THIS POOLING AND SERVICING AGREEMENT ("this Agreement"),
dated as of February 12, 1996, is made with respect to the formation
of the AmeriCredit Automobile Receivables Trust 1996-A (the "Trust"),
among AmeriCredit Financial Services, Inc., a Delaware
corporation, ("AmeriCredit") (in its capacity as Servicer, the "Servicer" and
in its capacity as Seller, the "Seller"), AmeriCredit Receivables Corp.
("ARC") as the Initial Class B Certificateholder and LaSalle
National Bank, a national banking association, as Trustee (in such
capacity, the "Trustee"), as Backup Servicer (in such capacity, the
"Backup Servicer") and as Collateral Agent (in such capacity, the
"Collateral Agent").
WHEREAS, the Seller wishes to establish a trust and provide
for the allocation and sale of the beneficial interests therein and the
maintenance and distribution of the trust estate;
WHEREAS, the Servicer has agreed to service the Receivables,
which constitute the principal assets of the trust estate;
WHEREAS, all things necessary to make the Certificates,
when executed and authenticated by the Trustee, valid instruments,
and to make this Agreement a valid agreement, in accordance with their
and its terms, have been done; and
WHEREAS, LaSalle National Bank is willing to serve in the capacity
of Trustee and Backup Servicer hereunder.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained, the Seller, the Servicer, ARC, the Trustee and
the Backup Servicer hereby agree as follows:
I DEFINITIONS
I.1. Definitions. All terms defined in the Spread Account
Agreement (as defined below) shall have the same meaning in this Agreement.
Whenever capitalized and used in this Agreement, the following words
and phrases, unless the context otherwise requires, shall have the
following meanings:
Accountants' Report: The report of a firm of nationally
recognized independent accountants described in Section 4.11.
Accounting Date: With respect to a Distribution Date, the last
day of the Collection Period immediately preceding such Distribution Date.
Administrative Receivable: With respect to any Collection
Period, a Receivable which the Servicer is required to purchase
pursuant to Section 4.7 or which the Servicer has elected to purchase
pursuant to Section 4.4(c) on the Deposit Date with respect to such
Collection Period.
Affiliate: With respect to any Person, any other Person directly
or indirectly controlling, controlled by, or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person, means the power
to direct the management and voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to
the foregoing.
Aggregate Principal Balance: With respect to any Determination
Date, the sum of the Principal Balances (computed as of the related
Accounting Date) for all Receivables (other than (i) any Receivable
that became a Liquidated Receivable during the related Collection Period
and (ii) any Receivable that became a Purchased Receivable on the
immediately preceding Deposit Date).
Agreement: shall have the meaning set forth in the first
paragraph of this Agreement.
AmeriCredit: shall have the meaning set forth in the first
paragraph of this Agreement.
Amount Available: With respect to any
Distribution Date, the sum of (i) the Available Funds for the immediately
preceding Determination Date, plus (ii) the Deficiency Claim Amount, if any,
received by the Trustee with respect to such Distribution Date, plus
(iii) the Policy Claim Amount, if any, received by the Trustee with
respect to such Distribution Date.
Amount Financed: With respect to a Receivable, the aggregate
amount advanced under such Receivable toward the purchase price of 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 sale
contracts or promissory notes, and related costs.
Annual Percentage Rate or APR: With respect to a Receivable, the
rate per annum of finance charges stated in such Receivable as the "annual
percentage rate" (within the meaning of the Federal Truth-in-Lending Act).
If after the Closing Date, the rate per annum with respect to a
Receivable as of the Closing Date is reduced as a result of (i) an
insolvency proceeding involving the Obligor or (ii) pursuant to the
Soldiers' and Sailors' Civil Relief Act of 1940, Annual Percentage Rate or
APR shall refer to such reduced rate.
Annual Trustee's Fee: Shall have the meaning set forth in Section
11.6.
ARC: AmeriCredit Receivables Corp., a Delaware corporation.
Available Funds: With respect to any Determination
Date, the sum of (i) the Collected Funds for such Determination Date, (ii)
all Purchase Amounts deposited in the Collection Account on the related
Deposit Date and (iii) all income from investments of funds in the
Collection Account during the prior Collection Period.
Backup Servicer: LaSalle National Bank, or its successor in
interest pursuant to Section 10.2, or such Person as shall have been
appointed as Backup Servicer or successor Servicer pursuant to Section 10.3.
Basic Servicing Fee: With respect to any Collection
Period, the fee payable to the Servicer for services rendered during
such Collection Period, which shall be equal to one-twelfth of the Basic
Servicing Fee Rate multiplied by the Aggregate Principal Balance as of
the first day of the Collection Period.
Basic Servicing Fee Rate: 2.50% per annum, payable monthly
at one-twelfth of the annual rate.
Business Day: Any day other than a Saturday, Sunday, legal
holiday or other day on which commercial banking institutions or trust
companies in Texas, New York, Illinois or any other location of any
successor Servicer, successor Trustee or successor Collateral Agent
are authorized or obligated by law, executive order or governmental
decree to be closed.
Calendar Quarter: The three-month period ending on the last day
of March, June, September or December.
Certificate: Any one of the Class A Certificates or Class B
Certificates executed by the Trustee on behalf of the Trust in substantially
the form set forth in Exhibit A or B, respectively.
Certificate Majority: Holders of Class A Certificates
and Class B Certificates representing a majority of the sum of the
Class A Certificate Balance and the Class B Certificate Balance, or if there
are no Class A Certificates outstanding, holders of Class B Certificates
representing a majority of the Class B Certificate Balance, provided, that
for so long as the Class B Certificate is held by any Affiliate of
AmeriCredit or by AmeriCredit, it shall be disregarded for purposes of this
definition.
Certificateholder or Holder: The Person in whose name a
Certificate is registered in the Certificate Register.
Certificate Register and Certificate Registrar: The register
maintained and the registrar appointed pursuant to Section 7.3.
Class: A class of Certificates.
Class A Certificate: Any one of the Certificates executed by the
Trust and authenticated by the Trustee in substantially the form set forth
in Exhibit A hereto.
Class A Certificate Balance: Initially, the Class A Percentage
of the Cut-off Date Principal Balance and, thereafter, the initial Class A
Certificate Balance reduced by all amounts distributed to the Class A
Certificateholders and allocable to principal.
Class A Certificate Factor: As of any Distribution
Date, a seven-digit decimal figure equal to the Class A Certificate Balance
as of the close of business on such Distribution Date divided by the
initial Class A Certificate Balance as of the Cut-off Date.
Class A Distributable Amount: On any Distribution Date, the sum
of the Class A Principal Distributable Amount and the Class A Interest
Distributable Amount.
Class A Interest Carryover Shortfall: As of the close of
business on any Distribution Date, the excess of the Class A Interest
Distributable Amount for such Distribution Date plus any outstanding
Class A Interest Carryover Shortfall from the preceding Distribution
Date plus interest on such outstanding Class A Interest Carryover Shortfall,
to the extent permitted by law, at the Class A Pass-Through Rate from
such preceding Distribution Date through the current Distribution Date,
over the amount of interest that the holders of the Class A
Certificates actually received on such current Distribution Date.
Class A Interest Distributable Amount: With respect to any
Distribution Date, the sum of (i) for the initial Distribution Date
forty-one (41) days of interest and for any Distribution Date thereafter,
thirty (30) days of interest, in any case calculated on the basis of a
360-day year consisting of twelve 30-day months, at the Class A Pass-Through
Rate on the Class A Certificate Balance as of the close of business on
the last day of the preceding Collection Period and (ii) any outstanding
Class A Interest Carryover Shortfall with respect to the
immediately preceding Distribution Date.
Class A Pass-Through Rate: 5.70% per annum,
calculated on the basis of a 360-day year consisting of twelve 30-day
months.
Class A Percentage: 92%.
Class A Principal Carryover Shortfall: As of the close of
business on any Distribution Date, the excess of the Class A Principal
Distributable Amount plus any outstanding Class A Principal Carryover
Shortfall from the preceding Distribution Date over the amount of
principal that the holders of the Class A Certificates actually
received on such current Distribution Date.
Class A Principal Distributable Amount: With respect to any
Distribution Date, other than the Final Scheduled Maturity Date, without
duplication, the sum of (x) the Class A Percentage of the sum of (i) the
principal portion of all Collected Funds received during or with
respect to the immediately preceding Collection Period (other than
Liquidated Receivables and Purchased Receivables) including the
principal portion of all prepayments, (ii) the Principal Balance of all
Receivables that became Liquidated Receivables during the related
Collection Period (other than Purchased Receivables), (iii) the
principal portion of the Purchase Amount of all Receivables that became
Purchased Receivables as of the immediately preceding Accounting Date,
plus, in the sole discretion of the Security Insurer, provided no
Insurer Default shall have occurred and be continuing, all or any lesser
portion (as the Security Issuer may determine) of the Principal Balance as of
the immediately preceding Accounting Date of all the Receivables that
were required to be purchased pursuant to Sections 3.5 or 4.7 as
of the immediately preceding Accounting Date but were not so
purchased and (iv) the aggregate amount of Cram Down Losses that shall
have occurred during the related Collection Period, and (y) Class A
Principal Carryover Shortfall. On the Final Scheduled Distribution Date
the Class A Principal Distributable Amount shall be the Outstanding
Class A Certificate Balance.
Class B Certificate: Any one of the Certificates executed by the
Trust and authenticated by the Trustee in substantially the form set forth
in Exhibit B hereto.
Class B Certificate Balance: Initially, the Class B Percentage
of the Cut-off Date Principal Balance and, thereafter, the initial Class B
Certificate Balance, reduced by (x) all amounts distributed (pursuant to
the provision set forth in Section 5.5(b) hereof) to Class B
Certificateholders and allocable to principal and (y) on any Distribution
Date on which (i) the sum of the Class A Certificate Balance and the
Class B Certificate Balance as of such Distribution Date and after taking
into account all distributions to be made on such Distribution Date exceeds
(ii) the Pool Balance with respect to the immediately preceding
Collection Period, the amount of such excess.
Class B Certificate Factor: As of any Distribution
Date, a seven-digit decimal figure equal to the Class B Certificate Balance
as of the close of business on such Distribution Date divided by the
initial Class B Certificate Balance as of the Cut-Off Date.
Class B Coupon Interest Carryover Shortfall: As of the close
of business on any Distribution Date, the excess of the Class B Coupon
Interest Amount for such Distribution Date plus any outstanding Class
B Coupon Interest Carryover Shortfall from the preceding Distribution Date,
over the amount of interest that the holders of the Class B Certificates
actually received on such current Distribution Date.
Class B Coupon Interest Amount: With respect to any
Distribution Date, the sum of (i) for the initial Distribution Date
forty-one (41) days of interest and for any Distribution Date
thereafter, thirty (30) days of interest, in any case calculated on the
basis of a 360-day year consisting of twelve 30-day months, at the rate
of 5.70% per annum in the Class B Certificate Balance as of the close of
business on the last day of the preceding Collection Period and (ii)
any outstanding Class B Coupon Interest Carryover Shortfall with respect to
the immediately preceding Distribution Date.
Class B Excess Interest Amount: With respect to any
Distribution Date, an amount equal to the portion of Available Funds, if
any, remaining after the distribution of amounts required to be distributed
on such Distribution Date pursuant to clauses (i) through (vii) of Section
5.5(a).
Class B Percentage: 8%.
Class B Principal Carryover Shortfall: As of the close of
business on any Distribution Date, the excess of the Class B Principal
Distributable Amount plus any out standing Class B Principal Carryover
Shortfall from the preceding Distribution Date over the amount of
principal that the holders of the Class B Certificates actually
received on such current Distribution Date.
Class B Principal Distributable Amount: With respect to any
Distribution Date, without duplication, the Class B Percentage of the sum
of: (i) the principal portion of all Collected Funds received during or
with respect to the immediately preceding Collection Period (other than
Liquidated Receivables and Purchased Receivables) including the principal
portion of all prepayments, (ii) the Principal Balance of all
Receivables that became Liquidated Receivables during the related
Collection Period (other than Purchased Receivables), (iii) the principal
portion of the Purchase Amount of all Receivables that became Purchased
Receivables as of the immediately preceding Accounting Date, and (iv) the
aggregate amount of Cram Down Losses that shall have occurred during the
related Collection Period.
Closing Date: March 4, 1996.
Collateral Agent: The Collateral Agent named in the Spread
Account Agreement, and any successor thereto pursuant to the terms of the
Spread Account Agreement.
Collateral Insurance: Shall have the meaning set forth in Section
4.4(a).
Collected Funds: With respect to any Determination
Date, the amount of funds in the Collection Account representing
collections on the Receivables during or with respect to the related
Collection Period, including all Liquidation Proceeds collected during
the related Collection Period (but excluding any Purchase Amounts).
Collection Account: The account designated as the Collection
Account in, and which is established and maintained pursuant to,
Section 5.1.
Collection Period: With respect to the first Distribution
Date, the period beginning on the close of business on February 12,
1996 and ending on the close of business on March 31, 1996. With respect
to each subsequent Distribution Date, the preceding calendar month. Any
amount stated "as of the close of business of the last day of a
Collection Period" shall give effect to the following calculations as
determined as of the end of the day on such last day: (i) all applications
of collections, and (ii) all distributions.
Collection Records: All manually prepared or computer
generated records relating to collection efforts or payment histories with
respect to the Receivables.
Compensating Interest: Shall have the meaning set forth in Section
4.8(b) hereof.
Computer Tape or Listing: The computer tape or listing
generated on behalf of the Seller which provides information relating to
the Receivables and which was used by the Seller in selecting the
Receivables conveyed to the Trust hereunder.
Confidential Offering Circular: The Offering Circular, dated
February __, 1996, relating to the Class A Certificates.
Controlling Party: The Security Insurer, so long as no Insurer
Default shall have occurred and be continuing and the Trustee for the
benefit of the Certificateholders, for so long as the Insurer Default shall
have occurred and be continuing.
Corporate Trust Office: The principal office of the Trustee at
which at any particular time its corporate trust business shall be
administered, which office at the Closing Date is located at LaSalle
National Bank, 135 S. LaSalle Street , Suite 200, Chicago, Illinois
60603, Attention: Asset Backed Securities Trust Administration. The
telecopy number for the Corporate Trust Office on the Closing Date is (312)
904-2084.
Cram Down Loss: With respect to a Receivable, if a court of
appropriate jurisdiction in an insolvency
proceeding shall have issued an order reducing the amount owed on a
Receivable or otherwise modifying or restructuring the scheduled payments to
be made on a Receivable, an amount equal to the excess of the principal
balance of such Receivable immediately prior to such order over
the principal balance of such Receivable as so reduced or the net present
value (using as the discount rate the higher of the APR on such Receivable
or the rate of interest, if any, specified by the court in such order) of
the scheduled payments as so modified or restructured. A "Cram Down Loss"
shall be deemed to have occurred on the date of issuance of such order.
Cumulative Net Losses: The difference between (A) the sum of
(i) the aggregate Principal Balances (plus accrued and unpaid interest,
at the applicable APR) of all Receivables that became Liquidated
Receivables through the last Accounting Date of the latest Monthly Period,
plus (ii) the Principal Balance of all Receivables that became
Purchased Receivables through the last Accounting Date of the latest
Monthly Period and that were delinquent with respect to 5% or more of a
Scheduled Payment more than 30 days through the last Accounting Date of
the latest Monthly Period, plus (iii) the aggregate of all Cram Down
Losses that occurred through the last Accounting Date of the latest Monthly
Period, and (B) the Liquidation Proceeds received by the Seller through the
last Accounting Date of the latest Monthly Period.
Custodian: AmeriCredit and any other Person named from time to
time as custodian in any Custodian Agreement acting as agent for the
Trustee, which Person must be acceptable to the Controlling Party (the
Custodian as of the Closing Date is acceptable to the Security Insurer as of
the Closing Date).
Custodian Agreement: Any Custodian Agreement from time to time
in effect between the Custodian named therein and the Trustee, as the same
may be amended, supplemented or otherwise modified from time to time in
accordance with the terms thereof, which Custodian Agreement and any
amendments, supplements or modifications thereto shall be acceptable to the
Controlling Party (the Custodian Agreement which is effective on the
Closing Date is acceptable to the Controlling Party).
Cut-off Date: February 12, 1996.
Cut-off Date Principal Balance: $97,202,782.98.
Dealer: A seller of new or used automobiles or light trucks
that originated one or more of the Receivables and sold the respective
Receivable, directly or indirectly, to AmeriCredit.
Dealer Agreement: An agreement by and among AmeriCredit and
a Dealer relating to the sale of retail installment sale contracts
and installment notes to AmeriCredit and all documents and
instruments relating thereto.
Dealer Assignment: With respect to a Receivable, the executed
assignment executed by a Dealer conveying such Receivable to AmeriCredit.
Dealer Underwriting Guide: means the underwriting manual used by
AmeriCredit in the purchase of Receivables as amended from time to time.
Deficiency Claim Amount: Shall have the meaning set forth in
Section 6.3(a).
Deficiency Claim Date: With respect to any Distribution
Date, the fourth Business Day immediately preceding such Distribution
Date.
Deficiency Notice: Shall have the meaning set forth in Section
6.3(a).
Deposit Date: With respect to any Collection Period, the
Business Day immediately preceding the related Determination Date.
Determination Date: With respect to a Collection Period, the
earlier of (i) the fourth Business Day preceding the Distribution Date in
the next calendar month, and (ii) the 5th day of the next calendar month,
or if such 5th day is not a Business Day, the next succeeding Business Day.
Distribution Amount: With respect to a
Distribution Date, the sum of (i) the Available Funds for such
Distribution Date, plus (ii) the Deficiency Claim Amount, if any,
received by the Trustee with respect to such Distribution Date.
Distribution Date: The 12th day of each calendar month, or if
such 12th day is not a Business Day, the next succeeding Business Day,
commencing April 12, 1996 and including the Final Scheduled Distribution
Date.
Draw Date: With respect to any Distribution Date, the third
Business Day immediately preceding such Distribution Date.
Electronic Ledger: The electronic master record of the retail
installment sales contracts or installment loans of the Servicer.
Eligible Account: (i) A segregated trust account that is
maintained with a depository institution acceptable to the Security Insurer
(so long as an Insurer Default shall not have occurred and be continuing),
or (ii) a demand deposit account maintained with a depository institution
or trust company organized under the laws of the United States of America,
or any of the States thereof, or the District of Columbia, having a
certificate of deposit, short term deposit or commercial paper rating
of at least A-1+ by Standard & Poor's and P-1 by Moody's and (so long
as an Insurer Default shall not have occurred and be continuing)
acceptable to the Security Insurer. In either case, such depository
institution or trust company shall have been approved by the Controlling
Party (as defined in the Spread Account Agreement), acting in its
discretion, by written notice to the Collateral Agent.
Eligible Investments: Any one or more of the following types
of investments:
(i) (A) direct interest-bearing obligations of, and
interest-bearing obligations guaranteed as to timely payment
of principal and interest by, the United States or any
agency or instrumentality of the United States the
obligations of which are backed by the full faith and credit
of the United States; and (B) direct interest-bearing
obligations of, and interest-bearing obligations guaranteed
as to timely payment of principal and interest by, the
Federal National Mortgage Association or the Federal Home
Loan Mortgage Corporation, but only if, at the time of
investment, such obligations are rated AAA by Standard &
Poor's and Aaa by Moody's;
(ii) demand or time deposits in, certificates of
deposit of, or bankers' acceptances issued by any depository
institution or trust company organized under the laws of the
United States or any State and subject to supervision and
examination by federal and/or State banking authorities
(including, if applicable, the Trustee or any agent of the
Trustee acting in their respective commercial capacities);
provided that the short-term unsecured debt obligations of
such depository institution or trust company at the time of
such investment, or contractual commitment providing for
such investment, are rated A1+ by Standard & Poor's and P-1
by Moody's;
(iii) repurchase obligations pursuant to a written
agreement (A) with respect to any obligation described in
clause (i) above, where the Trustee has taken actual or
constructive delivery of such obligation in accordance with
Section 5.1, and (B) entered into with a depository
institution or trust company organized under the laws of the
United States or any State thereof, the deposits of which
are insured by the Federal Deposit Insurance Corporation and
the short-term unsecured debt obligations of which are rated
"A-1+" by Standard & Poor's and "P-1" by Moody's (including,
if applicable, the Trustee or any agent of the Trustee
acting in their respective commercial capacities);
(iv) securities bearing interest or sold at a discount
issued by any corporation incorporated under the laws of the
United States or any State whose long-term unsecured debt
obligations are rated AAA by Standard & Poor's and Aaa by
Moody's at the time of such investment or contractual
commitment providing for such investment; provided however,
that securities issued by any particular corporation will
not be Eligible Investments to the extent that an investment
therein will cause the then outstanding principal amount of
securities issued by such corporation and held as part of
the Collection Account to exceed 10% of the Eligible
Investments held in the Collection Account (with Eligible
Investments held in the Collection Account valued at par);
(v) commercial paper that (1) is payable in United
States dollars and (2) is rated A1+ by Standard & Poor's and
P-1 by Moody's;
(vi) money market mutual funds registered under the
Investment Company Act of 1940, as amended, having a rating,
at the time of such investment, from each of the Rating
Agencies in the highest investment category granted thereby
(in the case of Standard & Poor's AAAm-G or AAAm); and
(vii) any other demand or time deposit, obligation,
security or investment as may be acceptable to the Rating
Agencies and the Security Insurer, as evidenced by the prior
written consent of the Rating Agencies and the Security
Insurer, as may from time to time be confirmed in writing to
the Trustee by the Security Insurer.
Eligible Servicer: AmeriCredit, the Backup Servicer or
another Person which at the time of its appointment as Servicer, (i)
is servicing a portfolio of motor vehicle retail installment sales
contracts and/or motor vehicle installment loans, (ii) is legally
qualified and has the capacity to service the Receivables, (iii) has
demonstrated the ability professionally and competently to service a
portfolio of motor vehicle retail installment sales contracts and/or
motor vehicle installment loans similar to the Receivables with
reasonable skill and care, (iv) is qualified and entitled to use, pursuant
to a license or other written agreement, and agrees to maintain the
confidentiality of, the software which the Servicer uses in connection with
performing its duties and responsibilities under this Agreement or
otherwise has available software which is adequate to perform its duties
and responsibilities under this Agreement and (v) has a minimum net worth
of $50,000,000.
Final Scheduled Distribution Date: September 12, 2001.
Financed Vehicle: A new or used automobile or light truck,
van or mini-van together with all accessories thereto, securing or
purporting to secure an Obligor's indebtedness under a Receivable.
Force-Placed Insurance: The meaning set forth in
Section 4.4(b).
Fractional Undivided Interest: The fractional undivided
interest in the Trust that is evidenced by a Certificate.
Independent Accountants: Shall have the meaning set forth in
Section 4.11(a).
Insurance Add-On Amount: The premium charged to the Obligor in
the event that the Servicer obtains Force-Placed Insurance pursuant to
Section 4.4.
