750 as of 11:00 a.m., London time, on the LIBOR Determination Date. If
such rate does not appear on the Telerate Page 3750, the rate will be
determined on the basis of the rates at which deposits for U.S. dollars are
offered by four major banks in the London interbank market at approximately
11:00 a.m., London time, on the LIBOR Determination Date to prime banks in the
London interbank market
16
for one month commencing on the first day of the Accrual Period. The Collateral
Agent will request the principal London office of each such banks to provide a
quotation of its rate. If at least two such quotations are provided, the LIBOR
rate for that Accrual Period will be the arithmetic mean of the quotations. If
fewer than two quotations are provided, the rate will be the arithmetic mean of
the rates quoted by major banks in New York City, selected by the Collateral
Agent, at approximately 11:00 a.m., New York City time, on the LIBOR
Determination Date for loans in the U.S. dollars to leading European banks for
one month commencing on the first day of the related Accrual Period.
"LIBOR DETERMINATION DATE" means, with respect to any Accrual
Period, the second London Business Day preceding such Accrual Period.
"LIEN" means any mortgage, deed of trust, pledge,
hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or
other), preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever, including, without limitation,
any conditional sale or other title retention agreement, any financing lease
having substantially the same economic effect as any of the foregoing and the
filing of any financing statement under the UCC (other than any such financing
statement filed for informational purposes only) or comparable law of any
jurisdiction to evidence any of the foregoing.
"LIQUIDATED RECEIVABLE" means with respect to any Settlement
Period, a Receivable (i) as to which 90 days have elapsed since the related
Financed Vehicle was repossessed by the Servicer, (ii) as to which (A) 210 days
or more have elapsed since 5% or more of any Scheduled Payment became due,
which amount remains unpaid, and (B) the related Financed Vehicle has been
repossessed by the Servicer, (iii) other than a Receivable falling under clause
(i) or (ii) as to which 120 days or more have elapsed since 5% or more of any
Scheduled Payment became due, which amount remains unpaid or (iv) as to which
the Servicer has in good faith determined that it has allocated all amounts
that it expects to collect with respect to such Receivable.
"LIQUIDATION PROCEEDS" means, with respect to a Liquidated
Receivable, all amounts realized with respect to such Receivable.
"LOCK-BOX ACCOUNT" means an account or accounts maintained by
the Servicer at a Lock-Box Bank for the purpose of receiving Collections from
Receivables.
"LOCK-BOX AGREEMENT" means an agreement between the Servicer,
the Collateral Agent and a Lock-Box Bank in substantially the form of Exhibit B
hereto.
"LOCK-BOX BANK" means each of the banks set forth in Exhibit
A hereto and such banks as may be added thereto or deleted therefrom pursuant
to Section 2.6 hereof.
"LONDON BUSINESS DAY" means any day which is a Business Day
and also is a day on which commercial banks are open for international business
(including dealings in U.S. Dollar deposits) in London.
"MASTER RECEIVABLES PURCHASE AGREEMENT" means the Master
Receivables Purchase Agreement, dated as of the date hereof, among the Debtor,
AmeriCredit, AMTN and
17
the Collateral Agent, as such agreement may be amended, supplemented, or
otherwise modified from time to time.
"MATERIAL ADVERSE EFFECT" means any event or condition which
would have a material adverse effect on (i) the collectibility of the
Receivables, (ii) the condition (financial or otherwise), businesses or
properties of the Debtor, the Servicer, AmeriCredit or AMTN, (iii) the ability
of the Debtor, the Servicer, AmeriCredit or AMTN to perform its respective
obligations under the Transaction Documents to which it is a party, or (iv) the
interests of the Note Insurer, the Collateral Agent or the Secured Parties
under the Transaction Documents.
"MBIA" means MBIA Insurance Corporation.
"MONTHLY ADMINISTRATIVE FEE" means, with respect to any
Remittance Date, the product of (x) one twelfth, (y) 0.10% per annum and (z)
the Net Investment outstanding immediately prior to such Remittance Date. The
Monthly Administrative Fee is included in the calculation of the Note Rate.
"MONTHLY EXTENSION RATIO" means, with respect to any
Determination Date, the fraction expressed as a percentage, the numerator of
which is the Aggregate Outstanding Balance of all Receivables in the Servicing
Portfolio whose payments are extended during the related Settlement Period and
the denominator of which is the Aggregate Outstanding Balance of all
Receivables in the Servicing Portfolio as of the close of business on the last
day of the Settlement Period immediately preceding such related Settlement
Period.
"MONTHLY NET LOSSES" means the positive difference, if any,
of (i) the sum of (A) the Aggregate Outstanding Balance of all Receivables that
became Liquidated Receivables during the related Settlement Period plus (B) all
Cram Down Losses incurred during the related Settlement Period minus (ii) all
Liquidation Proceeds received during the related Settlement Period.
"MONTHLY PRINCIPAL AMOUNT" means, as of any Remittance Date:
(A) during the Revolving Period, the amount equal to the
excess, if any, of (x) the sum of (i) the principal portion of all Collections
received during the related Settlement Period (other than Collections with
respect to Liquidated Receivables and Purchased Receivables) and (ii) the
principal portion of the Purchase Amounts received with respect to all
Receivables that became Purchased Receivables during the related Settlement
Period over (y) the Step-Down Amount, if any, for such Remittance Date; and
(B) during the Amortization Period, the amount equal to the
excess, if any, of (x) the sum of (i) the principal portion of all Collections
received during the related Settlement Period (other than Collections with
respect to Liquidated Receivables and Purchased Receivables), (ii) the
principal portion of the Purchase Amounts received with respect to all
Receivables that became Purchased Receivables during the related Settlement
Period, (iii) the Aggregate Outstanding Balance of all Receivables that became
Liquidated Receivables during the related Settlement Period (other than
Purchased Receivables), (iv) in the sole discretion of the Note Insurer, the
Principal Balance of all the Receivables that were required to be become
Purchased Receivables during such Settlement Period but were not purchased, (v)
the aggregate
18
amount of Cram Down Losses that occurred during the related Settlement Period
and (vi) if such Remittance Date is the first Remittance Date to occur during
the Amortization Period, the amount transferred from the Funding Account to the
Collection Account in accordance with Section 2.11(e) hereof over (y) the
Step-Down Amount, if any, for such Remittance Date.
"MOODY'S" means Moody's Investors Service, Inc.
"MTN PAYMENT DATE" means the 22nd day of each month or next
succeeding Business Day unless such day falls in the next calendar month, in
which case it shall be the Business Day immediately preceding the 22nd,
commencing February 22, 2001.
"MULTIEMPLOYER PLAN" means a "multiemployer plan" as defined
in Section 4001(a)(3) of ERISA which is or was at any time during the current
year or the immediately preceding five years contributed to by the Debtor,
AmeriCredit, AMTN or any ERISA Affiliate of the Debtor, AmeriCredit or AMTN on
behalf of its employees.
"NET INVESTMENT" means (i) $500,000,000 minus (ii) the
aggregate amount applied to reduce such Net Investment pursuant to Section 2.3
hereof.
"NET RECEIVABLES BALANCE" means at any time the Aggregate
Outstanding Balance of all Eligible Receivables at such time.
"NET SPREAD DEFICIENCY" means, as of any Borrowing Base
Determination Date, the positive difference, if any, of (i) the sum of (A)
8.25% plus (B) the Servicing Fee, expressed as a percentage of the Net
Receivables Balance plus (C) the lesser of (x) one-month LIBOR plus (I) from
the Closing Date up to and including the thirty-fifth (35th) Remittance Date,
0.7205% and (II) after the thirty-fifth (35th) Remittance Date, 1.8505% and (y)
the weighted average strike price under the Hedging Arrangements then in
effect, minus (ii) the weighted average APR of all Eligible Receivables then
held as Collateral.
"NOTE" means the Debtor's note issued and delivered pursuant
to Section 1.5 hereof, in substantially the form set forth as Exhibit C hereto.
"NOTEHOLDER" or "HOLDER" means the Person in whose name a
Note is registered on the Note Register.
"NOTE INSURER" means MBIA, as Note Insurer, and its
successors and assigns.
"NOTE INSURER DEFAULT" means any one of the following events
shall have occurred and be continuing:
(a) the Note Insurer shall have failed to make a
payment required under the Note Policy;
(b) the Note Insurer shall have (i) filed a petition
or commenced any case or proceeding under any provision or chapter of the
United States Bankruptcy Code or any other similar Federal or state law
relating to insolvency, bankruptcy, rehabilitation, liquidation or
reorganization, (ii) made a general assignment for the benefit of its
creditors, or (iii) had an order
19
for relief entered against it under the United States Bankruptcy Code or any
other similar Federal or state law relating to insolvency, bankruptcy,
rehabilitation, liquidation or reorganization which is final and nonappealable;
or
(c) a court of competent jurisdiction, the New York
Department of Insurance, or other competent regulatory authority shall have
entered a final and nonappealable order, judgment or decree (i) appointing a
custodian, trustee, agent or receiver for the Note Insurer or for all or any
material portion of its property or (ii) authorizing the taking of possession
by a custodian, trustee, agent or receiver of the Note Insurer (or the taking
of possession of all or any material portion of the property of the Note
Insurer).
"NOTE INTEREST" means, with respect to each Remittance Date,
the product of (x) the Note Rate in effect with respect to such Remittance
Date, (y) the Net Investment outstanding immediately prior to such Remittance
Date and (z) a fraction, the numerator of which is the actual number of days in
the related Accrual Period and the denominator of which is 360. The Note
Interest shall be reduced by the interest portion of any Prepayment Amount
applied since the preceding Remittance Date.
"NOTE POLICY" means the note guaranty insurance policy No.
33871(1), issued by the Note Insurer.
"NOTE PURCHASE AGREEMENT" means that certain Note Purchase
Agreement, dated as of December 12, 2000, among the Debtor, AmeriCredit, the
Purchaser and the Administrative Agent.
"NOTE RATE" means, (i) with respect to each Accrual Period
relating to a Remittance Date prior to the Remittance Date in December 2003,
LIBOR as of the related LIBOR Determination Date plus 0.4455% per annum and
(ii) with respect to each Accrual Period thereafter, LIBOR as of the related
LIBOR Determination Date plus 1.5755% per annum; PROVIDED, that with respect to
the first Accrual Period, the Note Rate shall be 7.05675% per annum.
"OBLIGOR" means a Person obligated to make payments pursuant
to a Contract.
"OFFICER'S CERTIFICATE" means, with respect to any Person
which is not an individual, a certificate signed by the President, the Chief
Financial Officer, the Treasurer, any Assistant Treasurer, any Senior Vice
President, or any Vice President of such Person.
"OFFICIAL BODY" means any government or political subdivision
or any agency, authority, bureau, central bank, commission, department or
instrumentality of any such government or political subdivision, or any court,
tribunal, grand jury or arbitrator, in each case whether foreign or domestic.
"OUTSTANDING BALANCE" means, with respect to any Receivable,
as of any date, the sum of the Amount Financed MINUS that portion of all
amounts received by the Servicer with respect to such Receivable on or prior to
such date and allocable to principal in accordance with the terms of the
Contract related to such Receivable MINUS any Cram Down Loss in respect of such
Receivable PLUS the accrued and unpaid interest on such Receivable.
20
"OWNER" has the meaning specified in the Note Purchase
Agreement.
"PERSON" means any corporation, limited liability company,
natural person, firm, joint venture, partnership, trust, unincorporated
organization, enterprise, government or any department or agency of any
government.
"PORTFOLIO DELINQUENCY RATIO" means as of any date of
determination a fraction, expressed as a percentage, equal to (i) the Aggregate
Outstanding Balance of all Receivables included in the Servicing Portfolio which
are Delinquent Receivables on the last day of the related Settlement Period
divided by (ii) the average Aggregate Outstanding Balance of the Servicing
Portfolio during the related Settlement Period.
"PORTFOLIO NET LOSS RATIO" means, as of any date of
determination, the ratio (expressed as a percentage), computed by dividing "A"
by "B", and then multiplying the result by "C" where:
"A" is equal to the Monthly Net Losses for the Servicing
Portfolio which have occurred during the six Settlement
Periods immediately preceding such date divided by (ii) the
average Aggregate Outstanding Balance of the Servicing
Portfolio during such six-month period;
"B" is equal to the actual number of days in such six-month
period; and
"C" is equal to the actual number of days in the Servicer's
fiscal year in which the most recently-ended Settlement Period
occurred.
"PORTFOLIO REPOSSESSION RATIO" means as of any date of
determination a fraction, expressed as a percentage, equal to (i) the Aggregate
Outstanding Balance of all repossessed Receivables included in the Servicing
Portfolio as of the last Business Day of the related Settlement Period divided
by (ii) the Servicing Portfolio as of the end of the related Settlement Period.
"POTENTIAL TERMINATION AND AMORTIZATION EVENT" means an event
which but for the lapse of time or the giving of notice, or both, would
constitute a Termination and Amortization Event.
"PREMIUM AMOUNT" shall have the meaning set forth in the
Premium Side Letter.
"PREMIUM SIDE LETTER" means the letter agreement dated the
date hereof between AmeriCredit and the Note Insurer, as amended, modified or
otherwise supplemented from time to time.
"PREPAYMENT AMOUNT" means, with respect to any Prepayment
Date, the sum of (i) the amount deposited in the Collection Account in
accordance with Section 6.5 hereof on account of principal and not previously
applied as a principal reduction of the Net Investment and (ii) accrued
interest at the Note Rate on the amount described in clause (i).
21
"PREPAYMENT DATE" means each date on which a Prepayment Amount
is applied, which date shall be a Remittance Date.
"PROCEEDS" means "proceeds" as defined in Section 9-306(1) of
the UCC of the states set forth in Section 2.6 hereof.
"PURCHASE AMOUNT" has the meaning given such term in the
Master Receivables Purchase Agreement.
"PURCHASED RECEIVABLES" means a Receivable purchased from the
Debtor pursuant to Article V of the Master Receivables Purchase Agreement or
Section 2.7 of the Servicing Agreement.
"PURCHASER" means Meridian Funding Company, LLC, a Delaware
limited liability company.
"RAPID AMORTIZATION PERIOD" means the period commencing on the
close of business on the Business Day immediately preceding the day on which a
Termination and Amortization Event occurs or is deemed to have occurred and
ending on the later of (i) the date on which the Net Investment is reduced to
zero and there are no amounts outstanding to the Note Insurer and (ii) the Final
Maturity Date.
"RECEIVABLE" means indebtedness owed to the Debtor by an
Obligor (without giving effect to any transfer hereunder) under a Contract,
whether constituting an account, chattel paper, instrument or general
intangible, arising out of or in connection with the sale, refinancing or loan
made or purchased by AmeriCredit with respect to new or used automobiles,
light-duty trucks, vans or minivans or the rendering of services by the
originating dealer in connection therewith, and includes the right of payment of
any Finance Charges and other obligations of the Obligor with respect thereto.
Notwithstanding the foregoing, once the Collateral Agent has released its
security interest in a Receivable and the related Contract pursuant to Section
2.4, 2.7 or Section 2.15 hereof, it shall no longer constitute a Receivable
hereunder.
"RECEIVABLES DELIVERY" means the delivery by the Debtor of
Eligible Receivables hereunder (x) in exchange for a release of cash from the
Funding Account or (y) for any other reason pursuant to this Agreement or the
other Transaction Documents.
"RECEIVABLES DELIVERY PAYMENT AMOUNT" has the meaning
specified in Section 2.11(c)(ii) hereof.
"RECEIVABLES POOL" means each receivables pool supporting an
asset-backed securitization sponsored by AmeriCredit on and after September 30,
2000 (excluding any Receivables held as part of any warehouse arrangement), or,
if the initial Aggregate Outstanding Balance of any such asset-backed
securitization is less than $500,000,000, the Aggregate Outstanding Balance of
all Receivables originated or purchased by AmeriCredit in each calendar quarter,
on or after September 30, 2000.
22
"RECEIVABLES SYSTEMS" means, with respect to any Person, all
computer applications of such Person (including, but not limited to, those of
any suppliers, vendors, customers and any third party Servicers of such Person),
which are related to or involved in the origination, collection, management or
servicing of the Receivables.
"RECORDS" means all Contracts and other documents, books,
records and other information (including, without limitation, computer programs,
tapes, discs, punch cards, data processing software and related property and
rights) maintained with respect to Receivables and the related Obligors.
"REGULAR AMORTIZATION PERIOD" means the period commencing on
the thirty-fifth (35th) Remittance Date and ending on the earlier of (i) a
Termination and Amortization Event occurs and (ii) the later of (A) the date on
which the Net Investment is reduced to zero and there are no amounts outstanding
to the Note Insurer and (B) the Final Maturity Date.
"REGULAR AMORTIZATION PERIOD CUMULATIVE NET LOSS RATIO" means
the ratio, expressed as a percentage, computed by dividing:
(a) the sum (without duplication) of (i) Cumulative Net Losses
for the Regular Amortization Receivables Pool and (ii) the
product of (x) 0.50 multiplied by (y) the Aggregate
Outstanding Balance of all Receivables which are more than
ninety (90) days past due as of the end of the related
Settlement Period
BY
(b) the Initial Regular Amortization Receivables Pool Balance.
"REGULAR AMORTIZATION RECEIVABLES POOL" means all Eligible
Receivables held as Collateral during the Regular Amortization Period.
"REGULATION D" means Regulation D of the Board of Governors of
the Federal Reserve System, as the same may be amended, supplemented or
otherwise modified and in effect from time to time.
"REIMBURSEMENT AMOUNT" means, with respect to any Remittance
Date, the sum of (i) any draws under the Note Policy paid by the Note Insurer to
the Collateral Agent which was not previously repaid to the Note Insurer
pursuant to Section 2.3(a)(ix) hereof plus (ii) any other amounts then due and
owing to the Note Insurer pursuant to the Insurance Agreement and (iii) interest
accrued on each such amount described in (i) or (ii) above which was not
previously repaid, calculated from the date the Trust Collateral Agent received
the related amount, at the Late Payment Rate applicable to such Remittance Date.
On each Determination Date, the Note Insurer shall notify the Collateral Agent
and the Servicer of the amount of any Reimbursement Amount due on the related
Remittance Date if such amount is greater than zero.
"RELATED SECURITY" means with respect to any Receivable:
(i) all of the Debtor's interest in the Financed
Vehicles (including repossessed vehicles) or in any document or writing
evidencing any security interest in any
23
Financed Vehicle and all of the Debtor's interest in all rights to payment
under all insurance contracts with respect to a Financed Vehicle, including,
without limitation, any monies collected from whatever source in connection
with any default of an Obligor with respect to a Financed Vehicle and any
proceeds from claims or refunds of premiums on any physical damage, lender's
single interest, credit life, disability and hospitalization insurance
policies covering Financed Vehicles or Obligors;
(ii) all of the Debtor's interest in all other
security interests or liens and property subject thereto from time to time, if
any, purporting to secure payment of such Receivable, whether pursuant to the
Contract related thereto or otherwise, together with all financing statements
signed by an Obligor and security agreements describing any collateral
securing such Contract;
(iii) all of the Debtor's interest in all
guaranties, indemnities, warranties, insurance (and proceeds and premium
refunds thereof) and other agreements or arrangements of whatever character
from time to time supporting or securing payment of such Receivable, whether
pursuant to the Contract related to such Receivable or otherwise;
(iv) all of the Debtor's interest in all rights
to payment under all service contracts and other contracts and agreements
associated with such Receivables and all of the Debtor's interest in all
recourse rights against the dealers (excluding any rights in any dealer
reserve);
(v) all of the Debtor's interest in all Records,
documents and writings evidencing or related to such Receivables or the
Contracts;
(vi) all of the Debtor's interest in all rights
and remedies of the Debtor under the Master Receivables Purchase Agreement,
together with all financing statements filed by the Debtor against each of
AmeriCredit and AMTN in connection therewith;
(vii) all of the Debtor's interest in all Lock-Box
Accounts and Lock-Box Agreements;
(viii) all of the Debtor's interest in the Hedging
Agreements; and
(ix) all Proceeds of the foregoing.
"REMITTANCE DATE" means, for each Settlement Period, the third
Business Day prior to the MTN Payment Date, commencing in February, 2001.
"REPOSSESSIONS" means Financed Vehicles the Servicer has
voluntarily or involuntarily taken possession of and has not yet disposed of at
auction or otherwise.
"RESERVE ACCOUNT" has the meaning specified in Section 2.15
hereof.
"RESERVE ACCOUNT DEPOSIT AMOUNT" has the meaning specified in
Section 2.11(c)(i) hereof.
24
"RESERVE ACCOUNT REQUIRED AMOUNT" means,
(x) as of any Borrowing Base Determination Date during the
Revolving Period, the product of (i) the applicable Revolving Period
Reserve Percentage and (ii) the Net Receivables Balance as of such
Borrowing Base Determination Date; and
(y) as of any date of determination during the Amortization
Period, the lesser of:
(i) the greatest of:
(A) 1.5% of the Aggregate
Outstanding Balance of all Receivables as of
the commencement of the Amortization Period;
(B) the product of (I) the
applicable Amortization Period Reserve
Percentage and (II) the Aggregate
Outstanding Balance of all Receivables as of
such date of determination; and
(C) the product of (I) the Credit
Score Based Reserve Percentage applicable to
the Amortization Period and (II) the
Aggregate Outstanding Balance of all
Receivables as of such date of
determination; and
(ii) the Net Investment as of such date of
determination.
"RESERVE ACCOUNT SHORTFALL" means, as of any Delivery Date,
that the amount on deposit in the Reserve Account on such Determination Date
is less than the Reserve Account Deposit Amount for such Delivery Date.
"REVOLVING PERIOD" means the period commencing on the Closing
Date and ending on the commencement of the earlier of (i) the date on which the
Regular Amortization Period commences and (ii) the date on which the Rapid
Amortization Period commences.
"REVOLVING PERIOD RESERVE PERCENTAGE" means, with respect to
any Borrowing Base Determination Date during the Revolving Period, the sum of
(x) if, and only if, the Weighted Average Age of the Eligible Receivables then
exceeds 180.00 days, 3%, plus (y) the applicable percentage set forth in the
numbered clauses (i) through (v) below:
(i) 3.5% if BOTH
(a) the Weighted Average AmeriCredit Score of
all Eligible Receivables as of such date of
determination, after taking into account all
Facility Activity on such date is greater
than or equal to 227.00; and
(b) the most-recently calculated Portfolio Net
Loss Ratio is less than 5.00%.