Insurance Agreement: The Insurance and Indemnity Agreement
between the Security Insurer and AmeriCredit.
Insurance Agreement Event of Default: An "Event of Default" as
defined in the Insurance Agreement.
Insurance Policy: With respect to a Receivable, any insurance
policy benefiting the holder of the Receivable providing loss or physical
damage, credit life, credit disability, theft, mechanical breakdown or
similar coverage with respect to the Financed Vehicle or the Obligor.
Insurer Default: The occurrence and continuance of any of the
following events:
(A) the Security Insurer shall have failed to make a
payment required under the Policy in accordance with its
terms;
(B) The Security Insurer shall have (i) filed a petition
or commenced any case or proceeding under any provision or
chapter of the United States Bankruptcy Code or any other
similar federal or state law relating to insolvency,
bankruptcy, rehabilitation, liquidation or reorganization,
(ii) made a general assignment for the benefit of its
creditors, or (iii) had an order for relief entered against
it under the United States Bankruptcy Code or any other
similar federal or state law relating to insolvency,
bankruptcy, rehabilitation, liquidation or reorganization
which is final and nonappealable; or
(C) a court of competent jurisdiction, the New York
Department of Insurance or other competent regulatory
authority shall have entered a final and nonappealable
order, judgment or decree (i) appointing a custodian,
trustee, agent or receiver for the Security 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 Security Insurer (or the
taking of possession of all or any material portion of the
property of the Security Insurer).
Lien: Any security interest, lien, charge, pledge,
preference, equity or encumbrance of any kind, including tax liens,
mechanics' liens and any liens that attach by operation of law.
Lien Certificate: With respect to a Financed Vehicle, an
original certificate of title, certificate of lien or other notification
issued by the Registrar of Titles of the applicable state to a secured
party which indicates that the lien of the secured party on the Financed
Vehicle is recorded on the original certificate of title. In any
jurisdiction in which the original certificate of title is required to be
given to the Obligor, the term "Lien Certificate" shall mean only a
certificate or notification issued to a secured party.
Liquidated Receivable: With respect to any Collection
Period, a Receivable as to which (i) 90 days have elapsed since the Servicer
repossessed the Financed Vehicle, (ii) the Servicer has determined in good
faith that all amounts it expects to recover have been received or (iii) 5%
or more of a Scheduled Payment shall have become 120 or more days
delinquent, except in the case of repossessed Financed Vehicles.
Liquidation Proceeds: With respect to a Liquidated
Receivable, all amounts realized with respect to such Receivable (other
than amounts withdrawn from the Spread Account and drawings under the
Policy) net of (i) reasonable expenses incurred by the Servicer in
connection with the collection of such Receivable and the repossession and
disposition of the Financed Vehicle and (ii) amounts that are required
to be refunded to the Obligor on such Receivable; provided however, that
the Liquidation Proceeds with respect to any Receivable shall in no event
be less
than zero.
Lockbox Account: An account maintained on behalf of the Trustee
by the Lockbox Bank pursuant to Section 4.2(d).
Lockbox Agreement: The Tri-Party Remittance Processing
Agreement, dated as of February 12, 1996, by and among AmeriCredit, First
Interstate Bank of Texas, N.A., and the Trustee, as such agreement may
be amended or supplemented from time to time, unless the Trustee
hereunder shall cease to be a party thereunder, or such agreement shall
be terminated in accordance with its terms, in which event "Lockbox
Agreement" shall mean such other agreement, in form and substance
acceptable to the Controlling Party, among the Servicer, the Trustee and the
Lockbox Bank.
Lockbox Bank: A depository institution named by the Servicer and
acceptable to the Controlling Party.
Monthly Records: All records and data maintained by the
Servicer with respect to the Receivables, including the following with
respect to each Receivable: the account number; the originating Dealer;
Obligor name; Obligor address; Obligor home phone number; Obligor business
phone number; original Principal Balance; original term; Annual
Percentage Rate; current Principal Balance; current remaining term;
origination date; first payment date; final scheduled payment date; next
payment due date; date of most recent payment; new/used
classification; collateral description; days currently delinquent; number
of contract extensions (months) to date; amount of Scheduled Payment;
current Insurance Policy expiration date; and past due late charges.
Moody's: Moody's Investors Service, Inc., or any successor
thereto.
Notice of Deficiency: A written or telecopied notice from
the Trustee to the Security Insurer, substantially in the form of
Exhibit A to the Policy.
Obligor: The purchaser or the co-purchasers of the Financed
Vehicle and any other Person or Persons who are primarily or secondarily
obligated to make payments under a
Receivable.
Officer's Certificate: A certificate signed by the chairman of
the board, the vice chairman, the president, the chief financial officer or
any vice president.
Opinion of Counsel: A written opinion of counsel reasonably
acceptable to the Security Insurer, which opinion is acceptable in form and
substance to the Trustee and, if such opinion or a copy thereof is required
by the provisions of this Agreement to be delivered to the Security
Insurer, to the Security Insurer.
Other Conveyed Property: All property conveyed by the Seller to
the Trust pursuant to this Agreement other than the Receivables.
Person: Any legal person, including any individual,
corporation, partnership, joint venture, estate, association, joint stock
company, trust, unincorporated organization or government or any
agency or political subdivision thereof, or any other entity.
Prepayment: Any payment in full made by an Obligor of the
principal of a Receivable which is received by the Servicer in advance of
the scheduled maturity date for such Receivable.
Policy: The financial guaranty insurance policy number
- -N issued by the Security Insurer to the Trustee for the benefit of
the Class A Certificateholders, including any endorsements thereto.
Policy Claim Amount: Shall have the meaning set forth in Section
6.4(a).
Policy Payments Account: The account designated as the Policy
Payments Account in, and which is established and maintained pursuant to,
Section 5.1.
Pool Balance: As of the close of business on the last day of a
Collection Period, the aggregate Principal Balance of the Receivables
(excluding Purchased Receivables and Liquidated Receivables).
Pool Factor: With respect to any Distribution Date, a seven digit
decimal figure equal to, as applicable, the Class A Certificate Balance as of
such Distribution Date (after giving effect to distributions on such date)
divided by the Class A Certificate Balance as of the Closing Date, or, the
Class B Certificate Balance as of such Distribution Date (after giving effect
to distributions on such date) divided by the Class B Certificate Balance as
of the Closing Date.
Preference Claim: Shall have the meaning set forth in Section 6.5(b).
Principal Balance: With respect to any Receivable, as of any date, the
Amount Financed minus (i) that portion of all amounts received on or prior to
such date and allocable to principal in accordance with the terms of the
Receivable, and (ii) any Cram Down Loss in respect of such Receivable.
Purchase Amount: With respect to a Receivable, the Principal Balance and
all accrued and unpaid interest on the Receivable as of the date of purchase.
Purchased Receivable: As of any Accounting Date, any Receivable that
became a Warranty Receivable or Administrative Receivable as of such
Accounting Date (or which the Seller or the Servicer has elected to purchase
as of an earlier Accounting Date, as permitted hereunder) and as to which the
Purchase Amount has been deposited in the Collection Account by the Seller or
the Servicer, as applicable, on or before the related Deposit Date.
Rating Agency: Each of Moody's and Standard & Poor's, so long as such
Persons maintain a rating on the Certificates; and if either Moody's or
Standard & Poor's no longer maintains a rating on the Certificates, such
other nationally recognized statistical rating organization selected by the
Certificate Majority, AmeriCredit and (so long as an Insurer Default shall
not have occurred and be continuing) acceptable to the Security Insurer.
Receivable: A retail installment sale contract or promissory note (and
related security agreement) for a new or used automobile or light truck, vans
or mini-vans (and
all accessories thereto) that is included in the Schedule of Receivables, and
all rights and obligations under such a contract, but not including (i) any
Liquidated Receivable (other than for purposes of calculating, as applicable,
the Class A Principal Distributable Amount and the Class B Principal
Distributable Amount hereunder), or (ii) any Purchased Receivable on or after
the Accounting Date immediately preceding the Deposit Date on which payment
of the Purchase Amount is made in connection therewith pursuant to Section
5.4.
Receivable File: The documents, electronic entries, instruments and
writings listed in Section 3.2 pertaining to a particular Receivable.
Registrar of Titles: With respect to any state, the governmental agency
or body responsible for the registration of, and the issuance of certificates
of title relating to, motor vehicles and liens thereon.
Related Documents: The Certificates, the Indemnification Agreement, the
Spread Account Agreement, the Insurance Agreement, the Lockbox Agreement, and
the Initial Purchaser Agreement dated February __, 1996 between the Seller
and the initial purchaser of the Certificates. The Related Documents to be
executed by any party are referred to herein as "such party's Related
Documents," "its Related Documents" or by a similar expression.
Repurchase Events: The occurrence of a breach of any of the Seller's or
the Servicer's representations and warranties in this Agreement which
requires the repurchase of a Receivable by the Seller or the Servicer
pursuant hereto.
Required Deposit Rating: A rating on short-term unsecured debt
obligations of "P-1" by Moody's and at least "A-1+" by Standard & Poor's (or
such other rating as may be acceptable to the Rating Agencies and, so long as
an Insurer Default shall not have occurred and be continuing, the Security
Insurer) so as to not affect the rating on the Certificates.
Responsible Officer: When used with respect to the Trustee, any officer
of the Trustee assigned by the
Trustee to administer its corporate trust affairs relating to the Trust. When
used with respect to any other Person that is not an individual, the
President, any Vice-President or Assistant Vice-President or the Controller
of such Person, or any other officer or employee having similar functions.
Schedule of Receivables: The schedule of all retail installment sales
contracts and promissory notes originally held as part of the Trust which is
attached as Schedule A.
Schedule of Representations: The Schedule of Representations and
Warranties attached hereto as Schedule B.
Scheduled Payment: With respect to any Collection Period for any
Receivable, the amount set forth in such Receivable as required to be paid by
the Obligor in such Collection Period. If after the Closing Date, the
Obligor's obligation under a Receivable with respect to a Collection Period
has been modified so as to differ from the amount specified in such
Receivable as a result of (i) the order of a court in an insolvency
proceeding involving the Obligor, (ii) pursuant to the Soldiers' and Sailors'
Civil Relief Act of 1940 or (iii) modifications or extensions of the
Receivable permitted by Section 4.2(b), the Scheduled Payment with respect to
such Collection Period shall refer to the Obligor's payment obligation with
respect to such Collection Period as so modified.
Security Insurer: Financial Security Assurance Inc., a monoline
insurance company incorporated under the laws of the State of New York, or
any successor thereto, as issuer of the Policy.
Seller: shall have the meaning set forth in the first paragraph of this
Agreement.
Series: The Certificates issued pursuant to this Agreement.
Servicer: AmeriCredit Financial Services, Inc., a Delaware corporation,
its successor in interest pursuant to Section 9.2 or, after any termination
of the Servicer upon a
Servicer Termination Event, the Backup Servicer or any other successor
Servicer.
Servicer Extension Notice: The notice delivered pursuant to Section 4.14.
Servicer Termination Event: An event described in Section 10.1.
Servicer's Certificate: With respect to each Determination Date, a
certificate, completed by and executed on behalf of the Servicer, in
accordance with Section 4.9, substantially in the form attached hereto as
Exhibit C.
Simple Interest Method: The method of allocating a fixed level payment
on an obligation between principal and interest, pursuant to which the
portion of such payment that is allocated to interest is equal to the product
of the fixed rate of interest on such obligation multiplied by the period of
time (expressed as a fraction of a year, based on the actual number of days
in the calendar month and 365 days in the calendar year) elapsed since the
preceding payment under the obligation was made.
Simple Interest Receivable: A Receivable under which the portion of the
payment allocable to interest and the portion allocable to principal is
determined in accordance with the Simple Interest Method.
Spread Account: The Series 1996-A Spread Account established and
maintained pursuant to the Spread Account Agreement. The Spread Account shall
in no event be deemed part of the Trust Property.
Spread Account Agreement: The Spread Account Agreement among ARC, the
Security Insurer, the Collateral Agent and the Trustee as the same may be
amended, supplemented or otherwise modified in accordance with the terms
thereof.
Standard & Poor's: Standard & Poor's Ratings Service, or any successor
thereto.
Subcollection Account: The account designated as the Subcollection
Account in, and which is established and
maintained pursuant to Section 5.2(a).
Supplemental Servicing Fee: With respect to any Collection Period all
administrative fees, expenses and charges paid by or on behalf of Obligors,
including late fees, prepayment fees and liquidation fees collected on the
Receivables during such Collection Period.
Total Servicing Fee: The sum of the Basic Servicing Fee and the
Supplemental Servicing Fee.
Trigger Event: shall have the meaning set forth in the Spread Account
Agreement.
Trust: shall have the meaning set forth in Section 2.1.
Trust Property: The property and proceeds conveyed pursuant to Section
3.1, together with certain monies paid on or after the Cut-off Date, the
Policy, the Collection Account (including all Eligible Investments therein
and all proceeds therefrom), the Lockbox Account, the Subcollection Account
and certain other rights under this Agreement. Although the Seller has
pledged the Spread Account to the Trustee and the Security Insurer pursuant
to the Spread Account Agreement, the Spread Account shall not under any
circumstances be deemed to be a part of or otherwise includable in the Trust
or the Trust Property.
Trustee: The Person acting as Trustee under this Agreement, its
successors in interest and any successor Trustee under this Agreement.
UCC: The Uniform Commercial Code as in effect in the relevant
jurisdiction.
Warranty Receivable: With respect to any Collection Period, a Receivable
which the Seller has become obligated to repurchase pursuant to Section 3.5.
I.2. Usage of Terms. With respect to all terms used in this Agreement,
the singular includes the plural and the plural the singular; words importing
any gender include the other genders; references to "writing" include
printing, typing, lithography, and other means of reproducing words in
a visible form; references to agreements and other contractual instruments
include all subsequent amendments thereto or changes therein entered into in
accordance with their respective terms and not prohibited by this Agreement;
references to Persons include their permitted successors and assigns; and the
terms "include" or "including" mean "include without limitation" or
"including without limitation."
I.3. Calculations. All calculations of the amount of interest accrued on
the Certificates and all calculations of the amount of the Basic Servicing
Fee shall be made on the basis of a 360-day year consisting of twelve 30-day
months. All references to the Principal Balance of a Receivable as of a
Accounting Date shall refer to the close of business on such day.
I.4. Section References. All references to Articles, Sections,
paragraphs, subsections, exhibits and schedules shall be to such portions of
this Agreement unless otherwise specified.
I.5. Action by or Consent of Certificateholders. Whenever any provision
of this Agreement refers to action to be taken, or consented to, by
Certificateholders, such provision shall be deemed to refer to
Certificateholders of record as of the Accounting Date immediately preceding
the date on which such action is to be taken, or consent given, by
Certificateholders. Solely for the purposes of any action to be taken, or
consented to, by Certificateholders, any Certificate registered in the name
of AmeriCredit or any Affiliate thereof shall be deemed not to be outstanding
and the Fractional Undivided Interest evidenced thereby shall not be taken
into account in determining whether the requisite Fractional Undivided
Interest necessary to effect any such action or consent has been obtained;
provided however, that, solely for the purpose of determining whether the
Trustee is entitled to rely upon any such action or consent, only
Certificates which the Trustee knows to be so owned shall be so disregarded.
I.6. No Recourse. No recourse may be taken, directly or indirectly,
under this Agreement or any certificate or other writing delivered in
connection herewith or therewith, against any stockholder, officer, or
director, as such, of
the Seller, AmeriCredit, the Servicer or the Trustee or of any predecessor or
successor of the Seller, AmeriCredit, the Servicer or the Trustee.
I.7. Material Adverse Effect. Whenever a determination is to be made
under this Agreement as to whether a given event, action, course of conduct
or set of facts or circumstances could or would have a material adverse
effect on the Trust or the Certificateholders (or any similar or analogous
determination), such determination shall be made without taking into account
the insurance provided by the Policy.
II CREATION OF TRUST
II.1. Creation of Trust. The Seller does hereby create and establish,
pursuant to the laws of the State of New York and this Agreement a trust (the
"Trust"), which for convenience shall be known as "AmeriCredit Automobile
Receivables Trust 1996-A."
III CONVEYANCE OF RECEIVABLES; ACCEPTANCE BY TRUSTEE;
ORIGINAL ISSUANCE OF CERTIFICATES
III.1. Conveyance of Receivables. Subject to the terms and conditions
of this Agreement, the Seller, pursuant to the mutually agreed upon terms
contained herein, hereby sells, transfers, assigns, and otherwise conveys to
the Trust, without recourse (but without limitation of its obligations in
this Agreement), all of the right, title and interest of the Seller in and to
the Receivables, all monies payable thereon or in respect thereof after the
Cutoff Date, the security interests of the Seller in the related Financed
Vehicles, the Insurance Policies and any proceeds from any Insurance Policies
relating to the Receivables, the Obligors or the related Financed Vehicles,
including rebates of premiums, all Collateral Insurance and any Force-Placed
Insurance relating to the Receivables, rights of the Seller against Dealers
with respect to the Receivables under the Dealer Agreements and the Dealer
Assignments, all items contained in the related Receivable Files, any and all
other documents that the Seller or the Servicer keeps on file in accordance
with its customary procedures relating to the Receivables, the Obligors or
the related Financed Vehicles,
property (including the right to receive future Liquidation Proceeds) that
secures a Receivable and that has been acquired by or on behalf of the Seller
or the Trust pursuant to liquidation of such Receivable, all funds on deposit
from time to time in the Collection Account (including all income thereon and
all amounts deposited in respect of Administrative Receivables and Warranty
Receivables) and all investments therein and proceeds thereof, all proceeds
and investments of any of the foregoing, all present and future claims,
demands, causes and choses in action in respect of any or all of the
foregoing and all payments on or under and all proceeds of every kind and
nature whatsoever in respect of any or in lieu of the foregoing, including
all proceeds of the conversion, voluntary or involuntary, into cash or other
liquid property, all cash proceeds, accounts, accounts receivable, notes,
drafts, acceptances, chattel paper, checks, deposit accounts, insurance
proceeds, condemnation awards, rights to payment of any and every kind and
other forms of obligations and receivables, instruments and other property
which at any time constitute all or part of or are included in the proceeds
of any of the foregoing. It is the intention of the Seller that the transfer
and assignment contemplated by this Agreement shall constitute a sale of the
Receivables and Other Conveyed Property from the Seller to the Trust and the
beneficial interest in and title to the Receivables and the Other Conveyed
Property shall not be part of the Seller's estate in the event of the filing
of a bankruptcy petition by or against the Seller under any bankruptcy law.
In the event that, notwithstanding the intent of the Seller, the transfer and
assignment contemplated hereby is held not to be a sale, this Agreement shall
constitute a grant of a first priority security interest to the Trust in the
property referred to in this Section 3.1 for the benefit of the
Certificateholders.
III.2. Custody of Receivable Files.
(a) In connection with the sale, transfer and assignment of the
Receivables and the Other Conveyed Property to the Trust pursuant to this
Agreement and simultaneously with the execution and delivery of this
Agreement, the Trustee shall enter into the Custodian Agreement with the
Custodian, dated as of February 12, 1996, pursuant to which the Trustee shall
revocably appoint the Custodian, and the Custodian shall accept such
appointment,
to act as the agent of the Trustee as custodian of the following documents or
instruments in its possession which shall be delivered to the Custodian as
agent of the Trustee on or before the Closing Date (with respect to each
Receivable):
(i) The fully executed original of the Receivable
(together with any agreements modifying the Receivable,
including without limitation any extension agreements);
(ii) The original credit application, or a copy
thereof, of each Obligor, fully executed by each such
Obligor on AmeriCredit's customary form, or on a form
approved by AmeriCredit, for such application, and
(iii) The original certificate of title (when
received) and otherwise such documents, if any, that
AmeriCredit keeps on file in accordance with its customary
procedures indicating that the Financed Vehicle is owned by
the Obligor and subject to the interest of AmeriCredit as
first lienholder or secured party (including any Lien
Certificate received by AmeriCredit), or, if such original
certificate of title has not yet been received, a copy of
the application therefor, showing AmeriCredit as secured
party.
The Trustee may act as the Custodian, in which case the Trustee shall be
deemed to have assumed the obligations of the Custodian specified in the
Custodian Agreement.
(b) Upon payment in full of any Receivable, the Servicer will notify
the Custodian pursuant to a certificate of an officer of the Servicer (which
certificate shall include a statement to the effect that all amounts received
in connection with such payments which are required to be deposited in the
Collection Account pursuant to Section 4.1 have been so deposited) and shall
request delivery of the Receivable and Receivable File to the Servicer. From
time to time as appropriate for servicing and enforcing any Receivable, the
Custodian shall, upon written request of an officer of the Servicer and
delivery to the Custodian of a receipt signed by such officer, cause the
original Receivable and the related Receivable File to be released to the
Servicer. The Servicer's receipt of a Receivable and/or Receivable File shall
obligate the Servicer to return the
original Receivable and the related Receivable File to the Custodian when its
need by the Servicer has ceased unless the Receivable is repurchased as
described in Section 3.5 or 4.7.
III.3. Conditions to Issuance by Trust. As conditions to the Trustee's
execution and delivery of the Certificates on the Closing Date, the Trustee
shall have received the following on or before the Closing Date:
(a) The Schedule of Receivables certified by the
President, Controller or Treasurer of the Seller;
(b) The acknowledgement of the Custodian that it holds
the Receivable File relating to each Receivable;
(c) Copies of resolutions of the Board of Directors of
the Seller approving the execution, delivery and performance
of this Agreement, the Related Documents and the
transactions contemplated hereby and thereby, certified by a
Secretary or an Assistant Secretary of the Seller;
(d) Copies of resolutions of the Board of Directors of
AmeriCredit approving the execution, delivery and
performance of this Agreement, the Related Documents and the
transactions contemplated hereby and thereby, certified by a
Secretary or an Assistant Secretary of AmeriCredit;
(e) Evidence that all filings (including, without
limitation, UCC filings) required to be made by any Person
and actions required to be taken or performed by any Person
in any jurisdiction to give the Trustee a first priority
perfected lien on, or ownership interest in, the Receivables
and the Other Conveyed Property have been made, taken or
performed; and
(f) An executed copy of the Policy and Spread Account
Agreement.
III.4. Representations and Warranties of Seller. By its execution of
this Agreement, the Seller makes the following representations and warranties
on which the Trust relies in accepting the Receivables and the Other Conveyed
Property and in issuing the Certificates and upon which the Security Insurer
relies in issuing the Policy. Unless
otherwise specified, such representations and warranties speak as of the
Closing Date, but shall survive the sale, transfer, and assignment of the
Receivables to the Trust.
(a) Schedule of Representations. The representations and
warranties set forth on the Schedule of Representations attached hereto as
Schedule B are true and correct.
(b) Organization and Good Standing. The Seller has been duly
organized and is validly existing as a corporation in good standing under
the laws of the State of Delaware, with power and authority to own its
properties and to conduct its business as such properties are currently
owned and such business is currently conducted, and had at all relevant
times, and now has, power, authority and legal right to acquire, own and
sell the Receivables and the Other Conveyed Property transferred to the Trust.
(c) Due Qualification. The Seller is duly qualified to do
business as a foreign corporation in good standing and has obtained all
necessary licenses and approvals in all jurisdictions where the failure to
do so would materially and adversely affect Seller's ability to
transfer the Receivables and the Other Conveyed Property to the Trust
pursuant to this Agreement, or the validity or enforceability
of the Receivables and the Other Conveyed Property or to perform
Seller's obligations hereunder and under the Seller's Related Documents.
(d) Power and Authority. The Seller has the power and authority
to execute and deliver this Agreement and its Related Documents and to
carry out its terms and their terms, respectively; the Seller has full
power and authority to sell and assign the Receivables and the Other
Conveyed Property to be sold and assigned to and deposited with the Trust
by it and has duly authorized such sale and assignment to the Trust by all
necessary corporate action; and the execution, delivery and performance of
this Agreement and the Seller's Related Documents have been duly authorized
by the Seller by all necessary corporate action.
(e) Valid Sale, Binding Obligations. This Agreement effects a
valid sale, transfer and assignment of the Receivables and the Other
Conveyed Property, enforceable against the Seller and creditors of and
purchasers from the
Seller; and this Agreement and the Seller's Related Documents, when duly
executed and delivered, shall constitute legal, valid and binding obligations
of the Seller enforceable in accordance with their respective terms, except
as enforceability may be limited by bankruptcy, insolvency, reorganization or
other similar laws affecting the enforcement of creditors' rights generally
and by equitable limitations on the availability of specific remedies,
regardless of whether such enforceability is considered in a proceeding in
equity or at law.
(f) No Violation. The consummation of the transactions
contemplated by this Agreement and the Related Documents and the fulfillment
of the terms of this Agreement and the Related Documents shall not conflict
with, result in any breach of any of the terms and provisions of or
constitute (with or without notice, lapse of time or both) a default under
the certificate of incorporation or by-laws of the Seller, or any indenture,
agreement, mortgage, deed of trust or other instrument to which the Seller
is a party or by which it is bound, or result in the creation or
imposition of any Lien upon any of its properties pursuant to the terms
of any such indenture, agreement, mortgage, deed of trust or other
instrument, other than this Agreement, or violate any law, order, rule
or regulation applicable to the Seller of any court or of any federal or
state regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Seller or any of its
properties.
(g) No Proceedings. There are no proceedings or investigations
pending or, to the Seller's knowledge, threatened against the Seller,
before any court, regulatory body, administrative agency or other
tribunal or governmental instrumentality having jurisdiction over the
Seller or its properties (A) asserting the invalidity of this Agreement
or any of the Related Documents, (B) seeking to prevent the issuance of
the Certificates or the consummation of any of the transactions
contemplated by this Agreement or any of the Related Documents, (C) seeking
any determination or ruling that might materially and adversely affect the
performance by the Seller of its obligations under, or the validity or
enforceability of, this Agreement or any of the Related Documents, or (D)
seeking to adversely affect the federal income tax or other federal, state
or
local tax attributes of the Certificates.
(h) Chief Executive Office. The chief executive office of the
Seller is at 200 Bailey Avenue, Fort Worth, Texas 76107-1220.
III.5. Repurchase of Receivables Upon Breach of Warranty. Upon
discovery by any of the Seller, the Servicer, the Security Insurer or the
Trustee of a breach of any of the representations and warranties of the
Seller contained in Section 3.4, the party discovering such breach shall give
prompt written notice to the others; provided, however, that the failure to
give any such notice shall not affect any obligation of the Seller. As of the
second Accounting Date (or, at the Seller's election, the first Accounting
Date) following its discovery or its receipt of notice of any breach of the
representations and warranties set forth on the Schedule of Representations
which materially and adversely affects the interests of the
Certificateholders, the Security Insurer or the Trust in any Receivable
(including any Liquidated Receivable) the Seller shall, unless such breach
shall have been cured in all material respects, purchase such Receivable from
the Trust and, on or before the related Deposit Date, the Seller shall pay
the Purchase Amount to the Trust pursuant to Section 5.4. It is understood
and agreed that, except as set forth in this Section 3.5, the obligation of
the Seller to repurchase any Receivable as to which a breach has occurred and
is continuing shall, if such obligation is fulfilled, constitute the sole
remedy against the Seller for such breach available to the Security Insurer,
the Trustee on behalf of the Certificateholders or the Trust.
In addition to the foregoing and notwithstanding whether the related
Receivable shall have been purchased by the Seller, the Seller shall
indemnify the Trust, the Trustee, the Backup Servicer, the Collateral Agent,
the Security Insurer, the Trust and the Certificateholders against all costs,
expenses, losses, damages, claims and liabilities, including reasonable fees
and expenses of counsel, which may be asserted against or incurred by any of
them as a result of third party claims arising out of the events or facts
giving rise to such breach.
III.6. [Reserved].
III.7. Collecting Lien Certificates Not Delivered on the Closing Date.
In the case of any Receivable in respect of which written evidence from the
Dealer selling the related Financed Vehicle that the Lien Certificate for
such Financed Vehicle showing AmeriCredit as first lienholder has been
applied for from the Registrar of Titles was delivered to the Custodian on
the Closing Date in lieu of a Lien Certificate, the Servicer shall use its
best efforts to collect such Lien Certificate from the Registrar of Titles as
promptly as practicable. If such Lien Certificate showing AmeriCredit as
first lienholder is not received by the Custodian within 180 days after the
Closing Date then the representation and warranty in paragraph 5 of the
Schedule of Representations in respect of such Receivable shall be deemed to
have been incorrect in a manner that materially and adversely affects the
Certificateholders, the Security Insurer and the Trust.
III.8. Trustee's Assignment of Administrative Receivables and Warranty
Receivables. With respect to all Administrative Receivables and all Warranty
Receivables purchased by the Servicer or the Seller, the Trustee shall take
any and all actions reasonably requested by the Seller or the Servicer, at
the expense of the requesting party, to assign, without recourse,
representation or warranty, to the Seller, or the Servicer, as applicable,
all the Trust's right, title and interest in and to such Purchased
Receivable, all monies due thereon, the security interests in the related
Financed Vehicles, proceeds from any Insurance Policies, proceeds from
recourse against Dealers on such Receivables and the interests of the Trust
in certain rebates of premiums and other amounts relating to the Insurance
Policies and any documents relating thereto, such assignment being an
assignment outright and not for security; and the Seller or the Servicer, as
applicable, shall thereupon own such Receivable, and all such security and
documents, free of any further obligation to the Trust, the Trustee, the
Security Insurer, the Certificateholders or the Trust with respect thereto.
IV ADMINISTRATION AND SERVICING OF RECEIVABLES
IV.1. Duties of the Servicer. The Servicer is hereby authorized to act
as agent for the Trust and in such capacity shall manage, service,
administer and make
collections on the Receivables, and perform the other actions required by the
Servicer under this Agreement. The Servicer agrees that its servicing of the
Receivables shall be carried out in accordance with customary and usual
procedures of institutions which service motor vehicle retail installment
sales contracts and, to the extent more exacting, the degree of skill and
attention that the Servicer exercises from time to time with respect to all
comparable motor vehicle receivables that it services for itself or others.
In performing such duties, so long as AmeriCredit is the Servicer, it shall
comply with the policies and procedures attached hereto as Schedule C. The
Servicer's duties shall include, without limitation, collection and posting
of all payments, responding to inquiries of Obligors on the Receivables,
investigating delinquencies, sending payment coupons to Obligors, reporting
any required tax information to Obligors, monitoring the collateral,
complying with the terms of the Lockbox Agreement, accounting for collections
and furnishing monthly and annual statements to the Trustee and the Security
Insurer with respect to distributions, monitoring the status of Insurance
Policies with respect to the Financed Vehicles and performing the other
duties specified herein. The Servicer shall also administer and enforce all
rights and responsibilities of the holder of the Receivables provided for in
the Dealer Agreements (and shall maintain possession of the Dealer
Agreements, to the extent it is necessary to do so), the Dealer Assignments
and the Insurance Policies, to the extent that such Dealer Agreements, Dealer
Assignments and Insurance Policies relate to the Receivables, the Financed
Vehicles or the Obligors. To the extent consistent with the standards,
policies and procedures otherwise required hereby, the Servicer shall follow
its customary standards, policies, and procedures and shall have full power
and authority, acting alone, to do any and all things in connection with such
managing, servicing, administration and collection that it may deem necessary
or desirable. Without limiting the generality of the foregoing, the Servicer
is hereby authorized and empowered by the Trust to execute and deliver, on
behalf of the Trust, any and all instruments of satisfaction or cancellation,
or of partial or full release or discharge, and all other comparable
instruments, with respect to the Receivables and with respect to the Financed
Vehicles; provided, however, that notwithstanding the foregoing, the Servicer
shall not,
except pursuant to an order from a court of competent jurisdiction, release
an Obligor from payment of any unpaid amount under any Receivable or waive
the right to collect the unpaid balance of any Receivable from the Obligor.
The Servicer is hereby authorized to commence, in its own name or in the name
of the Trust (provided the Servicer has obtained the Trustee's consent, which
consent shall not be unreasonably withheld), a legal proceeding to enforce a
Receivable pursuant to Section 4.3 or to commence or participate in any other
legal proceeding (including, without limitation, a bankruptcy proceeding)
relating to or involving a Receivable, an Obligor or a Financed Vehicle. If
the Servicer commences or participates in such a legal proceeding in its own
name, the Trust shall thereupon be deemed to have automatically assigned such
Receivable to the Servicer solely for purposes of commencing or participating
in any such proceeding as a party or claimant, and the Servicer is authorized
and empowered by the Trust to execute and deliver in the Servicer's name any
notices, demands, claims, complaints, responses, affidavits or other
documents or instruments in connection with any such proceeding. The Trustee
shall furnish the Servicer with any powers of attorney and other documents
which the Servicer may reasonably request and which the Servicer deems
necessary or appropriate and take any other steps which the Servicer may deem
necessary or appropriate to enable the Servicer to carry out its servicing
and administrative duties under this Agreement.
IV.2. Collection of Receivable Payments; Modifications of Receivables;
Lockbox Agreements.
(a) Consistent with the standards, policies and procedures
required by this Agreement, the Servicer shall make reasonable efforts to
collect all payments called for under the terms and provisions of the
Receivables as and when the same shall become due, and shall follow
such collection procedures as it follows with respect to all comparable
automobile receivables that it services for itself or others and
otherwise act with respect to the Receivables, the Dealer Agreements, the
Dealer Assignments, the Insurance Policies and the Other Conveyed Property
in such manner as will, in the reasonable judgment of the Servicer,
maximize the amount to be received by the Trust with respect thereto.
The Servicer is authorized in its
discretion to waive any prepayment charge, late payment charge or any other
similar fees that may be collected in the ordinary course of servicing any
Receivable.
(b) The Servicer may at any time agree to a modification or
amendment of a Receivable in order to (i) change the Obligor's regular due
date to a date within the Collection Period in which such due date occurs or
(ii) re-amortize the scheduled payments on the Receivable following a
partial prepayment of principal.
(c) The Servicer may grant payment extensions on, or other
modifications or amendments to, a Receivable (in addition to those
modifications permitted by Section 4.2(b)) in accordance with its customary
procedures if the Servicer believes in good faith that such extension,
modification or amendment is necessary to avoid a default on such
Receivable, will maximize the amount to be received by the Trust with
respect to such Receivable, and is otherwise in the best interests of the
Trust; provided, however, that:
(i) The aggregate period of all extensions on a
Receivable shall not exceed six months;
(ii) In no event may a Receivable be extended beyond
the Collection Period immediately preceding the Final
Scheduled Distribution Date;
(iii) So long as an Insurer Default shall not have
occurred and be continuing, the Servicer shall not amend or
modify a Receivable (except as provided in Section 4.2(b)
and this Section 4.2(c)) without the consent of the Security
Insurer or a Certificate Majority (if an Insurer Default
shall have occurred and be continuing);
(iv) The aggregate Principal Balance of Receivables
which may be extended during any Calendar Quarter shall not
exceed 6.0% of the aggregate Principal Balance of
Receivables as of the Accounting Date immediately prior to
the first day of such Calendar Quarter; and
(v) No such extension, modification or amendment shall
be granted more than 90 days after the Closing Date if such
action would have the effect of causing such Receivable to
be deemed to have been exchanged for another Receivable
within the meaning of Section 1001 of the Internal Revenue
Code of 1986, as amended, or any proposed, temporary or
final Treasury Regulations issued thereunder.
(d) The Servicer shall use its best efforts to cause Obligors to
make all payments on the Receivables, whether by check or by direct debit of
the Obligor's bank account, to be made directly to one or more Lockbox
Banks, acting as agent for the Trust pursuant to a Lockbox Agreement.
The Servicer shall use its best efforts to cause any Lockbox Bank to
deposit all payments on the Receivables in the Lockbox Account no
later than the Business Day after receipt, and to cause all amounts
credited to the Lockbox Account on account of such payments to be
transferred to the Collection Account no later than the second Business
Day after receipt of such payments. The Lockbox Account shall be a demand
deposit account held by the Lockbox Bank, or at the request of the
Controlling Party, an Eligible Account.
Prior to the Closing Date, the Servicer shall have notified each Obligor
that makes its payments on the Receivables by check to make such payments
thereafter directly to the Lockbox Bank (except in the case of Obligors that
have already been making such payments to the Lockbox Bank), and shall have
provided each such Obligor with remittance invoices in order to enable such
Obligors to make such payments directly to the Lockbox Bank for deposit into
the Lockbox Account, and the Servicer will continue, not less often than
every three months, to so notify those Obligors who have failed to make
payments to the Lockbox Bank. If and to the extent requested by the
Controlling Party, the Servicer shall request each Obligor that makes payment
on the Receivables by direct debit of such Obligor's bank account, to execute
a new authorization for automatic payment which in the judgment of the
Controlling Party is sufficient to authorize direct debit by the Lockbox Bank
on behalf of the Trust. If at any time, the Lockbox Bank is unable to
directly debit an Obligor's bank account that makes payment on the
Receivables by direct debit and if such inability is not cured within 15 days
or cannot be cured by execution by the Obligor of a new authorization for
automatic payment, the Servicer shall notify such Obligor that it cannot make
payment by direct debit and must thereafter make payment by check.
Notwithstanding any Lockbox Agreement, or any of the provisions of
this Agreement relating to the Lockbox Agreement, the Servicer shall
remain obligated and liable to the Trust, Trustee and Certificateholders for
servicing and administering the Receivables and the Other Conveyed
Property in accordance with the provisions of this Agreement without
diminution of such obligation or liability by virtue thereof, provided,
however, that the foregoing shall not apply to any Backup Servicer for so
long as a Lockbox Bank is performing its obligations pursuant to the terms
of a Lockbox Agreement.
In the event of a termination of the Servicer, the successor
Servicer shall assume all of the rights and obligations of the
outgoing Servicer under the Lockbox Agreement. In such event, the
successor Servicer shall be deemed to have assumed all of the
outgoing Servicer's interest therein and to have replaced the outgoing
Servicer as a party to each such Lockbox Agreement to the same extent as if
such Lockbox Agreement had been assigned to the successor Servicer,
except that the outgoing Servicer shall not thereby be relieved of any
liability or obligations on the part of the outgoing Servicer to the
Lockbox Bank under such Lockbox Agreement. The outgoing Servicer shall,
upon request of the Trustee, but at the expense of the outgoing Servicer,
deliver to the successor Servicer all documents and records relating to
each such Lockbox Agreement and an accounting of amounts collected and held
by the Lockbox Bank and otherwise use its best efforts to effect the orderly
and efficient transfer of any Lockbox Agreement to the successor Servicer.
In the event that the Security Insurer (so long as an Insurer Default
shall not have occurred and be continuing) or a Certificate Majority (if
an Insurer Default shall have occurred and be continuing) elects to change
the identity of the Lockbox Bank, the outgoing Servicer, at its expense,
shall cause the Lockbox Bank to deliver, at the direction of the
Security Insurer (so long as an Insurer Default shall not have occurred
and be continuing) or a Certificate Majority (if an Insurer Default
shall have occurred and be continuing) to the Trustee or a successor
Lockbox Bank, all documents and records relating to the Receivables and
all amounts held (or thereafter received) by the Lockbox Bank (together
with an accounting of such amounts) and shall otherwise use its best
efforts to effect the orderly and efficient transfer of the
lockbox
arrangements and the Servicer shall notify the Obligors to make payments to
the Lockbox established by the successor.
(e) The Servicer shall remit all payments by or on behalf of the
Obligors received directly by the Servicer to the Subcollection Account or
to the Lockbox Bank for deposit into the Collection Account, in either case,
without deposit into any intervening account and as soon as practicable, but
in no event later than the Business Day after receipt thereof.
IV.3. Realization Upon Receivables.
(a) Consistent with the standards, policies and procedures
required by this Agreement, the Servicer shall use its best efforts to
repossess (or otherwise comparably convert the ownership of) and liquidate
any Financed Vehicle securing a Receivable with respect to which the Servicer
has determined that payments thereunder are not likely to be resumed, as
soon as is practicable after default on such Receivable but in no event
later than the date on which all or any portion of a Scheduled Payment has
become 91 days delinquent; provided, however, that the Servicer may elect
not to repossess a Financed Vehicle within such time period if in its
good faith judgment it determines that the proceeds ultimately
recoverable with respect to such Receivable would be increased by
forbearance. The Servicer is authorized to follow such customary
practices and procedures as it shall deem necessary or advisable,
consistent with the standard of care required by Section 4.1, which
practices and procedures may include reasonable efforts to realize upon any
recourse to Dealers, the sale of the related Financed Vehicle at public or
private sale, the submission of claims under an Insurance Policy and
other actions by the Servicer in order to realize upon such a
Receivable. The foregoing is subject to the provision that, in any case
in which the Financed Vehicle shall have suffered damage, the Servicer
shall not expend funds in connection with any repair or towards the
repossession of such Financed Vehicle unless it shall determine in its
discretion that such repair and/or repossession shall increase the
proceeds of liquidation of the related Receivable by an amount
greater than the amount of such expenses. All amounts received upon
liquidation of a Financed Vehicle shall be remitted directly by the
Servicer
to the Subcollection Account without deposit into any intervening
account as soon as practicable, but in no event later than the Business
Day after receipt thereof. The Servicer shall be entitled to recover
all reasonable expenses incurred by it in the course of repossessing and
liquidating a Financed Vehicle into cash proceeds, but only out of the
cash proceeds of such Financed Vehicle, any deficiency obtained from the
Obligor or any amounts received from the related Dealer, which amounts in
reimbursement may be retained by the Servicer (and shall not be required to
be deposited as provided in Section 4.2(e)) to the extent of such
expenses. The Servicer shall pay on behalf of the Trust any personal
property taxes assessed on repossessed Financed Vehicles. The Servicer
shall be entitled to reimbursement of any such tax from Liquidation
Proceeds with respect to such Receivable.
(b) If the Servicer elects to commence a legal proceeding to
enforce a Dealer Agreement or Dealer Assignment, the act of
commencement shall be deemed to be an automatic assignment from the Trust to
the Servicer of the rights under such Dealer Agreement and Dealer
Assignment for purposes of collection only. If, however, in any
enforcement suit or legal proceeding it is held that the Servicer may
not enforce a Dealer Agreement or Dealer Assignment on the grounds
that it is not a real party in interest or a Person entitled to
enforce the Dealer Agreement or Dealer Assignment, the Trustee, at
the Servicer's expense, or the Seller, at the Seller's expense, shall take
such steps as the Servicer deems necessary to enforce the Dealer Agreement
or Dealer Assignment, including bringing suit in its name or the name of the
Seller or of the Trust and the Trustee for the benefit of the
Certificateholders. All amounts recovered shall be remitted directly by the
Servicer as provided in Section 4.2(e).
IV.4. Insurance.
(a) The Servicer shall require, in accordance with its customary
servicing policies and procedures, that each Financed Vehicle be insured
by the related Obligor under the Insurance Policies referred to in
Paragraph 24 of the Schedule of Representations and Warranties and shall
monitor the status of such physical loss and damage insurance
coverage thereafter, in accordance with its customary servicing
procedures. Each Receivable requires the Obligor to maintain such physical
loss and damage insurance, naming AmeriCredit and its successors and
assigns as additional insureds, and permits the holder of such
Receivable to obtain physical loss and damage insurance at the expense of
the Obligor if the Obligor fails to maintain such insurance. If the
Servicer shall determine that an Obligor has failed to obtain or maintain a
physical loss and damage Insurance Policy covering the related Financed
Vehicle which satisfies the conditions set forth in clause (i)(a) of such
Paragraph 24 (including, without limitation, during the repossession of
such Financed Vehicle) the Servicer may enforce the rights of the
holder of the Receivable under the Receivable to require the Obligor to
obtain such physical loss and damage insurance in accordance with its
customary servicing policies and procedures. The Servicer may maintain
a vendor's single interest or other collateral protection insurance
policy with respect to all Financed Vehicles ("Collateral Insurance")
which policy shall by its terms insure against physical loss and damage
in the event any Obligor fails to maintain physical loss and damage
insurance with respect to the related Financed Vehicle. All policies of
Collateral Insurance shall be endorsed with clauses providing for loss
payable to the Servicer. Costs incurred by the Servicer in maintaining
such Collateral Insurance shall be paid by the Servicer.
(b) The Servicer may, if an Obligor fails to obtain or maintain a
physical loss and damage Insurance Policy, obtain insurance with respect to
the related Financed Vehicle and advance on behalf of such Obligor, as
required under the terms of the insurance policy, the premiums for
such insurance (such insurance being referred to herein as "Force-Placed
Insurance"). All policies of Force-Placed Insurance shall be endorsed with
clauses providing for loss payable to the Servicer. Any cost incurred
by the Servicer in maintaining such Force-Placed Insurance shall
only be recoverable out of premiums paid by the Obligors or
Liquidation Proceeds with respect to the Receivable, as provided in
Section 4.4(c).
(c) In connection with any Force-Placed Insurance obtained
hereunder, the Servicer may, in the manner and to the extent permitted by
applicable law, require the Obligors
to repay the entire premium to the Servicer. In no event shall the
Servicer include the amount of the premium in the Amount Financed under the
Receivable. For all purposes of this Agreement, the Insurance Add-On Amount
with respect to any Receivable having Force-Placed Insurance will be treated
as a separate obligation of the Obligor and will not be added to the
Principal Balance of such Receivable, and amounts allocable thereto
will not be available for distribution on the Certificates. The
Servicer shall retain and separately administer the right to receive payments
from Obligors with respect to Insurance Add-On Amounts or rebates of
Forced-Placed Insurance premiums. If an Obligor makes a payment with
respect to a Receivable having Force-Placed Insurance, but the Servicer is
unable to determine whether the payment is allocable to the Receivable
or to the Insurance Add-On Amount, the payment shall be applied first to
any unpaid Scheduled Payments and then to the Insurance Add-On Amount.