(ii) 4.5%, if EITHER
25
(a) the Weighted Average AmeriCredit Score of
all Eligible Receivables as of such date of
determination, after taking into account all
Facility Activity on such date is greater
than or equal to 226.00 but less than
227.00; or
(b) the most-recently calculated Portfolio Net
Loss Ratio is greater than or equal to 5.00%
but less than 6.00%.
(iii) 5.5%, if EITHER
(a) the Weighted Average AmeriCredit Score of
all Eligible Receivables as of such date of
determination, after taking into account all
Facility Activity on such date is greater
than or equal to 224.00 but less than
226.00; or
(b) the most-recently calculated Portfolio Net
Loss Ratio is greater than or equal to 6.00%
but less than 7.00%.
(iv) 6.5%, if EITHER
(a) the Weighted Average AmeriCredit Score of
all Eligible Receivables as of such date of
determination, after taking into account all
Facility Activity on such date is greater
than or equal to 222.00 but less than
224.00; or
(b) the most-recently calculated Portfolio Net
Loss Ratio is greater than or equal to 7.00%
but less than 7.50%.
(v) 7.5%, if EITHER
(a) the Weighted Average AmeriCredit Score of
all Eligible Receivables as of such date of
determination, after taking into account all
Facility Activity on such date is less than
222.00; or
(b) the most-recently calculated Portfolio Net
Loss Ratio is greater than or equal to
7.50%.
"S&P" or "STANDARD & POOR'S" means Standard & Poor's Ratings
Services, a Division of the McGraw-Hill Companies.
"SCHEDULE OF RECEIVABLES" means the schedule of all retail
installment sales contracts and promissory notes originally held as part of the
Trust.
"SECURED OBLIGATIONS" means, at any time, collectively but
without duplication, all of the following: the Net Investment then outstanding,
any accrued and unpaid Note Interest,
26
any accrued and unpaid Premiums and Reimbursement Amounts, the Monthly
Administration Fee, all amounts due to the Trustee and to the Collateral
Agent, all amounts due to the Note Insurer, and all other amounts due from the
Debtor hereunder or under any other Transaction Document.
"SECURED PARTIES" means, collectively, the Purchaser and the
Note Insurer.
"SECURITIES ACCOUNT" shall have the meaning given such term in
Section 8-501(a) of the UCC.
"SECURITY ENTITLEMENT" shall have the meaning given such term
in Section 8-102(a)(17) of the UCC.
"SECURITIES INTERMEDIARY" has the meaning specified in Article
VIII hereto.
"SECURITIZATION ASSETS" means the sum of (i) restricted cash
deposits under securitizations sponsored by AmeriCredit, (ii) investments in
trust receivables from securitzations sponsored by AmeriCredit and (iii) the
interest-only receivables from the trusts created in connection with
securitizations sponsored by AmeriCredit.
"SERVICER" means at any time the Person then authorized
pursuant to Section 2.1 of the Servicing Agreement to service, administer and
collect Receivables.
"SERVICER'S CERTIFICATE" has the meaning specified in the
Servicing Agreement.
"SERVICING AGREEMENT" means the Servicing and Custodian
Agreement, dated as of the date hereof, among the Servicer, the Custodian, the
Debtor and the Collateral Agent, as such agreement may be amended, supplemented
or otherwise modified from time to time.
"SERVICING FEE" means, for any Settlement Period, the fee
payable to the Servicer from Collections pursuant to Section 2.3(b) hereof on
the related Remittance Date, in an amount equal to 2.25% per annum on the amount
of the Aggregate Outstanding Balance of the Receivables as of the first day of
such Settlement Period.
"SERVICING PORTFOLIO" means, as of any date, the Aggregate
Outstanding Balance of all Receivables (whether or not thereafter sold or
disposed of) relating to retail installment sales contracts or installment notes
and security agreements relating to the sale or refinancing of new or used
automobiles, light-duty trucks, vans, or minivans that are serviced by the
Servicer or any of its Affiliates as of such date, calculated in a manner
consistent with the components of "managed receivables" in the most recent
reports on Form 10-K or Form 10-Q filed by AmeriCredit Corp.
"SETTLEMENT PERIOD" means any calendar month, provided that
the initial Settlement Period shall commence on the Closing Date and end on
January 31, 2000.
"STEP-DOWN AMOUNT" means zero for any Remittance Date
occurring during the Revolving Period or during the Rapid Amortization Period;
for any Remittance Date occurring during the Regular Amortization Period, the
excess, if any, of (x) the excess of (i) the Aggregate
27
Outstanding Balance of all Receivables held as Collateral as of the end of the
related Settlement Period over (ii) the Net Investment outstanding on such
Remittance Date, assuming that 100% of the Monthly Principal Amount (without
deduction for any Step-Down Amount) were applied in reduction of the Net
Investment on such Remittance Date over (y) 5% of the Aggregate Outstanding
Balance of all Receivables held as Collateral as of the end of the related
Settlement Period.
"SUBSIDIARY" of a Person means any corporation more than 50%
of the outstanding voting securities of which, and any partnership more than 50%
of the partnership interests of which, shall at any time be owned or controlled,
directly or indirectly, by such Person or by one or more Subsidiaries of such
Person or any similar business organization which is so owned or controlled.
"TAKE-OUT" means the release, pursuant to Section 2.16 hereof,
by the Collateral Agent of Receivables and the Contracts related thereto.
"TAKE-OUT DATE" means the date on which a Take-Out occurs.
"TAKE-OUT NOTICE" means the notice, substantially in the form
attached hereto as Exhibit K, furnished by the Debtor to the Collateral Agent
and the Note Insurer in accordance with Section 2.15.
"TANGIBLE NET WORTH" means, with respect to any Person, the
net worth of such Person calculated in accordance with GAAP, after subtracting
therefrom the aggregate amount of such Person's intangible assets, including,
without limitation, goodwill, franchises, licenses, patents, trademarks,
copyrights and service marks.
"TARGET YIELD SUPPLEMENT ACCOUNT AMOUNT" means as of any
Borrowing Base Determination Date the product of (i) the amount credited to the
Funding Account at the close of business on such Determination Date multiplied
by (ii)(A) from the first until the fifth Determination Dates after the Closing
Date, 1.75%, (B) from the sixth until the eleventh Determination Dates after the
Closing Date, 1.20%, and (C) thereafter, 0.70%.
"TERMINATION AND AMORTIZATION EVENT" means an event described
in Section 6.1 hereof.
"THIRD PARTY LENDER" means a lender other than the Sellers
that has originated a Receivable in connection with the sale of a Financed
Vehicle and has sold such Receivable to AmeriCredit under a Third Party Loan
Purchase Agreement or pursuant to a Third Party Lender Assignment and (i) which
has been approved by AmeriCredit in accordance with comparable procedures as
Dealers are approved, (ii) which will be monitored by AmeriCredit in accordance
with comparable procedures as Dealers are monitored, (iii) whose motor vehicle
installment sale contracts or installment loan contracts are underwritten in
accordance with AmeriCredit's underwriting standards, and (iv) whose motor
vehicle installment sales contracts or installment loan contracts are serviced
in accordance with the Servicer's servicing standards.
28
"THIRD PARTY LENDER ASSIGNMENT" means, with respect to a
Receivable, the executed assignment executed by a Third Party Lender conveying
such Receivable to AmeriCredit, as the same may be amended, supplemented or
otherwise modified and in effect.
"THIRD PARTY LOAN PURCHASE AGREEMENT" means any agreement
between a Third Party Lender and AmeriCredit relating to the acquisition of
Receivables from a Third Party Lender by AmeriCredit, as the same may be
amended, supplemented or otherwise modified and in effect.
"TOTAL AVAILABLE FUNDS" means, with respect to any Remittance
Date, the sum of (x) the Available Funds for such Remittance Date and (y) the
amounts, if any, withdrawn from the Yield Supplement Account and from the
Reserve Account on such Remittance Date and deposited to the Collection Account
pursuant to Section 2.3(b) hereof.
"TRANSACTION DOCUMENTS" means this Agreement, the Note
Purchase Agreement, the Note, the Master Receivables Purchase Agreement, the
Servicing Agreement, the Insurance Agreement, the Trust Agreement, the Premium
Side Letter, each Hedging Arrangement and all other agreements, documents and
instruments delivered pursuant thereto or in connection therewith.
"TRUST AGREEMENT" means the Amended and Restated Trust
Agreement, dated as of the date hereof, among AmeriCredit, AMTN and the Trustee,
together with all permitted amendments, modifications and supplements thereto.
"TRUSTEE" means the Trustee under the Trust Agreement.
"UCC" means, with respect to any state, the Uniform Commercial
Code as from time to time in effect in such state.
"U.S." or "UNITED STATES" means the United States of America.
"WEIGHTED AVERAGE AGE" means, with respect to any group of
Eligible Receivables, the quotient equal to (x) the product of (i) the number of
days each Receivable in such group has been included as Collateral multiplied by
(ii) the Outstanding Balance of the related Receivable divided by (y) the
Aggregate Outstanding Balance of all such Receivables.
"WEIGHTED AVERAGE AMERICREDIT SCORE" means, with respect to
any group of Eligible Receivables, the quotient equal to (x) the product of (i)
the AmeriCredit Score for each Receivable in such group multiplied by (ii) the
Outstanding Balance of the related Receivable divided by (y) the Aggregate
Outstanding Balance of all such Receivables.
"YIELD SUPPLEMENT ACCOUNT" has the meaning specified in
Section 2.12 hereof.
"YIELD SUPPLEMENT ACCOUNT SHORTFALL" means, as of any
Determination Date, that the amount on deposit in the Yield Supplement Account
on such Determination Date is less than the required Yield Supplement Account
Amount for such Determination Date.
29
SECTION 1.2. OTHER TERMS. Unless the context otherwise requires, all
capitalized terms used herein and not otherwise defined herein shall have the
meanings specified in the Note Purchase Agreement, and shall include in the
singular number the plural and in the plural number the singular. All
accounting terms not specifically defined herein shall be construed in
accordance with GAAP. All terms used in Article 9 of the UCC in the State of
New York, and not specifically defined herein, are used herein as defined in
such Article 9.
SECTION 1.3. COMPUTATION OF TIME PERIODS. Unless otherwise stated in
this Agreement, in the computation of a period of time from a specified date
to a later specified date, the word "from" means "from and including," the
words "to" and "until" each means "to but excluding," and the word "within"
means "from and excluding a specified date and to and including a later
specified date."
SECTION 1.4. FORM OF NOTES. The Notes, in each case together with
the Collateral Agent's certificate of authentication, shall be in
substantially the form set forth in Exhibit C, with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Security Agreement and may have such letters, numbers or
other marks of identification and such legends or endorsements placed thereon
as may, consistently herewith, be determined by the officers executing such
Note, as evidenced by their execution of the Notes. Any portion of the text of
such Note may be set forth on the reverse thereof, with an appropriate
reference thereto on the face of the Note.
The Notes shall be typewritten, printed, lithographed or engraved or
produced by any combination of these methods (with or without steel engraved
borders), all as determined by the officers executing such Notes, as evidenced
by their execution of such Notes.
Each Note shall be dated the date of its authentication.
SECTION 1.5. EXECUTION, AUTHENTICATION AND DELIVERY. The Notes shall
be executed on behalf of the Debtor by any of its Authorized Officers. The
signature of any such Authorized Officer on the Notes may be manual or
facsimile.
Notes bearing the manual or facsimile signature of individuals who were
at any time Authorized Officers of the Debtor shall bind the Debtor,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Notes or did not hold
such offices at the date of such Notes.
The Collateral Agent shall, upon receipt of the Debtor Order,
authenticate and deliver Notes for original issue in an aggregate principal
amount of $500,000,000.
The Notes shall be issuable as registered Notes in the minimum
denomination of $1,000,000 and in integral multiples thereof (except for one
Note which may be issued in a denomination other than an integral multiple of
$1,000,000).
No Note shall be entitled to any benefit under this Security Agreement
or be valid or obligatory for any purpose, unless there appears on such Note a
certificate of authentication substantially in the form provided for herein
executed by the Collateral Agent by the manual signature of one of its
authorized signatories, and such certificate upon any Note shall be
30
conclusive evidence, and the only evidence, that such Note has been duly
authenticated and delivered hereunder.
SECTION 1.6. REGISTRATION; REGISTRATION OF TRANSFER AND EXCHANGE. The
Debtor shall cause to be kept a register (the "NOTE REGISTER") in which, subject
to such reasonable regulations as it may prescribe, the Debtor shall provide for
the registration of Notes and the registration of transfers of Notes. The
Collateral Agent shall be "NOTE REGISTRAR" for the purpose of registering Notes
and transfers of Notes as herein provided. Upon any resignation of any Note
Registrar, the Debtor shall promptly appoint a successor or, if it elects not to
make such an appointment, assume the duties of Note Registrar.
If a Person other than the Collateral Agent is appointed by the Debtor
as Note Registrar, the Debtor will give the Collateral Agent prompt written
notice of the appointment of such Note Registrar and of the location, and any
change in the location, of the Note Register, and the Collateral Agent shall
have the right to inspect the Note Register at all reasonable times and to
obtain copies thereof, and the Collateral Agent shall have the right to
conclusively rely upon a certificate executed on behalf of the Note Registrar by
an Executive Officer thereof as to the names and addresses of the Noteholders of
the Notes and the principal amounts and number of such Notes.
Upon surrender for registration of transfer of any Note at the office
or agency of the Debtor to be maintained as provided in Section 1.10 hereof, if
the requirements of Section 8-401(1) of the UCC are met the Issuer shall execute
and upon its request the Collateral Agent shall authenticate and the Noteholder
shall obtain from the Collateral Agent, in the name of the designated transferee
or transferees, one or more new Notes, in any authorized denominations, of the
same class and a like aggregate principal amount.
At the option of the Noteholder, Notes may be exchanged for other Notes
in any authorized denominations, of the same class and a like aggregate
principal amount, upon surrender of the Notes to be exchanged at such office or
agency. Whenever any Notes are so surrendered for exchange, if the requirements
of Section 8-401(1) of the UCC are met the Debtor shall execute and upon its
request the Collateral Agent shall authenticate and the Noteholder shall obtain
from the Collateral Agent, the Notes which the Noteholder making the exchange is
entitled to receive.
All Notes issued upon any registration of transfer or exchange of Notes
shall be the valid obligations of the Debtor, evidencing the same debt, and
entitled to the same benefits under this Security Agreement, as the Notes
surrendered upon such registration of transfer or exchange.
Every Note presented or surrendered for registration of transfer or
exchange shall be (i) duly endorsed by, or be accompanied by a written
instrument of transfer in the form attached to Exhibit C duly executed by the
Holder thereof or such Holder's attorney duly authorized in writing, with such
signature guaranteed by an "eligible guarantor institution" meeting the
requirements of the Note Registrar which requirements include membership or
participation in Securities Transfer Agents Medallion Program ("STAMP") or such
other "signature guarantee program" as may be determined by the Note Registrar
in addition to, or in substitution for, Stamp, all in accordance with the
Exchange Act, and (ii) accompanied by an investor representation letter in
substantially the form of Exhibit D hereto or, in lieu thereof, a legal
31
opinion to the effect that such transfer or exchange constitutes an exempt
transaction under Section 4(2) of the Securities Act of 1933, as amended.
Notwithstanding the foregoing, in the case of any sale or other
transfer of a Note, the transferor of such Note shall be required to represent
and warrant in writing that the prospective transferee either (a) is not (i) an
employee benefit plan (as defined in section 3(3) of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA")), which is subject to the
provisions of Title I of ERISA, (ii) a plan (as defined in section 4975(e)(1) of
the Code), which is subject to Section 4975 of the Code, or (iii) an entity
whose underlying assets are deemed to be assets of a plan described in (i) or
(ii) above by reason of such plan's investment in the entity (any such entity
described in clauses (i) through (iii), a "BENEFIT PLAN ENTITY") or (b) is a
Benefit Plan Entity and the acquisition and holding of the Definitive Note by
such prospective transferee is covered by a Department of Labor Prohibited
Transaction Class Exemption. Each transferee of a Book Entry Note that is a
Benefit Plan Entity shall be deemed to represent that its acquisition and
holding of the Book Entry Note is covered by a Department of Labor Prohibited
Transaction Class Exemption.
Notwithstanding the foregoing, the transferor of such Note shall be
further required to represent and warrant in writing that it reasonably
believes, after due inquiry, that the prospective transferee is not a Benefit
Plan Entity. Each transferee of such Note shall be deemed to represent that it
is not a Benefit Plan Entity.
No service charge shall be made to a Noteholder for any registration of
transfer or exchange of Notes, but the Note Registrar may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any registration of transfer or exchange of Notes.
The preceding provisions of this section notwithstanding, the Debtor
shall not be required to make and the Note Registrar shall not register
transfers or exchanges of Notes selected for redemption or of any Note for a
period of 15 days preceding the due date for any payment with respect to the
Note.
SECTION 1.7. MUTILATED, DESTROYED, LOST OR STOLEN NOTES. If (i) any
mutilated Note is surrendered to the Collateral Agent, or the Collateral Agent
receives evidence to its satisfaction of the destruction, loss or theft of any
Note, and (ii) there is delivered to the Collateral Agent such security or
indemnity as may be required by it to hold the Debtor and the Collateral Agent
harmless, then, in the absence of notice to the Debtor, the Note Registrar or
the Collateral Agent that such Note has been acquired by a bona fide purchaser,
and provided that the requirements of Section 8-405 of the UCC are met, the
Debtor shall execute and upon its request the Collateral Agent shall
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Note, a replacement Note; PROVIDED, HOWEVER, that if
any such destroyed, lost or stolen Note, but not a mutilated Note, shall have
become or within seven days shall be due and payable, instead of issuing a
replacement Note, the Debtor may direct the Collateral Agent, in writing, to pay
such destroyed, lost or stolen Note when so due or payable without surrender
thereof. If, after the delivery of such replacement Note or payment of a
destroyed, lost or stolen Note pursuant to the proviso to the preceding
sentence, a bona fide purchaser of the original Note in lieu of which such
replacement Note was issued presents for
32
payment such original Note, the Debtor and the Collateral Agent shall be
entitled to recover such replacement Note (or such payment) from the Person
to whom it was delivered or any Person taking such replacement Note from such
Person to whom such replacement Note was delivered or any assignee of such
Person, except a bona fide purchaser, and shall be entitled to recover upon
the security or indemnity provided therefor to the extent of any loss,
damage, cost or expense incurred by the Debtor or the Collateral Agent in
connection therewith.
Upon the issuance of any replacement Note under this Section 1.7, the
Debtor may require the payment by the Holder of such Note of a sum sufficient to
cover any tax or other governmental charge that may be imposed in relation
thereto and any other reasonable expenses (including the fees and expenses of
the Collateral Agent) connected therewith.
Every replacement Note issued pursuant to this Section 1.7 in
replacement of any mutilated, destroyed, lost or stolen Note shall constitute an
original additional contractual obligation of the Debtor, whether or not the
mutilated, destroyed, lost or stolen Note shall be at any time enforceable by
anyone, and shall be entitled to all the benefits of this Security Agreement
equally and proportionately with any and all other Notes duly issued hereunder.
The provisions of this Section 1.7 are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Notes.
SECTION 1.8. PERSONS DEEMED OWNER. Prior to due presentment for
registration of transfer of any Note, the Debtor, the Collateral Agent and any
agent of the Debtor or the Collateral Agent may treat the Person in whose name
any Note is registered as the owner of such Note for the purpose of receiving
payments of principal of and interest, if any on such Note and for all other
purposes whatsoever, whether or not such Note be overdue, and none of the
Debtor, the Collateral Agent nor any agent of the Debtor or the Collateral Agent
shall be affected by notice to the contrary.
SECTION 1.9. CANCELLATION. All Notes surrendered for payment,
registration of transfer, exchange or redemption shall, if surrendered to any
Person other than the Collateral Agent, be delivered to the Collateral Agent and
shall be promptly canceled by the Collateral Agent. The Debtor may at any time
deliver to the Collateral Agent for cancellation any Notes previously
authenticated and delivered hereunder which the Debtor may have acquired in any
manner whatsoever, and all Notes so delivered shall be promptly canceled by the
Collateral Agent. No Notes shall be authenticated in lieu of or in exchange for
any Notes canceled as provided in this Section 1.9, except as expressly
permitted by this Security Agreement. All canceled Notes may be held or disposed
of by the Collateral Agent in accordance with its standard retention or disposal
policy as in effect at the time unless the Debtor shall timely direct by a
Debtor Order that they be destroyed or returned to it; provided that such Debtor
Order is timely and the Notes have not been previously disposed of by the
Collateral Agent.
SECTION 1.10. MAINTENANCE OF OFFICE OR AGENCY. The Debtor will maintain
in New York, New York, an office or agency where Notes may be surrendered for
registration of transfer or exchange, and where notices and demands to or upon
the Debtor in respect of the Notes and this Security Agreement may be served.
The Debtor hereby initially appoints the Collateral
33
Agent to serve as its agent for the foregoing purposes. The Debtor will give
prompt written notice to the Collateral Agent of the location, and of any
change in the location, of any such office or agency. If at any time the
Debtor shall fail to maintain any such office or agency or shall fail to
furnish the Collateral Agent with the address thereof, such surrenders,
notices and demands may be made or served at the Collateral Agent's office,
and the Debtor hereby appoints the Collateral Agent as its agent to receive
all such surrenders, notices and demands.
ARTICLE II
GRANT OF SECURITY INTEREST AND SETTLEMENTS
SECTION 2.1. GRANT OF SECURITY INTEREST. As security for the prompt and
complete payment of the Note and the performance of all of the Debtor's
obligations under the Transaction Documents, the Debtor hereby grants to the
Collateral Agent, for the benefit of the Secured Parties, without recourse
except as provided herein, a security interest in and continuing Lien on all of
the Debtor's property, in existence on the Closing Date or thereafter acquired
and wherever located, including, without limitation, all of its right, title and
interest in, to and under all accounts, contract rights, general intangibles,
chattel paper, instruments, documents, money, cash, deposit accounts,
certificates of deposit, goods, letters of credit, securities, investment
property, financial assets or security entitlements (all of the foregoing,
collectively, the "COLLATERAL"); PROVIDED, that once the Secured Parties have
released their interest in a Receivable and the related Contract pursuant to
Section 2.7 or 2.15 hereof, such Receivable and related Contract shall no longer
be part of the Collateral.