Liquidation Proceeds on any Receivable will be used first to pay the
Principal Balance and accrued interest on such Receivable and then to
pay the related Insurance Add-On Amount. If an Obligor under a
Receivable with respect to which the Servicer has placed Force-Placed
Insurance fails to make scheduled payments of such Insurance Add-On Amount
as due, and the Servicer has determined that eventual payment of the
Insurance Add-On Amount is unlikely, the Servicer may, but shall not be
required to, purchase such Receivable from the Trust for the Purchase
Amount on any subsequent Deposit Date. Any such Receivable, and any
Receivable with respect to which the Servicer has placed Force-Placed
Insurance which has been paid in full (excluding any Insurance Add-On
Amounts) will be assigned to the Servicer.
(d) The Servicer may sue to enforce or collect upon the Insurance
Policies, in its own name, if possible, or as agent of the Trust. If the
Servicer elects to commence a legal proceeding to enforce an Insurance
Policy, the act of commencement shall be deemed to be an automatic
assignment of the rights of the Trust under such Insurance Policy to the
Servicer for purposes of collection only. If, however, in any enforcement
suit or legal proceeding it is held that the Servicer may not enforce an
Insurance Policy on the grounds that it is not a real party in interest or
a holder entitled to enforce the Insurance Policy, the Trustee, at the
Servicer's expense, or the Seller, at the Seller's
expense, shall take such steps as the Servicer deems necessary to
enforce such Insurance Policy, including bringing suit in its name or the
name of the Trust and the Trustee for the benefit of the Certificateholders.
(e) The Servicer will cause itself and may cause the Trustee to
be named as named insured under all policies of Collateral Insurance.
IV.5. Maintenance of Security Interests in
Vehicles.
(a) Consistent with the policies and procedures required by
this Agreement, the Servicer shall take such steps on behalf of the Trust
as are necessary to maintain perfection of the security interest
created by each Receivable in the related Financed Vehicle, including
but not limited to obtaining the execution by the Obligors and the
recording, registering, filing, re-recording, re-filing, and re-registering
of all security agreements, financing statements and continuation
statements as are necessary to maintain the security interest granted by the
Obligors under the respective Receivables. The Trustee hereby authorizes
the Servicer, and the Servicer agrees, to take any and all steps necessary
to re-perfect such security interest on behalf of the Trust as
necessary because of the relocation of a Financed Vehicle or for any other
reason. In the event that the assignment of a Receivable to the
Trust is insufficient, without a notation on the related Financed
Vehicle's certificate of title, or without fulfilling any additional
administrative requirements under the laws of the state in which the Financed
Vehicle is located, to perfect a security interest in the related Financed
Vehicle in favor of the Trustee, the Servicer hereby agrees
that AmeriCredit's designation as the secured party on the certificate
of title is in its capacity as agent of the Trustee.
(b) Upon the occurrence of an Insurance Agreement Event of
Default, the Security Insurer may (so long as an Insurer Default shall not
have occurred and be continuing) instruct the Trustee and the Servicer to
take or cause to be taken, or, if an Insurer Default shall have occurred,
upon the occurrence of a Servicer Termination Event, the Trustee and the
Servicer shall take or cause to be taken such action
as may, in the opinion of counsel to the Controlling Party, be necessary to
perfect or re-perfect the security interests in the Financed Vehicles
securing the Receivables in the name of the Trustee by amending the title
documents of such Financed Vehicles or by such other reasonable means as
may, in the opinion of counsel to the Controlling Party, be necessary
or prudent. AmeriCredit hereby agrees to pay all expenses related to such
perfection or reperfection and to take all action necessary therefor. In
addition, prior to the occurrence of an Insurance Agreement Event of
Default, the Controlling Party may instruct the Trustee and the
Servicer to take or cause to be taken such action as may, in the opinion of
counsel to the Controlling Party, be necessary to perfect or
re-perfect the security interest in the Financed Vehicles underlying the
Receivables in the name of the Trustee, including by amending the title
documents of such Financed Vehicles or by such other reasonable means as
may, in the opinion of counsel to the Controlling Party, be necessary or
prudent; provided, however, that if the Controlling Party requests that
the title documents be amended prior to the occurrence of an Insurance
Agreement Event of Default, the out-of-pocket expenses of the Servicer or
the Trustee in connection with such action shall be reimbursed to the
Servicer or the Trustee, as applicable, by the Controlling Party.
AmeriCredit hereby appoints the Trustee as its attorney-in-fact to take
any and all steps required to be performed by AmeriCredit pursuant to
this Section 4.5(b), including execution of certificates of title or any
other documents in the name and stead of AmeriCredit, and the Trustee hereby
accepts such appointment.
IV.6. Covenants, Representations, and Warranties of Servicer.
By its execution and delivery of this Agreement, the Servicer makes the
following representations, warranties and covenants on which the Trustee
relies in accepting the Receivables and issuing the Certificates, on
which the Trustee relies in authenticating the Certificates and on which
the Security Insurer relies in issuing the Policy.
(a) The Servicer covenants as follows:
(i) Liens in Force. The Financed Vehicle securing
each Receivable shall not be released in whole or in part
from the security interest granted by the Receivable, except
upon payment in full of the Receivable or as otherwise
contemplated herein;
(ii) No Impairment. The Servicer shall do nothing to
impair the rights of the Trust or the Certificateholders in
the Receivables, the Dealer Agreements, the Dealer
Assignments, the Insurance Policies or the Other Conveyed
Property;
(iii) No Amendments. The Servicer shall not extend
or otherwise amend the terms of any Receivable, except in
accordance with Section 4.2; and
(iv) Restrictions on Liens. The Servicer shall not
(i) create, incur or suffer to exist, or agree to create,
incur or suffer to exist, or consent to cause or permit in
the future (upon the happening of a contingency or
otherwise) the creation, incurrence or existence of any Lien
or restriction on transferability of the Receivables except
for the Lien in favor of the Trustee for the benefit of the
Certificateholders and Security Insurer, the Lien imposed by
the Spread Account Agreement in favor of the Trustee for the
benefit of the Trustee and Security Insurer, and the
restrictions on transferability imposed by this Agreement or
(ii) sign or file under the Uniform Commercial Code of any
jurisdiction any financing statement which names AmeriCredit
or the Servicer as a debtor, or sign any security agreement
authorizing any secured party thereunder to file such
financing statement, with respect to the Receivables, except
in each case any such instrument solely securing the rights
and preserving the Lien of the Trustee, for the benefit of
the Certificateholders and the Security Insurer.
(b) The Servicer represents, warrants and covenants as of the
Closing Date as to itself:
(i) Representations and Warranties. The
representations and warranties set forth on the Schedule of
Representations attached hereto as Schedule B are true and
correct, provided that such representations and warranties
contained therein and herein shall not apply to any entity
other than AmeriCredit;
(ii) Organization and Good Standing. The Servicer has
been duly organized and is validly existing and in good
standing under the laws of its jurisdiction of organization,
with power, authority and legal right to own its properties
and to conduct its business as such properties are currently
owned and such business is currently conducted, and had at
all relevant times, and now has, power, authority and legal
right to enter into and perform its obligations under this
Agreement;
(iii) Due Qualification. The Servicer is duly
qualified to do business as a foreign corporation in good
standing and has obtained all necessary licenses and
approvals, in all jurisdictions in which the ownership or
lease of property or the conduct of its business (including
the servicing of the Receivables as required by this
Agreement) requires or shall require such qualification;
(iv) Power and Authority. The Servicer has the power
and authority to execute and deliver this Agreement and its
Related Documents and to carry out its terms and their
terms, respectively, and the execution, delivery and
performance of this Agreement and the Servicer's Related
Documents have been duly authorized by the Servicer by all
necessary corporate action;
(v) Binding Obligation. This Agreement and the
Servicer's Related Documents shall constitute legal, valid
and binding obligations of the Servicer enforceable in
accordance with their respective terms, except as
enforceability may be limited by bankruptcy, insolvency,
reorganization, or other similar laws affecting the
enforcement of creditors' rights generally and by equitable
limitations on the availability of specific remedies,
regardless of whether such enforceability is considered in a
proceeding in equity or at law;
(vi) No Violation. The consummation of the
transactions contemplated by this Agreement and the
Servicer's Related Documents, and the fulfillment of the
terms of this Agreement and the Servicer's Related
Documents, shall not conflict with, result in any breach of
any of the terms and provisions of, or constitute (with or
without notice or lapse of time) a default under, the
articles of incorporation or bylaws of the Servicer, or any
indenture, agreement, mortgage, deed of trust or other
instrument to which the Servicer is a party or by which it
is bound, or result in the creation or imposition of any
Lien upon any of its properties pursuant to the terms of any
such indenture, agreement, mortgage, deed of trust or other
instrument, other than this Agreement, or violate any law,
order, rule or regulation applicable to the Servicer of any
court or of any federal or state regulatory body,
administrative agency or other governmental instrumentality
having jurisdiction over the Servicer or any of its
properties;
(vii) No Proceedings. There are no proceedings or
investigations pending or, to the Servicer's knowledge,
threatened against the Servicer, before any court,
regulatory body, administrative agency or other tribunal or
governmental instrumentality having jurisdiction over the
Servicer or its properties (A) asserting the invalidity of
this Agreement or any of the Related Documents, (B) seeking
to prevent the issuance of the Certificates or the
consummation of any of the transactions contemplated by this
Agreement or any of the Related Documents, or (C) seeking
any determination or ruling that might materially and
adversely affect the performance by the Servicer of its
obligations under, or the validity or enforceability of,
this Agreement or any of the Related Documents or (D)
seeking to adversely affect the federal income tax or other
federal, state or local tax attributes of the Certificates;
(viii) No Consents. The Servicer is not required to
obtain the consent of any other party or any consent,
license, approval or authorization, or registration or
declaration with, any governmental authority, bureau or
agency in connection with the execution, delivery,
performance, validity or enforceability of this Agreement
which has not already been obtained.
IV.7. Purchase of Receivables Upon Breach of Covenant. Upon
discovery by any of the Servicer, the Security Insurer or the Trustee
of a breach of any of the covenants set forth in Sections 4.5(a) or 4.6(a),
the party discovering such breach shall give prompt written notice to the
others; provided, however, that the failure to give any such notice shall
not affect any obligation of AmeriCredit as Servicer under this Section
4.7. As of the second Accounting Date following its discovery or receipt
of notice of any breach of any covenant set forth in Sections 4.5(a) or
4.6(a) which materially and adversely affects the
interests of the Certificateholders or the Security Insurer in any
Receivable (including any Liquidated Receivable) (or, at AmeriCredit's
election, the first Accounting Date so following), AmeriCredit shall,
unless such breach shall have been cured in all material respects, purchase
from the Trust the Receivable affected by such breach and, on the related
Deposit Date, AmeriCredit shall pay the related Purchase Amount. It is
understood and agreed that the obligation of AmeriCredit to purchase any
Receivable (including any Liquidated Receivable) with respect to which
such a breach has occurred and is continuing shall, if such obligation is
fulfilled, constitute the sole remedy against AmeriCredit for such
breach available to the Security Insurer, the Certificateholders or
the Trustee on behalf of Certificateholders; provided, however,
that AmeriCredit shall indemnify the Trust, the Backup Servicer,
the Collateral Agent, the Security Insurer, the Trustee and the
Certificateholders against all costs, expenses, losses, damages, claims
and liabilities, including reasonable fees and expenses of counsel, which
may be asserted against or incurred by any of them as a result of third
party claims arising out of the events or facts giving rise to such
breach.
IV.8. Total Servicing Fee; Payment of Certain Expenses by
Servicer; Compensating Interest. (a) On each Distribution Date, the
Servicer shall be entitled to receive out of the Collection Account the
Basic Servicing Fee and any Supplemental Servicing Fee for the related
Collection Period pursuant to Section 5.5. The Servicer shall be
required to pay all expenses incurred by it in connection with its
activities under this Agreement (including taxes imposed on the Servicer,
expenses incurred in connection with distributions and reports made by
the Servicer to Certificateholders or the Security Insurer and all
other fees and expenses of the Trustee, except taxes levied or assessed
against the Trust, and claims against the Trust in respect of
indemnification, which taxes and claims in respect of indemnification
against the Trust are expressly stated to be for the account of
AmeriCredit). The Servicer shall be liable for the fees and expenses of
the Trustee, the Custodian, the Backup Servicer, the Collateral Agent,
the Lockbox Bank (and any fees under the Lockbox Agreement) and the
Independent Accountants. Notwithstanding the foregoing if the
Servicer shall not be AmeriCredit, a
successor to AmeriCredit as Servicer permitted by Section 9.2 shall not be
liable for taxes levied or assessed against the Trust or claims against
the Trust in respect of indemnification.
(b) On or prior to each Determination Date, the Servicer shall
deposit in the Collection Account with respect to any Prepayment
received on a Receivable during the related Collection Period, out of its
own funds without any right of reimbursement therefor, an amount equal to
the difference between (x) 30 days' interest at an interest rate equal to
the weighted average of the Class A Pass-Through Rate and the Class B
Pass-Through Rate on the Principal Balance of such Receivable as of the
first day of the related Collection Period and (y) the interest actually
paid by the Obligor with respect to the Receivable during such Collection
Period (any such amount paid by the Servicer, "Compensating Interest").
The Servicer shall in no event be required to pay Compensating Interest with
respect to any Collection Period in an amount in excess of the aggregate
Servicing Fee received by the Servicer with respect to all Receivables for
the related Collection Period.
IV.9. Servicer's Certificate. No later than 10:00 am. New
York City time on each Determination Date, the Servicer shall deliver to
the Trustee, the Backup Servicer, the Security Insurer, the Collateral Agent
and each Rating Agency a Servicer's Certificate executed by a Responsible
Officer of the Servicer containing among other things, (i) all information
necessary to enable the Trustee to make any withdrawal and deposit required
by Section 6.3, to give any notice required by Section 6.3(b) and to
make the distributions required by Sections 5.5, (ii) all information
necessary to enable the Trustee to send the statements to
Certificateholders and the Security Insurer required by Section 5.7,
(iii) a listing of all Warranty Receivables and Administrative Receivables
purchased as of the related Deposit Date, identifying the Receivables so
purchased and (iv) all information necessary to enable the Trustee to
reconcile all deposits to, and withdrawals from, the Collection
Account for the related Collection Period and Distribution Date,
including the accounting required by Section 5.7. Receivables purchased
by the Servicer or by the Seller on the related Deposit Date and each
Receivable which became a Liquidated Receivable or which was paid in
full during the related Collection Period shall be identified by account
number (as set forth in the Schedule of Receivables). A copy of such
certificate may be obtained by any Certificateholder by a request in
writing to the Trustee addressed to the Corporate Trust Office. In
addition to the information set forth in the preceding sentence, the
Servicer's Certificate delivered to the Security Insurer, the
Collateral Agent and the Trustee on the Determination Date shall also
contain the following information: (a) the Delinquency Ratio, Average
Delinquency Ratio, Default Ratio, Average Default Ratio, Net Loss Ratio and
Average Net Loss Ratio for such Determination Date; (b) whether any
Trigger Event has occurred as of such Determination Date; (c) whether
any Trigger Event that may have occurred as of a prior Determination Date
is Deemed Cured as of such Determination Date; and (d) whether to the
knowledge of the Servicer an Insurance Agreement Event of Default has
occurred.
IV.10. Annual Statement as to Compliance, Notice of Servicer
Termination Event.
(a) The Servicer shall deliver to the Trustee, the Backup
Servicer, the Security Insurer, the Certificateholders and
each Rating Agency, on or before October 31 (or 120 days after the end
of the Servicer's fiscal year, if other than June 30) of each year,
beginning on October 31, 1996, an officer's certificate signed by any
Responsible Officer of the Servicer, dated as of June 30 (or other
applicable date) of such year, stating that (i) a review of the
activities of the Servicer during the preceding 12-month period (or
such other period as shall have elapsed from the Closing Date to the date
of the first such certificate) and of its performance under this
Agreement has been made under such officer's supervision, and (ii) to
such officer's knowledge, based on such review, the Servicer has fulfilled
all its obligations under this Agreement throughout such period, or, if
there has been a default in the fulfillment of any such
obligation, specifying each such default known to such officer and the
nature and status thereof.
(b) The Servicer shall deliver to the Trustee, the Backup
Servicer, the Security Insurer, the Certificateholders, the
Collateral Agent, and each Rating
Agency, promptly after having obtained knowledge thereof, but in no event
later than two (2) Business Days thereafter, written notice in an officer's
certificate of any event which with the giving of notice or lapse of
time, or both, would become a Servicer Termination Event under Section
10.1(a). The Seller or the Servicer shall deliver to the Trustee, the
Backup Servicer, the Security Insurer, the Collateral Agent, the Servicer
or the Seller (as applicable) and each Rating Agency promptly after
having obtained knowledge thereof, but in no event later than two (2)
Business Days thereafter, written notice in an officer's certificate of
any event which with the giving of notice or lapse of time, or both, would
become a Servicer Termination Event under any other clause of Section 10.1.
IV.11. Annual Independent Accountants' Report.
(a) The Servicer shall cause a firm of nationally recognized
independent certified public accountants (the "Independent Accountants"),
who may also render other services to the Servicer or to the Seller, to
deliver to the Trustee, the Backup Servicer, the Security Insurer and each
Rating Agency, on or before October 31 (or 120 days after the end of the
Servicer's fiscal year, if other than June 30) of each year, beginning
on October 31, 1996, with respect to the twelve months ended the
immediately preceding June 30 (or other applicable date) (or such other
period as shall have elapsed from the Closing Date to the date of such
certificate), a statement (the "Accountants' Report") addressed to the
Board of Directors of the Servicer, to the Trustee, the Backup Servicer and
to the Security Insurer, to the effect that such firm has audited the books
and records of AmeriCredit Corp., in which the Servicer is included as a
consolidated subsidiary, and issued its report thereon in connection
with the audit report on the consolidated financial statements of
AmeriCredit Corp. and that (1) such audit was made in accordance with
generally accepted auditing standards, and accordingly included such tests
of the accounting records and such other auditing procedures as such firm
considered necessary in the circumstances; (2) the firm is independent of
the Seller and the Servicer within the meaning of the Code of
Professional Ethics of the American Institute of Certified Public
Accountants, and (3) includes a report on the application of agreed
upon procedures to three randomly selected Servicer's
Certificates including the delinquency, default and loss statistics
required to be specified therein noting whether any exceptions or errors in
the Servicer's Certificates were found.
(b) A copy of the Accountants' Report may be obtained by any
Certificateholder by a request in writing to the Trustee addressed to the
Corporate Trust Office.
IV.12. Access to Certain Documentation and Information
Regarding Receivables. The Servicer shall provide to representatives
of the Trustee, the Backup Servicer, the Certificateholders and the
Security Insurer reasonable access to the documentation regarding
the Receivables. In each case, such access shall be afforded without
charge but only upon reasonable request and during normal business hours.
Nothing in this Section shall derogate from the obligation of the
Servicer to observe any applicable law prohibiting disclosure of
information regarding the Obligors, and the failure of the Servicer to
provide access as provided in this Section as a result of such obligation
shall not constitute a breach of this Section.
IV.13. Monthly Tape. On or before the fifth Business Day,
but in no event later than the seventh calendar day, of each month,
the Servicer will deliver to the Trustee and the Backup Servicer a
computer tape and a diskette (or any other electronic transmission
acceptable to the Trustee and the Backup Servicer) in a format acceptable to
the Trustee and the Backup Servicer containing the information with
respect to the Receivables as of the preceding Accounting Date necessary
for preparation of the Servicer's Certificate relating to the
immediately succeeding Determination Date and necessary to determine the
application of collections as provided in Section 5.3. The Backup Servicer
shall use such tape or diskette (or other electronic transmission
acceptable to the Trustee and the Backup Servicer) to verify the
Servicer's Certificate delivered by the Servicer, and the Backup Servicer
shall certify to the Controlling Party that it has verified the
Servicer's Certificate in accordance with this Section 4.13 and shall
notify the Servicer and the Controlling Party of any discrepancies, in each
case, on or before the second Business Day following the Determination
Date. In the event
that the Backup Servicer reports any discrepancies, the Servicer and
the Backup Servicer shall attempt to reconcile such discrepancies prior to
the related Distribution Date, but in the absence of a reconciliation,
the Servicer's Certificate shall control for the purpose of calculations
and distributions with respect to the related Distribution Date. In the
event that the Backup Servicer and the Servicer are unable to reconcile
discrepancies with respect to a Servicer's Certificate by the related
Distribution Date, the Servicer shall cause the Independent Accountants, at
the Servicer's expense, to audit the Servicer's Certificate and,
prior to the third Business Day, but in no event later than the fifth
calendar day, of the following month, reconcile the discrepancies. The
effect, if any, of such reconciliation shall be reflected in the
Servicer's Certificate for such next succeeding Determination Date. In
addition, upon the occurrence of a Servicer Termination Event the
Servicer shall, if so requested by the Controlling Party deliver to the
Backup Servicer its Collection Records and its Monthly Records within 15 days
after demand therefor and a computer tape containing as of the close of
business on the date of demand all of the data maintained by the
Servicer in computer format in connection with servicing the Receivables.
Other than the duties specifically set forth in this Agreement, the
Backup Servicer shall have no obligations hereunder, including, without
limitation, to supervise, verify, monitor or administer the performance of
the Servicer. The Backup Servicer shall have no liability for any actions
taken or omitted by the Servicer.
IV.14. Retention and Termination of Servicer. The Servicer
hereby covenants and agrees to act as such under this Agreement for an
initial term, commencing on the Closing Date and ending on March 31, 1996,
which term shall be extendible by the Controlling Party for
successive quarterly terms ending on each successive June 30,
September 30 and December 31 (or, pursuant to revocable written
standing instructions from time to time to the Servicer and the Trustee
for any specified number of terms greater than one), until the Certificates
are paid in full. Each such notice (including each notice pursuant to
standing instructions, which shall be deemed delivered at the end of
successive quarterly terms for so long as such instructions are in effect)
(a "Servicer Extension Notice") shall be delivered by the Security
Insurer to the Trustee and the
Servicer. The Servicer hereby agrees that, as of the date hereof and upon
its receipt of any such Servicer Extension Notice, the Servicer shall
become bound, for the initial term beginning on the Closing Date and for
the duration of the term covered by such Servicer Extension Notice, to
continue as the Servicer subject to and in accordance with the other
provisions of this Agreement. Until such time as an Insurer Default shall
have occurred and be continuing the Trustee agrees that if as of the
fifteenth day prior to the last day of any term of the Servicer the Trustee
shall not have received any Servicer Extension Notice from the
Security Insurer, the Trustee will, within five days thereafter, give
written notice of such non-receipt to the Security Insurer and the Servicer.