In connection with such grant, the Debtor agrees to record and
file, at its own expense, financing statements with respect to the Collateral
now existing and hereafter created meeting the requirements of applicable state
law in such manner and in such jurisdictions as are necessary to perfect the
first priority security interest of the Collateral Agent in the Collateral, and
to deliver a file-stamped copy of such financing statements or other evidence of
such filing (which may, for purposes of this Section 2.1, consist of telephone
confirmation of such filing) to the Collateral Agent on or prior to the Closing
Date. In addition, in order to show that the Collateral, including that portion
of the Collateral consisting of the Receivables and the related Contracts, have
been pledged to the Collateral Agent hereunder, the Debtor and the Servicer
agree (i) to clearly and unambiguously mark their respective general ledgers and
all accounting records and documents and all computer tapes and records and (ii)
to stamp all Contracts and related files with the following legend:
All right, title and interest in the foregoing finance
contract has been assigned to a financial institution
in its capacity as agent or collateral agent for the
secured parties in connection with a credit facility.
SECTION 2.2. NOTE INTEREST, PREMIUM AMOUNTS, FEES AND OTHER COSTS AND
EXPENSES. Notwithstanding the limitation on recourse under Section 2.1 hereof,
the Debtor shall pay, as and when due in accordance with this Agreement, all
Note Interest, all Reimbursement Amounts, the Monthly Administration Fee, all
amounts payable pursuant to Article VII hereof, if any, all
34
Premium Amounts, and the Servicing Fee. Nothing in this Agreement shall limit
in any way the obligations of the Debtor to pay the amounts set forth in this
Section 2.2.
SECTION 2.3. MONTHLY FLOW OF FUNDS.
(a) On each Remittance Date, the Available Funds or
the Total Available Funds, as applicable, plus, in the case of priorities (v)
and (vi), the amount of any draws made under the Note Policy by the Collateral
Agent shall be applied, without duplication, by the Collateral Agent as follows:
(i) FIRST, from the Total Available Funds, (x) to pay
any regularly scheduled amounts due under any Hedging Arrangement and (y) to
pay, with the prior consent of the Note Insurer, any other amounts then due to
the counterparty under any such Hedging Agreements;
(ii) SECOND, from the Total Available Funds, to pay
the Servicer, the Servicing Fee for such Settlement Period;
(iii) THIRD, from the Total Available Funds, to the
extent available, to pay to AmeriCredit Financial Services, Inc., any amounts on
deposit in the Collection Account with respect to a Settlement Period for
amounts previously deposited in the Collection Account but later determined to
have resulted from mistaken deposits or postings or checks returned for
insufficient funds, together with amounts paid by Obligors that were collected
during the related Settlement Period and which do not relate to principal and
interest payments due on the Receivables;
(iv) FOURTH, from the Total Available Funds, to pay
to the Collateral Agent all fees and expenses due pursuant to Section 7.2
hereof, but not, for any single Remittance Date, in excess of 1/12 of the annual
amount set forth on the fee schedule attached as Exhibit P hereto, and to the
Trustee, its fees and expenses (to the extent not paid by the Servicer), but
not, for any single Remittance Date, in excess of the monthly amount set forth
in part III of the fee schedule attached as Exhibit Q hereto;
(v) FIFTH, from the Total Available Funds, to pay the
Purchaser an amount equal to all accrued and unpaid Note Interest in respect of
such Settlement Period and with respect to any previous Settlement Period to the
extent not previously paid;
(vi) SIXTH, from the Total Available Funds, the
Monthly Principal Amount shall be paid (x) if such Remittance Date occurs during
the Revolving Period, to the Funding Account, or (y) if such Remittance Date
occurs during the Amortization Period, to the Purchaser, in reduction of the Net
Investment;
(vii) SEVENTH, from the Total Available Funds, to the
extent of any remaining Total Available Funds, to pay the Note Insurer, the
Premium Amount then due and any accrued and unpaid Premium Amount with interest
at the Late Payment Rate;
(viii) EIGHTH, from the Total Available Funds, to the
Note Insurer, the Reimbursement Amount, if any, then due to it;
35
(ix) NINTH, from the Total Available Funds, to the
successor Servicer, if any, expenses incurred in connection with transition of
servicing, and any fees owed to the successor Servicer not paid in (ii) above;
(x) TENTH, from the Available Funds, to the Reserve
Account, the amount, if any, by which the Reserve Account Required Amount, after
taking into account any Receivables Delivery which occurs on such Remittance
Date, then exceeds the amount then on deposit in the Reserve Account, after
taking into account all other deposits to, and all withdrawals and transfers
from, the Reserve Account on such Remittance Date;
(xi) ELEVENTH, from the Available Funds, to the Yield
Supplement Account, the amount, if any, by which the Target Yield Supplement
Account Amount then exceeds the amount on deposit in the Yield Supplement
Account, after taking into account all other deposits to, and all withdrawals
and transfers from, the Yield Supplement Account on such Remittance Date;
(xii) TWELFTH, from the Available Funds, any amounts
owed to the Collateral Agent and the Trustee not paid in (iv) above;
(xiii) THIRTEENTH, from the Available Funds, an
amount equal to the positive excess, if any, of (x) the Net Investment on such
Remittance Date, after taking into account all other Facility Activity on such
Remittance Date over (y) the Borrowing Base as of such Remittance Date, after
taking into account all other Facility Activity on such Remittance Date, which
amount shall be paid (a) if such Remittance Date occurs during the Revolving
Period, to the Funding Account, or (b) if such Remittance Date occurs during the
Amortization Period, to the Purchaser, in reduction of the Net Investment; and
(xiv) FOURTEENTH, from the Available Funds, all
remaining Available Funds shall be paid (x) if the Rapid Amortization Period is
then in effect unless the Note Insurer otherwise directs, to the Purchaser, as a
reduction in the Net Investment until the Net Investment has been reduced to
zero or (y) if the Rapid Amortization Period is not then in effect, to the
holders of the Class A Certificates.
(b) (i) In the event that, on any Remittance Date,
the Available Funds are insufficient, after following the priority of payments
as enumerated in paragraph (a) above, to fund in full the amounts described in
clauses (i), (ii), (iii), (iv) and (v) of paragraph (a) above on such Remittance
Date, the Collateral Agent shall transfer the amount of the insufficiency to the
Collection Account (x) first, from the Yield Supplement Account, until the
amount on deposit therein has been reduced to zero and (y) second, and to the
extent of any remaining insufficiency once the amount on deposit in the Yield
Supplement Account has been reduced to zero, from the Reserve Account.
(ii) In the event that, on any Remittance Date, the
Available Funds are insufficient after following the payment priorities
enumerated in paragraph (a) above, to fund in full the amounts described in
clauses (vi), (vii), (viii) and (ix) of paragraph (a) above on such Remittance
Date, the Collateral Agent shall transfer the amount of such insufficiency to
the
36
Collection Account from the Reserve Account, to the extent of amounts then
on deposit therein and after taking into account any withdrawal therefrom
pursuant to clause (b)(i)(y) above.
(c) In the event that, on any Determination Date, the
Collateral Agent determines that, after application of the Total Available Funds
on such Remittance Date, a Deficiency Amount then exists, the Collateral Agent
shall, submit a claim under the Note Policy pursuant to the terms thereof
demanding that the Note Insurer pay to the Collateral Agent for deposit in the
Collection Account the amount of such Deficiency Amount, in immediately
available funds pursuant to the terms of the Note Policy.
SECTION 2.4. PREPAYMENTS. On each Payment Date the Collateral Agent
shall apply an amount on deposit in the Collection Account, to the extent of the
Prepayment Amount, as directed by the Servicer as follows:
(a) an amount equal to the amount described in
clause (i) of the definition of Prepayment
Amount shall be paid to the Purchaser, in
reduction of the Net Investment; and
(b) an amount equal to the amount described in
clause (ii) of the definition of Prepayment
Amount shall be paid to the Purchaser on
account of accrued interest on the Note,
through the Prepayment Date.
SECTION 2.5. LIQUIDATION SETTLEMENT PROCEDURES.
Following any date after the date on which all Secured
Obligations have been paid in full in cash, (i) the Collateral Agent shall be
considered to have released its security interest in and continuing Lien on the
Collateral, including all of the Receivables and Related Security, (ii) the
Servicer shall pay to the Debtor any remaining Collections set aside and held by
the Servicer, and (iii) the Collateral Agent shall, at the written request of
the Debtor, execute and deliver to the Debtor, at the Debtor's expense, such
documents or instruments as are necessary to terminate the Collateral Agent's
security interest in the Collateral, including all of the Receivables and
Related Security and Collections with respect thereto. Any such documents shall
be prepared by or on behalf of the Debtor at the expense of the Debtor. After
giving effect to any such liquidation, any amounts remaining in the Reserve
Account, the Yield Supplement Account and in the Funding Account shall be paid
to the holders of the Class A Certificates.
SECTION 2.6. PROTECTION OF INTEREST OF THE COLLATERAL AGENT.
(a) AmeriCredit and AMTN agree that they shall, and
shall cause the Debtor to, from time to time, at its expense, promptly execute
and deliver all instruments and documents and take all actions as may be
necessary or as the Collateral Agent may reasonably request in order to perfect
or protect the Collateral or to enable the Collateral Agent or any Secured Party
to exercise or enforce any of its rights hereunder. Nothing contained herein
shall imply a duty of the Collateral Agent to initiate the preparation of
documents or the taking of action to perfect or protect the Collateral beyond
the duties specifically enumerated herein and contained in the Transaction
Documents. Without limiting the foregoing, AmeriCredit and
37
AMTN shall, and shall cause the Debtor to, in order to accurately reflect the
security interest of the Collateral Agent for the benefit of the Secured
Parties in the Collateral, (i) stamp (or cause to be stamped) all Contracts
and related files with the legend set forth in Section 2.1 hereof and (ii)
upon the request of any Secured Party, execute and file such financing or
continuation statements or amendments thereto or assignments thereof as may
be requested by such Secured Party and mark its master data processing
records and other documents (or to cause such records or other documents to
be marked) so as to indicate the Collateral Agent's security interest in the
portion of the Collateral consisting of Receivables, the related Contracts,
the Collections and the Related Security with respect thereto. AmeriCredit
and AMTN agree that they shall take all actions necessary to cause the Debtor
to similarly mark its records to reflect the sale of the Receivables and the
Contracts to the Debtor and the Collateral Agent's security interest in the
Receivables, the related Contracts, the Collections and the Related Security
with respect thereto. AmeriCredit and AMTN shall, and shall cause the Debtor
to, at their own expense, upon request of any Secured Party, obtain such
additional search reports as any such Secured Party shall request. To the
fullest extent permitted by applicable law, the Collateral Agent shall be
permitted to sign and file continuation statements and amendments thereto and
assignments thereof in respect of security interests created under this
Agreement without the Debtor's, AmeriCredit's or AMTN's signature. Carbon,
photographic or other reproduction of this Agreement or any financing
statement shall be sufficient as a financing statement. The Debtor shall not,
and shall not permit AmeriCredit or AMTN to, change its name, identity or
corporate structure (within the meaning of Section 9-402(7) of the UCC as in
effect in the State of New York, Delaware and Texas) or relocate its chief
executive office or any office where Records are kept unless it shall have:
(i) given the Collateral Agent and the Note Insurer at least thirty (30)
days' prior notice thereof and (ii) prepared at the Debtor's expense and
delivered to the Collateral Agent all financing statements, instruments and
other documents necessary to preserve and protect the Collateral or requested
by the Collateral Agent or any Secured Party in connection with such change
or relocation. Any filings under the UCC or otherwise that are occasioned by
such change in name or location shall be made at the expense of the Debtor.
On the Closing Date, the Debtor shall deliver to the Collateral Agent and the
Note Insurer a listing by account number of the Contracts as of the Closing
Date, which listing shall constitute Schedule A hereto and is hereby
incorporated herein by reference. On each Remittance Date, the Debtor shall
deliver to the Collateral Agent and the Note Insurer an updated listing by
account number of the Contracts as of the last day of such Settlement Period
(giving effect to any releases by the Purchaser pursuant to Section 2.15
hereof) and such updated list shall thereupon constitute Schedule A hereto
and is hereby incorporated by reference herein.
(b) The Servicer shall instruct all Obligors to cause
all Collections to be deposited directly with a Lock-Box Bank, acting as agent
for the Collateral Agent, on behalf of the Secured Parties, pursuant to a
Lock-Box Agreement. Amounts received by a Lock-Box Bank in respect of
Receivables may initially be deposited into a Lock-Box Account maintained by the
Lock-Box Bank as agent for the Collateral Agent, on behalf of the Secured
Parties, and for other owners of automobile Receivables serviced by the
Servicer. The Servicer shall be permitted to give instructions to the Lock-Box
Banks for so long as neither a Potential Termination and Amortization Event nor
any Termination and Amortization Event has occurred hereunder. The Servicer
shall not add any bank as a Lock-Box Bank to those listed on Exhibit A attached
hereto unless such bank has entered into a Lock-Box Agreement. The Servicer
shall not terminate any bank as a Lock-Box Bank unless the Collateral Agent and
the Note Insurer shall
38
have received fifteen (15) days' prior notice of such termination. The
Servicer shall use its best efforts to cause the Lock-Box Bank, pursuant to
the Lock-Box Agreement, to deposit all payments on the Receivables in the
Lock-Box Account not later than the Business Day after receipt thereof and,
within two (2) Business Days of receipt of Collections into the Lock-Box
Account, the Servicer shall cause such Collections to be remitted into the
Collection Account. If the Debtor, AmeriCredit, AMTN or the Servicer receives
any Collections, the Debtor, AmeriCredit, AMTN or the Servicer, as
applicable, shall immediately, but in any event within two (2) Business Days
of receipt, remit (and shall cause AmeriCredit and AMTN to remit) such
Collections to the Collection Account.
SECTION 2.7. DEEMED COLLECTIONS; APPLICATION OF PAYMENTS.
(a) If on any day the Outstanding Balance of a
Receivable is either (x) reduced as a result of any defective, rejected or
returned merchandise or services, any discount, credit, rebate, dispute,
warranty claim, repossessed or returned goods, charge-back, allowance, any
billing adjustment, dilutive factor or other adjustment or (y) reduced or
canceled as a result of a setoff or offset in respect of any claim by any Person
(whether such claim arises out of the same or a related transaction or an
unrelated transaction), the Debtor shall be deemed to have received on such day
a Collection of such Receivable in the amount of such reduction or cancellation
and the Debtor shall pay to the Servicer an amount equal to such reduction or
cancellation and such amount shall be deposited into the Collection Account and
applied by the Servicer as a Collection in accordance with Section 2.3 or 2.4
hereof, as applicable.
(b) If on any day any of the representations or
warranties in Article III was or becomes untrue with respect to a Receivable
(whether on or after the date of any transfer of an interest therein to the
Collateral Agent, for the benefit of the Secured Parties, as contemplated
hereunder), the Debtor shall be deemed to have received on such day a Collection
of such Receivable in full and the Debtor shall on such day pay to the Servicer
an amount equal to the Outstanding Balance of such Receivable and such amount
shall be deposited into the Collection Account and allocated and applied by the
Servicer as a Collection on account of such Receivable.
(c) Any payment by an Obligor in respect of any
indebtedness owed by it to the Debtor, AmeriCredit or AMTN shall, except as
otherwise specified by such Obligor or otherwise required by contract or law and
unless otherwise instructed by the Note Insurer, be applied as a Collection of
any Receivable of such Obligor included in the Net Investment (starting with the
oldest such Receivable) to the extent of any amounts then due and payable
thereunder before being applied to any other receivable or other indebtedness of
such Obligor.
SECTION 2.8. PAYMENTS AND COMPUTATIONS, ETC. All amounts to be paid or
deposited by the Debtor or the Servicer hereunder shall be paid or deposited in
accordance with the terms hereof no later than 1:00 p.m. (New York City time) on
the day when due in immediately available funds; if such amounts are payable to
the Note Insurer (whether on behalf of the Purchaser or any other Owners or
otherwise), they shall be paid or deposited in the Note Insurer's account
indicated in Section 9.3 hereof, until otherwise notified by the Note Insurer,
the Purchaser or any other Owners. The Debtor shall, to the extent permitted by
law, pay to the applicable Secured Parties upon demand, interest on all amounts
not paid or deposited when due
39
to the Secured Parties hereunder at a rate equal to 2% per annum plus LIBOR
as of the most recent LIBOR Determination Date. All computations of Note
Interest, Premium Amount, the Monthly Administration Fee, the Late Payment
Rate and the Servicing Fee hereunder shall be made on the basis of a year of
360 days for the actual number of days (including the first but excluding the
last day) elapsed. Any computations by the Note Insurer of amounts payable by
the Debtor hereunder shall be binding upon the Debtor absent manifest error.
SECTION 2.9. REPORTS. On or before each Determination Date, the
Servicer shall prepare and forward to the Collateral Agent and the Note Insurer,
(i) a Servicer's Certificate as of the end of the preceding Settlement Period,
(ii) if requested by the Collateral Agent or the Note Insurer, a computer tape
listing by Obligor all Receivables, together with an aging of such Receivables,
and (iii) such other information as the Collateral Agent, the Note Insurer or
any Secured Party may reasonably request. The Note Insurer shall provide to the
Debtor, the Servicer and to the Collateral Agent, within three (3) Business Days
of each LIBOR Determination Date indicating LIBOR as it applies to the
Purchaser's medium term notes with respect to the upcoming MTN Payment Date. The
Collateral Agent will determine LIBOR as it applies to the Note, on each LIBOR
Determination Date, and will forward such determination to the Debtor and to the
Servicer within three (3) Business Days. The Servicer will compare the two LIBOR
rates, and will promptly contact the Purchaser, the Collateral Agent and the
Note Insurer if such rates do not reconcile.
SECTION 2.10. COLLECTION ACCOUNT.
(a) There shall be established on or prior to the
Closing Date and maintained, for the benefit of the Secured Parties, with the
Collateral Agent, an Eligible Deposit Account (the "COLLECTION ACCOUNT"),
bearing a designation clearly indicating that the funds deposited therein are
held in the name of the Collateral Agent, for the benefit of the Secured
Parties. The Collection Account shall be under the exclusive ownership and
control of the Collateral Agent, for the benefit of the Secured Parties. Subject
to the terms hereof, the Collateral Agent shall possess all right, title and
interest in and to all funds deposited from time to time in the Collection
Account.
There shall be deposited in the Collection Account:
(i) by the Servicer, on a daily basis and from the
Lock-Box Account, all Collections on account of the Receivables, within two (2)
Business Days upon receipt or such Collections in the Lock-Box Account;
(ii) amounts representing net investment earnings (a)
on the Funding Account, as provided in Section 2.11(h), (b) on the Yield
Supplement Account as provided in Section 2.12(a)(iii) and (c) on the Reserve
Account, as provided in Section 2.15(a)(iii), in each case, upon the Collateral
Agent's receipt of any such net investment earnings;
(iii) amounts received under any Hedging Arrangement;
(iv) amounts transferred from the Funding Account to
the Collection Account pursuant to Section 2.11(e), and from the Yield
Supplement Account to the Collection
40
Account pursuant to Section 2.12(a)(vi), in each case in connection with the
commencement of the Amortization Period;
(v) amounts transferred from the Reserve Account and
from the Yield Supplement Account pursuant to Section 2.3(b) hereof;
(vi) the proceeds of each draw under the Note
Policy; and
(vii) the amount deposited in the Collection Account
as provided in Section 6.5 hereof.
On the date on which Secured Obligations have been paid in
full, any funds remaining on deposit in the Collection Account shall be paid to
the Debtor.
(b) Subject to subsection (d) below, funds on
deposit in the Collection Account shall be invested in Eligible Investments by
the Collateral Agent at the written direction of the Servicer, provided that if
such Eligible Investments are not available or a Termination and Amortization
Event shall have occurred, such investments shall be made in the investment
described in subclause (iv) of the definition of Eligible Investments. Any such
written directions shall specify the particular investment to be made and shall
certify that such investment is an Eligible Investment and is permitted to be
made under this Agreement.
(c) The Servicer shall provide the Collateral Agent
on or prior to the Closing Date and from time to time an incumbency certificate
or the substantial equivalent with respect to each officer of the Servicer that
is authorized to provide instructions relating to investments in Eligible
Investments in the Collection Account.
(d) Funds on deposit in the Collection Account shall
be invested by the Collateral Agent, in the name of the Collateral Agent, in
Eligible Investments that will mature so that such funds will be available so
as to permit amounts in the Collection Account to be paid and applied on the
Remittance Date and otherwise in accordance with the provisions of Sections 2.3
and 2.4 hereof. Realized losses, if any, on amounts invested in such Eligible
Investments shall be charged against investment earnings on amounts on deposit
in the Collection Account.
SECTION 2.11. FUNDING ACCOUNT.
(a) There shall be established on or prior to the
Closing Date and maintained, for the benefit of the Secured Parties, with the
Collateral Agent, an Eligible Deposit Account (the "FUNDING Account"), bearing
a designation clearly indicating that the funds deposited therein are held in
the name of the Collateral Agent, for the benefit of the Secured Parties. The
Funding Account shall be under the exclusive ownership and control of the
Collateral Agent, for the benefit of the Secured Parties. Subject to the terms
hereof, the Collateral Agent shall possess all right, title and interest in and
to all funds deposited from time to time in the Funding Account.
There shall be deposited in the Funding Account:
41
(i) on the Closing Date, $500,000,000;
(ii) on each Remittance Date, the amounts, if any,
described in Sections 2.3(a)(vi) and 2.3(a)(xiii) hereof with respect to such
Remittance Date;
(iii) on each Take-Out Date, the amount, if any,
specified in the related Take-Out Notice which is to be deposited in the
Funding Account in connection with the related Take-Out; and
(iv) any amounts delivered to the Collateral Agent
by the Debtor and designated by the Debtor for deposit in the Funding Account.