IV.15. Fidelity Bond and Errors and Omissions Policy. The
Servicer has obtained, and shall continue to maintain in full force and
effect, a Fidelity Bond and Errors and Omissions Policy of a type and in
such amount as is customary for servicers engaged in the business of
servicing automobile receivables.
V DISTRIBUTIONS; STATEMENTS TO CERTIFICATEHOLDERS
V.1. Accounts. The Servicer shall establish the Collection
Account in the name of the Trustee for the benefit of the
Certificateholders. The Servicer shall also establish the Policy Payments
Account in the name of the Trustee for the benefit of the Class A
Certificateholders. Each of the Collection Account and the Policy
Payments Account shall be an Eligible Account and initially shall be a
segregated trust account established with the Trustee and maintained with
the Trustee. All amounts held in the Collection Account shall, to
the extent permitted by applicable laws, rules and regulations, be
invested by the Trustee, as directed in writing by the Servicer, in
Eligible Investments that mature not later than one Business Day prior
to the Distribution Date for the Collection Period to which such amounts
relate. Any such written direction shall certify that any such investment
is authorized by this Section 5.1. Investments in Eligible Investments
shall be made in the name of the Trustee on behalf of the
Certificateholders, and such investments shall not be sold or disposed of
prior to their maturity. The Trustee may
trade with itself or an Affiliate in the purchase or sale of Eligible
Investments. Any investment of funds in the Collection Account shall
be made in Eligible Investments held by a financial institution with
respect to which (a) such institution has noted the Trustee's
interest therein by book entry or otherwise and (b) a confirmation of the
Trustee's interest has been sent to the Trustee by such institution,
provided that such Eligible Investments are (i) specific certificated
securities (as such term is used in the Texas UCC, and (ii) either (A) in
the possession of such institution or (B) in the possession of a
clearing corporation as such term is used in the New York UCC and the Texas
UCC, registered in the name of such clearing corporation, not
endorsed for collection or surrender or any other purpose not involving
transfer, not containing any evidence of a right or interest
inconsistent with the Trustee's security interest therein, and held
by such clearing corporation in an account of such institution. Subject
to the other provisions hereof, the Trustee shall have sole control over
each such investment and the income thereon, and any certificate or other
instrument evidencing any such investment, if any, shall be delivered
directly to the Trustee or its agent, together with each document of
transfer, if any, necessary to transfer title to such investment to
the Trustee in a manner which complies with this Section 5.1. All
interest, dividends, gains upon sale and other income from, or earnings on,
investments of funds in the Collection Account shall be deposited in
the Collection Account, and, in the case of the Collection Account,
distributed on the next Distribution Date pursuant to Section 5.5. The
Seller shall deposit in the Collection Account an amount equal to any net
loss on such investments immediately as realized. Amounts in Policy Payments
Account shall not be invested. On the Closing Date, the Servicer shall
deposit in the Collection Account (i) all Scheduled Payments and
prepayments of Receivables received by the Lockbox Bank after the Cut-off
Date and prior to the Closing Date or received by the Lockbox Bank after the
Cut-off Date and at least two Business Days prior to the Closing Date and
(ii) all Liquidation Proceeds and proceeds of Insurance Policies
realized in respect of a Financed Vehicle and applied by the Servicer
after the Cut-off Date.
V.2. Collections. (a) The Servicer shall establish the
Subcollection Account in the name of the Trustee for the
benefit of the Certificateholders. The Subcollection Account shall
be an Eligible Account satisfying clause (i) of the definition of "Eligible
Account," and shall initially be established with First Interstate
Bank, N.A. The Servicer shall remit directly to the Subcollection
Account without deposit into any intervening account (i) all payments
by or on behalf of the Obligors on the Receivables, (ii) all Liquidation
Proceeds received by the Servicer and (iii) any Compensating Interest, in
each case, as soon as practicable, but in no event later than the
Business Day after receipt thereof. Within two days of deposit of
payments into the Subcollection Account, the Servicer shall cause all
amounts credited to the Subcollection Account to be transferred to the
Collection Account. Amounts in the Subcollection Account shall not be
invested.
(a) Notwithstanding the provisions of subsection (a) hereof, the
Servicer will be entitled to be reimbursed from amounts on deposit in the
Collection Account with respect to a Collection Period for amounts
previously deposited in the Collection Account but later determined by the
Servicer or the Lockbox Bank to have resulted from mistaken deposits or
postings or checks returned for insufficient funds. The amount to be
reimbursed hereunder shall be paid to the Servicer on the related
Distribution Date pursuant to Section 5.5(a)(i) upon certification by the
Servicer of such amounts and the provision of such information to the Trustee
and the Security Insurer as may be necessary in the opinion of the Trustee
and the Security Insurer to verify the accuracy of such
certification. In the event that the Security Insurer has not received
evidence satisfactory to it of the Servicer's entitlement to reimbursement
pursuant to this Section, the Security Insurer shall (unless an Insurer
Default shall have occurred and be continuing) give the Trustee notice to
such effect, following receipt of which the Trustee shall not make a
distribution to the Servicer in respect of such amount pursuant to Section
5.5, or if the Servicer prior thereto has been reimbursed pursuant
to Section 5.5 or Section 5.6, the Trustee shall withhold such amounts
from amounts otherwise distributable to the Servicer on the next succeeding
Distribution Date.
V.3. Application of Collections. For the purposes of this
Agreement, all collections for a Collection Period shall be applied by the
Servicer as follows:
(a) With respect to each Receivable (other than a
Purchased Receivable), payments by or on behalf of the
Obligor (other than of Supplemental Servicing Fees with
respect to such Receivable, to the extent collected) shall
be applied to interest and principal in accordance with the
Simple Interest Method. With respect to each Liquidated
Receivable, Liquidation Proceeds shall be applied to
interest and principal with respect to such Receivable in
accordance with the Simple Interest Method. Any prepayment
of principal during each Collection Period shall be
immediately applied to reduce the principal balance of the
Receivable during such Collection Period.
(b) With respect to each Receivable that has become a
Purchased Receivable on any Deposit Date, the Purchase
Amount shall be applied, for purposes of this Agreement
only, to interest and principal on the Receivable in
accordance with the terms of the Receivable as if the
Purchase Amount had been paid by the Obligor on the
Accounting Date. The Servicer shall not be entitled to any
Supplemental Servicing Fees with respect to such a
Receivable. Nothing contained herein shall relieve any
Obligor of any obligation relating to any Receivable.
(c) All amounts collected that are payable to the
Servicer as Supplemental Servicing Fees hereunder shall be
deposited in the Collection Account and paid to the Servicer
in accordance with Section 5.5(a)(i).
(d) All payments by or on behalf of an Obligor received
with respect to any Purchased Receivable after the
Accounting Date immediately preceding the Deposit Date on
which the Purchase Amount was paid by the Seller or the
Servicer shall be paid to the Seller or the Servicer,
respectively, and shall not be included in the Available
Funds.
V.4. Additional Deposits. On or before each Deposit Date, the
Servicer or the Seller shall deposit into the Collection Account the
aggregate Purchase Amounts with respect to Administrative Receivables
and Warranty Receivables, respectively. All such deposits of Purchase
Amounts shall be made in immediately available funds. On or before each
Draw Date, the Trustee shall remit to the Collection Account any amounts
delivered to the Trustee by the Collateral
Agent.
V.5. Distributions. (a) On each Distribution Date, the Trustee
shall (x) distribute all amounts deposited by the Security Insurer under
Section 5.8 as directed by the Security Insurer, and (y) (based solely
on the information contained in the Servicer's Certificate delivered
with respect to the related Determination Date) distribute the following
amounts and in the following order of priority:
(i) first, from the Distribution Amount, to the Servicer,
the Basic Servicing Fee for the related Collection Period,
any Supplemental Servicing Fees for the related Collection
Period, and any amounts specified in Section 5.2(b), to the
extent the Servicer has not reimbursed itself in respect of
such amounts pursuant to Section 5.6;
(ii) second, from the Distribution Amount, to any Lockbox
Bank, Trustee, Backup Servicer or Collateral Agent
(including the Trustee if acting in any such additional
capacity), any accrued and unpaid fees and, in the case of
the Lockbox Bank, amounts related to insufficient funds
checks (in each case, to the extent such Person has not
previously received such amount from the Servicer or
AmeriCredit);
(iii) third, from the Amount Available to the Class A
Certificateholders, the Class A Interest Distributable
Amount for such Distribution Date;
(iv) fourth, from the Amount Available to the Class A
Certificateholders, the Class A Principal Distributable
Amount for such Distribution Date;
(v) fifth, from the Distribution Amount to the Security
Insurer, to the extent of any amounts owing to the Security
Insurer under the Insurance Agreement and not paid, whether
or not AmeriCredit is also obligated to pay such amounts;
(vi) sixth, from Available Funds, to the Class B
Certificateholders, the Class B Coupon Interest
Distributable Amount for such Distribution Date;
(vii) seventh, from Available Funds, to the Class B
Certificateholders, the Class B Principal Distributable
Amount for such Distribution Date; and
(viii) eighth, from Available Funds, to the Class B
Certificateholders, the Class B Excess Interest Amount for
such Distribution Date;
provided, however, that ARC as the Class B Certificateholder hereby
irrevocably pledges the Class B Certificates to the Collateral Agent
pursuant to the Spread Account Agreement and hereby irrevocably agrees
that amounts otherwise distributable to the Class B Certificateholder
pursuant to the foregoing shall instead be delivered by the Trustee to the
Collateral Agent for the deposit in the Spread Account, and the Trustee
hereby agrees to deliver such amounts to the Collateral Agent pursuant to the
Spread Account Agreement.
(b) Subject to Section 12.1 respecting the final payment upon
retirement of each Certificate, and provided that the Trustee has received
the applicable Servicer's Certificate, on each Distribution Date the
Trustee shall distribute to each Certificateholder of record on the
preceding Accounting Date either (i) by wire transfer, in immediately
available funds to the account of such holder at a bank or other entity
having appropriate facilities therefor, if such Certi ficateholder holds
Certificates representing at least $5 million in Class A Certificate
Balance or Class B Certificate Balance as of the Cut-off Date, and
if such Certificateholder shall have provided to the Trustee
appropriate instructions not later than 15 days prior to such
Distribution Date, or (ii) by check mailed to such Certificateholder at
the address of such Holder appearing in the Certificate Register, such
Holder's Fractional Undivided Interest of either the Class A Distributable
Amount or the Class B Distributable Amount, as applicable, to the extent
funds therefore are distributed under Section 5.5(a).
V.6. Net Deposits. The Servicer may make the remittances to be
made by it pursuant to Sections 5.2 and 5.4 net of amounts (which amounts
may be netted prior to any such remittance for a Collection Period) to be
distributed to it pursuant to Sections 4.8 and 5.2(b) and (subject to
payment by the Servicer of amounts otherwise payable pursuant to Sections
4.8, 5.2, 5.5(a)(i) and 5.5(a)(ii), for so long as no Servicer
Termination Event has occurred and is continuing; provided however,
that the Servicer shall
account for all of such amounts in the related Servicer's Certificate
as if such amounts were deposited and distributed separately;
and, provided, further, that if an error is made by the Servicer in
calculating the amount to be deposited or retained by it, with the
result that an amount less than required is deposited in the
Collection Account, the Servicer shall make a payment of the deficiency to
the Collection Account, immediately upon becoming aware, or receiving
notice from the Trustee, of such error.
V.7. Statements to Certificateholders. (a) On each Distribution
Date, the Trustee shall include with each distribution to each
Certificateholder, a statement (which statement shall also be provided to
the Security Insurer and to each Rating Agency) based on information
in the Servicer's Certificate delivered on the related
Determination Date pursuant to Section 4.9, setting forth for the
Collection Period relating to such Distribution Date the following
information:
(i) in the case of the Class A and Class B
Certificateholders, the amount of such distribution
allocable to principal;
(ii) in the case of the Class A and Class B
Certificateholders, the amount of such distribution
allocable to interest;
(iii) the amount of such distribution payable out of
amounts withdrawn from the Spread Account or pursuant to a
claim on the Policy;
(iv) the Class A Certificate Balance and the Class B
Certificate Balance, as applicable, (after giving effect to
distributions made on such Distribution Date);
(v) the amount of fees paid by the Trust with respect to
such Collection Period;
(vi) the amount of the Class A Interest Carryover
Shortfall, Class A Principal Carryover Shortfall, Class B
Interest Carryover Shortfall and Class B Principal Carryover
Shortfall, if any, on such Distribution Date and the change
in such amounts from those of the prior Distribution Date;
(vii) the Class A Certificate Factor and the Class B
Certificate Factor as of such Distribution Date;
(viii) the Delinquency Ratio, Average Delinquency
Ratio, Default Ratio, Average Default Ratio, Net Loss Ratio
and Average Net Loss Ratio for such Determination Date;
(ix) whether any Trigger Event has occurred as of such
Determination Date;
(x) whether any Trigger Event that may have occurred as
of a prior Determination Date is Deemed Cured (as defined in
the Spread Account Agreement), as of such Determination
Date;
(xi) whether an Insurance Agreement Event of Default has
occurred;
(xii) the Pool Factor (after giving effect to
distributions made on such Distribution Date); and
(xiii) Cumulative Net Losses.
Each amount set forth pursuant to subclauses (i) (such amounts
broken down by Class of Certificate), (ii) (such amounts broken down by
Class of Certificate), (iv) and (vi) above shall be expressed as a
dollar amount per $1,000 of original principal balance of a Certificate
of the related Class.
(b) Within the prescribed period of time for tax reporting
purposes after the end of each calendar year during the term of this
Agreement, the Trustee shall mail, to each Person who at any time during
such calendar year shall have been a Holder of a Certificate, a
statement containing the sum of the amounts set forth in clauses (i), (ii),
and (v) (separately indicating amounts in respect of the Class A
Certificates and the Class B Certificates in the case of (i) and (ii)) and
such other information, requested in writing by the Servicer, if any,
as the Servicer determines is necessary to permit the Certificateholder
to ascertain its share of the gross income and deductions of the Trust
(exclusive of the Supplemental Servicing Fee), for such calendar year or, in
the event such Person shall have been a Holder of a Certificate during a
portion of such
calendar year, for the applicable portion of such year, for the purposes
of such Certificateholder's preparation of fed eral income tax returns.
V.8. Optional Deposits by the Security Insurer. The Security
Insurer shall at any time, and from time to time have the option (but
shall not be required, except as provided in Section 6.4 and in accordance
with the terms of the Policy) to deliver amounts to the Trustee for
deposit into the Collection Account for any of the following
purposes: (i) to provide funds in respect of the payment of fees or
expenses of any provider of services to the Trust with respect to such
Distribution Date, (ii) to distribute as a component of the Class A
Principal Distributable Amount to the extent that the Class A Certificate
Balance as of the Determination Date preceding such Distribution Date
exceeds the Class A Percentage of the Aggregate Principal Balance as of such
Determination Date, or (iii) to include such amount as part of the Class
A Distributable Amount for such Distribution Date to the extent that
without such amount a draw would be required to be made on the Policy.
VI THE SPREAD ACCOUNT AND THE POLICY; COVENANTS
OF THE INITIAL CLASS B CERTIFICATEHOLDER
VI.1. Initial Purchase; Spread Account. (a) The Seller
hereby agrees to make a capital contribution to ARC on the Closing Date to
enable ARC to purchase the Class B Certificates and make the initial Spread
Account deposit.
(a) ARC, as the initial Class B Certificateholder agrees,
simultaneously with the execution and delivery of this Agreement, to
execute and deliver the Spread Account Agreement and, pursuant to the
terms thereof, to deposit $972,027.83 in the Spread Account.
VI.2. Policy. The Servicer and the Seller agree,
simultaneously with the execution and delivery of this Agreement, to
cause the Security Insurer to issue the Policy for the benefit of the Trust
in accordance with the terms thereof.
VI.3. Withdrawals from Spread Account. (a) In the event
that the Servicer's Certificate with respect to any
Determination Date shall state that the amount of the Available
Funds with respect to such Determination Date is less than the sum of
the amounts payable on the related Distribution Date pursuant to
clauses (i) through (v) of Subsection 5.5(a) (such deficiency being a
"Deficiency Claim Amount") then on the Deficiency Claim Date
immediately preceding such Distribution Date, the Trustee shall deliver
to the Collateral Agent, the Security Insurer, and the Servicer, by
hand delivery, telex or facsimile transmission, a written notice (a
"Deficiency Notice") specifying the Deficiency Claim Amount for such
Distribution Date. Such Deficiency Notice shall direct the Collateral
Agent to remit such Deficiency Claim Amount (to the extent of the
funds available to be distributed pursuant to the Spread Account
Agreement) to the Trustee for deposit in the Collection Account.
(a) Any Deficiency Notice shall be delivered by 10:00 a.m., New
York City time, on the fourth Business Day preceding such
Distribution Date. The amounts distributed by the Collateral Agent to
the Trustee pursuant to a Deficiency Notice shall be deposited by the
Trustee into the Collection Account pursuant to Section 5.4.
VI.4. Claims Under Policy. (a) In the event that the
Trustee has delivered a Deficiency Notice with respect to any
Determination Date, the Trustee shall determine on the related Draw Date
whether the sum of (i) the amount of Available Funds with respect to such
Determination Date (as stated in the Servicer's Certificate with respect
to such Determination Date) plus (ii) the amount of the Deficiency Claim
Amount, if any, to be delivered by the Collateral Agent to the Trustee
pursuant to a Deficiency Notice delivered with respect to such
Distribution Date (as stated in the certificate delivered on the
immediately preceding Deficiency Claim Date by the Collateral Agent
pursuant to Section 3.03(a) of the Spread Account Agreement) would be
insufficient, after giving effect to the distributions required by
Section 5.5(a)(i)-(ii), to pay the sum of the Class A Interest
Distributable Amount and the Class A Principal Distributable Amount for
the related Distribution Date, then in such event the Trustee shall furnish
to the Security Insurer no later than 12:00 noon New York City time on the
related Draw Date a completed Notice of Claim in the amount of the shortfall
in amounts so available to pay the
Class A Interest Distributable Amount and the Class A Principal
Distributable Amount with respect to such Distribution Date (the
amount of any such shortfall being hereinafter referred to as the
"Policy Claim Amount"). Amounts paid by the Security Insurer under the
Policy shall be deposited by the Trustee into the Policy Payments Account
and thereafter into the Collection Account for payment to Class A
Certificateholders on the related Distribution Date (or promptly
following payment on a later date as set forth in the Policy).
(a) Any notice delivered by the Trustee to the Security Insurer
pursuant to subsection 6.4(a) shall specify the Policy Claim Amount
claimed under the Policy and shall constitute a "Notice of Claim"
under the Policy. In accordance with the provisions of the Policy, the
Security Insurer is required to pay to the Trustee the Policy Claim Amount
properly claimed thereunder by 12:00 noon, New York City time, on the
later of (i) the third Business Day following receipt on a Business Day of
the Notice of Claim, and (ii) the applicable Distribution Date. Any payment
made by the Security Insurer under the Policy shall be applied solely to
the payment of the Class A Certificates, and for no other purpose.
(b) The Trustee shall (i) receive as attorney-in-fact of each
Certificateholder any Policy Claim Amount from the Security Insurer and
(ii) deposit the same in the Collection Account for disbursement to the
Class A Certificateholders as set forth in clauses (iii) and (iv) of
subsection 5.5(a). Any and all Policy Claim Amounts disbursed by the
Trustee from claims made under the Policy shall not be considered payment
by the Trust or from the Spread Account with respect to such Class A
Certificates, and shall not discharge the obligations of the Trust with
respect thereto. The Security Insurer shall, to the extent it makes any
payment with respect to the Class A Certificates, become subrogated to
the rights of the recipients of such payments to the extent of such
payments. Subject to and conditioned upon any payment with respect to
the Class A Certificates by or on behalf of the Security Insurer, the
Trustee shall assign to the Security Insurer all rights to the payment of
interest or principal with respect to the Class A Certificates which are
then due for payment to the extent of all payments made by the Security
Insurer and the Security Insurer may
exercise any option, vote, right, power or the like with respect to
the Class A Certificates to the extent that it has made payment
pursuant to the Policy. To evidence such subrogation, the Certificate
Registrar shall note the Security Insurer's rights as subrogee upon
the register of Class A Certificateholders upon receipt from the
Security Insurer of proof of payment by the Security Insurer of any
Class A Interest Distributable Amount or Class A Principal Distributable
Amount.
(c) The Trustee shall be entitled to enforce on behalf of the
Class A Certificateholders the obligations of the Security Insurer
under the Policy. Notwithstanding any other provision of this Agreement,
the Class A Certificate holders are not entitled to institute proceedings
directly against the Security Insurer.
VI.5. Preference Claims; Direction of Proceedings. (a) In
the event that the Trustee has received a certified copy of an order of the
appropriate court that any Class A Interest Distributable Amount or
Class A Principal Distributable Amount paid on a Class A Certificate has
been avoided in whole or in part as a preference payment under applicable
bankruptcy law, the Trustee shall so notify the Security Insurer, shall
comply with the provisions of the Policy to obtain payment by the
Security Insurer of such avoided payment, and shall, at the time it
provides notice to the Security Insurer, notify Holders of the Class A
Certificates by mail that, in the event that any Class A
Certificateholder's payment is so recoverable, such Class A
Certificateholder will be entitled to payment pursuant to the terms of
the Policy. Pursuant to the terms of the Policy, the Security Insurer
will make such payment on behalf of the Class A Certificateholder to
the receiver, conservator, debtor-in-possession or trustee in bankruptcy
named in the Order (as defined in the Policy) and not to the Trustee or any
Class A Certificateholder directly (unless a Class A Certificateholder has
previously paid such payment to the receiver, conservator,
debtor-in-possession or trustee in bankruptcy, in which case the Security
Insurer will make such payment to the Trustee for distribution to such
Class A Certificateholder upon proof of such payment reasonably
satisfactory to the Security Insurer).
(a) The Trustee shall promptly notify the Security
Insurer of any proceeding or the institution of any action (of which
the Trustee has actual knowledge) seeking the avoidance as a
preferential transfer under applicable bankruptcy, insolvency,
receivership, rehabilitation or similar law (a "Preference Claim") of
any distribution made with respect to the Class A Certificates. Each
Holder, by its purchase of Class A Certificates, and the Trustee hereby
agrees that so long as an Insurer Default shall not have occurred and
be continuing, the Security Insurer may at any time during the
continuation of any proceeding relating to a Preference Claim direct
all matters relating to such Preference Claim including, without
limitation, (i) the direction of any appeal of any order relating
to any Preference Claim and (ii) the posting of any surety,
supersedeas or performance bond pending any such appeal at the expense
of the Security Insurer, but subject to reimbursement as provided
in the Insurance Agreement. In addition, and without limitation of the
foregoing, as set forth in Section 6.4(c), the Security Insurer
shall be subrogated to, and each Class A Certificateholder and the
Trustee hereby delegate and assign, to the fullest extent permitted by
law, the rights of the Trustee and each Class A Certificateholder in the
conduct of any proceeding with respect to a Preference Claim,
including, without limitation, all rights of any party to an
adversary proceeding action with respect to any court order issued in
connection with any such Preference Claim.
VI.6. Surrender of Policy. The Trustee shall surrender the
Policy to the Security Insurer for cancellation upon its
expiration in accordance with the terms thereof.
VI.7. Special Purpose Entity.
(a) ARC shall conduct its business solely in its own name through
its duly authorized officers or agents so as not to mislead others as to
the identity of the entity with which those others are concerned, and
particularly will use its best efforts to avoid the appearance of
conducting business on behalf of any affiliate thereof or that the
assets of the ARC are available to pay the creditors of AmeriCredit or
AmeriCredit Corp. or any affiliate thereof. Without limiting the generality
of the foregoing, all oral and written communications, including, without
limitation,
letters, invoices, purchase orders, contracts, statements and
loan applications, will be made solely in the name of ARC.
(b) ARC shall maintain corporate records and books of account
separate from those of AmeriCredit and AmeriCredit Corp., and the affiliates
thereof.
(c) ARC shall obtain proper authorization from its Board of
Directors of all corporate action requiring such authorization, meetings of
the Board of Directors of ARC shall be held not less frequently than one
time per annum.
(d) ARC shall obtain proper authorization from its shareholders of
all corporate action requiring shareholder approval, meetings of the
shareholders of ARC shall be held not less frequently than one time per
annum.
(e) Although the organizational expenses of ARC have been paid by
AmeriCredit, the Seller shall pay its own operating expenses and
liabilities from its own funds.
(f) The annual financial statements of ARC shall disclose the
effects of ARC's transactions in accordance with generally accepted
accounting principles and shall disclose that the assets of ARC are not
available to pay creditors of AmeriCredit Corp., AmeriCredit or any
affiliate thereof.
(g) The resolutions, agreements and other instruments of ARC
underlying the transactions described in the Insurance Agreement and
in the other Transaction Documents shall be continuously maintained by ARC
as official records of ARC, separately identified and held apart from
the records of AmeriCredit Corp. and AmeriCredit and each affiliate
thereof.
(h) ARC shall maintain an arm's-length relationship with
AmeriCredit Corp. and AmeriCredit and the affiliates thereof, and will not
hold itself out as being liable for the debts of AmeriCredit Corp. or
AmeriCredit or any affiliate thereof.
(i) ARC shall keep its assets and liabilities wholly separate from
those of all other entities, including, but
not limited to AmeriCredit Corp., AmeriCredit and the affiliates
thereof.
(j) The books and records of ARC will be maintained at the address
designated herein for receipt of notices, unless ARC shall otherwise advise
the parties hereto in writing.
VI.8. Restrictions on Liens. ARC shall not (i) create,
incur or suffer to exist, or agree to create, incur or suffer to exist, or
consent to cause or permit in the future (upon the happening of a
contingency or otherwise) the creation, incurrence or existence of any Lien
or restriction on transferability of the Receivables except for the Lien in
favor of the Trustee for the benefit of the Certificateholders and the
Security Insurer, the Lien imposed by the Spread Account Agreement in
favor of the Trustee for the benefit of the Certificateholders and the
Security Insurer, and the restrictions on transferability imposed by
this Agreement or (ii) sign or file under the Uniform Commercial Code of
any jurisdiction any financing statement which names AmeriCredit or ARC as
a debtor, or sign any security agreement authorizing any secured party
thereunder to file such financing statement, with respect to the
Receivables, except in each case any such instrument solely securing the
rights and preserving the Lien of the Trustee for the benefit of the
Certificateholders and the Security Insurer.
VI.9. Creation of Indebtedness; Guarantees. ARC shall not
create, incur, assume or suffer to exist any indebtedness other than
indebtedness guaranteed or approved in writing by the Security Insurer
other than the Transaction Documents. Without the prior written consent
in writing of the Security Insurer, ARC shall not assume guarantee,
endorse or otherwise be or become directly or contingently liable for the
obligations of any Person by, among other things, agreeing to purchase any
obligation of another Person, agreeing to advance funds to such Person or
causing or assisting such Person to maintain any amount of capital.
VI.10. Other Activities. ARC shall not:
(a) sell, transfer, exchange or otherwise dispose of any of its
assets except as permitted under the Transaction
Documents; or
(b) engage in any business or activity other than in connection with
this Agreement, the Spread Account Agreement and as permitted by its
certificate of incorporation.
(c) (i) take any action prohibited by Article XVI of its certificate
of incorporation or (ii) without the prior written consent of the Trustee
and the Controlling Party and without giving prior written notice to the
Rating Agencies, amend Article III, Article IX, Article XIV or Article XVI of
its certificate of incorporation.
VII THE CERTIFICATES
VII.1. The Certificates. (a) The Class A Certificates and
the Class B Certificates shall be issued in denominations of
$1,000 initial principal amount and integral multiples thereof,
except that one Class A Certificate and one Class B Certificate shall
be issued in a denomination that includes any residual amount. The
Certificates shall be executed on behalf of the Trustee by manual or
facsimile signature of any Responsible Officer of the Trustee having such
authority under the Trustee's seal imprinted or otherwise affixed thereon
and attested on behalf of the Trustee by the manual or facsimile
signature of any other Responsible Officer of the Trustee.
Certificates bearing the manual or facsimile signatures of individuals who
were, at the time when such signatures were affixed, authorized to sign on
behalf of the Trustee shall be valid and binding obligations of
the Trust, notwithstanding that such individuals or any of them have
ceased to be so authorized prior to the execution and delivery of
such Certificates. All Certificates shall be dated the date of their
execution.
VII.2. Authentication of Certificates. The Trustee shall
cause the Certificates to be executed on behalf of the Trust, authenticated,
and delivered to or upon the order of the Seller (or in the case of the
Class B Certificates, the Seller hereby authorizes the Trustee to
execute such Certificates on behalf of the Trust), signed by its chairman
of the board, its vice chairman, its chief financial officer, its
president, any vice president, its treasurer,
or any assistant treasurer, its secretary or any assistant secretary,
without further corporate action by the Seller, in exchange for the
Receivables and the other Trust Property, simultaneously with the
sale, assignment and transfer to the Trustee of the Receivables, and the
delivery to the Trustee of the Receivable Files and the other Trust
Property. Such Certificates shall be duly executed by the Trustee, in
authorized denominations equaling in the aggregate the Cut-off Date
Principal Balance and evidencing the entire ownership of the Trust. No
Certificate shall entitle its holder to any benefit under the
Agreement, or shall be valid for any purpose, unless there shall appear
on such Certificate a certificate of authentication
substantially in the form set forth in Exhibit A or Exhibit B hereto
executed by the Trustee by manual signature of an authorized signatory;
such authentication shall constitute conclusive evidence that such
Certificate shall have been duly authenticated and delivered
hereunder. All Certifi cates shall be dated the date of their
authentication and shall be numbered in the manner determined by the
Trustee.
VII.3. Registration of Transfer and Exchange of Certificates.
(a) The Certificate Registrar shall keep or cause to be kept, at the
office or agency maintained pursuant to Section 7.7, a Certificate
Register in which, subject to such reasonable regulations as it may
prescribe, the Trustee shall provide for the registration of
Certificates and of transfers and exchanges of Certificates as herein
provided. The Trustee shall be the initial Certificate Registrar. In
the event that, subsequent to the Cut-off Date, the Trustee notifies the
Servicer that it is unable to act as Certificate Registrar, the Servicer
shall appoint another bank or trust company, agreeing to act in accordance
with the provisions of this Agreement applicable to it, and otherwise
acceptable to the Trustee, to act as successor Certificate Registrar under
this Agreement.
The Certificates have not been registered under the Securities
Act or any state securities law. The Certificate Registrar shall not
register the transfer of any Class A Certificate or Class B Certificate
unless such resale or transfer is pursuant to an effective registration
statement under the Securities Act or is to the Seller or unless it
shall have received (i) a representation letter substantially in the form
of Exhibit B to the Confidential
Offering Circular or (ii) such other representations (or an Opinion of
Counsel) satisfactory to the Seller or CS First Boston Corporation to
the effect that such resale or transfer is made (A) in a
transaction exempt from the registration requirements of the
Securities Act and applicable state securities laws, or (B) to a
person who the transferor of the Certificate reasonably believes is
a qualified institutional buyer (within the meaning of Rule 144A under
the Securities Act) that is aware that such resale or other transfer
is being made in reliance upon Rule 144A. Until the earlier of (i)
such time as the Certificates shall be registered pursuant to a
registration statement filed under the Securities Act and (ii) the date
three years from the later of the date of the original
authentication and delivery of the Certificates and the date any
Certificate was acquired from the Seller or any affiliate of the
Seller, the Certificates shall bear a legend as follows:
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
OR THE SECURITIES LAWS OF ANY STATE IN RELIANCE UPON EXEMPTIONS
PROVIDED BY THE SECURITIES ACT AND SUCH STATE SECURITIES LAWS.
NO RESALE OR OTHER TRANSFER OF THIS CERTIFICATE MAY BE MADE
UNLESS SUCH RESALE OR TRANSFER (A) IS MADE IN ACCORDANCE
WITH SECTION 7.3 OF THE POOLING AND SERVICING AGREEMENT AND
(B) IS MADE (i) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT, (ii) IN A TRANSACTION EXEMPT FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND APPLICABLE
STATE SECURITIES LAWS, (iii) TO THE SELLER OR (iv) TO A PERSON
WHO THE TRANSFEROR REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE
SECURITIES ACT THAT IS AWARE THAT THE RESALE OR OTHER TRANSFER
IS BEING MADE IN RELIANCE ON RULE 144A AND (C) UPON THE
SATISFACTION OF CERTAIN OTHER REQUIREMENTS SPECIFIED IN THE
AGREEMENT.
NEITHER THE SELLER, THE SERVICER NOR THE TRUSTEE IS OBLIGATED
TO REGISTER THE CERTIFICATES UNDER THE SECURITIES ACT OR ANY
APPLICABLE STATE SECURITIES LAWS.
The Certificate Registrar shall not register the initial transfer of the
Class A Certificates unless it shall have received a Purchaser
Representation Letter in the form of Exhibit A to the Confidential
Offering Circular. Neither the Seller, the Servicer nor the Trustee is
obligated to register the Certificates of any Class under the Securities
Act or to take any other action not otherwise required under the Agreement to
permit the transfer of Certificates without registration.
Notwithstanding anything to the contrary herein, the Certificate
Registrar shall not register the transfer of any Class A Certificate unless
it shall have received (i) a representation letter substantially in the form
of Exhibit B to the Confidential Offering Circular or (ii) any Class B
Certificate unless it shall have received a representation letter
relating to Class B Certificates which is substantially in the
form of Exhibit B to the Confidential Offering Circular.
(a) Upon surrender for registration of transfer of any
Certificate at the Corporate Trust Office, the Trustee shall, subject
to Section 7.3(a), execute, authenticate, and deliver, in the name of
the designated transferee or transferees, one or more new Certificates
in authorized denominations of a like aggregate amount dated the date of
authentication by the Trustee. At the option of a Holder, Certificates
may be exchanged for other Certificates of authorized denominations of a
like aggregate amount upon surrender of the Certificates to be
exchanged at the Corporate Trust Office.
(b) Every Certificate presented or surrendered for registration
of transfer or exchange shall be accompanied by a written instrument of
transfer in form satisfactory to the Trustee and the Certificate Registrar
duly executed by the holder or his attorney duly authorized in writing.
Each Certificate surrendered for registration of transfer or exchange
shall be cancelled and subsequently disposed of by the Trustee.
(c) No service charge shall be made for any registration of
transfer or exchange of Certificates, but the Trustee may require payment
of a sum sufficient to cover any tax or governmental charge that may be
imposed in connection with any transfer or exchange of Certificates.
(d) The Certificates and this Agreement may be amended or
supplemented from time to time without the consent of any of the
Certificateholders to modify restrictions on and procedures for
resale and other transfers of the Certificates of any Class to
reflect any change in applicable law or regulations (or the
interpretation thereof) or practices relating to the resale or transfer of
restricted securities generally.
(e) No Certificate shall be registered or transferred to
AmeriCredit or any Affiliate thereof other than ARC without the prior
consent of the Security Insurer. Notice of any such transfer shall be
given to each Rating Agency.
(f) The Class B Certificates shall initially be retained by ARC.
No sale, assignment, pledge, encumbrance or transfer of any interest in any
Class B Certificate shall be made or permitted without the prior written
consent of the Certificate Insurer and prior notice to the Rating
Agencies until the Class A Certificate Balance is reduced to zero, all
payments in respect of interest on the Class A Certificates have
been made in full and the Final Termination Date (as defined in
the Spread Account Agreement) with respect to the Series 1996-A
Certificates (as defined in the Series 1996-A Supplement) shall have
occurred. The Class B Certificates shall be subject to the same
restrictions on transfer that the Class A Certificates are subject to in
Section 7.3 hereof. For purposes of the restrictions on transfer of Class B
Certificates, ARC shall be treated as the initial purchaser. No transfer of
a Class B Certificate or any interest therein shall be made unless prior
to such transfer the Holder of such Class B Certificates delivers
to ARC, the Certificate Insurer and the Trustee either a ruling of the
Internal Revenue Service or an Opinion of Counsel, which shall be independent
outside counsel, satisfactory to the Certificate Insurer, the Trustee
and the Rating Agencies in either case, to the effect that the proposed
transfer (x) will not result in the arrangement contemplated by this
Agreement being treated as
an association taxable as a corporation under either (I) the Code, as from
time to time in force or (II) the tax laws of the State of Texas and (y)
will not have any adverse effect on the Federal income taxation of
the Trust or the Certificateholders.
VII.4. Mutilated, Destroyed, Lost or Stolen Certificates.
If (a) any mutilated Certificate is surrendered to the Certificate
Registrar, or the Certificate Registrar receives evidence to its
satisfaction of the destruction, loss or theft of any Certificate, and (b)
there is delivered to the Certificate Registrar, the Trustee and (unless
an Insurer Default shall have occurred and be continuing) the Security
Insurer such security or indemnity as may be required by them to save
each of them harmless, then, in the absence of notice to the Certificate
Registrar or the Trustee that such Certificate has been acquired by a bona
fide purchaser, the Trustee on behalf of the Trust shall execute and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Certificate, a new Certificate of like tenor and Fractional Undivided
Interest. In connection with the issuance of any new Certificate under this
Section 7.4, the Trustee may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and expenses
of the Trustee and the Certificate Registrar) connected therewith.
Any duplicate Certificate issued pursuant to this Section 7.4 shall
constitute complete and indefeasible evidence of ownership in the Trust,
as if originally issued, whether or not the lost, stolen or destroyed
Certificate shall be found at any time.
VII.5. Persons Deemed Owners. Prior to due presentation of
a Certificate for registration of transfer, the Trustee, the Certificate
Registrar and any agent of the Trustee or the Certificate Registrar may treat
the person in whose name any Certificate is registered as the owner of
such Certificate for the purpose of receiving distributions pursuant to
Section 5.5 and for all other purposes whatsoever, and neither the
Trustee, the Certificate Registrar, the Security Insurer nor any
agent of the Trustee, the Certificate Registrar or the Security Insurer
shall be affected by any notice to the contrary.
VII.6. Access to List of Certificateholders' Names and
Addresses. The Trustee shall furnish or cause to be furnished to
the Servicer or (unless an Insurer Default shall have occurred and be
continuing) the Security Insurer, within 10 days after receipt by the
Trustee of a written request therefor from such party, a list, in such
form as such party may reasonably require, of the names and
addresses of the Certificateholders as of the most recent Accounting Date
for payment of distributions to Certificate holders. If three or more
Certificateholders, or one or more Certificateholders evidencing not less
than 25% of the Class A Certificate Balance and the Class B Certificate
Balance (disregarding any Class B Certificate held by AmeriCredit or any
Affiliate thereof) (hereinafter referred to as "Applicants"), apply
in writing to the Trustee, and such application states that the Applicants
desire to communicate with other Certificateholders of such Class with
respect to their rights under this Agreement or under the Certificates and
is accompanied by a copy of the communication that such Applicants propose
to transmit, then the Trustee shall, within five Business Days after
the receipt of such application, afford such Applicants access, during
normal business hours, to the current list of Certificateholders. Every
Certificateholder, by receiving and holding a Certificate, agrees
with the Servicer and the Trustee that neither the Servicer nor the
Trustee shall be held accountable by reason of the disclosure of
any such information as to the names and addresses of the Certificate
holders under this Agreement, regardless of the source from which such
information was derived.
VII.7. Maintenance of Office or Agency. The Trustee shall
maintain in Chicago, Illinois, an office or offices or agency or agencies
where Certificates may be surrendered for registration of transfer or
exchange and an office in Chicago, Illinois where notices and demands to
or upon the Trustee in respect of the Certificates and this Agreement may
be served. The Trustee initially designates the Corporate Trust
Office as specified in this Agreement as its office for such purposes. The
Trustee shall give prompt written notice to the Servicer and to
Certificateholders of any change in the location of the Certificate
Register or any such office or agency.
VII.8. Affiliated Group May Own Certificates. To the extent
that the Seller or any Affiliate of the Seller becomes the owner or pledgee
of any Certificate pursuant to Section 7.3(f) hereof, during the time such
Certificate is owned by it, such Certificate shall be without voting rights
for any purpose set forth in this Agreement or any Related Document. The
Seller shall notify the Trustee and the Security Insurer promptly after
it or any of its Affiliates become the owner or pledgee of a Certificate.
VIII THE SELLER
VIII.1. Liability of Seller.
(a) The Seller shall be liable hereunder only to the extent of the
obligations in this Agreement specifically undertaken by the Seller and the
representations made by the Seller.
VIII.2. Merger or Consolidation of, or Assumption of the
Obligations of Seller; Amendment of Certificate of Incorporation.
(i) The Seller shall not merge or consolidate with any other
Person or permit any other Person to become the successor to the
Seller's business without the prior written consent of the Controlling
Party. Any such successor corporation shall execute an agreement of
assumption of every obligation of the Seller under this Agreement and each
Related Document and, whether or not such assumption agreement is
executed, shall be the successor to the Seller under this Agreement without
the execution or filing of any document or any further act on the part
of any of the parties to this Agreement. The Seller shall provide prompt
notice of any merger, consolidation or succession pursuant to this
Section 8.2 to the Trustee, the Security Insurer, the Certificateholders
and the Rating Agencies. Notwithstanding the foregoing, the Seller
shall not merge or consolidate with any other Person or permit any other
Person to become a successor to the Seller's business, unless (x)
immediately after giving effect to such transaction, no representation
or warranty made pursuant to Section 3.4 shall have been breached
(for purposes hereof, such representations and warranties shall speak as
of the date of
the consummation of such transaction) and no event that, after notice
or lapse of time, or both, would become a Servicer Termination Event
shall have occurred and be continuing, (y) the Seller shall have
delivered to the Trustee, the Rating Agencies and the Security Insurer
an officer's certificate and an Opinion of Counsel each stating that such
consolidation, merger or succession and such agreement of assumption
comply with this Section 8.2 and that all conditions precedent, if any,
provided for in this Agreement relating to such transaction have been
complied with, and (z) the Seller shall have delivered to the
Trustee, the Rating Agencies and the Security Insurer an Opinion of
Counsel, stating, in the opinion of such counsel, either (A) all
financing statements and continuation statements and amendments thereto
have been executed and filed that are necessary to preserve and
protect the interest of the Trust in the Receivables and the Other
Conveyed Property and reciting the details of the filings or (B) no such
action shall be necessary to preserve and protect such interest.
VIII.3. Limitation on Liability of Seller and Others. The Seller
and any director or officer or employee or agent of the Seller may rely in
good faith on the advice of counsel or on any document of any kind prima
facie properly executed and submitted by any Person respecting any matters
arising under this Agreement. The Seller shall not be under any obligation
to appear in, prosecute or defend any legal action that is not incidental
to its obligations as Seller of the Receivables under this Agreement and
that in its opinion may involve it in any expense or liability.
IX THE SERVICER
IX.1. Liability of Servicer; Indemnities.
(a) The Servicer (in its capacity as such) shall be liable
hereunder only to the extent of the obligations in this Agreement
specifically undertaken by the Servicer and the representations made by the
Servicer.
(b) The Servicer shall defend, indemnify and hold harmless the
Trust, the Trustee, the Backup Servicer, the Security Insurer, their
respective officers, directors,
agents and employees, and the Certificateholders from and against any and
all costs, expenses, losses, damages, claims and liabilities, including
reasonable fees and expenses of counsel and expenses of litigation
arising out of or resulting from the use, ownership or operation by
the Servicer or any Affiliate thereof of any Financed Vehicle;
(c) The Servicer shall indemnify, defend and hold harmless the
Trust, the Trustee, the Backup Servicer, the Security Insurer, their
respective officers, directors, agents and employees and the
Certificateholders from and against any taxes that may at any time be
asserted against any of such parties with respect to the
transactions contemplated in this Agreement, including, without
limitation, any sales, gross receipts, tangible or intangible
personal property, privilege or license taxes (but not including any
federal or other income taxes, including franchise taxes asserted with
respect to, and as of the date of, the sale of the Receivables and the
Other Conveyed Property to the Trust or the issuance and original sale of
the Certificates) and costs and expenses in defending against the
same; and
(d) The Servicer shall indemnify, defend and hold harmless the
Trust, the Trustee, the Backup Servicer, the Security Insurer, their
respective officers, directors, agents and employees and the
Certificateholders from and against any and all costs, expenses,
losses, claims, damages, and liabilities to the extent that such cost,
expense, loss, claim, damage, or liability arose out of, or was imposed
upon the Trust, the Trustee, the Backup Servicer, the Security Insurer
or the Certificateholders by reason of the breach of this Agreement by the
Servicer, the negligence, misfeasance, or bad faith of the Servicer in the
performance of its duties under this Agreement or by reason of reckless
disregard of its obligations and duties under this Agreement.
(e) Indemnification under this Article shall include, without
limitation, reasonable fees and expenses of counsel and expenses of
litigation. If the Servicer has made any indemnity payments pursuant to
this Article and the recipient thereafter collects any of such
amounts from others, the recipient shall promptly repay such amounts
collected to the Servicer, without interest.
IX.2. Merger or Consolidation of, or Assumption of the
Obligations of the Servicer or Backup Servicer.