All interest and earnings (net of losses and investment expenses) on funds on
deposit in the Funding Account shall be deposited upon receipt in the
Collection Account. On the date on which the Net Investment is zero and all
Secured Obligations have been paid in full, any funds remaining on deposit in
the Funding Account shall be paid to the holders of the Class A Certificates.
(b) On any Business Day during the Revolving Period,
amounts on deposit in the Funding Account may be released therefrom and paid to
the Debtor in exchange for a Receivables Delivery on such Business Day,
PROVIDED THAT:
(i) the Collateral Agent, the Purchaser and the Note
Insurer shall have received an executed copy of the related Delivery Notice not
later than 10:30 a.m. Eastern Standard Time on the related Delivery Date; and
(ii) the Debtor shall have timely delivered an
Officer's Certificate regarding Hedging Arrangements, as required pursuant to
Section 5.3 hereof.
(c) The amount to be released from the Funding
Account in connection with a Receivables Delivery shall be comprised of two
components:
(i) the "RESERVE ACCOUNT DEPOSIT AMOUNT", which shall
equal the product of (x) the applicable Initial Reserve Percentage and
(y) the aggregate Net Receivable Balance of all Receivables comprising
the Receivables Delivery, but in no event an amount which would
increase the amount on deposit in the Reserve Account to a level above
the then Reserve Account Required Amount; and
(ii) the "RECEIVABLES DELIVERY PAYMENT AMOUNT", which
shall be equal to the excess of (A) the product of (x) 95% and (y) the
Aggregate Outstanding Balance of the Receivables comprising the
Receivables Delivery over (B) the Reserve Account Deposit Amount
related to such Receivables Delivery.
On the related Delivery Date, the Collateral Agent shall
transfer the related Reserve Account Deposit Amount from the Funding Account to
the Reserve Account, and shall
42
pay the Receivables Delivery Payment Amount to the accounts designated by the
Debtor on behalf of the holders of the Class A Certificates in the related
Delivery Notice.
(d) On any Business Day on which the Borrowing Base
exceeds the Net Investment, the amount of such excess, to the extent then on
deposit in the Funding Account may be paid by the Collateral Agent to the
accounts designated by the Debtor on behalf of the holders of the Class A
Certificates, if the Debtor so requests. If, after taking into account the
payment to the Debtor of any such amount from the Funding Account, the
Borrowing Base still exceeds the Net Investment, the Debtor may deliver a
Take-Out Notice and request the release to it of Receivables designated by the
Debtor such that, when so released, the Net Investment would equal the
Borrowing Base, provided that no Termination and Amortization Event would
result from such release. The provisions of this paragraph (d) shall be
inoperative following the occurrence of a Termination and Amortization Event.
(e) On the first Remittance Date occurring during
the Amortization Period, the Collateral Agent shall transfer all amounts then
on deposit in the Funding Account to the Collection Account for application in
accordance with Section 2.3(a) hereof.
(f) Subject to subsection (h) below, funds on
deposit in the Funding Account shall be invested in Eligible Investments by the
Collateral Agent at the written direction of the Servicer, provided that if
such Eligible Investments are not available or a Termination and Amortization
Event shall have occurred, such investments shall be made in the investment
described in subclause (iv) of the definition of Eligible Investments. Any such
written directions shall specify the particular investment to be made and shall
certify that such investment is an Eligible Investment and is permitted to be
made under this Agreement.
(g) The Servicer shall provide the Collateral Agent
on or prior to the Closing Date and from time to time an incumbency certificate
or the substantial equivalent with respect to each officer of the Servicer that
is authorized to provide instructions relating to investments in Eligible
Investments in the Funding Account.
(h) Funds on deposit in the Funding Account shall be
invested by the Collateral Agent, in the name of the Collateral Agent, in
Eligible Investments that will mature so that such funds will be available so
as to permit amounts in the Collection Account to be paid and applied on each
Remittance Date and otherwise in accordance with the provisions of this Section
2.11. Investment earnings on amounts on deposit in the Funding Account shall be
deposited into the Collection Account immediately following receipt thereof.
Realized losses, if any, on amounts invested in such Eligible Investments shall
be charged against investment earnings on amounts on deposit in the Collection
Account.
SECTION 2.12. YIELD SUPPLEMENT ACCOUNT; WITHDRAWALS; RELEASES.
(a) (i) There shall be established on the Closing
Date and maintained, for the benefit of the Secured Parties, with the
Collateral Agent, an Eligible Deposit Account (the "YIELD SUPPLEMENT ACCOUNT"),
bearing a designation clearly indicating that the funds deposited therein are
held in the name of the Collateral Agent, for the benefit of the Secured
Parties. Subject to the terms hereof, the Collateral Agent shall possess all
right, title and interest in and to
43
all funds deposited from time to time in the Yield Supplement Account,
including all Eligible Investments in which such funds are invested.
(ii) There shall be deposited in the Yield
Supplement Account: (x) by the Debtor, on any Take-Out Date, the amount, if
any, by which the Target Yield Supplement Account Amount then exceeds the
amount on deposit in the Yield Supplement Account; (y) any amounts delivered to
the Collateral Agent by the Debtor and designated by the Debtor for deposit to
the Yield Supplement Account; and (z) on each Remittance Date, the amount, if
any, described in Section 2.3(a)(xii) hereof with respect to such Remittance
Date.
(iii) Funds on deposit in the Yield Supplement
Account (other than investment earnings) shall be invested by the Collateral
Agent (in the name of the Collateral Agent on behalf of the Secured Parties) in
Eligible Investments that will mature so that such funds will be available on
the Remittance Date following such investment. Investment earnings on amounts
on deposit in the Yield Supplement Account shall be deposited into the
Collection Account immediately following receipt thereof.
(iv) Subject to clause (iii) above, funds on deposit
in the Yield Supplement Account shall be invested in Eligible Investments by or
at the written direction of the Servicer, provided that if such Eligible
Investments are not available or a Termination and Amortization Event shall
have occurred, such investments shall be made in the investment described in
subclause (iv) of the definition of Eligible Investments. Any such written
directions shall specify the particular investment to be made and shall certify
that such investment is an Eligible Investment and is permitted to be made
under this Agreement.
(v) The Servicer shall provide the Collateral Agent
on the date hereof and from time to time an incumbency certificate or the
substantial equivalent with respect to each officer of the Servicer that is
authorized to provide instructions relating to investments in Eligible
Investments in the Yield Supplement Account.
(vi) On the first Remittance Date occurring during
the Amortization Period, the Collateral Agent shall withdraw all amounts on
deposit in the Yield Supplement Account and deposit such amounts into the
Collection Account. Realized losses, if any, on amounts invested in such
Eligible Investments shall be charged against investment earnings on amounts on
deposit in the Yield Supplement Account, as applicable.
(b) In the event that on any Borrowing Base
Determination Date, after giving effect to the amounts required to be
distributed pursuant to Section 2.3(a) hereof and any amounts to be withdrawn
pursuant to clause Section 2.3(b), the amount on deposit in the Yield
Supplement Account exceeds the Target Yield Supplement Account Amount, the
Collateral Agent shall, if no Termination and Amortization Event or Potential
Termination and Amortization Event shall have occurred, release to the Debtor
an amount equal to the excess of the amount on deposit in the Yield Supplement
Account over the Target Yield Supplement Account Amount.
44
(c) On the day on which the Secured Obligations
shall have been paid in full, in cash, the Collateral Agent shall release to
the Debtor all amounts on deposit in the Yield Supplement Account.
SECTION 2.13. [INTENTIONALLY OMITTED].
SECTION 2.14. [INTENTIONALLY OMITTED].
SECTION 2.15. RESERVE ACCOUNT; WITHDRAWALS; RELEASES.
(a) (i) There shall be established on the Closing
Date and maintained, for the benefit of the Secured Parties, with the
Collateral Agent, an Eligible Deposit Account (the "RESERVE ACCOUNT"), bearing
a designation clearly indicating that the funds deposited therein are held in
the name of the Collateral Agent, for the benefit of the Secured Parties.
Subject to the terms hereof, the Collateral Agent shall possess all right,
title and interest in and to all funds deposited from time to time in the
Reserve Account.
(ii) There shall be deposited in the Reserve Account
(x) on each Receivables Delivery Date, the related Reserve Account Deposit
Amount transferred from the Funding Account, or if not so available from the
Funding Account, then from the Servicer as described in Section 2.11(c)(i)
hereof and (y) on each Remittance Date, the amount, if any, described in
Section 2.3(a)(xi) hereof on such Remittance Date.
(iii) Funds on deposit in the Reserve Account (other
than investment earnings) shall be invested by the Collateral Agent (in the
name of the Collateral Agent on behalf of the Secured Parties) in Eligible
Investments that will mature so that such funds will be available on the
Remittance Date following such investment. Investment earnings on amounts on
deposit in the Reserve Account shall be deposited into the Collection Account
immediately following receipt thereof.
(iv) Subject to clause (iii) above, funds on deposit
in the Reserve Account shall be invested in Eligible Investments by or at the
written direction of the Servicer, provided that if such Eligible Investments
are not available or a Termination and Amortization Event shall have occurred,
such investments shall be made in the investment described in subclause (iv) of
the definition of Eligible Investments. Any such written directions shall
specify the particular investment to be made and shall certify that such
investment is an Eligible Investment and is permitted to be made under this
Agreement.
(v) The Servicer shall provide the Collateral Agent
on the date hereof and from time to time an incumbency certificate or the
substantial equivalent with respect to each officer of the Servicer that is
authorized to provide instructions relating to investments in Eligible
Investments in the Reserve Account.
(vi) Realized losses, if any, on amounts invested in
such Eligible Investments shall be charged against investment earnings on
amounts on deposit in the Reserve Account, as applicable.
45
(b) In the event that on any Borrowing Base
Determination Date or on any Remittance Date, after taking into account all
other Facility Activity on such date, the amount on deposit in the Reserve
Account exceeds the Reserve Account Required Amount, the Collateral Agent
shall, if no Termination and Amortization Event or Potential Termination and
Amortization Event shall have occurred, release to the holders of the Class A
Certificates an amount equal to the excess of the amount on deposit in the
Reserve Account over the Reserve Account Required Amount.
(c) On the day on which the Secured Obligations
shall have been paid in full, in cash, the Collateral Agent shall release to
the holders of the Class A Certificates all amounts on deposit in the Reserve
Account.
SECTION 2.16. OPTIONAL RELEASE.
On any Business Day, the Debtor shall have the right, upon
delivery to the Collateral Agent of a Take-Out Notice substantially in the form
of Exhibit K hereto, to require the Collateral Agent to release its security
interest in and its Lien on all or part of the Contracts and the related
Receivables on the terms and conditions set forth herein. It shall be a
condition precedent to any such release that (i) the Debtor shall pay to the
Collateral Agent for deposit in the Funding Account an amount equal to the
amount necessary to maintain the Borrowing Base at a level at least equal to
the Net Investment (calculated after giving effect to such proposed release of
Receivables and by including in the Net Receivables Balance only those
Receivables that as of such date satisfy (as if determined on such date) the
definition of Eligible Receivable provided that no Delinquent Receivable shall
be classified as an Eligible Receivable on such day) (ii) the Debtor shall have
given the Note Insurer and the Collateral Agent irrevocable prior written
notice by not later than 10:30 a.m. Eastern Standard Time on the day of such
release of (x) its intention to request a release with respect to such
Contracts and Receivables and (y) the proposed date of such release, (iii) the
Debtor shall provide to the Note Insurer and the Collateral Agent an Officer's
Certificate certifying that as of the date of such release all non-released
Receivables satisfy the definition of Eligible Receivable (and are not
Delinquent Receivables or Defaulted Receivables) set forth herein, (iv) after
giving effect to such release the amount on deposit in the Reserve Account
shall be at least equal to the Reserve Account Required Amount, (v) the Debtor
shall not have applied any adverse selection criteria to the Contracts and the
Receivables being released on such date and (vi) AmeriCredit shall pay any
breakage costs incurred in connection with such release under any Hedging
Arrangement. Nothing above shall imply a duty of the Collateral Agent to
determine whether such above-referenced conditions precedent have been
satisfied. The Debtor shall pay to the Note Insurer, for the benefit of the
Purchaser, such amounts as are required under this Section on the date of such
release.
The Debtor shall be obligated to pay all reasonable legal
fees, expenses or other costs of the Note Insurer, the Collateral Agent, and
the Secured Parties arising in connection with any such assignment.
Upon the deposit of all required amounts and the payment by
the Debtor of the amounts described in this Section, the Collateral Agent shall
execute and deliver to the Debtor, at the Debtor's expense, such documents or
instruments as are necessary to terminate the Collateral Agent's security
interest in the released Receivables and the Contracts related thereto. Any
such
46
documents shall be prepared by or on behalf of the Debtor in form and substance
satisfactory to the Collateral Agent.
SECTION 2.17. DELIVERY OF COLLATERAL. With respect to the Collateral,
the Debtor and the Collateral Agent hereby agree that:
(i) Any Collateral that is held in deposit
accounts shall be held in the Collection Account and shall be
subject to the exclusive dominion and control of the Collateral
Agent, and the Collateral Agent shall have sole signature
authority with respect thereto;
(ii) Any Collateral that is Physical Property
(as defined under the definition of "Delivery") shall be
delivered to the Collateral Agent in accordance with paragraph
(a) of the definition of "Delivery" and shall be held, pending
maturity or disposition, solely by the Collateral Agent or a
Securities Intermediary (as such term is defined in Section
8-102(a)(14) of the UCC;
(iii) Any Collateral that is a "certificated
security" under Article 8 of the UCC shall be delivered to the
Collateral Agent in accordance with paragraph (b) of the
definition of "Delivery" and shall be held, pending maturity or
disposition, solely by the Collateral Agent or a Securities
Intermediary (as such term is defined in Section 8-102(a)(14)
of the UCC);
(iv) Any Collateral that is an
"uncertificated security" under Article 8 of the UCC shall be
delivered to the Collateral Agent in accordance with paragraph
(c) of the definition of "Delivery" and shall be maintained by
the Collateral Agent, pending maturity or disposition, through
continued registration on the books and records of the issuer
thereof of the ownership of such security by the Collateral
Agent (or its nominee) or a Securities Intermediary (as such
term is defined in Section 8-102(a)(14) of the UCC);
(v) Any Collateral that is a book-entry
security held through the Federal Reserve System pursuant to
Federal book-entry regulations shall be delivered to the
Collateral Agent in accordance with paragraph (d) of the
definition of "Delivery" and shall be maintained by the
Collateral Agent, pending maturity or disposition, through
continued book-entry registration of such Collateral in the
name of the Collateral Agent or a Securities Intermediary (as
such term is defined in Section 8-102(a)(14) of the UCC; and
(vi) Any Collateral held through a Securities
Intermediary (as such term is defined in Section 8-102(a)(14)
of the UCC) shall be held in a securities account (as such term
is defined in Section 8-501(a) of the UCC) that is established
by such Securities Intermediary in the name of the Collateral
Agent for which the Collateral Agent is the sole entitlement
holder (as defined in Section 8-102(a)(7) of the UCC).
Effective upon Delivery of any Collateral in the
form of Physical Property, book-entry securities or uncertificated securities,
the Collateral Agent shall be deemed to have
47
purchased such Collateral for value, in good faith and without notice of any
adverse claim thereto.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1. REPRESENTATIONS AND WARRANTIES OF THE DEBTOR, AMERICREDIT
AND AMTN. On the Closing Date and on each Determination Date, Remittance Date
and Delivery Date, the Debtor, AmeriCredit and AMTN represent and warrant to
the Note Insurer, the Collateral Agent and the Secured Parties that:
(a) EXISTENCE AND POWER. The Debtor is a business
trust duly organized, validly existing and in good standing under the laws of
the State of Delaware and has all power and all material governmental licenses,
authorizations, consents and approvals required to carry on its business in
each jurisdiction in which its business is now conducted. The Debtor is duly
qualified to do business in, and is in good standing in, every other
jurisdiction in which the nature of its business requires it to be so qualified.
(b) AUTHORIZATION; CONTRAVENTION. The execution,
delivery and performance by the Debtor of this Agreement and the other
Transaction Documents are within the Debtor's trust powers, have been duly
authorized by all necessary trust action, require no action by or in respect
of, or require the consent or approval of, or the filing of any notice or other
documentation with, any Official Body or other Person (except as contemplated
by Section 2.6 hereof), and do not contravene, or constitute a default under,
any provision of applicable law or regulation or of the Trust Agreement of the
Debtor or of any agreement, judgment, injunction, order, decree or other
instrument binding upon the Debtor or result in the creation or imposition of
any Adverse Claim on the assets of the Debtor or any of its Subsidiaries
(except as contemplated by Section 2.6 hereof).
(c) BINDING EFFECT. Each of this Agreement and the
other Transaction Documents has been duly executed and delivered and
constitutes the legal, valid and binding obligation of the Debtor, enforceable
in accordance with its terms, subject to applicable bankruptcy, insolvency,
moratorium or other similar laws affecting the rights of creditors generally.
(d) PERFECTION. Immediately preceding each
Receivables Delivery, the Debtor shall be the legal and beneficial owner of all
of the Receivables, Related Security and Collections, free and clear of all
Adverse Claims. On or prior to each Funding and each day on which a Receivable
is sold to the Debtor by AmeriCredit or AMTN, as the case may be, pursuant to
the Master Receivables Purchase Agreement, all financing statements and other
documents required to be recorded or filed in order to perfect and protect (i)
the Debtor's interest in the Receivables, the Contracts related thereto, the
Related Security with respect thereto and all Proceeds thereof against all
creditors of and purchasers from AmeriCredit or AMTN, as applicable and (ii)
the interest of the Collateral Agent on behalf of the Purchaser and the other
48
Owners in the Collateral against all creditors of and purchasers from
AmeriCredit, AMTN and the Debtor will have been duly filed in each filing
office necessary for such purpose, and all filing fees and taxes, if any,
payable in connection with such filings shall have been paid in full.
(e) ACCURACY OF INFORMATION. All information
heretofore furnished by the Debtor (including without limitation, the
Servicer's Certificate, any reports delivered pursuant to Section 2.9 hereof
and AmeriCredit Corp.'s financial statements) to the Collateral Agent, the
Secured Parties, the Note Insurer or any of the other Persons party hereto for
purposes of or in connection with this Agreement or any transaction
contemplated hereby is, and all such information hereafter furnished by the
Debtor to any such Person will be, true and accurate in every material respect,
and the Debtor has not omitted to disclose any information which is material to
the transaction on the date such information is furnished.
(f) TAX STATUS. All tax returns (federal, state and
local) required to be filed with respect to the Debtor have been filed (which
filings may be made by an Affiliate of the Debtor on a consolidated basis
covering the Debtor and other Persons) and there has been paid or adequate
provision made for the payment of all taxes, assessments and other governmental
charges in respect of the Debtor (or in the event consolidated returns have
been filed, with respect to the Persons subject to such returns).
(g) ACTION, SUITS. There are no actions, suits or
proceedings pending, or to the knowledge of the Debtor threatened, against or
affecting (x) the Debtor or its properties and (y) except as set forth in
Exhibit E hereto, against any Affiliate of the Debtor or their respective
properties, in or before any court, arbitrator or other body which in the case
of clause (y), individually or in the aggregate, could reasonably be expected
to have a Material Adverse Effect if determined adversely to such Affiliate.
The Debtor is not in violation of any order of any Official Body.
(h) USE OF PROCEEDS. The proceeds of any Receivables
Delivery Payment Amount will be used by the Debtor to (a) acquire the
Receivables, the Contracts related thereto and the Related Security with
respect thereto from AmeriCredit or AMTN, as the case may be, pursuant to the
Master Receivables Purchase Agreement, (b) to pay down debt in connection with
the purchase of the Receivables and Contracts pursuant to the Master
Receivables Purchase Agreement, or (c) to make distributions constituting a
return of capital. No proceeds of any Receivables Delivery Payment Amount will
be used by the Debtor to acquire any security in any transaction which is
subject to Section 12 of the Securities Exchange Act of 1934, as amended or for
any purpose that violates any applicable law, rule or regulation, including
Regulation U of the Federal Reserve Board.
(i) PLACE OF BUSINESS. The principal place of
business and chief executive office (as such terms are defined in the UCC) of
the Debtor are located at the address of the Debtor indicated in Section 9.3
hereof and the offices where the Debtor keeps all its Records, are located at
the address(es) described on Exhibit F or such other locations notified to the
Purchaser in accordance with Section 2.6 hereof in jurisdictions where all
action required by Section 2.6 hereof has been taken and completed.
49
(j) GOOD TITLE. Upon each Receivables Delivery and
on each day on which a Receivable and related Contract is sold to the Debtor by
AmeriCredit or AMTN, as the case may be, pursuant to the Master Receivables
Purchase Agreement, the Collateral Agent shall acquire a valid and perfected
first priority security interest in each Receivable and related Contract that
exists on the date of such Funding and sale and in the Related Security and
Collections with respect thereto free and clear of any Adverse Claim.
(k) TRADENAMES, ETC. As of the date hereof: (i) the
Debtor has only the subsidiaries and divisions listed on Exhibit G hereto; and
(ii) the Debtor has not operated under any tradenames and has not changed its
name, merged with or into or consolidated with any other corporation or been
the subject of any proceeding under Title 11, United States Code (Bankruptcy).
(l) NATURE OF RECEIVABLES. Each Receivable (x)
represented by the Debtor or the Servicer to be an Eligible Receivable
(including in any report, document or instrument delivered hereunder or in
connection with the other Transaction Documents) or (y) included in the
calculation of the Net Receivables Balance, satisfies at the time of such
representation or inclusion the definition of "Eligible Receivable" set forth
herein and, in the case of clause (y) above is not a Defaulted Receivable.
(m) CREDIT AND COLLECTION POLICY. Since September
30, 2000, there have been no material changes in the Credit and Collection
Policy other than as permitted hereunder. Since such date, no material adverse
change has occurred in the overall rate of collection of the Receivables.
(n) COLLECTION AND SERVICING; MATERIAL ADVERSE
EFFECT. Since September 30, 2000, there has not been any material adverse
change in the ability of the Servicer (to the extent it is AmeriCredit, the
Debtor or any Subsidiary or Affiliate of any of the foregoing) to service and
collect the Receivables or other Material Adverse Effect.
(o) NO TERMINATION AND AMORTIZATION EVENT. No event
has occurred and is continuing and no condition exists which constitutes a
Termination and Amortization Event or a Potential Termination and Amortization
Event.
(p) NOT AN INVESTMENT COMPANY OR A HOLDING COMPANY.
The Debtor is not, and is not controlled by, an "investment company" within the
meaning of the Investment Company Act of 1940, as amended, or is exempt from
all provisions of such Act. The Debtor is not a "holding company," or a
subsidiary or affiliate of a "holding company," within the meaning of the
Public Utility Holding Company Act of 1935, as amended.
(q) ERISA. Each of the Debtor and its ERISA
Affiliates is in compliance in all material respects with ERISA and no lien
exists in favor of the Pension Benefit Guaranty Corporation on any of the
Receivables.
(r) LOCK-BOX ACCOUNT. The name and address of the
Lock-Box Bank, together with the account number of the Lock-Box Account at such
Lock-Box Bank, are specified in Exhibit A hereto (or at such other Lock-Box
Banks and/or with such other Lock-Box Accounts as have been notified to the
Collateral Agent and for which Lock-Box Agreements
50
have been executed in accordance with Section 2.6(b) hereof and delivered to
the Collateral Agent). All Obligors have been instructed (or will be
instructed on their next billing statement) to make payment to a Lock-Box
Account.
(s) BULK SALES. No transaction contemplated
hereby or by the Note Purchase Agreement or the Master Receivables Purchase
Agreement requires compliance with any bulk sales act or similar law.
(t) TRANSFERS UNDER MASTER RECEIVABLES PURCHASE
AGREEMENT. Each Receivable which has been transferred to the Debtor by
AmeriCredit or AMTN has been purchased by the Debtor from AmeriCredit or AMTN,
as the case may be, pursuant to, and in accordance with, the terms of the
Master Receivables Purchase Agreement.
(u) PREFERENCE; VOIDABILITY. With respect to
each transfer of Receivables and Related Security from AmeriCredit or AMTN, as
the case may be, to the Debtor, the Debtor has given reasonably equivalent
value to AmeriCredit or AMTN, as applicable, in consideration for such
transfer of Receivables and Related Security, and each such transfer has not
been made for or on account of an antecedent debt owed by AmeriCredit or AMTN
to the Debtor and no such transfer is or may be voidable under any Section of
the Bankruptcy Code.
(v) INSURANCE POLICIES. At the time of the sale
of each Receivable and related Contract by AmeriCredit or AMTN to the Debtor
pursuant to the Master Receivables Purchase Agreement, each Financed Vehicle
is required to be covered by physical damage and liability insurance obtained
by the related Obligor at least in the amount required by the related
Contract, and each such required insurance policy is required to name
AmeriCredit or AMTN, as loss payee and is required to be in full force and
effect.
(w) REPRESENTATIONS AND WARRANTIES OF
AMERICREDIT AND AMTN. Each of the representations and warranties of
AmeriCredit and AMTN set forth in Sections 3.1 and 3.3, respectively, of the
Master Receivables Purchase Agreement are true and correct in all material
respects and each of AmeriCredit and AMTN hereby remakes all such
representations and warranties for the benefit of the Note Insurer, the
Collateral Agent, the Purchaser and the Note Insurer.
Any document, instrument, certificate or notice delivered
hereunder by the Debtor to the Note Insurer, the Collateral Agent or the Secured
Parties shall be deemed a representation and warranty by the Debtor.
SECTION 3.2. REPRESENTATIONS AND WARRANTIES OF THE SERVICER. On the
Closing Date and on each Determination Date, Remittance Date and Delivery
Date, the Servicer represents and warrants to the Note Insurer, the Collateral
Agent and the Secured Parties that:
(a) CORPORATE EXISTENCE AND POWER. The Servicer
is a corporation duly organized, validly existing and in good standing under
the laws of its jurisdiction of incorporation and has all corporate power and
all material governmental licenses, authorizations, consents and approvals
required to carry on its business in each jurisdiction in which its business
51
is now conducted. The Servicer is duly qualified to do business in and is in
good standing in every other jurisdiction in which the nature of its business
requires it to be so qualified.
(b) CORPORATE AND GOVERNMENTAL AUTHORIZATION;
CONTRAVENTION. The execution, delivery and performance by the Servicer of this
Agreement and the other Transaction Documents are within the Servicer's
corporate powers, have been duly authorized by all necessary corporate action,
require no action by or in respect of, or require the consent or approval of,
or the filing of any notice or other documentation with, any Official Body
(except as contemplated by Section 2.6 hereof), and do not contravene, or
constitute a default under, any provision of applicable law or regulation or
of the certificate of incorporation or bylaws of the Servicer or of any
agreement, judgment, injunction, order, decree or other instrument binding
upon the Servicer or result in the creation or imposition of any Adverse Claim
on assets of the Servicer or any of its Subsidiaries (except as contemplated
by Section 2.6 hereof).
(c) BINDING EFFECT. This Agreement has been duly
executed and delivered and constitutes the legal, valid and binding obligation
of the Servicer, enforceable in accordance with its terms, subject to
applicable bankruptcy, insolvency, moratorium or other similar laws affecting
the rights of creditors generally.
(d) ACCURACY OF INFORMATION. All information
heretofore furnished by the Servicer to the Collateral Agent, the Secured
Parties, the Note Insurer or any of the other Persons party hereto for
purposes of or in connection with this Agreement or any transaction
contemplated hereby is, and all such information hereafter furnished by the
Servicer to the Collateral Agent, the Secured Parties or the Note Insurer will
be, true and accurate in every material respect, and the Servicer has not
omitted , and will not omit, to disclose any information which is material to
the transactions contemplated by this Agreement on the date such information
was or is furnished.
(e) ACTION, SUITS. There are no actions, suits
or proceedings pending, or to the knowledge of the Servicer threatened,
against or affecting the Servicer or any Affiliate of the Servicer or their
respective properties, in or before any court, arbitrator or other body,
which, individually or in the aggregate, could reasonably be expected to cause
a Material Adverse Effect. The Servicer is not in violation of any order of
any Official Body.
(f) NATURE OF RECEIVABLES. Each Receivable
included in the calculation of the Net Receivables Balance satisfies at such
time the definition of "Eligible Receivable" and is not a Defaulted Receivable.
(g) CREDIT AND COLLECTION POLICY. Since
September 30, 2000, there have been no material changes in the Credit and
Collection Policy other than as permitted hereunder. Since such date, no
material adverse change has occurred in the overall rate of collection of the
Receivables.
(h) COLLECTIONS AND SERVICING; MATERIAL ADVERSE
EFFECT. Since September 30, 2000, there has not been any material adverse
change in the ability of the Servicer to service and collect the Receivables
or other Material Adverse Effect relating to the Servicer.
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(i) NOT AN INVESTMENT COMPANY OR A HOLDING
COMPANY. The Servicer is not, and is not controlled by, an "investment
company" within the meaning of the Investment Company Act of 1940, as amended,
or is exempt from all provisions of such Act. The Servicer is not a "holding
company," or a subsidiary or affiliate of a "holding company," within the
meaning of the Public Utility Holding Company Act of 1935, as amended.
(j) LOCK-BOX ACCOUNT. The name and address of
the Lock-Box Bank, together with the account number of the Lock-Box Account at
such Lock-Box Bank, are specified in Exhibit A (or at such other Lock-Box
Banks and/or with such other Lock-Box Accounts as have been notified to the
Debtor and the Collateral Agent and for which Lock-Box Agreements have been
executed in accordance with Section 2.6(b) hereof and delivered to the
Collateral Agent). All Obligors have been instructed (or will be instructed on
their next billing statement) to make payment to a Lock-Box Account.
ARTICLE IV
CONDITIONS PRECEDENT
SECTION 4.1. CONDITIONS TO CLOSING. The obligation of the Purchaser
to pay for the Note upon initial issuance is subject to (i) satisfaction of
the conditions precedent set forth in Section 4.01 of the Note Purchase
Agreement and (ii) receipt by the Note Insurer of the following documents,
instruments and fees, all of which shall be in a form and substance acceptable
to the Note Insurer:
(a) An executed copy of this Agreement, the
Master Receivables Purchase Agreement, the Premium Side Letter and each of the
other Transaction Documents (other than Hedging Arrangements not then
executed, which shall be subject to the review and approval procedures of
Section 5.3 hereof).
(b) Any other fees or amounts due and payable on
the Closing Date in accordance with the Premium Side Letter.
(c) Such other documents, approvals, consents,
instruments, certificates or opinions as the Collateral Agent or the Secured
Parties shall reasonably request.
(d) A copy of the resolutions of the Board of
Directors of AmeriCredit, certified by its Secretary approving the execution,
delivery and performance by it (and the Debtor) of this Agreement, the Master
Receivables Purchase Agreement, the Trust Agreement and the other Transactions
Documents to be delivered by it (and the Debtor) hereunder or thereunder and
all other documents evidencing necessary corporate action (including
shareholders consents) and government approvals, if any.
(e) A copy of the resolutions of the Board of
Directors of AMTN, certified by its Secretary approving the execution,
delivery and performance by it of this Agreement, the Master Receivables
Purchase Agreement, the Trust Agreement and the other Transactions Documents
to be delivered by it hereunder or thereunder and all other documents
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evidencing necessary corporate action (including shareholders consents, if
any) and government approvals, if any.
(f) The certificate of trust of the Debtor
certified by the Secretary of State of the State of Delaware dated a date
reasonably prior to the Closing Date.
(g) The certificate of incorporation of
AmeriCredit certified by the Secretary of State of the State of Delaware dated
a date reasonably prior to the Closing Date.
(h) The certificate of incorporation of AMTN
certified by the Secretary of State of the State of Delaware dated a date
reasonably prior to the Closing Date.
(i) (i) The articles of incorporation of the
Trustee certified by an officer of the Trustee dated a date reasonably prior
to the Closing Date and (ii) a power of attorney granted by the Trust in favor
of Bankers Trust (Delaware).
(j) A Good Standing Certificate for the Debtor
issued by the Secretary of State of the State of Delaware and certificates of
qualification as a foreign trust issued by the Secretary of State or other
similar official of each jurisdiction where such qualification is material to
the transactions contemplated by this Agreement, the Master Receivables
Purchase Agreement and the other Transaction Documents, in each case, dated a
date reasonably prior to the Closing Date.
(k) A Good Standing Certificate for AmeriCredit
issued by the Secretary of State of the State of Delaware and certificates of
qualification as a foreign corporation issued by the Secretary of State or
other similar official of Texas and California, in each case, dated a date
reasonably prior to the Closing Date.
(l) A Good Standing Certificate for AMTN issued
by the Secretary of State of the State of Delaware and certificates of
qualification as a foreign corporation issued by the Secretary of State or
other similar official of each jurisdiction where such qualification is
material to the transactions contemplated by this Agreement, the Master
Receivables Purchase Agreement and the other Transaction Documents, in each
case, dated a date reasonably prior to the Closing Date.
(m) A Good Standing Certificate for the Trustee
issued by the Secretary of State of the State of Delaware, dated a date
reasonably prior to the Closing Date.
(n) [Intentionally Omitted].
(o) A Certificate of the Secretary of
AmeriCredit substantially in the form of Exhibit I hereto.
(p) A Certificate of the Secretary of AMTN
substantially in the form of Exhibit I hereto.
(q) A Certificate of the Secretary of the
Trustee substantially in the form of Exhibit I hereto.
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(r) Acknowledgement copies of proper financing
statements (Form UCC-1), naming AmeriCredit as the debtor/seller in favor of
the Debtor as secured party/purchaser and the Collateral Agent, for the
benefit of the Secured Parties, as assignee of the secured party/purchaser or
other similar instruments or documents as may be necessary or in the
reasonable opinion of the Collateral Agent desirable under the UCC of all
appropriate jurisdictions or any comparable law to perfect the Debtor's
interest in the Receivables, Related Security and Collections, free and clear
of any Adverse Claim.
(s) Acknowledgement copies of proper financing
statements (Form UCC-1), naming AMTN as the debtor/seller in favor of the
Debtor as secured party/purchaser and the Collateral Agent, for the benefit of
the Secured Parties, as assignee of the secured party/purchaser or other
similar instruments or documents as may be necessary or in the reasonable
opinion of the Collateral Agent desirable under the UCC of all appropriate
jurisdictions or any comparable law to perfect the Debtor's interest in the
Receivables, Related Security and Collections, free and clear of any Adverse
Claim.
(t) Acknowledgement copies of proper financing
statements (Form UCC-1), naming the Debtor as the debtor in favor of the
Collateral Agent, for the benefit of the Secured Parties, or other similar
instruments or documents as may be necessary or in the reasonable opinion of
the Collateral Agent desirable under the UCC of all appropriate jurisdictions
or any comparable law to perfect the Collateral Agent's security interest in
the Collateral, including all Receivables, Related Security and Collections,
free and clear of any Adverse Claim.
(u) Copies of proper financing statements (Form
UCC-3), if any, necessary to terminate all security interests and other rights
of any person in the Receivables, Related Security and Collections, previously
granted by AmeriCredit.
(v) Copies of proper financing statements (Form
UCC-3), if any, necessary to terminate all security interests and other rights
of any person in the Receivables, Related Security and Collections, previously
granted by AMTN.
(w) Copies of proper financing statements (Form
UCC-3), if any, necessary to terminate all security interests and other rights
of any person in the Collateral, including the Receivables, Related Security
and Collections, previously granted by the Debtor.
(x) Certified copies of request for information
or copies (Form UCC-11) (or a similar search report certified by parties
acceptable to the Collateral Agent) dated a date reasonably near the date of
the Initial Funding listing all effective financing statements which name the
Debtor, AmeriCredit or AMTN (under its present name and any previous name) as
debtor and which are filed in jurisdictions in which the filings were made
pursuant to items (p), (q) and (r) above together with copies of such
financing statements with respect to AMTN and the Debtor, and, with respect to
AmeriCredit, as may be requested by the Note Insurer or its counsel (none of
which shall cover any Receivables or Contracts).
(y) Executed copies of the Lock-Box Agreement
relating to the Lock-Box Account.
55
(z) An opinion of Dewey Ballantine LLP, special
counsel to the Debtor, AmeriCredit and AMTN, in form and substance
satisfactory to the Note Insurer and the Note Insurer's counsel.
(aa) An opinion of Dewey Ballantine LLP, special
counsel to the Debtor, AmeriCredit and AMTN, covering certain bankruptcy and
insolvency matters (i.e. "true sale" and non-consolidation) in form and
substance satisfactory to the Note Insurer and the Note Insurer's counsel.
(bb) The Note, duly executed by the Debtor and
appropriately completed.
(cc) Executed copies of the documentation
relating to any Hedging Arrangement.
(dd) Such other documents, approvals, consents,
instruments, certificates or opinions as the Collateral Agent or the Secured
Parties shall reasonably request.
ARTICLE V
COVENANTS
SECTION 5.1. AFFIRMATIVE COVENANTS OF THE DEBTOR AND AMERICREDIT. At
all times from the date hereof to the date on which all Secured Obligations
have been paid in full in cash, unless the Collateral Agent and the Secured
Parties shall otherwise consent in writing:
(a) FINANCIAL REPORTING AND OTHER INFORMATION.
AmeriCredit and AMTN shall, and shall cause the Debtor and each of the
Debtor's, AmeriCredit's and AMTN's Subsidiaries to, maintain, for itself and
each of its respective Subsidiaries, a system of accounting established and
administered in accordance with GAAP, and furnish to the Note Insurer and the
Collateral Agent:
(i) ANNUAL REPORTING. As soon as available and
in any event within 90 days (or the next succeeding Business Day if the last
day of such period is not a Business Day) after the end of each fiscal year, a
copy of the audited consolidated financial statements for such year for
AmeriCredit Corp. and its consolidated Subsidiaries prepared in accordance
with GAAP and any management letter (which letter shall be furnished as soon
as available) prepared by independent certified public accountants acceptable
to the Note Insurer, certified, without qualification by such accountants and
each other report or statement sent to shareholders or publicly filed by
AmeriCredit Corp. or the Debtor.
(ii) QUARTERLY REPORTING. As soon as available
and in any event within 45 days (or the next succeeding Business Day if the
last day of such period is not a Business Day) after the end of each of the
first three quarters of each fiscal year of AmeriCredit Corp., a consolidated
balance sheet of AmeriCredit Corp. and its consolidated Subsidiaries as of the
end of such quarter and including the prior comparable period, and a
consolidated statement of income of AmeriCredit Corp. and its consolidated
Subsidiaries for such quarter and for the
56
period commencing at the end of the previous fiscal year and ending with the
end of such quarter, certified by the chief financial officer or chief
accounting officer of AmeriCredit Corp. identifying such documents as being
the documents described in this Section 5.1(a)(ii) and stating that the
information set forth therein fairly presents the financial condition of
AmeriCredit Corp. and its consolidated Subsidiaries as of and for the periods
then ended, subject to year-end adjustments consisting only of normal,
recurring accruals.
(iii) COMPLIANCE CERTIFICATE. Together with the
financial statements required pursuant to clauses (i) and (ii) above, a
compliance certificate signed by AmeriCredit Corp.'s chief financial officer,
treasurer or authorized officer who shall hold the office of a Vice President
or above, stating that (x) the attached financial statements have been
prepared in accordance with GAAP and accurately reflect the financial
condition of the Debtor or AmeriCredit Corp. as applicable and (y) to the best
of such Person's knowledge, no Termination and Amortization Event or Potential
Termination and Amortization Event exists, or if any Termination and
Amortization Event or Potential Termination and Amortization Event exists,
stating the nature and status thereof and showing the computation of, and
showing compliance with, each of the financial ratios and restrictions set
forth in Section 6.1(x), (y) and (z) hereof.
(iv) SHAREHOLDERS STATEMENTS AND REPORTS.
Promptly upon the furnishing thereof to the shareholders of AmeriCredit Corp.,
copies of all financial statements, reports and proxy statements so furnished.
(v) S.E.C. FILINGS. Promptly upon the filing
thereof, copies of all registration statements and annual, quarterly, monthly
or other regular reports which AmeriCredit Corp. or any Subsidiary files with
the Securities and Exchange Commission, other than any reports on Form 8-K
filed with respect to securitizations unrelated to this Agreement or the
transactions contemplated hereby.
(vi) NOTICE OF TERMINATION AND AMORTIZATION
EVENTS OR POTENTIAL TERMINATION AND AMORTIZATION EVENTS, ETC. (A) As soon as
possible and in any event within two (2) days after the occurrence of each
Termination and Amortization Event or each Potential Termination and
Amortization Event, a statement of the chief financial officer, chief
accounting officer or treasurer of the Servicer setting forth details of such
Termination and Amortization Event or Potential Termination and Amortization
Event and the action which the Debtor proposes to take with respect thereto,
which information shall be updated promptly from time to time; (B) promptly
after the Debtor obtains knowledge thereof, notice of any Termination and
Amortization Event, litigation, investigation or proceeding that may exist at
any time between the Servicer and any Person that may result in a Material
Adverse Effect or any litigation or proceeding relating to any Transaction
Document; and (C) promptly after the occurrence thereof, notice of any
Material Adverse Effect.
(vii) CHANGE IN CREDIT AND COLLECTION POLICY AND
DEBT RATINGS. Within ten (10) days after the date any material change in or
amendment to the Credit and Collection Policy is made, a copy of the Credit
and Collection Policy then in effect indicating such change or amendment.
Within five (5) days after the date of any change in AmeriCredit's or
AmeriCredit Corp.'s public or private debt ratings, if any, a written
certification of AmeriCredit's or AmeriCredit Corp.'s public and private debt
ratings after giving effect to any such change.
57
(viii) ERISA. Promptly after the filing or receiving
thereof, copies of all reports and notices with respect to any Reportable Event
(as defined in Article IV of ERISA) which the Debtor, AmeriCredit, AMTN or any
ERISA Affiliate of the Debtor, AmeriCredit or AMTN files under ERISA with the
Internal Revenue Service, the Pension Benefit Guaranty Corporation or the U.S.
Department of Labor or which the Debtor, AmeriCredit, AMTN or any ERISA
Affiliates of the Debtor, AmeriCredit or AMTN receives from the Internal Revenue
Service, the Pension Benefit Guaranty Corporation or the U.S. Department of
Labor.
(ix) CHANGE IN ACCOUNTANTS OR ACCOUNTING POLICY.
Promptly, notice of any change in the accountants or material change in
accounting policy of either the Debtor, AmeriCredit Corp., AmeriCredit or AMTN.
(x) OTHER INFORMATION. Such other information
(including non-financial information) with respect to the Debtor, AmeriCredit
Corp., AmeriCredit, AMTN or any of their respective Subsidiaries as the Note
Insurer, the Collateral Agent or any Secured Party may from time to time
reasonably request.
(b) CONDUCT OF BUSINESS. (i) AmeriCredit and
AMTN shall cause the Debtor and each of the Debtor's, AmeriCredit's and AMTN's
Subsidiaries to, carry on and conduct its business in substantially the same
manner and in substantially the same fields of enterprise as it is presently
conducted and do all things necessary to remain duly organized, validly
existing and in good standing as a domestic corporation in its jurisdiction of
organization and maintain all requisite authority to conduct its business in
each jurisdiction in which its business is conducted and (ii) the Debtor and
AMTN shall at all times be a wholly-owned Subsidiary of AmeriCredit.
(c) COMPLIANCE WITH LAWS. AmeriCredit or AMTN
shall, and shall cause the Debtor and each of the Debtor's, AmeriCredit's and
AMTN's Subsidiaries to, comply with all laws, rules, regulations, orders,
writs, judgments, injunctions, decrees or awards to which it or its respective
properties may be subject.