(a) AmeriCredit shall not merge or consolidate with any other
person, convey, transfer or lease substantially all its assets as an
entirety to another Person, or permit any other Person to become the
successor to AmeriCredit's business unless, after the merger,
consolidation, conveyance, transfer, lease or succession, the successor or
surviving entity shall be capable of fulfilling the duties of AmeriCredit
contained in this Agreement and shall be acceptable to the Controlling
Party, and, if an Insurer Default shall have occurred and be continuing,
shall be an Eligible Servicer. Any corporation (i) into which
AmeriCredit may be merged or consolidated, (ii) resulting from any merger
or consolidation to which AmeriCredit shall be a party, (iii) which acquires
by conveyance, transfer, or lease substantially all of the assets of
AmeriCredit, or (iv) succeeding to the business of AmeriCredit, in any of
the foregoing cases shall execute an agreement of assumption to perform
every obligation of AmeriCredit under this Agreement and, whether or
not such assumption agreement is executed, shall be the successor to
AmeriCredit under this Agreement without the execution or filing of any
paper or any further act on the part of any of the parties to this
Agreement, anything in this Agreement to the contrary notwithstanding;
provided, however, that nothing contained herein shall be deemed to
release AmeriCredit from any obligation. AmeriCredit shall provide notice
of any merger, consolidation or succession pursuant to this Section 9.2(a)
to the Trustee, the Certificateholders, the Security Insurer and each
Rating Agency. Notwithstanding the foregoing, AmeriCredit shall not
merge or consolidate with any other Person or permit any other Person to
become a successor to AmeriCredit's business, unless (x) immediately after
giving effect to such transaction, no representation or warranty made
pursuant to Section 4.6 shall have been breached (for purposes hereof, such
representations and warranties shall speak as of the date of the
consummation of such transaction) and no event that, after notice or
lapse of time, or both, would become an Insurance Agreement Event of
Default shall have occurred and be continuing, (y) AmeriCredit
shall have delivered to the Trustee, the Rating Agencies and the
Security Insurer an Officer's Certificate and an Opinion of Counsel each
stating that such
consolidation, merger or succession and such agreement of assumption
comply with this Section 9.2(a) and that all conditions precedent, if
any, provided for in this Agreement relating to such transaction have been
complied with, and (z) AmeriCredit shall have delivered to the Trustee,
the Rating Agencies and the Security Insurer an Opinion of Counsel,
stating in the opinion of such counsel, either (A) all financing
statements and continuation statements and amendments thereto have been
executed and filed that are necessary to preserve and protect the interest
of the Trust in the Receivables and the Other Conveyed Property and
reciting the details of the filings or (B) no such action shall be
necessary to preserve and protect such interest.
(b) Any corporation (i) into which the Backup Servicer may be
merged or consolidated, (ii) resulting from any merger or consolidation
to which the Backup Servicer shall be a party, (iii) which acquires by
conveyance, transfer or lease substantially all of the assets of the
Backup Servicer, or (iv) succeeding to the business of the Backup Servicer,
in any of the foregoing cases shall execute an agreement of assumption to
perform every obligation of the Backup Servicer under this Agreement and,
whether or not such assumption agreement is executed, shall be the
successor to the Backup Servicer under this Agreement without the
execution or filing of any paper or any further act on the part of any of
the parties to this Agreement, anything in this Agreement to the contrary
notwithstanding; provided, however, that nothing contained herein shall be
deemed to release the Backup Servicer from any obligation.
IX.3. Limitation on Liability of Servicer, Backup Servicer and
Others.
(a) Neither AmeriCredit, the Backup Servicer nor any of the
directors or officers or employees or agents of AmeriCredit or Backup
Servicer shall be under any liability to the Trust or the
Certificateholders, except as provided in this Agreement, for any action
taken or for refraining from the taking of any action pursuant to this
Agreement; provided, however, that this provision shall not protect
AmeriCredit, the Backup Servicer or any such person against any liability
that would otherwise be imposed by reason of a breach of this Agreement or
willful misfeasance, bad faith or negligence (excluding errors in
judgment) in the
performance of duties; provided further that this
provision shall not affect any liability to indemnify the Trustee for costs,
taxes, expenses, claims, liabilities, losses or damages paid by the
Trustee, in its individual capacity. AmeriCredit, the Backup Servicer and
any director, officer, employee or agent of AmeriCredit or Backup Servicer
may rely in good faith on the written advice of counsel or on any
document of any kind prima facie properly executed and submitted by any
Person respecting any matters arising under this Agreement.
(b) The Backup Servicer shall not be liable for any obligation of
the Servicer contained in this Agreement, and the Trustee, the Seller,
the Security Insurer and the Certificateholders shall look only to
the Servicer to perform such obligations.
(c) The parties expressly acknowledge and consent to LaSalle
National Bank acting in the possible dual capacity of Backup Servicer or
successor Servicer and in the capacity as Trustee. LaSalle National Bank
may, in such dual capacity, discharge its separate functions fully,
without hinderance or regard to conflict of interest principles, duty of
loyalty principles or other breach of fiduciary duties to the extent that
any such conflict or breach arises from the performance by LaSalle of
express duties set forth in the this Agreement in any of such capacities,
all of which defenses, claims or assertions are hereby expressly waived
by the other parties hereto except in the case of gross negligence and
willful misconduct by LaSalle National Bank.
IX.4. Delegation of Duties. The Servicer may delegate duties
under this Agreement to an Affiliate of AmeriCredit with the prior
written consent of the Security Insurer (unless an Insurer Default shall
have occurred and be continuing), the Trustee and the Backup Servicer.
The Servicer also may at any time perform through sub-contractors
the specific duties of (i) repossession of Financed Vehicles, (ii)
tracking Financed Vehicles' insurance and (iii) pursuing the collection
of deficiency balances on certain Defaulted Receivables, in each case,
without the consent of the Security Insurer and may perform other specific
duties through such sub-contractors in accordance with Servicer's
customary servicing policies and
procedures, with the prior consent of the Security Insurer; provided,
however, that no such delegation or sub-contracting duties by the
Servicer shall relieve the Servicer of its responsibility with respect to
such duties. So long as no Insurer Default shall have occurred and be
continuing neither AmeriCredit or any party acting as Servicer
hereunder shall appoint any subservicer hereunder without the prior written
consent of the Security Insurer, the Trustee and the Backup Servicer.
IX.5. Servicer and Backup Servicer Not to Resign. Subject to
the provisions of Section 9.2, neither the Servicer nor the Backup
Servicer shall resign from the obligations and duties imposed on it by
this Agreement as Servicer or Backup Servicer except upon a determination
that by reason of a change in legal requirements the performance of its
duties under this Agreement would cause it to be in violation of such legal
requirements in a manner which would have a material adverse effect on the
Servicer or the Backup Servicer, as the case may be, and the Security
Insurer (so long as an Insurer Default shall not have occurred and be
continuing) or a Certificate Majority (if an Insurer Default shall have
occurred and be continuing) does not elect to waive the obligations of
the Servicer or the Backup Servicer, as the case may be, to perform the
duties which render it legally unable to act or to delegate those duties to
another Person. Any such determination permitting the resignation of
the Servicer or Backup Servicer shall be evidenced by an Opinion of
Counsel to such effect delivered and acceptable to the Trustee and the
Security Insurer (unless an Insurer Default shall have occurred and
be continuing). No resignation of the Servicer shall become effective
until, so long as no Insurer Default shall have occurred and be continuing
the Backup Servicer or an entity acceptable to the Security Insurer shall
have assumed the responsibilities and obligations of the Servicer or, if
an Insurer Default shall have occurred and be continuing, the Backup
Servicer or a successor Servicer that is an Eligible Servicer shall have
assumed the responsibilities and obligations of the Servicer. No
resignation of the Backup Servicer shall become effective until, so long as
no Insurer Default shall have occurred and be continuing, an entity
acceptable to the Security Insurer shall have assumed the responsibilities
and obligations of the Backup Servicer or, if an Insurer Default shall have
occurred and be continuing
a Person that is an Eligible Servicer shall have assumed the responsibilities
and obligations of the Backup Servicer; provided, however, that in the
event a successor Backup Servicer is not appointed within 60 days after
the Backup Servicer has given notice of its resignation and has
provided the Opinion of Counsel required by this Section 9.5, the
Backup Servicer may petition a court for its removal.
X SERVICER TERMINATION EVENTS
X.1. Servicer Termination Event. For purposes of this
Agreement, each of the following shall constitute a "Servicer
Termination Event":
(a) Any failure by the Servicer to deliver to the Trustee for
distribution to Certificateholders any proceeds or payment required to be so
delivered under the terms of this Agreement that continues unremedied for a
period of two Business Days (one Business Day with respect to payment of
Purchase Amounts) after written notice is received by the Servicer from
the Trustee or (unless an Insurer Default shall have occurred and be
continuing) the Security Insurer or after discovery of such failure by a
Responsible Officer of the Servicer;
(b) Failure by the Servicer to deliver to the Trustee and (so
long as an Insurer Default shall not have occurred and be continuing) the
Security Insurer the Servicer's Certificate by the fourth Business Day
prior to the Distribution Date, or failure on the part of the Servicer to
observe its covenants and agreements set forth in Section 9.2(a);
(c) Failure on the part of the Servicer duly to observe or
perform any other covenants or agreements of the Servicer set forth in
this Agreement, which failure (i) materially and adversely affects
the rights of Certificateholders (determined without regard to
the availability of funds under the Policy), or of the Security Insurer
(unless an Insurer Default shall have occurred and be continuing), and (ii)
continues unremedied for a period of 30 days after knowledge thereof by the
Servicer or after the date on which written notice of such failure,
requiring
the same to be remedied, shall have been given to the Servicer by the
Trustee or the Security Insurer (or, if an Insurer Default shall have
occurred and be continuing any Certificateholder);
(d) The entry of a decree or order for relief by a court or
regulatory authority having jurisdiction in respect of the Servicer in an
involuntary case under the federal bankruptcy laws, as now or hereafter in
effect, or another present or future, federal bankruptcy, insolvency or
similar law, or appointing a receiver, liquidator, assignee, trustee,
custodian, sequestrator or other similar official of the Servicer or of
any substantial part of its property or ordering the winding up or
liquidation of the affairs of the Servicer and the continuance of any such
decree or order unstayed and in effect for a period of 60 consecutive days
or the commencement of an involuntary case under the federal bankruptcy laws,
as now or hereinafter in effect, or another present or future federal or
state bankruptcy, insolvency or similar law and such case is not dismissed
within 60 days; or
(e) The commencement by the Servicer of a voluntary case under
the federal bankruptcy laws, as now or hereafter in effect, or any other
present or future, federal or state, bankruptcy, insolvency or similar law,
or the consent by the Servicer to the appointment of or taking possession
by a receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of the Servicer or of any substantial
part of its property or the making by the Servicer of an assignment for
the benefit of creditors or the failure by the Servicer generally to pay
its debts as such debts become due or the taking of corporate action by
the Servicer in furtherance of any of the foregoing; or
(f) Any representation, warranty or statement of the Servicer
made in this Agreement or any certificate, report or other writing delivered
pursuant hereto shall prove to be incorrect in any material respect as of
the time when the same shall have been made (excluding, however,
any representation or warranty set forth in Section 3.4(a)), and the
incorrectness of such representation, warranty or statement has a
material adverse effect on the Trust or the Certificateholders and, within
30 days after knowledge thereof by the Servicer or after written
notice thereof
shall have been given to the Servicer by the Trustee or the Security
Insurer (or, if an Insurer Default shall have occurred and be
continuing, a Certificateholder), the circumstances or condition in
respect of which such representation, warranty or statement was
incorrect shall not have been eliminated or otherwise cured; or
(g) So long as an Insurer Default shall not have occurred and be
continuing, the Security Insurer shall not have delivered a Servicer
Extension Notice pursuant to Section 4.14; or
(h) So long as an Insurer Default shall not have occurred and be
continuing, an Insurance Agreement Event of Default or under any other
Insurance and Indemnity Agreement relating to any Series an Event of Default
thereunder shall have occurred; or
(i) A claim is made under the Policy.
X.2. Consequences of a Servicer Termination Event. If a Servicer
Termination Event shall occur and be continuing, the Security Insurer (or,
if an Insurer Default shall have occurred and be continuing either the
Trustee, (to the extent it has knowledge thereof) a Certificate Majority),
by notice given in writing to the Servicer (and to the Trustee if given by
the Security Insurer or the Certificateholders) or by non-extension of the
term of the Servicer as referred to in Section 4.14 may terminate all of
the rights and obligations of the Servicer under this Agreement. On or
after the receipt by the Servicer of such written notice or upon termination
of the term of the Servicer, all authority, power, obligations and
responsibilities of the Servicer under this Agreement, whether with
respect to the Certificates or the Other Conveyed Property or
otherwise, automatically shall pass to, be vested in and become
obligations and responsibilities of the Backup Servicer (or such other
successor Servicer appointed by the Controlling Party); provided, however,
that the successor Servicer shall have no liability with respect to any
obligation which was required to be performed by the terminated Servicer
prior to the date that the successor Servicer becomes the Servicer or any
claim of a third party based on any alleged action or inaction of the
terminated Servicer. The successor Servicer is authorized and empowered by
this Agreement to execute and
deliver, on behalf of the terminated Servicer, as attorney-in-fact or
otherwise, any and all documents and other instruments and to do or
accomplish all other acts or things necessary or appropriate to effect the
purposes of such notice of termination, whether to complete the transfer
and endorsement of the Receivables and the Other Conveyed Property
and related documents to show the Trust as lienholder or secured
party on the related Lien Certificates, or otherwise. The terminated
Servicer agrees to cooperate with the successor Servicer in effecting the
termination of the responsibilities and rights of the terminated
Servicer under this Agreement, including, without limitation, the transfer
to the successor Servicer for administration by it of all cash amounts
that shall at the time be held by the terminated Servicer for deposit, or
have been deposited by the terminated Servicer, in the Collection Account
or thereafter received with respect to the Receivables and the
delivery to the successor Servicer of all Receivable Files, Monthly Records
and Collection Records and a computer tape in readable form as of the most
recent Business Day containing all information necessary to enable the
successor Servicer or a successor Servicer to service the Receivables and
the Other Conveyed Property. If requested by the Controlling Party,
the successor Servicer shall terminate the Lockbox Agreement and
direct the Obligors to make all payments under the Receivables directly to
the successor Servicer (in which event the successor Servicer shall
process such payments in accordance with Section 4.2(e)), or to a
lockbox established by the successor Servicer at the direction of
the Controlling Party, at the successor Servicer's expense. The terminated
Servicer shall grant the Trustee, the successor Servicer and the Controlling
Party reasonable access to the terminated Servicer's premises at the
terminated Servicer's expense.
X.3. Appointment of Successor.
(a) On and after the time the Servicer receives a notice of
termination pursuant to Section 10.2, upon non-extension of the servicing
term as referred to in Section 4.14, or upon the resignation of the
Servicer pursuant to Section 9.5, the Backup Servicer (unless the
Security Insurer shall have exercised its option pursuant to Section 10.3(b)
to appoint an alternate successor Servicer) shall be the successor in all
respects to the Servicer in its
capacity as servicer under this Agreement and the transactions
set forth or provided for in this Agreement, and shall be subject to all
the rights, responsibilities, restrictions, duties, liabilities and
termination provisions relating thereto placed on the Servicer by the
terms and provisions of this Agreement except as otherwise stated
herein. The Trustee and such successor shall take such action,
consistent with this Agreement, as shall be necessary to effectuate any
such succession. If a successor Servicer is acting as Servicer
hereunder, it shall be subject to term-to-term servicing as referred to
in Section 4.14 and to termination under Section 10.2 upon the
occurrence of any Servicer Termination Event applicable to it as Servicer.
(b) The Controlling Party may exercise at any time its right to
appoint as Backup Servicer or as successor to the Servicer a Person other
than the Person serving as Backup Servicer at the time, and (without
limiting its obligations under the Policies) shall have no liability to the
Trustee, AmeriCredit, the Seller, the Person then serving as Backup
Servicer, any Certificateholders or any other Person if it does so.
Notwithstanding the above, if the Backup Servicer shall be legally unable or
unwilling to act as Servicer, and an Insurer Default shall have occurred
and be continuing, the Backup Servicer, the Trustee or a Certificate
Majority may petition a court of competent jurisdiction to appoint any
Eligible Servicer as the successor to the Servicer. Pending appointment
pursuant to the preceding sentence, the Backup Servicer shall act as
successor Servicer unless it is legally unable to do so, in which event
the outgoing Servicer shall continue to act as Servicer until a successor
has been appointed and accepted such appointment. Subject to Section
9.5, no provision of this Agreement shall be construed as relieving the
Backup Servicer of its obligation to succeed as successor Servicer upon the
termination of the Servicer pursuant to Section 10.2, the resignation of
the Servicer pursuant to Section 9.5 or the non-extension of the servicing
term of the Servicer, as referred to in Section 4.14. If upon the
termination of the Servicer pursuant to Section 10.2 or the resignation of
the Servicer pursuant to Section 9.5, the Controlling Party appoints a
successor Servicer other than the Backup Servicer, the Backup Servicer shall
not be relieved of its duties as Backup Servicer hereunder.
(c) Any successor Servicer shall be entitled to such compensation
(whether payable out of the Collection Account or otherwise) as the
Servicer would have been entitled to under this Agreement if the Servicer
had not resigned or been terminated hereunder. If any successor
Servicer is appointed as a result of the Backup Servicer's refusal (in
breach of the terms of this Agreement) to act as Servicer although it is
legally able to do so, the Security Insurer and such successor Servicer
may agree on reasonable additional compensation to be paid to such
successor Servicer by the Backup Servicer, which additional
compensation shall be paid by such breaching Backup Servicer in its
individual capacity and solely out of its own funds. If any successor
Servicer is appointed for any reason other than the Backup Servicer's
refusal to act as Servicer although legally able to do so, the Security
Insurer and such successor Servicer may agree on additional compensation to
be paid to such successor Servicer, which additional compensation shall
be payable as provided in the Spread Account Agreement and shall in no
event exceed $150,000. In addition, any successor Servicer shall be
entitled, as provided in the Spread Account Agreement, to reasonable
transition expenses incurred in acting as successor Servicer.
X.4. Notification to Certificateholders. Upon any termination of,
or appointment of a successor to, the Servicer pursuant to this
Article X, the Trust shall give prompt written notice thereof to each
Rating Agency to the Certificateholders at their respective addresses
appearing in the Certificate Register.
X.5. Waiver of Past Defaults. The Security Insurer or (if an
Insurer Default shall have occurred and be continuing) a Certificate
Majority may, on behalf of all Holders of Certificates, waive any default
by the Servicer in the performance of its obligations hereunder and its
consequences. Upon any such waiver of a past default, such default shall
cease to exist, and any Servicer Termination Event arising therefrom
shall be deemed to have been remedied for every purpose of this
Agreement. No such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
XI THE TRUSTEE
XI.1. Duties of Trustee. (a) Subject to paragraph (c) of
this Section 11.1, the Trustee, both prior to and after the occurrence
of a Servicer Termination Event, undertakes to perform as Trustee such
duties and only such duties as are specifically set forth in this Agreement.
(a) The Trustee, upon receipt of any resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments
furnished to the Trustee that are specifically required to be furnished
pursuant to any provisions of this Agreement, shall examine them
to determine whether they conform on their face to the requirements
of this Agreement.
(b) 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 (other than errors in judgment) or its own bad
faith or willful misfeasance; provided however, that:
(i) the duties and obligations of the Trustee shall be
determined solely by the express provisions of this
Agreement, the Trustee shall not be liable except for the
performance of such duties and obligations as are
specifically set forth in this Agreement, no implied
covenants or obligations shall be read into this Agreement
against the Trustee and, in the absence of bad faith on the
part of the Trustee, the Trustee may conclusively rely, as
to the truth of the statements and the correctness of the
opinions expressed therein, upon any certificates or
opinions furnished to the Trustee and conforming to the
requirements of this Agreement;
(ii) the Trustee shall not be liable for an error of
judgment made in good faith by a Responsible Officer of the
Trustee, unless it shall be proven that the Trustee was
negligent in performing its duties in accordance with the
terms of this Agreement;
(iii) the Trustee shall not be liable for any action
taken, suffered or omitted to be taken by it in good faith
and reasonably believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this
Agreement; and
(iv) the Trustee shall not be liable for any action it
takes or omits to take in good faith at the direction of the
Security Insurer (or, after an Insurer Default shall have
occurred and be continuing, a Certificate Majority).
(c) Notwithstanding any other provision of this Agreement, the
Trustee shall not be required to expend or risk its own funds or otherwise
incur financial liability in the performance of any of its duties under this
Agreement, or in the exercise of any of its rights or powers, if there is
reasonable ground for believing that the repayment of such funds or
adequate indemnity against such risk or liability is not reasonably
assured to it, and none of the provisions contained in this Agreement
shall in any event require the Trustee to perform, or be responsible for
the manner of performance of, any of the obligations of the Servicer
under this Agreement except during such time, if any, as the Backup
Servicer shall be the successor to, and be vested with the rights, duties,
powers and privileges of, the Servicer in accordance with the terms of this
Agreement.
(d) The Trustee shall not be charged with knowledge of any
failure by the Servicer to comply with the obligations of the Servicer
referred to in this Agreement, or of any failure by the Seller to comply
with the obligations of the Seller referred to in this Agreement, unless
a Trustee officer obtains actual knowledge of such failure (it being
understood that knowledge of the Servicer is not attributable to
the Trustee) or the Trustee receives written notice of such failure from the
Servicer or the Seller, as the case may be, or the Security Insurer (or, if
an Insurer Default shall have occurred and be continuing) the Holders of
Certificates evidencing not less than 25% of the sum of the Class A
Certificate Balance and the Class B Certificate Balance, or, if there are
no Class A Certificates then outstanding, by Holders of Class B
Certificates evidencing not less than 25% of the Class B Certificate Balance;
(e) Except for actions expressly authorized by this Agreement,
the Trustee shall take no action reasonably likely to impair the
security interests created or existing under any Receivable or Financed
Vehicle or to impair the value of any Receivable or Financed Vehicle; and
(f) Without limiting the generality of this Section 11.1, the
Trustee, in its capacity as Trustee, shall have no duty (i) to see to any
recording, filing or depositing of this Pooling and Servicing Agreement or
any agreement referred to herein or any financing statement evidencing a
security interest in 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
Trust, (iv) to confirm or verify the contents of any reports or
certificates delivered to the Trustee pursuant to this Pooling and
Servicing Agreement believed by the Trustee 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 Seller's or the Servicer's
representations, warranties or covenants or the Servicer's duties and
obligations as Servicer and as custodian of the Receivable Files under
the Custodian Agreement.