(d) FURNISHING OF INFORMATION AND INSPECTION OF
RECORDS. AmeriCredit or AMTN shall, and shall cause the Debtor to, furnish to
the Note Insurer from time to time such information with respect to the
Receivables as the Note Insurer may reasonably request, including, without
limitation, listings identifying the Obligor and the outstanding balance for
each Receivable. AmeriCredit or AMTN shall, and shall cause the Debtor to, at
any time and from time to time, during regular business hours and, provided
that a Termination and Amortization Event or Potential Termination and
Amortization Event shall not have occurred and be continuing, upon reasonable
prior notice, permit the Collateral Agent or any Secured Party, or their
agents or representatives, (i) to examine and make copies of and take
abstracts from all Records and (ii) to visit the offices and properties of the
Debtor, AmeriCredit or AMTN, as applicable, for the purpose of examining such
Records, and to discuss matters relating to Receivables or the Debtor's,
AmeriCredit's or AMTN's performance hereunder and under the other Transaction
Documents to which such Person is a party with any of the officers, directors,
employees or independent public accountants of the Debtor, AmeriCredit or
AMTN, as applicable, having knowledge of such matters.
58
(e) OFFICES, RECORDS AND BOOKS OF ACCOUNT. The
Debtor (i) shall keep its principal place of business and chief executive
office (as such terms or similar terms are used in the UCC) and the office
where it keeps its records concerning the Receivables at the address of the
Debtor set forth in Section 9.3 hereof or at any other locations in
jurisdictions where all actions requested by the Secured Parties to protect
and perfect the interest of the Collateral Agent, for the benefit of the
Secured Parties, in the Collateral have been taken and completed and (ii)
shall provide the Collateral Agent with at least 30 days' written notice
before making any change in the Debtor's name or making any other change in
the Debtor's identity or corporate structure that could render any UCC
financing statement filed in connection with this Agreement seriously
misleading as such term (or similar term) is used in the UCC. Each notice to
the Collateral Agent pursuant to the foregoing sentence shall set forth the
applicable change and the effective date thereof. AmeriCredit or AMTN shall,
and shall cause the Debtor to, maintain and implement administrative and
operating procedures (including, without limitation, an ability to recreate
records evidencing Receivables in the event of the destruction of the
originals thereof), and keep and maintain, all documents, books, records and
other information reasonably necessary or advisable for the collection of all
Receivables (including, without limitation, records adequate to permit the
daily identification of each new Receivable and all Collections of and
adjustments to each existing Receivable). AmeriCredit or AMTN shall, and shall
cause the Debtor to, give the Note Insurer notice of any material change in
the administrative and operating procedures of the Debtor, AmeriCredit or
AMTN, as applicable, referred to in the previous sentence.
(f) PERFORMANCE AND COMPLIANCE WITH CONTRACTS
RELATED TO THE RECEIVABLES. AmeriCredit or AMTN, at their expense, shall, and
shall cause the Debtor to, timely and fully perform and comply with all
material provisions, covenants and other promises required to be observed by
the Debtor, AmeriCredit or AMTN under the Contracts related to the Receivables.
(g) CREDIT AND COLLECTION POLICIES. AmeriCredit
or AMTN shall, and shall cause the Debtor to, comply in all material respects
with the Credit and Collection Policy in regard to each Receivable and the
related Contract.
(h) COLLECTIONS. AmeriCredit or AMTN shall, and
shall cause the Debtor to, instruct all Obligors to cause all Collections to
be deposited directly to a Lock-Box Account.
(i) COLLECTIONS RECEIVED. AmeriCredit or AMTN
shall, and shall cause the Debtor to, hold in trust, and deposit, immediately,
but in any event not later than forty-eight (48) hours of its receipt thereof,
to the Collection Account all Collections received from time to time by the
Debtor, AmeriCredit or AMTN, as the case may be.
(j) CONTRIBUTION TREATMENT. AmeriCredit or AMTN
shall not, and shall not permit the Debtor to, account for (including for
accounting and tax purposes), or otherwise treat, the transactions
contemplated by the Master Receivables Purchase Agreement in any manner other
than as a contribution of Receivables by AmeriCredit or AMTN, as applicable,
to the Debtor. In addition, AmeriCredit or AMTN shall, and shall cause the
Debtor to, disclose (in a footnote or otherwise) in all of its respective
financial statements (including any such
59
financial statements consolidated with any other Persons' financial
statements) the existence and nature of the transactions contemplated by the
Master Receivables Purchase Agreement and the interest of the Debtor (in the
case of AmeriCredit's or AMTN's financial statements) in the Affected Assets.
(k) SEPARATE BUSINESS. (a) The Debtor shall be a
limited purpose entity whose primary activities are restricted in the Trust
Agreement to (i) purchasing or otherwise acquiring from AmeriCredit or AMTN,
owning, holding, granting security interests or selling interests in Affected
Assets, (ii) entering into agreements for the selling, financing and servicing
of the Affected Assets, and (iii) conducting such other activities as it deems
necessary or appropriate to carry out its primary activities. The Debtor shall
not create any Subsidiaries or divisions. The Debtor shall not engage in any
business other than the transactions contemplated by the Transaction
Documents. The Debtor shall at all times (a) to the extent the Debtor's office
is located in the offices of AmeriCredit, AMTN or any Affiliate of AmeriCredit
or AMTN, pay fair market rent for its executive office space located in such
offices, (b) maintain the Debtor's books, financial statements, accounting
records and other trust documents and records separate from those of
AmeriCredit, AMTN or any other entity, (c) not commingle the Debtor's assets
with those of AmeriCredit, AMTN or any other entity, (d) act solely in its own
name and through its own authorized officers and agents, (e) make investments
directly or by brokers engaged and paid by the Debtor or its agents (PROVIDED
that if any such agent is an Affiliate of the Debtor it shall be compensated
at a fair market rate for its services), (f) separately manage its liabilities
from those of AmeriCredit, AMTN or any Affiliates of AmeriCredit or AMTN and
pay its own liabilities, including all administrative expenses, from its own
separate assets, except that AmeriCredit may pay the organizational expenses
of the Debtor, and (g) pay from the Debtor's assets all obligations and
indebtedness of any kind incurred by the Debtor. The Debtor shall abide by all
trust formalities, and the Debtor shall cause its financial statements to be
prepared in accordance with GAAP in a manner that indicates the separate
existence of the Debtor and its assets and liabilities. The Debtor shall (i)
pay all its liabilities, (ii) not assume the liabilities of AmeriCredit, AMTN
or any Affiliate of AmeriCredit or AMTN, (iii) not lend funds or extend credit
to AmeriCredit, AMTN or any Affiliate of AmeriCredit or AMTN and (iv) not
guarantee the liabilities of AmeriCredit, AMTN or any Affiliates of
AmeriCredit or AMTN. The officers of the Debtor (as appropriate) shall make
decisions with respect to the business and daily operations of the Debtor
independent of and not dictated by any controlling entity. The Debtor shall
not engage in any business not permitted by the Trust Agreement as in effect
on the Closing Date.
(l) TRUST AGREEMENT. The Debtor shall only
amend, alter, change or repeal the Trust Agreement with the prior written
consent of the Collateral Agent and the Note Insurer.
SECTION 5.2. NEGATIVE COVENANTS OF DEBTOR, AMTN AND AMERICREDIT. At
all times from the date hereof to the date on which all Secured Obligations
shall have been paid in full in cash, unless the Collateral Agent and the
Secured Parties shall otherwise consent in writing:
(a) NO SALES, LIENS, ETC. Except as otherwise
provided herein and in the Master Receivables Purchase Agreement, AmeriCredit
and AMTN shall not, and shall not permit the Debtor to, sell, assign (by
operation of law or otherwise) or otherwise dispose of, or
60
create or suffer to exist any Adverse Claim (or the filing of any financing
statement) upon or with respect to any of the Affected Assets, or any account
which concentrates in a Lock-Box Bank to which any Collections of any
Receivable are sent, or assign any right to receive income in respect thereof.
(b) EXTENSIONS AND AMENDMENTS OF RECEIVABLES.
AmeriCredit or AMTN shall not, and shall not permit the Debtor to, extend, amend
or otherwise modify the terms of any Receivable, or amend, modify or waive any
term or condition of any Contract related thereto, except in accordance with the
Terms of Section 2.2(c) of the Servicing Agreement.
(c) NO AMENDMENT OF MASTER RECEIVABLES PURCHASE
AGREEMENT. AmeriCredit or AMTN shall not, and shall not permit the Debtor to,
amend, supplement or otherwise modify the Master Receivables Purchase Agreement
or waive any provision thereof, in each case except with the prior written
consent of the Collateral Agent and the Secured Parties; nor shall AmeriCredit
or AMTN take, or permit the Debtor to take, any other action under the Master
Receivables Purchase Agreement that could have a material adverse effect on the
Note Insurer, the Purchaser or any other Owner or which is inconsistent with the
terms of this Agreement.
(d) NO CHANGE IN BUSINESS OR CREDIT AND COLLECTION
POLICY. AmeriCredit or AMTN shall not, and shall not permit the Debtor to, make
any change in the character of its business or in the Credit and Collection
Policy, which change would, in either case (i) impair the collectibility of any
Receivable or (ii) otherwise have a Material Adverse Effect.
(e) NO MERGERS, SALE OF ASSETS, ETC. AmeriCredit or
AMTN shall not, and shall not permit the Debtor to, (i) consolidate or merge
with or into any other Person, or (ii) sell, lease or transfer all or
substantially all of its assets to any other Person; PROVIDED, HOWEVER, that no
such sale shall be deemed to occur solely as a result of a Take-Out or solely as
a result of the sale of Contracts and related Receivables which are released to
the Debtor pursuant to Section 2.16 hereof.
(f) CHANGE IN PAYMENT INSTRUCTIONS TO OBLIGORS.
AmeriCredit or AMTN shall not, and shall not permit the Debtor or the Servicer
to, add or terminate any bank as a Lock-Box Bank or any account as a Lock-Box
Account to or from those listed in Exhibit A hereto or make any change in its
instructions to Obligors regarding payments to be made to any Lock-Box Account,
unless (i) such instructions are to deposit such payments to another existing
Lock-Box Account or (ii) the Collateral Agent and the Note Insurer shall have
received written notice of such addition, termination or change at least 30 days
prior thereto and the Collateral Agent and the Note Insurer shall have received
a Lock-Box Agreement executed by each new Lock-Box Bank or existing Lock-Box
Bank, as applicable, with respect to each new Lock-Box Account.
(g) CHANGE OF NAME, ETC. AmeriCredit or AMTN shall
not, and shall not permit the Debtor to, change its name, identity or structure
or the location of its chief executive office, unless at least 30 days prior to
the effective date of any such change the Debtor,
61
AmeriCredit or AMTN, as applicable, delivers to the Collateral Agent (i) such
documents, instruments or agreements, executed by the Debtor or the
Collateral Agent, as applicable, as are necessary to reflect such change and
to continue the perfection of the Collateral Agent's security interest in the
Collateral and (ii) new or revised Lock-Box Agreements executed by the
Lock-Box Banks which reflect such change and enable the Note Insurer to
continue to exercise its rights contained in Section 2.6 hereof.
(h) CONTRIBUTION TREATMENT. AmeriCredit or AMTN shall
not, and shall not permit the Debtor to account for (including for accounting
and tax purposes), or otherwise treat, the transactions contemplated by the
Master Receivables Purchase Agreement in any manner other than as a contribution
of Receivables by AmeriCredit or AMTN, as applicable, to the Debtor.
(i) OTHER DEBT. Except as provided for herein, the
Debtor shall not create, incur, assume or suffer to exist any indebtedness
whether current or funded, or any other liability other than indebtedness of the
Debtor representing fees, expenses and indemnities arising hereunder or under
the Master Receivables Purchase Agreement for the purchase price of the
Receivables under the Master Receivables Purchase Agreement.
(j) ERISA MATTERS. The Servicer shall not, and shall
not permit AmeriCredit, AMTN or the Debtor to, (i) engage or permit any of its
respective ERISA Affiliates to engage in any prohibited transaction (as defined
in Section 4975 of the Code and Section 406 of ERISA) for which an exemption is
not available or has not previously been obtained from the U.S. Department of
Labor; (ii) permit to exist any accumulated funding deficiency (as defined in
Section 302(a) of ERISA and Section 412(a) of the Code) or funding deficiency
with respect to any Benefit Plan other than a Multiemployer Plan; (iii) fail to
make any payments to any Multiemployer Plan that the Debtor, AmeriCredit, AMTN
or any ERISA Affiliate of the Debtor, AmeriCredit or AMTN is required to make
under the agreement relating to such Multiemployer Plan or any law pertaining
thereto; (iv) terminate any Benefit Plan so as to result in any liability; (v)
permit to exist any occurrence of any reportable event described in Title IV of
ERISA which represents a material risk of a liability to the Debtor,
AmeriCredit, AMTN or any ERISA Affiliate of the Debtor, AmeriCredit or AMTN
under ERISA or the Code; or (vi) take any action or fail to take any action
which shall give rise to a lien under Section 302(f) of ERISA or cause the
Internal Revenue Service to indicate its intention in writing or to file a
notice of lien asserting a claim or claims pursuant to the Code with regard to
any assets of the Debtor, AmeriCredit, AMTN or any ERISA Affiliate or cause the
Pension Benefit Guaranty Corporation to indicate its intention in writing to
file a notice of lien asserting a claim pursuant to ERISA with regard to any
assets of the Debtor, AmeriCredit, AMTN or any ERISA Affiliate or to terminate
any Benefit Plan, or to take any steps to terminate any Benefit Plan, if such
prohibited transactions, accumulated funding deficiencies, payments,
terminations, reportable events and actions or inactions occurring within any
fiscal year of the Debtor, AmeriCredit and AMTN, in the aggregate, involve a
payment of money or an incurrence of liability by the Debtor, AmeriCredit, AMTN
or any ERISA Affiliate of the Debtor, AmeriCredit or AMTN, in an amount in
excess of $10,000.
(k) PAYMENT TO AMERICREDIT AND AMTN. With respect to
any Receivable sold by AmeriCredit or AMTN to the Debtor, AmeriCredit or AMTN
shall, and shall
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cause the Debtor to, effect such sale under, and pursuant to the terms of,
the Master Receivables Purchase Agreement, including, without limitation, the
payment by the Debtor in cash to AmeriCredit or AMTN, as the case may be, an
amount equal to the purchase price for such Receivable as required by the
terms of the Master Receivables Purchase Agreement.
(l) the Debtor shall not engage in any business or
activity other than set forth in its organizational documents;
(m) the Debtor shall not, without the affirmative
vote of 100% of the its Certificateholders, institute proceedings to be
adjudicated bankrupt or insolvent, or consent to the institution of bankruptcy
or insolvency proceedings against it, or file a petition seeking or consent to
reorganization or relief under any applicable federal or state law relating to
bankruptcy, or consent to the appointment of a receiver, liquidator, assignee,
trustee, sequestrator of the corporation or substantial part of its property, or
make any assignment for the benefit of creditors, or admit in writing its
inability to pay its debts generally as they become due, or take corporate
action in furtherance of any such action.
(n) the Debtor shall not amend, change or repeal its
Certificate of Incorporation as in effect on the date hereof with the prior
written consent of the Collateral Agent and the Note Insurer.
SECTION 5.3. HEDGING ARRANGEMENTS. The Debtor shall (a) at or prior to
the time of any Receivables Delivery, provide to the Note Insurer, and the
Collateral Agent an Officer's Certificate stating that the Servicer has Hedging
Arrangements in place satisfying the conditions of this Section 5.3 as set forth
below, and (b) in connection with any Servicer's Certificate provided hereunder
and to the extent not previously provided, provide an executed copy of all
existing Hedging Arrangements, which Hedging Arrangements shall be satisfactory
to the Collateral Agent, and with respect to which the Debtor shall be the
beneficiary, in respect of an aggregate notional amount equal to the lesser of
(i) the Net Investment and (ii) the Net Receivables Balance, and if such Hedging
Arrangement is a swap, not greater than the Net Investment related to such swap.
On each Delivery Date, the notional balance of the Hedging
Arrangement shall be in an amount equal to the lesser of (i) the Net Investment
and (ii) the Net Receivables Balance and, in the case of a swap, not exceeding
the Net Receivables Balance (including any Receivables to be added in connection
with such Funding). The form, structure and counterparty to each Hedging
Arrangement shall be acceptable to the Note Insurer and the Collateral Agent
(and which, unless such Hedging Agreement is a cap agreement, shall be submitted
to the Note Insurer and the Collateral Agent for their prior review) and must be
in full force and effect at all times during which the Net Receivables Balance
is greater than zero (however such required amount may be reduced for the period
of time between the pricing and the funding of a structured financing utilizing
receivables released to the Debtor pursuant to Section 2.16 hereof by the
Aggregate Outstanding Balance of such Receivables). Any counterparty to a
Hedging Arrangement shall have a long-term unsecured debt rating from Moody's
and S&P of at least "A2" and "A", respectively.
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With respect to any Hedging Arrangement, (i) on and after the
occurrence of a Termination and Amortization Event or Potential Termination and
Amortization Event, the Note Insurer shall have the right, in its sole
discretion, to direct the Debtor's actions with respect thereto and (ii) the
related amortization schedule shall be approved by the Note Insurer.
Any Hedging Arrangement relating to a Receivables Delivery
which is an interest rate cap agreement shall consist of the following
requirements (each interest rate cap agreement meeting the following
requirements, an "Interest Rate Cap" and collectively, the "Interest Rate
Caps"): (i) any such counterparty thereto not rated at least "A" by S&P or "A2"
by Moody's shall be approved in writing by the Note Insurer, Moody's and S&P;
(ii) each Interest Rate Cap shall be documented in form and substance reasonably
acceptable to the Note Insurer; (iii) the strike rate of any Interest Rate Cap
shall be set at a level that will not result in a Net Spread Deficiency; (iv)
all amounts payable by the counterparty thereunder shall be required to be paid
by such counterparty directly to the Collection Account; (v) the notional amount
thereunder shall amortize according to the scheduled amortization of the
Receivables funded on such Receivables Delivery Date assuming zero prepayments
and zero defaults with respect to such Receivables; (vi) the Interest Rate Cap
shall cover at least 100% of the lesser of (a) the Net Investment and (b) the
Net Receivables Balance and must be in effect for at least as long as the latest
maturing Receivables securing the Net Investment; and (vii) the Effective Date
shall be no later than the Receivables Delivery Date.
SECTION 5.4. AFFIRMATIVE COVENANTS OF THE SERVICER. At all times from
the date hereof to the date on which all Secured Obligations have been paid in
full in cash, unless the Collateral Agent and the Secured Parties shall
otherwise consent in writing:
(a) CONDUCT OF BUSINESS. The Servicer shall, and
shall cause each of its Subsidiaries to, carry on and conduct its business in
substantially the same manner and in substantially the same fields of enterprise
as it is presently conducted and do all things necessary to remain duly
incorporated, validly existing and in good standing as a domestic corporation in
its jurisdiction of incorporation and maintain all requisite authority to
conduct its business in each jurisdiction in which its business is conducted.
(b) COMPLIANCE WITH LAWS. The Servicer shall, and shall
cause each of its Subsidiaries to, comply with all laws, rules, regulations,
orders, writs, judgments, injunctions, decrees or awards to which it or its
respective properties may be subject.
(c) FURNISHING OF INFORMATION AND INSPECTION OF
RECORDS. The Servicer shall furnish to the Note Insurer and the Collateral
Agent from time to time such information with respect to the Receivables as
the Note Insurer or the Collateral Agent may reasonably request (at the
Servicer's expense), including, without limitation, listings identifying the
Obligor and the outstanding balance for each Receivable. The Servicer shall,
at any time and from time to time during regular business hours and, provided
that a Termination and Amortization Event or Potential Termination and
Amortization Event shall not have occurred and be continuing, upon reasonable
prior notice, permit the Collateral Agent or any Secured Party, or their
agents or representatives, (i) to examine and make copies of and take
abstracts from all Records and (ii) to visit the offices and properties of
the Servicer for the purpose of examining such Records, and to discuss
matters relating to Receivables or its performance
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hereunder and under the other Transaction Documents to which it is a party
with any of the officers, directors, employees or independent public
accountants of the Servicer having knowledge of such matters.
(d) KEEPING OF RECORDS AND BOOKS OF ACCOUNT. The
Servicer shall maintain and implement administrative and operating procedures
(including, without limitation, an ability to recreate records evidencing
Receivables in the event of the destruction of the originals thereof), and
keep and maintain, all documents, books, records and other information
reasonably necessary or advisable for the collection of all Receivables
(including, without limitation, records adequate to permit the daily
identification of each new Receivable and all Collections of and adjustments
to each existing Receivable). The Servicer shall give the Note Insurer notice
of any material change in its administrative and operating procedures
referred to in the previous sentence.
(e) NOTICE OF COLLATERAL AGENT'S INTEREST. In the event
that the Debtor, AmeriCredit or AMTN shall sell or otherwise transfer any
interest in accounts receivable, the Servicer shall disclose on any computer
tapes or other documents or instruments provided by the Servicer in
connection with any such sale or transfer the Debtor's ownership of the
Receivables and the Servicer's interest therein.
(f) CREDIT AND COLLECTION POLICIES. The Servicer shall
comply in all material respects with the Credit and Collection Policy with
respect to each Receivable and the related Contract.
(g) COLLECTIONS. The Servicer shall instruct all
Obligors to cause all Collections to be deposited directly to a Lock-Box
Account.
(h) COLLECTIONS RECEIVED. The Servicer shall hold in
trust, and deposit, immediately, but in any event not later than forty-eight
(48) hours of its receipt thereof, to a Lock-Box Account all Collections
received by it from time to time.
(i) CHANGE IN ACCOUNTANTS OR ACCOUNTING POLICIES. The
Servicer shall promptly notify the Note Insurer of any change in its accountants
or material change in its accounting policy.
SECTION 5.5. NEGATIVE COVENANTS OF THE SERVICER. At all times from the
date hereof to the date on which all Secured Obligations shall have been paid in
full in cash, unless the Collateral Agent and the Secured Parties shall
otherwise consent in writing:
(a) EXTENSIONS OR AMENDMENTS OF RECEIVABLES. The
Servicer shall not extend, amend or otherwise modify the terms of any
Receivable, or amend, modify or waive any term or condition of any Contract
related thereto, except in accordance with the Terms of Section 2.2(c) of the
Servicing Agreement.
(b) NO CHANGE IN BUSINESS OR CREDIT AND COLLECTION
POLICY. The Servicer shall not make any change in the character of its
business or in the Credit and Collection Policy, which change would, in
either case, impair the collectibility of any Receivable or otherwise have a
Material Adverse Effect.
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(c) NO MERGERS, ETC. The Servicer shall not (i)
consolidate or merge with or into any other Person or (ii) sell, lease or
transfer all or substantially all of its assets to any other Person.
(d) CHANGE IN PAYMENT INSTRUCTIONS TO OBLIGORS. The
Servicer shall not add or terminate any bank as a Lock-Box Bank or any
account as a Lock-Box Account to or from those listed in Exhibit A hereto or
make any change in its instructions to Obligors regarding payments to be made
to any Lock-Box Account, unless (i) such instructions are to deposit such
payments to another existing Lock-Box Account or (ii) the Note Insurer shall
have received written notice of such addition, termination or change at least
30 days prior thereto and the Collateral Agent shall have received a Lock-Box
Agreement executed by each new Lock-Box Bank or existing Lock-Box Bank, as
applicable, with respect to each new Lock-Box Account.
ARTICLE VI
TERMINATION AND AMORTIZATION EVENTS; OPTIONAL TERMINATION
SECTION 6.1. TERMINATION AND AMORTIZATION EVENTS. The occurrence of any
one or more of the following events shall constitute a Termination and
Amortization Event:
(a) any representation or warranty made by AmeriCredit
or AMTN in this Agreement, the Master Receivables Purchase Agreement (other
than the representations and warranties relating to the Receivables) or in
any other Transaction Document shall prove to have been incorrect in any
material respect when made or deemed made, or AmeriCredit or AMTN shall fail
to perform any covenant in this Agreement or any other Transaction Document;
or
(b) AmeriCredit or AMTN shall fail to make any payment
or deposit to be made by it hereunder or under the Note Purchase Agreement,
the Servicing and Custodian Agreement or the Insurance Agreement when due
hereunder or thereunder; or
(c) any Event of Bankruptcy shall occur with respect
to the Debtor, AmeriCredit or AMTN; or
(d) an "Event of Default" shall have occurred and be
continuing under the Insurance Agreement; or
(e) the Debtor shall at any time not be in compliance
with the requirements of Section 5.3 hereof and such noncompliance shall
continue for five (5) days; or
(f) any event of default by the Debtor under the
Hedge Agreement, as defined by the ISDA guidelines with respect to the related
hedge type; or
(g) the long-term debt rating of any hedge counterparty
under a Hedge Agreement is either A-/A3 or below or withdrawn or suspended
(unless a new hedge counterparty reasonably acceptable to the Note Insurer
replaces such hedge counterparty within 10 business days or Collateral
acceptable to the Note Insurer is transferred by the hedge
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counterparty to the Debtor pursuant to a Collateral Agreement (as defined in
the Hedge Agreement) within 10 business days); or
(h) the Collateral Agent, on behalf of the Secured
Parties, shall, for any reason, fail to have a valid and perfected security
interest in the Collateral, including, without limitation, the Receivables and
Related Security and Collections with respect thereto, free and clear of any
Adverse Claim; or
(i) there shall have occurred any material adverse
change in the operations of AmeriCredit since the Closing Date which materially
adversely affects AmeriCredit's ability to service the Receivables or to perform
under the Servicing Agreement (or any other agreement pursuant to which it is
then servicing the Receivables), the Insurance Agreement, the Master Receivables
Purchase Agreement or any other Transaction Document; or
(j) a final judgment for the payment of money in
excess of $10,000,000 shall have been rendered against AmeriCredit or AMTN by a
court of competent jurisdiction and AmeriCredit or AMTN shall not have either
(1) discharged or provided for the discharge of such judgment in accordance with
its terms, or (2) perfected a timely appeal of such judgment and caused the
execution thereof to be stayed (by supercedes or otherwise) pending such appeal
or (ii) AmeriCredit or AMTN shall have made payments of amounts in excess of
$15,000,000 in settlement of any litigation unless covered by insurance; or
(k) a claim shall have been made under the Note Policy; or
(l) during the Revolving Period only, a Yield
Supplement Account Shortfall exists, and continues for a period of five (5)
Business Days; or
(m) a Reserve Account Shortfall exists at the close of
business on any Delivery Date, and remains uncured at the close of business
on the fifth (5th) Business Day following such Delivery Date; or
(n) an unwaived event of default by AmeriCredit or AMTN
which continues for 10 or more days under any material agreement for borrowed
money exceeding $5,000,000 to which any such Person is a party; or the
default by the Debtor, AmeriCredit, AMTN or any Subsidiary of the Debtor or
AmeriCredit 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 Debtor, AmeriCredit, AMTN or any Subsidiary of the
Debtor, AmeriCredit or AMTN 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 Debtor,
AmeriCredit, AMTN or any Subsidiary of the Debtor, AmeriCredit or AMTN
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; or
(o) the Portfolio Delinquency Ratio averaged for the
three most recent Determination Dates shall exceed 5.50%; or
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(p) the Portfolio Net Loss Ratio for any Determination
Date shall exceed 8.00%; or
(q) the Portfolio Repossession Ratio, as measured on a
3-month rolling average basis, is greater than 1.5%; or
(r) the Cumulative Net Loss Ratio exceeds the amount
specified for the related Determination Date in Exhibit M hereto; or
(s) the weighted average AmeriCredit Score for all
Receivables shall at any time be less than 220 or more than 5.00% of the
Receivables shall have an AmeriCredit Score below 200; or
(t) the average Monthly Extension Ratios for the three
most recent Determination Dates shall exceed 2.50%; or
(u) the weighted average remaining maturity of the
Receivables shall exceed 65 months; or
(v) during the Revolving Period only, the Net
Investment exceeds the Borrowing Base, for five (5) consecutive days
following any Borrowing Base Determination Date; or
(w) a Net Spread Deficiency exists, and such deficiency
continues for a period of more than five (5) Business Days; or
(x) the Tangible Net Worth of AmeriCredit Corp. shall
be less than $600,000,000 for any period of twenty (20) consecutive days; or
(y) the ratio of AmeriCredit Corp.'s Securitization
Assets to its Tangible Net Worth exceeds 2.5x; or
(z) the ratio (on a rolling two quarter average
basis) of AmeriCredit Corp.'s Adjusted EBITDA for the two most recent financial
quarters to its Interest Expense for the two most recent financial quarters
shall be less than 1.2x; or
(aa) the Servicer or the Note Insurer shall have been
informed in writing by either Rating Agency that the risk covered by the Note
Policy shall no longer carry a shadow rating of at least BBB from S&P or Baa2
from Moody's and the failure to maintain either such shadow rating shall
continue for a period of five (5) days from the date that such notice is
provided; or
(bb) one or more courts of competent jurisdiction have
issued final, non-appealable orders to the effect that the Collateral Agent
is not the secured party with respect to Financed Vehicles financed under
Receivables with an Aggregate Outstanding Balance (i.e., as of the date upon
which such Receivables were originated), equal to 5.00% or more of the
Aggregate Outstanding Balance of all Receivables owned by the Debtor; or
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(cc) AmeriCredit shall enter into any transaction or
merger whereby it is not the surviving entity (other than internal
re-organization), or AMTN or the Debtor shall enter into any merger
regardless of the surviving entity; or
(dd) the periodic due diligence by the Note Insurer (or
its designee) as permitted by the Transaction Documents, reveals that
Receivables representing more than 10% of the sample reviewed (which sample
must be of a reasonably statistically significant size) displays material
non-compliance with the standards described in the Credit and Collection
Policy; or
(ee) except as permitted by the transaction documents,
any assignment by AmeriCredit of its rights and obligations under the
Transaction Documents without the prior written consent of the Note Insurer;
or
(ff) the Trust becomes an "investment company" within
the meaning of the Investment Company Act of 1940; or
(gg) AMTN fails to repurchase Receivables in connection
with a breach of representation or warranty relating to the Receivables or
due to an incomplete or defective Receivable File, or as a result of the
related Lien Certificate not having been received by the Custodian by the
181st day following the origination date of the related Receivable; or
(hh) AmeriCredit is removed as servicer or is provided
with notice of servicer non-renewal on any outstanding term asset-backed
transaction; or
(ii) Eligible Receivables averaging less than 50% of the
Eligible Collateral during any calendar quarter, commencing with the first
quarter of 2001; or
(jj) more than 30% of the Eligible Receivables held as
Collateral have Contracts which provide for 72 monthly payments; or
(kk) the Weighted Average AmeriCredit Score for all of
the Eligible Receivables held as Collateral which have Contracts which
provide for 72 monthly payments is less than 230; or
(ll) a Servicer Termination Event occurs.
In addition to the Termination and Amortization Events listed
above, the following Termination and Amortization Events apply only during the
Regular Amortization Period and only with respect to the Regular Amortization
Receivables Pool:
(a) on any Determination Date, the Regular Amortization
Period Cumulative Net Loss Ratio exceeds the amount (based on weighted
average pool seasoning in months) specified for the related Determination
Date in Exhibit M hereto; or
(b) on any Determination Date during the Regular
Amortization Period, the Delinquency Ratio, averaged for the 3 most recent
Determination Dates, exceeds the level specified for such Determination Date
in Exhibit N hereto; or
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(c) on any Determination Date during the Regular
Amortization Period, the Default Ratio exceeds the level specified for such
Determination Date in Exhibit O hereto; or
(d) (i) on any of the sixth through eighth
Determination Dates during the Regular Amortization Period, the Annualized
Net Loss Ratio for Receivables held as Collateral, exceeds 9%; (ii) on any of
the ninth through twelfth Determination Dates during the Regular Amortization
Period, the Annualized Net Loss Ratio for Receivables held as Collateral,
exceeds 10%; (i) on any Determination Dates during the Regular Amortization
Period thereafter, the Annualized Net Loss Ratio for Receivables held as
Collateral, exceeds 11%.
SECTION 6.2. TERMINATION. Upon the occurrence of any Termination and
Amortization Event hereunder, the Rapid Amortization Period shall commence,
unless the Note Insurer otherwise waives in writing such Termination and
Amortization Event. No waiver of any Termination and Amortization Event
hereunder shall be effective without the prior written consent of the Note
Insurer.
The Debtor and the Servicer agree that they shall take all
actions (including reliening of the certificates of title or other title
documents in the name of the Collateral Agent on behalf of the Secured Parties)
and execute all documents as may be necessary or requested by the Collateral
Agent or the Note Insurer to perfect its interest in the Collateral, including,
without limitation, to perfect the Collateral Agent's security interest in the
Financed Vehicles. Each of the Debtor, AmeriCredit and AMTN hereby grant to the
Collateral Agent, on behalf of the Secured Parties, a power of attorney to act
in its place and stead to take all actions as may be necessary to perfect the
Collateral Agent's security interest in the Financed Vehicles. Each of
AmeriCredit, AMTN and the Debtor acknowledge that such power of attorney is
irrevocable and is coupled with an interest. In connection with any sale of the
Receivables by the Collateral Agent after the occurrence of a Termination and
Amortization Event, the Debtor shall have, for a period of five (5) Business
Days after notice of such proposed sale from or on behalf of the Secured
Parties, the right to repurchase the Receivables and related Contracts for a
price, payable in immediately available funds, in an amount equal to the then
outstanding Secured Obligations.
SECTION 6.3. OPTIONAL REDEMPTION OF NOTE. On any Remittance Date (i)
following the occurrence of a Termination and Amortization Event (which
Termination and Amortization Event itself occurs on or after the eleventh
(11th) Remittance Date), the Note Insurer, on not fewer than fifteen (15)
prior Business Days' written notice delivered to the Debtor, the Servicer,
the Collateral Agent and the Purchaser may, or (ii) on or after the
twenty-third (23rd Remittance Date, the Debtor not fewer than fifteen (15)
prior Business Day's written notice delivered to the Note Insurer, the
Purchaser and the Collateral Agent, may, redeem the Note, in whole or in
part, on, in each case for a purchase price equal to the Net Investment then
outstanding, plus all accrued and unpaid Note Interest, to the date of
payment; and provided that all amounts, if any, then due and owing to the
Note Insurer, the Collateral Agent and the Servicer are paid in full in cash.
The purchase price shall be applied as set forth in Section 6.5 hereof.
SECTION 6.4. OPTIONAL PURCHASE OF ALL RECEIVABLES. (a) On the last day
of any Settlement Period during the Amortization Period as of which the
Aggregate Outstanding Balance of all Receivables shall be less than or equal to
10% of the Aggregate Outstanding
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Balance of all Receivables as of the beginning of the Amortization Period,
the Servicer and AMTN each shall have the option to purchase the Trust
Estate, other than the Accounts (with the consent of the Note Insurer if such
purchase would result in a claim on the Note Policy or would result in any
amount owing to the Note Insurer under the Insurance Agreement remaining
unpaid); provided, however, that the amount to be paid for such purchase (as
set forth in the following sentence) shall be sufficient to pay the full
amount of principal, premium, if any, and interest then due and payable on
the Notes and the Certificates and any amount then due and owed to the Note
Insurer. To exercise such option, the Servicer or AMTN, as the case may be,
shall deposit in the Collection Account an amount equal to the aggregate
Purchase Amount for the Receivables (including Liquidated Receivables), plus
the appraised value of any other property held by the Trust and any amount
then due and owed to the Note Insurer, such value to be determined by an
appraiser mutually agreed upon by the Servicer, the Note Insurer and the
Collateral Agent, and shall succeed to all interests in and to the Trust.
(b) Notice of any termination of the Trust shall be
given to the Trustee, the Collateral Agent, the Note Insurer and the Rating
Agencies as soon as practicable after the Servicer has received notice
thereof.
(c) All amounts deposited in the Collection Account
pursuant to this Section 6.4 shall be applied as set forth in Section 6.5
hereof.
SECTION 6.5. PROCEEDS. The proceeds from the sale, disposition or
liquidation of the Receivables pursuant to Section 6.2 hereof, in connection
with any optional redemption of the Note pursuant to Section 6.3 hereof, or in
connection with the optional purchase of all Receivables pursuant to Section 6.4
hereof, shall be treated as Prepayment Amounts and applied pursuant to Section
2.4 hereof.
ARTICLE VII
THE COLLATERAL AGENT
SECTION 7.1. DUTIES OF THE COLLATERAL AGENT. The Secured Parties hereby
appoint The Chase Manhattan Bank to act solely on their behalf as Collateral
Agent hereunder, and The Chase Manhattan Bank hereby accepts such appointment.
The Collateral Agent, both prior to the occurrence of a Termination and
Amortization Event hereunder and after a Termination and Amortization Event
shall have been cured or waived, shall undertake to perform such duties and only
such duties as are specifically set forth in this Agreement. The Collateral
Agent shall at all times after the occurrence of a Termination and Amortization
Event which has not been cured or waived exercise such of the rights and powers
vested in it pursuant to this Agreement using the same degree of care and skill
as a prudent person would exercise or use in the conduct of his or her own
affairs.
All Collections received by the Collateral Agent from the
Servicer or otherwise will, pending remittance to the Secured Parties entitled
thereto, be held in trust by the Collateral Agent for the benefit of the Secured
Parties and together with all other payment obligations of
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the Debtor hereunder owing to the Secured Parties shall be payable to the
Secured Parties in accordance with the provisions of Article III hereof.
SECTION 7.2. COMPENSATION AND INDEMNIFICATION OF COLLATERAL AGENT. The
Collateral Agent shall be compensated for its activities hereunder and
reimbursed for reasonable out-of-pocket expenses (including, but not limited to,
(i) securities transaction charges not waived due to the Collateral Agent's
receipt of a payment from a financial institution with respect to certain
Eligible Investments and (ii) the compensation and expenses of its counsel and
agents) pursuant to a separate letter agreement between the Collateral Agent and
the Debtor. All such amounts shall be payable from funds available therefor in
accordance with Section 2.3(a)(iv) and (xiii) hereof. Notwithstanding any other
provisions in this Agreement, the Collateral Agent shall not be liable for any
liabilities, costs or expenses of the Debtor arising under any tax law,
including without limitation any Federal, state or local income or franchise
taxes or any other tax imposed on or measured by income (or any interest or
penalties with respect thereto or from a failure to comply therewith).
(a) Each of the Debtor and AmeriCredit shall, jointly
and severally, indemnify the Collateral Agent, its officers, directors,
employees and agents for, and hold it harmless against any loss, liability or
expense incurred without willful misconduct, gross negligence or bad faith on
its part, arising out of or in connection with (i) the acceptance or
administration of this Agreement, including the costs and expenses of
defending itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties under this Agreement
and (ii) the negligence, willful misconduct or bad faith of the Debtor in the
performance of its duties hereunder. All such amounts shall be payable in
accordance with Section 2.3(a)(iv) and (xiii) hereof. The provisions of this
Section 7.2 shall survive the termination of this Agreement or the earlier
resignation or removal of the Collateral Agent.
SECTION 7.3. [INTENTIONALLY OMITTED].
SECTION 7.4. LIABILITY OF THE COLLATERAL AGENT.
(a) The Collateral Agent shall be liable in accordance
herewith only to the extent of the obligations specifically undertaken by the
Collateral Agent in such capacity herein. No implied covenants or obligations
shall be read into this Agreement against the Collateral Agent and, in the
absence of bad faith on the part of the Collateral Agent, the Collateral
Agent may conclusively rely on the truth of the statements and the correctness
of the opinions expressed in any certificates or opinions furnished to the
Collateral Agent and conforming to the requirements of this Agreement.
(b) The Collateral Agent shall not be liable for an
error of judgment made in good faith by an authorized officer, unless it
shall be conclusively proved in a judicial proceeding that the Collateral
Agent shall have been negligent in ascertaining the pertinent facts of which
the Collateral Agent is required by the terms of this Agreement or any other
Transaction Documents to make itself aware.
(c) The Collateral Agent shall not be liable with
respect to any action taken, suffered or omitted to be taken in good faith in
accordance with this Agreement or at the
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direction of a Secured Party relating to the exercise of any power conferred
upon the Collateral Agent under this Agreement.
(d) The Collateral Agent shall not be charged with
knowledge of any Termination and Amortization Event unless an authorized
officer obtains actual knowledge of such event or the Collateral Agent
receives written notice of such event from the Debtor, the Purchaser, any
other Owner, any other Secured Party or the Note Insurer, as the case may be.
(e) Without limiting the generality of this Section
7.4, the Collateral Agent shall have no duty (i) to see to any recording,
filing or depositing of this Agreement or any other Transaction Document or
any financing statement or continuation statement evidencing a security
interest in the Receivables or the Financed Vehicles, or to see to the
maintenance of any such recording or filing or depositing or to any
recording, refiling or redepositing of any thereof, (ii) to see to any
insurance of the Financed Vehicles or Obligors or to effect or maintain any
such insurance, (iii) to see to the payment or discharge of any tax,
assessment or other governmental charge or any Lien or encumbrance of any
kind owing with respect to, assessed or levied against, any part of the
Receivables, (iv) to confirm or verify the contents of any reports or
certificates of the Servicer or the Debtor delivered to the Collateral Agent
pursuant to this Agreement believed by the Collateral Agent to be genuine and
to have been signed or presented by the proper party or parties or (v) to
inspect the Financed Vehicles at any time or ascertain or inquire as to the
performance or observance of any of the Debtor's or the Servicer's
representations, warranties or covenants or the Servicer's duties and
obligations as Servicer and as custodian of books, records, files and
computer records relating to the Receivables.
(f) The Collateral Agent shall not be required to
expend or risk its own funds or otherwise incur financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if there shall be reasonable ground for believing that the
repayment of such funds or indemnity satisfactory to it against such risk or
liability shall not be assured to it, and none of the provisions contained in
this Agreement shall in any event require the Collateral Agent to perform, or
be responsible for the manner of performance of, any of the obligations of
the Servicer under this Agreement.
(g) The Collateral Agent may conclusively rely and
shall be fully protected in acting or refraining from acting upon any
resolution, officer's certificate, any Servicer's Certificate, certificate of
auditors, or any other certificate, statement, instrument, opinion, report,
notice, request, consent, order, appraisal, bond or other paper or document
reasonably believed by it to be genuine and to have been signed or presented
by the proper party or parties.
(h) The Collateral Agent may consult with counsel and
any opinion of such counsel shall be full and complete authorization and
protection in respect of any action taken or suffered or omitted by it under
this Agreement in good faith and in accordance with such opinion of counsel.
(i) The Collateral Agent shall be under no obligation
to exercise any of the rights or powers vested in it by this Agreement or to
institute, conduct or defend any litigation under this Agreement or in
relation to this Agreement, at the request, order or direction
73
of the Note Insurer pursuant to the provisions of this Agreement, unless the
Note Insurer shall have offered to the Collateral Agent reasonable security
or indemnity against the costs, expenses and liabilities that may be incurred
therein or thereby; nothing contained in this Agreement, however, shall
relieve the Collateral Agent of its obligations, upon the occurrence of a
Termination and Amortization Event (that shall not have been cured or waived),
to exercise such of the rights and powers vested in it by this Agreement, and
to use the same degree of care and skill in their exercise as a prudent person
would exercise or use under the circumstances in the conduct of his or her own
affairs.
(j) The Collateral Agent shall not be liable for any
action taken, suffered or omitted by it in good faith and believed by it to
be authorized or within the discretion or rights or powers conferred upon it
by this Agreement.
(k) Prior to the occurrence of a Termination and
Amortization Event and before the Collateral Agent has received notice of
such Termination and Amortization Event and after the waiver of any
Termination and Amortization Event that may have occurred, the Collateral
Agent shall not be bound to make any investigation into the facts of matters
stated in any resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, approval, bond or other paper or
document, unless requested in writing so to do by a Secured Party; PROVIDED,
HOWEVER, that if the payment within a reasonable time to the Collateral Agent
of the costs, expenses or liabilities likely to be incurred by it in the
making of such investigation shall be, in the opinion of the Collateral
Agent, not reasonably assured by the Debtor, the Collateral Agent may require
reasonable indemnity against such cost, expense or liability as a condition
to so proceeding. The reasonable expense of every such examination shall be
paid by the Debtor or, if paid by the Collateral Agent, shall be reimbursed
by the Debtor upon demand.
(l) The Collateral Agent may execute any of the trusts
or powers hereunder or perform any duties under this Agreement either
directly or by or through agents or attorneys or a custodian. The Collateral
Agent shall not be responsible for any misconduct or negligence of any such
Agent or custodian appointed with due care by it hereunder.
(m) The Collateral Agent shall have no obligation to
invest and reinvest any cash held in the applicable Eligible Deposit Account
in the absence of timely and specific written investment direction of the
Servicer. In no event shall the Collateral Agent be liable for the selection
of investments or for investment losses incurred thereon by reason of
investment performance, nor shall the Collateral Agent shall have any
liability in respect of losses incurred as a result of the liquidation of any
investment prior to its stated maturity or the failure to be provided with
timely written investment direction from the Servicer.
(n) The Collateral Agent may at any time resign by
giving 30 days written notice of resignation to the Debtor, the Servicer,
AMTN and the Note Insurer. Upon receiving such notice of resignation, the
Servicer, with the consent of the Note Insurer, shall promptly appoint a
successor and, upon the acceptance by the successor of such appointment,
release the resigning Collateral Agent from its obligations hereunder by
written instrument, a copy of which instrument shall be delivered to each of
the Debtor, the Servicer, AMTN and the Note Insurer, the resigning Collateral
Agent and the successor. If no successor shall have been so appointed and
have accepted appointment within 45 days after the giving of such notice of
74
resignation, the resigning Collateral Agent may petition any court of
competent jurisdiction for the appointment of a successor.
SECTION 7.5. [INTENTIONALLY OMITTED].
SECTION 7.6. LIMITATION ON LIABILITY OF THE COLLATERAL AGENT AND
OTHERS. The directors, officers, employees or agents of the Collateral Agent
shall not be under any liability to the Note Insurer, any Secured Party or any
other Person hereunder or pursuant to any document delivered hereunder, it being
expressly understood that all such liability is expressly waived and released as
a condition of, and as consideration for, the execution of this Agreement;
PROVIDED, HOWEVER, that this provision shall not protect the directors,
officers, employees and agents of the Collateral Agent against any liability
which would otherwise be imposed by reason of willful misfeasance, bad faith or
gross negligence in the performance of duties or by reason of reckless disregard
of obligations and duties hereunder. Except as provided in Section 7.4 hereof,
the Collateral Agent shall not be under any liability to any Secured Party or
any other Person for any action taken or for refraining from the taking of any
action in its capacity as Collateral Agent pursuant to this Agreement whether
arising from express or implied duties under this Agreement; PROVIDED, HOWEVER,
that this provision shall not protect the Collateral Agent against any liability
which would otherwise be imposed by reason of willful misfeasance, bad faith or
gross negligence in the performance of duties or by reason of reckless disregard
of obligations and duties hereunder. The Collateral Agent may rely in good faith
on any document of any kind PRIMA FACIE properly executed and submitted by any
Person respecting any matters arising hereunder. The Collateral Agent shall not
be under any obligation to appear in, prosecute or defend any legal action which
is not incidental to its duties to administer the Collections and the Collection
Account in accordance with this Agreement which in its reasonable opinion may
involve it in any expense or liability.
ARTICLE VIII
THE SECURITIES INTERMEDIARY
SECTION 8.1. DUTIES OF THE SECURITIES INTERMEDIARY. The Chase Manhattan
Bank, in its capacity as Securities Intermediary hereunder, hereby undertakes
and agrees to act as "security intermediary" (as such term is defined in Section
8-501 of the Uniform Commercial Code as in effect in the State of New York (the
"NEW YORK UCC")) in connection with the securities accounts hereinafter referred
to in this Article 8 and all securities, security entitlements, cash and other
property held from time to time in such securities accounts). In such capacity,
the Securities Intermediary will establish each of the Collection Account, the
Reserve Account, the Funding Account and the Yield Supplement Account as an
Eligible Account.
SECTION 8.2. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE
SECURITIES INTERMEDIARY. The Securities Intermediary represents, warrants and
covenants that:
(i) It shall not change the name or account number of
the Collection Account, the Funding Account, the Yield Supplement Account or the
Reserve Account
75
(collectively, the "COLLATERAL AGENT ACCOUNTS") without the prior written
consent of the Collateral Agent and the Note Insurer;
(ii) All securities or other property comprising any
financial assets deposited in or credited to the Collateral Agent Accounts shall
be registered in the name of the Securities Intermediary or the Collateral Agent
or in blank or shall be credited to another securities account or accounts
maintained in the name of the Securities Intermediary, and in no case shall any
financial asset deposited in or credited to any such account be registered in
the name of the Debtor, payable to the order of the Debtor or specially endorsed
to the Debtor, except to the extent the foregoing have been specifically
endorsed to the Securities Intermediary or in blank;
(iii) All property delivered to the Securities
Intermediary pursuant to this Agreement for deposit in or credit to the
Collateral Agent Accounts shall be promptly credited to such account;
(iv) Each of the Collateral Agent Accounts is and shall
remain a "securities account" as such term is defined in Section 8-501(a) of
the New York UCC, and the Securities Intermediary agrees that each item of
property (whether investment property, financial asset, security, instrument
or cash) deposited in or credited to each such account shall be treated as a
"financial asset" within the meaning of Section 8-102(a)(9) of the New York
UCC and that, subject to the terms of this Agreement, the Securities
Intermediary will treat the Collateral Agent as the holder of a security
entitlement in and as entitled to exercise the rights that comprise any
financial asset deposited in or credited to such account;
(v) The Chase Manhattan Bank, in the ordinary course
of its business maintains securities accounts for others and is acting in that
capacity in exercising its rights and discharging its duties hereunder; and
(vi) If at any time the Securities Intermediary shall
receive any notification from the Collateral Agent directing transfer or
redemption of any financial asset relating to the Collateral Agent Accounts, the
Securities Intermediary shall comply with such entitlement order without further
consent by the Debtor or any other person.
SECTION 8.3. GOVERNING LAW FOR CERTAIN SECURITIES INTERMEDIARY MATTERS.
Without limiting the generality of Section 9.4 of this Agreement, the parties
agree that both this Agreement, the Collateral Agent Accounts shall be governed
by the laws of the State of New York. Regardless of any provision in any other
agreement, for purposes of the New York UCC, New York shall be deemed to be the
Securities Intermediary's jurisdiction and the Collateral Agent Accounts (as
well as all of the securities entitlements related thereto) shall be governed by
the laws of the State of New York.
76
ARTICLE IX
MISCELLANEOUS
SECTION 9.1. TERM OF AGREEMENT. This Agreement shall terminate on the
date immediately following the date upon which all Secured Obligations have been
paid in full in cash; PROVIDED, HOWEVER, that (i) the rights and remedies of the
Collateral Agent, the Note Insurer, and the Secured Parties with respect to any
representation and warranty made or deemed to be made by the Debtor,
AmeriCredit, AMTN or the Servicer pursuant to this Agreement, (ii) the
indemnification and payment provisions of Article VII, and (iii) the agreement
set forth in Section 9.9 hereof, shall be continuing and shall survive any
termination of this Agreement.
SECTION 9.2. WAIVERS; AMENDMENTS.
(a) No failure or delay on the part of the Collateral
Agent, 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 Servicer and the
Purchaser and the Note Insurer (and, if the Servicing and Custodian Agreement
or the rights or duties of the Collateral Agent are affected thereby, by the
Collateral Agent).
Prior to the execution of any amendment to this Agreement, the
Collateral Agent shall be entitled to receive and conclusively rely upon an
Opinion of Counsel stating that the execution of such amendment is authorized or
permitted by this Agreement and that all conditions precedent to such execution
and delivery have been satisfied. The Collateral Agent may, but shall not be
obligated to enter into any such amendment which affects the Collateral Agent's
own rights, duties or immunities under this Agreement.
SECTION 9.3. NOTICES. Except as provided below, all communications and
notices provided for 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 9.3 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 9.3. However, the absence of
such confirmation shall not affect the validity of such notice. If the written
confirmation differs in any material
77
respect from the action taken by the Purchaser, the records of the Purchaser
shall govern absent manifest error.
If to the Purchaser:
Meridian Funding Company, LLC
c/o MBIA Insurance Corporation
113 King Street
Armonk, NY 10504
Attention: Group Managing Directors-Conduits
Telephone: 914-273-4545
Telecopy: 914-765-3979
(with a copy to the Note Insurer)
If to the Debtor:
AmeriCredit MTN Receivables Trust
c/o Bankers Trust (Delaware)
E.A. Delle Donne Corporate Center
Montgomery Building
1011Centre Road, Suite 200
Wilmington, Delaware 19805
Attention: Corporate Trust Administration
with a copy to:
Bankers Trust Company
4 Albany Street
New York, New York 10006
Attention: Asset Backed Finance Unit
and a copy to:
AmeriCredit Financial Services, Inc.
801 Cherry Street
Suite 3900
Fort Worth, Texas 76102
Attention: Treasury Department
Telephone: (817) 302-7022
Telecopy: (817) 302-7942
78
If to the Trustee:
Bankers Trust Company
4 Albany Street
New York, New York 10006
Attention: Asset Backed Finance Unit
If to AmeriCredit or the Servicer:
AmeriCredit Financial Services, Inc.
801 Cherry Street
Suite 3900
Fort Worth, Texas 76102
Attention: Treasury Department
Telephone: (817) 302-7022
Telecopy: (817) 302-7942
If to AMTN:
AmeriCredit MTN Corp.
801 Cherry Street
Suite 4000
Fort Worth, Texas 76102
Attention: Treasury Department
Telephone: (817) 302-7082
Telecopy: (817) 302-7915
If to the Note Insurer:
MBIA Insurance Corporation
113 King Street
Armonk, NY 10504
Attention: Insured Portfolio Management - SF
Telephone: 914-273-4545
Telecopy: 914-765-3810
If to the Collateral Agent or the Securities Intermediary:
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
79
SECTION 9.4. GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF JURY
TRIAL; INTEGRATION; APPOINTMENT OF AGENT FOR SERVICE OF PROCESS.
(a) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE
CONFLICTS OF LAW PROVISIONS THEREOF. EACH OF THE DEBTOR, AMERICREDIT, AMTN AND
THE SERVICER HEREBY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF THE UNITED
STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AND OF ANY NEW YORK
STATE COURT SITTING IN THE CITY OF NEW YORK FOR PURPOSES OF ALL LEGAL
PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY. Each of the Debtor, AmeriCredit, AMTN and the Servicer
hereby irrevocably waives, to the fullest extent it may effectively do so, any
objection which it may now or hereafter have to the laying of the venue of any
such proceeding brought in such a court and any claim that any such proceeding
brought in such a court has been brought in an inconvenient forum. Nothing in
this Section 9.4 shall affect the right of the Purchaser to bring any action or
proceeding against the Debtor, AmeriCredit, AMTN or the Servicer or their
respective properties in the courts of other jurisdictions.
(b) EACH OF THE PARTIES HERETO HEREBY WAIVES ANY RIGHT
TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN
CONTRACT, TORT OR OTHERWISE AMONG ANY OF THEM ARISING OUT OF, CONNECTED WITH,
RELATING TO OR INCIDENTAL TO THE RELATIONSHIP BETWEEN THEM IN CONNECTION WITH
THIS AGREEMENT OR THE OTHER TRANSACTION DOCUMENTS.
(c) This Agreement contains the final and complete
integration of all prior expressions by the parties hereto with respect to
the subject matter hereof and shall constitute the entire Agreement between
the parties hereto with respect to the subject matter hereof superseding all
prior oral or written understandings.
(d) The Debtor, AmeriCredit, AMTN and the Servicer each
hereby appoint Corporation Servicing Company, located at 80 State Street,
Albany, New York 12207-2543, as the authorized agent upon whom process may be
served in any action arising out of or based upon this Agreement, the other
Transaction Documents to which such Person is a party or the transactions
contemplated hereby or thereby that may be instituted in the United States
District Court for the Southern District of New York and of any New York
State court sitting in the City of New York by the Purchaser, the Note
Insurer, any other Owner, the Collateral Agent or any assignee of any of them.
SECTION 9.5. COUNTERPARTS; SEVERABILITY. This Agreement may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which when taken together shall constitute one and the same
Agreement. Any provisions of this Agreement which are 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
80
and any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction.
SECTION 9.6. SUCCESSORS AND ASSIGNS.
(a) This Agreement shall be binding on the
parties hereto and their respective successors and assigns; PROVIDED, HOWEVER,
that none of the Debtor, AmeriCredit, AMTN or the Servicer may assign any of
its rights or delegate any of its duties hereunder or under the Master
Receivables Purchase Agreement or under any of the other Transaction Documents
without the prior written consent of the Collateral Agent. No provision of
this Agreement shall in any manner restrict the ability of the Collateral
Agent to assign, participate, grant security interests in, or otherwise
transfer any portion of the Collateral.
(b) Each of the Debtor, AmeriCredit, AMTN and
the Servicer hereby consents to and acknowledges the assignment by the
Purchaser of all of its rights under, interest in and title to this Agreement,
the Note and the Collateral to the Note Insurer.
SECTION 9.7. WAIVER OF CONFIDENTIALITY. Each of the Debtor,
AmeriCredit, AMTN and the Servicer hereby consents to the disclosure of any
non-public information with respect to it received by any Secured Party, the
Collateral Agent or the Note Insurer to any of the Purchaser, any nationally
recognized rating agency rating the Purchaser's medium term notes, the Note
Insurer or any Secured Party, in relation to this Agreement.
SECTION 9.8. CONFIDENTIALITY AGREEMENT. Each of the Debtor,
AmeriCredit and AMTN hereby agrees that it shall not disclose the contents of
this Agreement or any other proprietary or confidential information of any of
the Secured Parties, the Collateral Agent or the Note Insurer to any other
Person except (i) its auditors and attorneys, employees or financial advisors
(other than any commercial bank) and any nationally recognized rating agency;
PROVIDED such auditors, attorneys, employees, financial advisors or rating
agencies are informed of the highly confidential nature of such information or
(ii) as otherwise required (x) by applicable law, (y) under the Securities
Exchange Act of 1934, as amended, in connection with an offering of securities
issued by the Debtor or an Affiliate thereof, or (z) by order of a court of
competent jurisdiction (PROVIDED, HOWEVER, that in the case of this clause
(ii) no such disclosure shall occur without the prior review by the Note
Insurer of the material to be disclosed).
SECTION 9.9. NO BANKRUPTCY PETITION AGAINST THE PURCHASER, AMTN, OR
THE DEBTOR. Each of the Debtor, AmeriCredit, AMTN and the Servicer hereby
covenants and agrees that, prior to the date which is one year and one day
after the payment in full of all outstanding indebtedness of the Purchaser, it
shall not institute against, or join any other Person in instituting against,
the Purchaser, AMTN or the Debtor or any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings or other similar proceeding
under the laws of the United States or any state of the United States.
SECTION 9.10. FURTHER ASSURANCES. The Debtor agrees to do such
further acts and things and to execute and deliver to the Secured Parties, the
Note Insurer or the Collateral Agent such additional assignments, agreements,
powers and instruments as are required by each of
81
them to carry into effect the purposes of this Agreement or to better
assure and confirm unto each of them their rights, powers and remedies
hereunder.
SECTION 9.11. CHARACTERIZATION OF THE TRANSACTIONS CONTEMPLATED BY THE
AGREEMENT; TAX TREATMENT. The parties hereto agree that this Agreement shall
constitute a security agreement under applicable law. The Debtor hereby assigns
to the Collateral Agent, for the benefit of the Secured Parties, all of its
rights and remedies under (i) the Master Receivables Purchase Agreement with
respect to the Receivables and with respect to any obligations thereunder of
each of AmeriCredit and AMTN with respect to the Receivables and (ii) under or
in connection with any Hedging Arrangement. The Collateral Agent agrees that
upon any release of a Receivable or Contract to the Debtor, the Collateral Agent
shall be deemed to have released its security interest therein and reassigned to
the Debtor all of the Collateral Agent's rights under the Master Receivables
Purchase Agreement with respect to such Receivable or Contract. The Debtor
agrees that neither it nor the Servicer shall give any consent or waiver
required or permitted to be given under the Master Receivables Purchase
Agreement with respect to the Receivables or the Contracts without the prior
consent of the Collateral Agent and the Note Insurer.
(b) Each of the parties hereto agrees to treat
the transactions contemplated by this Agreement as a financing for federal
income tax purposes and further agree to file on a timely basis all federal
and other income tax returns consistent with such treatment.
SECTION 9.12. RESPONSIBILITIES OF THE DEBTOR. Anything herein to the
contrary notwithstanding, the Debtor shall (i) perform all of its obligations
under the Contracts related to the Receivables to the same extent as if
interests in such Receivables had not been pledged hereunder and the exercise by
the Collateral Agent or any Secured Party of their rights hereunder shall not
relieve the Debtor from such obligations and (ii) pay when due any taxes,
including, without limitation, any sales taxes payable in connection with the
Receivables and their creation and satisfaction. Neither the Collateral Agent
nor any Secured Party shall have any obligation or liability with respect to any
Receivable or related Contracts, nor shall any of them be obligated to perform
any of the obligations of the Debtor thereunder.
SECTION 9.13. HEADINGS. Section headings used in this Agreement are for
convenience of reference only and shall not affect the construction or
interpretation of this Agreement.
SECTION 9.14. LIMITATION ON LIABILITY. 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 Debtor, 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 Debtor is made and intended not as a personal
representation, undertaking and agreement by Bankers Trust (Delaware) but is
made and intended for the purpose for binding only the Debtor, (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
82
of any indebtedness or expenses of the Debtor or be liable for the breach or
failure of any obligation, representation, warranty or covenant made or
undertaken by the Debtor under this Agreement or any other related 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 9.15. 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 9.16. EFFECT OF NOTE INSURER DEFAULT. Upon the occurrence of a
Note Insurer Default, and for so long as such Note Insurer Default continues,
all rights of the Note Insurer shall vest in the Purchaser; provided, however,
that all rights of the Note Insurer shall be immediately reinstated upon cure of
such Note Insurer Default.
83
IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Agreement as of the date first written above.
AMERICREDIT MTN RECEIVABLES TRUST,
as Debtor
By: BANKERS TRUST (DELAWARE), not in its
individual capacity but solely as Trustee
By:
------------------------------------------
Name:
Title:
AMERICREDIT FINANCIAL SERVICES, INC.,
individually and as Servicer
By:
-------------------------------------
Name:
Title:
AMERICREDIT MTN CORP.,
individually
By:
-------------------------------------
Name:
Title:
84
THE CHASE MANHATTAN BANK,
as Collateral Agent and as Securities Intermediary
By:
-------------------------------------
Name:
Title:
85
EXHIBIT A
LIST OF LOCK-BOX BANKS AND LOCK-BOX ACCOUNTS
EXHIBIT B
FORM OF LOCK-BOX AGREEMENT
EXHIBIT C
[[[[FORM OF NOTE]]]]
EXHIBIT D
[[[[INTENTIONALLY OMITTED]]]]
EXHIBIT E
LIST OF ACTIONS AND SUITS
EXHIBIT F
SCHEDULE OF LOCATIONS OF RECORDS
EXHIBIT G
LIST OF SUBSIDIARIES, DIVISIONS AND TRADENAMES
EXHIBIT H
[[[[INTENTIONALLY OMITTED.]]]]
EXHIBIT I
FORM OF SECRETARY'S CERTIFICATE
EXHIBIT J
[[[[INTENTIONALLY OMITTED]]]]
EXHIBIT K
FORM OF TAKE-OUT NOTICE
EXHIBIT L
FORM OF DELIVERY NOTICE
EXHIBIT M
CUMULATIVE NET LOSS TABLE
- ---------------- -----------------
Seasoning in Trigger Rate
Months
- ---------------- -----------------
3 0.50%
- ---------------- -----------------
6 2.50%
- ---------------- -----------------
9 5.20%
- ---------------- -----------------
12 7.10%
- ---------------- -----------------
15 9.00%
- ---------------- -----------------
18 10.90%
- ---------------- -----------------
21 12.60%
- ---------------- -----------------
24 13.60%
- ---------------- -----------------
27 14.60%
- ---------------- -----------------
30 15.60%
- ---------------- -----------------
33 16.20%
- ---------------- -----------------
36 16.60%
- ---------------- -----------------
39 16.90%
- ---------------- -----------------
42 17.10%
- ---------------- -----------------
EXHIBIT N
DELINQUENCY RATIO TABLE
- --------------------------- --------------------
Weighted Average Trigger Rate
Seasoning of Pool
- --------------------------- --------------------
1 - 12 months 5.00%
- --------------------------- --------------------
13 - 24 months 5.50%
- --------------------------- --------------------
25 - 48 months 6.50%
- --------------------------- --------------------
49 - 72 months 7.00%
- --------------------------- --------------------
EXHIBIT O
DEFAULT RATIO TABLE
- -------------------------- -------------------------
Weighted Average
Seasoning of Pool Default Rate Trigger
- -------------------------- -------------------------
1-3 months 4.15%
- -------------------------- -------------------------
4-6 months 7.00%
- -------------------------- -------------------------
7-9 months 9.98%
- -------------------------- -------------------------
10-12 months 13.36%
- -------------------------- -------------------------
13-15 months 16.50%
- -------------------------- -------------------------
16-18 months 17.83%
- -------------------------- -------------------------
19-21 months 19.78%
- -------------------------- -------------------------
22-24 months 21.29%
- -------------------------- -------------------------
25-27 months 22.44%
- -------------------------- -------------------------
28-30 months 23.27%
- -------------------------- -------------------------
31-33 months 23.85%
- -------------------------- -------------------------
34-36 months 24.23%
- -------------------------- -------------------------
37-39 months 24.47%
- -------------------------- -------------------------
40-42 months 24.59%
- -------------------------- -------------------------
43-45 months 24.64%
- -------------------------- -------------------------
46-48 months 24.66%
- -------------------------- -------------------------
49-51 months 24.67%
- -------------------------- -------------------------
52-54 months 24.68%
- -------------------------- -------------------------
55-57 months 24.69%
- -------------------------- -------------------------
58-60 months 24.70%
- -------------------------- -------------------------
61-63 months 24.70%
- -------------------------- -------------------------
64-66 months 24.70%
- -------------------------- -------------------------
67-69 months 24.70%
- -------------------------- -------------------------
70-72 months 24.70%
- -------------------------- -------------------------
EXHIBIT P
COLLATERAL AGENT'S FEE SCHEDULE
EXHIBIT Q
TRUSTEE'S FEE SCHEDULE