XI.2. Trustee's Assignment of Administrative Receivables and
Warranty Receivables. With respect to all Administrative Receivables and
all Warranty Receivables purchased by the Servicer or the Seller, the
Trustee shall take any and all actions reasonably requested by the Seller
or the Servicer, at the expense of the Person whose obligation was
to repurchase the Administrative Receivable or the Warranty Receivable,
to assign, without recourse, representation or warranty, to the Seller or
the Servicer, as applicable, including, without limitation, all the items
conveyed to the Trustee pursuant to Section 3.1(a) with respect to
such Purchased Receivable, all monies due thereon, the security
interests in the related Financed Vehicles, proceeds from any Insurance
Policies, proceeds from recourse against Dealers on such Receivables and
the interests of the Trust in certain rebates of premiums and other
amounts relating to the Insurance Policies and any
documents relating thereto, such assignment being an assignment
outright and not for security; and the Seller or the Servicer, as
applicable, shall thereupon own such Receivable, and all such security
and documents, free of any further obligation to the Trustee or the
Certificateholders with respect thereto. Each of the Servicer, the Trustee
and the Seller shall cooperate with respect to the orderly transfer of
the servicing to the party purchasing the Administrative Receivable
hereunder, and each of the Servicer, the Trustee and the Seller shall
cooperate with such party to ensure that the purchasing party is subrogated
to the rights of each such Person with respect to such Receivable.
XI.3. Certain Matters Affecting the Trustee. Except as
otherwise provided in Section 11.1(c):
(a) the Trustee may rely and shall be protected in acting
or refraining from acting upon any resolution, Officer's
Certificate, certificate of auditors or any other
certificate, statement, instrument, opinion, report, notice,
request, consent, order, appraisal, bond or other paper or
document believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(b) the Trustee may consult with counsel and any Opinion
of 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;
(c) the Trustee 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 of any of the Certificateholders or the
Security Insurer, pursuant to the provisions of this
Agreement, unless such Certificateholders or the Security
Insurer shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and
liabilities that may be incurred therein or thereby;
provided however, that the Trustee shall, upon the
occurrence of a Servicer Termination Event (that has not
been cured), exercise the rights and powers vested in it by
this Agreement with reasonable care and skill;
(d) the Trustee 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 to do
so by the Security Insurer or by Holders of Certificates
evidencing not less than 25% of the sum of the Class A
Certificate Balance and the Class B Certificate Balance, or,
if there are no Class A Certificates then outstanding, by
Holders of Class B Certificates evidencing not less than 25%
of the Class B Certificate Balance; provided however, that
if the payment within a reasonable time to the Trustee of
the costs, expenses or liabilities likely to be incurred by
it in the making of such investigation is, in the opinion of
the Trustee, not reasonably assured to the Trustee by the
security afforded to it by the terms of this Agreement, the
Trustee 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 Person making such request or, if paid by the
Trustee, shall be reimbursed by the Person making such
request upon demand;
(e) The Trustee may execute any of the trusts or powers
under this Agreement or perform any duties under this
Agreement ether directly or by or through agents or
attorneys or custodians. The Trustee shall not be
responsible for any misconduct or negligence on the part of
any agent or attorney appointed with due care by the
Trustee. The Trustee shall not be responsible for any
misconduct or negligence attributable to the acts or
omissions of the Servicer;
(f) The Trustee may rely, as to factual matters relating
to the Seller or the Servicer, on an Officer's Certificate
of a Responsible Officer of the Seller or Servicer,
respectively; and
(g) The Trustee shall not be required to take any action
or refrain from taking any action under this Agreement, or
any Related Document referred to herein, nor shall any
provision of this Agreement, or any such Related Document be
deemed to impose a duty on the Trustee to take action, if
the Trustee shall have been advised by counsel that such
action is contrary to the terms of this Agreement, or any
Related Document or is contrary to law.
XI.4. Trustee Not Liable for Certificates or Receivables.
The Trustee makes no representations as to the validity or sufficiency of
this Agreement or of the Certificates (other than the execution of the
Certificates) or of any Receivable or Related Document, except to the
extent otherwise expressly provided herein. The Trustee shall at no time
(except during such time, if any, as it is acting as successor Servicer)
have any responsibility or liability for or with respect to the legality,
validity and enforceability of any security interest in any Financed
Vehicle or any Receivable, or the perfection and priority of such a
security interest or the maintenance of any such perfection and
priority, or for or with respect to the efficiency of the Trust or its
ability to generate the payments to be distributed to Certificateholders
under this Agreement, including, without limitation, the existence,
condition, location and ownership of any Financed Vehicle; the existence
and enforceability of any insurance thereon; the existence of any
Receivable or any computer or other record thereof (it being understood
that the Trustee has not reviewed and does not intend to review such
matters, the sole responsibility for such review being vested in the
Seller and the Servicer as applicable); the completeness of any
Receivable; the receipt by the Servicer of any Receivable; the
performance or enforcement of any Receivable; the compliance by the
Seller and the Servicer with any covenant or the breach by the Seller
and the Servicer of any warranty or representation made under this
Agreement or in any Related Document and the accuracy of any such warranty
or representation prior to the Trustee's receipt of notice or other
discovery of any noncompliance therewith or any breach thereof, any
investment of monies by or at the direction of the Servicer or any loss
resulting therefrom (it being understood, however, that the Trustee shall
remain responsible for any Trust Property that it may hold directly); the
acts or omissions of the Seller, the
Servicer or any Obligor; any action of the Servicer taken in the name of
the Trustee; the accuracy, content or completeness of any offering
documents used in connection with the sale of the Certificates or any
action by the Trustee taken at the instruction of the Servicer, the
Seller, the Security Insurer or the Certificateholders holding the
requisite percentage of Certificates; provided however, that the foregoing
shall not relieve the Trustee of its obligation to perform its duties under
this Agreement, whether as Trustee or as Backup Servicer. The Trustee shall
not be accountable for the use or application by the Seller of any of the
Certificates or of the proceeds of such Certificates, or for the use or
application of any funds paid to the Servicer in respect of the
Receivables prior to the time such funds are deposited in the Collection
Account.
XI.5. Trustee May Own Certificates. The Trustee in its
individual or any other capacity may become the owner or pledgee of
Certificates with the same rights as it would have if it were not Trustee
and may deal with the Seller and the Servicer in banking transactions with
the same rights as it would have if it were not Trustee.
XI.6. Trustee's Fees and Expenses; Indemnification. The
Servicer in a separate agreement (the "Fee Letter") has covenanted and agreed
to pay to the Trustee, and the Trustee shall be entitled to, certain
annual fees (the "Annual Trustee's Fee") (which shall not be limited by
any provision of law in regard to the compensation of a trustee of an
express trust) for all services, including services as Backup
Servicer, rendered by it in the execution of the trusts created by this
Agreement and in the exercise and performance of any of the powers and
duties under this Agreement of the Trustee. To the extent not covered
by Article IX, the Seller and the Servicer shall indemnify, defend, and
hold harmless the Trustee and the Backup Servicer from and against
all costs, expenses, losses, claims, damages and liabilities arising out
of or incurred in connection with the acceptance of the performance of the
trusts and duties contained in this Agreement, except to the extent that
such cost, expense, loss, claim, damage or liability is due to the
bad faith or gross negligence (except for errors in judgment) of the
Trustee or the Backup
Servicer, respectively. In addition, the Servicer in Section 9.1 has agreed
to indemnify the Trustee with respect to certain matters, and the
Certificateholders in their individual capacity under Section 11.3(c) or (d)
may agree to indemnify the Trustee under certain circumstances. The
provisions of this Section 11.6 shall (i) not be in limitation of the Fee
Letter entered into in connection with this Agreement between the Servicer
and the Trustee (ii) shall not terminate or be deemed released upon the
resignation or termination of AmeriCredit as the Servicer and (iii) shall
survive any termination of this Agreement.
XI.7. Eligibility Requirements for Trustee. The Trustee under this
Agreement shall at all times be a corporation duly organized and validly
existing under the laws of its jurisdiction of incorporation authorized under
such laws to exercise corporate trust powers, having a combined capital and
surplus of at least $50,000,000 and subject to supervision or examination by
federal or state authority, satisfactory to AmeriCredit and (so long as an
Insurer Default shall not have occurred and be continuing) satisfactory to
the Security Insurer, and (if Moody's then has a rating outstanding on the
Certificates) with a long-term debt rating from Moody's of "Baa3" or higher
or otherwise acceptable to Moody's. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purpose of this
Section 11.7, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. In case at any time the Trustee shall cease
to be eligible in accordance with the provisions of this Section 11.7, the
Trustee shall resign immediately in the manner and with the effect specified
in Section 11.8.
XI.8. Resignation or Removal of Trustee. (a) Subject to the
provisions of subsection (c) of this Section 11.8, the Trustee may at any
time resign and be discharged from the trusts created by this Agreement by
giving written notice thereof to the Servicer. Upon receiving such notice of
resignation, the Servicer, with the consent of the Security Insurer (unless
an Insurer Default shall have
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occurred and be continuing), shall promptly appoint a successor Trustee by
written instrument, in duplicate, one copy of which instrument shall be
delivered to the resigning Trustee and one copy to the successor Trustee. If
no successor Trustee shall have been so appointed and have accepted
appointment within 30 days after the giving of such notice of resignation,
the resigning Trustee may petition any court of competent jurisdiction for
the appointment of a successor Trustee.
(a) If at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section 11.8 and shall fail to resign after
written request therefor by the Servicer, or if at any time the Trustee shall
be legally unable to act, or shall be adjudged a bankrupt or insolvent or a
receiver of the Trustee or of its property shall be appointed or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, then
the Servicer or (so long as an Insurer Default shall not have occurred and be
continuing) the Security Insurer shall remove the Trustee. If the Trustee is
removed under the authority of the immediately preceding sentence, the
Servicer or the Security Insurer, as the case may be, shall promptly appoint
a successor Trustee by written instrument, in duplicate, one copy of which
instrument shall be delivered to the Trustee so removed and one copy to the
successor trustee. The Servicer shall also pay all fees due and owing to the
outgoing Trustee. Any successor trustee shall (so long as an Insurer Default
shall not have occurred and be continuing) be acceptable to the Security
Insurer.
(b) Any resignation or removal of the Trustee and appointment of a
successor Trustee pursuant to any of the provisions of this Section 11.8
shall not become effective until acceptance of appointment by the successor
Trustee as provided in Section 11.9.
(c) If the Trustee and the Backup Servicer shall be the same Person and
the rights and obligations of the Backup Servicer shall have been terminated
pursuant to Section 10.2, then the Security Insurer (or, if an Insurer
Default shall have occurred and be continuing, a Certificate
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Majority) shall have the option, by 60 days' prior notice in writing to the
Seller, the Servicer and the Trustee, to remove the Trustee, and the Security
Insurer shall not have any liability to the Trustee, AmeriCredit, the Seller,
the Servicer or any Certificateholder in connection with such removal.
XI.9. Successor Trustee. (a) Any successor Trustee appointed as
provided in Section 11.8 shall execute, acknowledge and deliver to the
Servicer and the Security Insurer, and to its predecessor Trustee an
instrument accepting such appointment under this Agreement, and thereupon the
resignation or removal of the predecessor Trustee shall become effective and
such successor trustee, without any further act, deed or conveyance (except
as provided below), shall become fully vested with all the rights, powers,
duties and obligations of its predecessor under this Agreement, with like
effect as if originally named as Trustee; but, on request of the Servicer and
the Security Insurer, or the successor trustee, such predecessor Trustee
shall, upon payment of its charges then unpaid, execute and deliver an
instrument transferring to such successor trustee all of the rights, powers
and trusts of the Trustee so ceasing to act, and shall duly assign, transfer
and deliver to such successor trustee all property and money held by such
trustee so ceasing to act hereunder. Upon request of any such successor
trustee, the Seller, on behalf of the Trust, shall execute any and all
instruments for more fully and certainly vesting in and confirming to such
successor trustee all such rights, powers and trusts. The predecessor
Trustee shall deliver to the successor Trustee all documents and statements
held by it under this Agreement or any Related Document; and the predecessor
Trustee and the other parties to the Related Documents shall amend any
Related Document to make the successor Trustee the successor to the
predecessor Trustee thereunder; and the Servicer and the predecessor Trustee
shall execute and deliver such instruments and do such other things as may
reasonably be required for fully and certainly vesting and confirming in the
successor Trustee all such rights, powers, duties and obligations. No
successor Trustee shall accept appointment as provided in this Section 11.9
unless at the time of such acceptance such successor Trustee shall be
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eligible under the provisions of Section 11.7. Upon acceptance of
appointment by a successor Trustee as provided in this Section 11.9, the
Seller shall mail notice by first-class mail of the successor of such Trustee
and the address of the successor Trustee's corporate trust office under this
Agreement to each Rating Agency, the Security Insurer and all Holders of
Certificates at their addresses as shown in the Certificate Register. If the
Seller fails to mail such notice within 10 days after acceptance of
appointment by the successor Trustee, the successor Trustee shall cause such
notice to be mailed at the expense of the Seller.
XI.10. Merger or Consolidation of Trustee. Any corporation into which
the Trustee may be merged or with which it may be consolidated, or any
corporation resulting from any merger or consolidation to which the Trustee
shall be a party, or any corporation succeeding to the business of the
Trustee, shall be the successor of the Trustee under this Agreement, provided
such corporation shall be eligible under the provisions of Section 11.7,
without the execution or filing of any instrument or any further act on the
part of any of the parties to this Agreement, anything in this Agreement to
the contrary notwithstanding. The Trustee or its successor hereunder shall
provide the Servicer and the Security Insurer with prompt notice of any such
transaction.
XI.11. Appointment of Co-Trustee or Separate Trustee. (a)
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any
part of the Trust Property or any Financed Vehicle may at the time be
located, the Trustee, with the consent of the Servicer and (so long as an
Insurer Default shall not have occurred and be continuing) the Security
Insurer, shall have the power and may execute and deliver all instruments to
appoint one or more Persons approved by the Trustee to act as co-trustee or
co-trustees, jointly with the Trustee, or separate trustee or separate
trustees, of all or any part of the Trust Property, and to vest in such
Person or Persons, in such capacity and for the benefit of the
Certificateholders, such title to the Trust Property, or any part thereof,
and, subject to the other provisions of this Section 11.11, such powers,
duties, obligations, rights and trusts as the
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Servicer, the Trustee and (so long as an Insurer Default shall not have
occurred and be continuing) the Security Insurer may consider necessary or
desirable. If the Servicer shall not have consented to such appointment
within 15 days after the receipt by it of a request to do so, or if a
Servicer Termination Event shall have occurred and be continuing, the consent
of the Servicer shall not be required. No co-Trustee or separate Trustee
under this Agreement shall be required to meet the terms of eligibility as a
successor trustee under Section 11.7 and no notice to Certificateholders of
the appointment of any co-trustee or separate trustee shall be required under
Section 11.9. Every separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions
and conditions:
(i) All rights, powers, duties and obligations conferred
or imposed upon the Trustee shall be conferred or imposed
upon and exercised or performed by the Trustee and such
separate trustee or cotrustee jointly (it being understood
that such separate trustee or cotrustee is not authorized to
act separately without the Trustee joining in such act),
except to the extent that under any law of any jurisdiction
in which any particular act or acts are to be performed by
the Trustee, the Trustee shall be incompetent or unqualified
to perform such act or acts, in which event such rights,
powers, duties and obligations (including the holding of
title to the Trust Property or any portion thereof in any
such jurisdiction) shall be exercised and performed singly
by such separate trustee or co-trustee, but solely at the
direction of the Trustee;
(ii) No trustee under this Agreement shall be personally
liable by reason of any act or omission of any other trustee
under this Agreement; and
(iii) The Servicer, the Trustee and provided no
Insurer Default shall have occurred and be continuing, the
Security Insurer acting jointly may at any time accept the
resignation of or remove any separate trustee or co-trustee.
(b) Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the
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then separate trustees and co-trustees, as effectively as if given to each of
them. Every instrument appointing any separate trustee or co-trustee shall
refer to this Agreement and the conditions of this Article XI. Each separate
trustee and co-trustee, upon its acceptance of the trusts conferred, shall be
vested with the estates or property specified in its instrument of appointment,
either jointly with the Trustee or separately, as may be provided therein,
subject to all the provisions of this Agreement, specifically including every
provision of this Agreement relating to the conduct of, affecting the liability
of, or affording protection to, the Trustee. Every such instrument shall be
filed with the Trustee and a copy thereof given to the Servicer.
(c) Any separate trustee or co-trustee may at any time constitute the
Trustee, its agent or attorney-in-fact, with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of
this Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all
of its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
XI.12. Representations and Warranties of Trustee. Each of the Trustee
and Backup Servicer represents and warrants as of the date of this Agreement
that:
(a) it is either (i) a banking corporation duly
organized, validly existing and in good standing under the
laws of the state of its incorporation or (ii) a national
banking association duly organized, validly existing and in
good standing under the laws of the United States of
America;
(b) it has full power, authority and legal right to
execute, deliver and perform this Agreement, and has taken
all necessary action to authorize the execution, delivery
and performance by it of this Agreement;
(c) the execution, delivery and performance by it of this
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Agreement (a) do not violate any provision of any law or
regulation governing the banking and trust powers of it or
any order, writ, judgment, or decree of any court,
arbitrator, or governmental authority applicable to it or
any of its assets, (b) do not violate any provision of its
corporate charter or by-laws, or (c) to the best of its
knowledge do not violate any provision of, or constitute,
with or without notice or lapse of time, a default under, or
result in the creation or imposition of any lien on any of
the Trust Property pursuant to the provisions of any
mortgage, indenture, contract, agreement or other
undertaking other than this Agreement to which it is a
party;
(d) the execution, delivery and performance by it of this
Agreement do not require the authorization, consent or
approval of, the giving of notice to, the filing or
registration with, or the taking of any other action in
respect of, any governmental authority or agency regulating
its banking and corporate trust activities; and
(e) this Agreement has been duly executed and delivered
by it and constitutes the legal, valid and binding agreement
of it, enforceable in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting the
enforcement of creditors' rights generally and by equitable
limitations on the availability of specific remedies,
regardless of whether such enforceability is considered in a
proceeding in equity or at law.
XI.13. Tax Returns. In the event the Trust shall be required to file
tax returns, the Servicer shall prepare or shall cause to be prepared any tax
returns required to be filed by the Trust and shall remit such returns to the
Trustee for signature at least five Business Days before such returns are due
to be filed. The Trustee, upon request, shall furnish the Servicer with all
such information known to the Trustee as may be reasonably required in
connection with the preparation of all tax returns of the Trust, and shall
execute such returns and cause such returns to be filed on or prior to the
date on which such returns are due; provided, that such returns have
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been provided to the Trustee by the Servicer as described in the previous
sentence.
XI.14. Trustee May Enforce Claims Without Possession of Certificates.
All rights of action and claims under this Agreement or the Certificates may
be prosecuted and enforced by the Trustee without the possession of any of
the Certificates or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought
in its own name as trustee. Any recovery of judgment shall, after provision
for the payment of the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, be for the ratable benefit
of the Certificateholders in respect of which such judgment has been obtained.
XI.15. Suit for Enforcement. If a Servicer Termination Event shall
occur and be continuing, the Trustee, in its discretion may (but shall have
no duty or obligation so to proceed), subject to the provisions of Section
11.1, proceed to protect and enforce its rights and the rights of the
Certificateholders under this Agreement by a suit, action or proceeding in
equity or at law or otherwise, whether for the specific performance of any
covenant or agreement contained in this Agreement or in aid of the execution
of any power granted in this Agreement or for the enforcement of any other
legal, equitable or other remedy as the Trustee, being advised by counsel,
shall deem most effectual to protect and enforce any of the rights of the
Trustee or the Certificate holders.
XI.16. Rights to Direct Trustee. Subject to Section 11.3(c), the
Security Insurer (or, if an Insurer Default shall have occurred and be
continuing, a Certificate Majority) shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred on the Trustee; provided
however, that subject to Section 11.1, the Trustee shall have the right to
decline to follow any such direction if the Trustee being advised by counsel
determines that the action so directed may not lawfully be taken, or if the
Trustee in good faith shall, by a Responsible Officer, determine that the
proceedings so
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directed would be in violation of this Agreement or any of the Related
Documents or would subject it to personal liability against which it has not
been provided reasonable indemnity or (in the case of directions provided by
a Certificate Majority) be unduly prejudicial to the rights of
Certificateholders not parties to such direction; and provided further that
nothing in this Agreement shall impair the right of the Trustee to take any
action deemed proper by the Trustee and which is not inconsistent with such
direction by the Security Insurer or the Certificateholders.
XII TERMINATION
XII.1. Termination of the Trust. (a) The respective obligations and
responsibilities of the Seller, the Servicer, the Security Insurer and the
Trustee created by this Agreement and the Trust created by this Agreement
shall terminate upon the latest of (i) the maturity or other liquidation of
the last Receivable (including the purchase as of any Accounting Date by the
Seller or the Servicer at its option of the corpus of the Trust as described
in Section 12.2) and the subsequent distribution to Certificate holders
pursuant to Section 5.5 of the amount required to be deposited pursuant to
Section 12.2 or (ii) the payment to Certificateholders of all amounts
required to be paid to them pursuant to this Agreement and the payment to the
Security Insurer of all amounts payable or reimbursable to it pursuant to
this Agreement and the Insurance Agreement. In either case, there shall be
delivered to the Trustee and the Security Insurer an Opinion of Counsel that
all applicable preference periods under federal, state and local bankruptcy
insolvency and similar laws have expired with respect to the payments
pursuant to clause (ii); provided however, that in no event shall the trust
created by this Agreement continue beyond the expiration of 21 years from the
death of the last survivor of the descendants living on the date of this
Agreement of Rose Kennedy of the Commonwealth of Massachusetts; and provided,
further, that the rights to indemnification under Sections 9.1 and 11.6 shall
survive the termination of the Trust. The Servicer shall promptly notify the
Trustee, the Rating Agencies and the Security Insurer of any prospective
termination pursuant
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to this Section 12.1.
(a) Notice of any final distribution, specifying the Distribution Date
upon which the Certificateholders may surrender their Certificates to the
Trustee for payment of the final distribution and retirement of the
Certificates, shall be given promptly by the Trustee by letter to
Certificateholders mailed not earlier than the 1st day and not later than the
10th day of the month of such final distribution specifying (i) the Distribution
Date upon which final payment of the Certificates shall be made upon
presentation and surrender of Certificates at the office of the Trustee
therein specified, (ii) the amount of any such final payment, and (iii) that
the Accounting Date otherwise applicable to such Distribution Date is not
applicable, payments being made only upon presentation and surrender of the
Certificates at the office of the Trustee therein specified. The Trustee
shall give such notice to the Certificate Registrar at the time such notice
is given to Certificateholders. In the event such notice is given, the
Servicer or the Trustee, as the case may be, shall make deposits into the
Collection Account in accordance with Section 5.4, or, in the case of an
optional purchase of Receivables pursuant to Section 12.2, shall deposit the
amount specified in Section 12.2. Upon presentation and surrender of the
Certificates, the Trustee shall cause to be distributed to Certificateholders
amounts distributable on such Distribution Date pursuant to Section 5.5.
(b) In the event that all of the Certificateholders shall not surrender
their Certificates for retirement within six months after the date specified
in the above-mentioned written notice, the Trustee shall have a second
written notice to the remaining Certificateholders to surrender their
Certificates for retirement and receive the final distribution with respect
thereto. If within one year after the second notice all the Certificates
shall not have been surrendered for retirement, the Trustee may take
appropriate steps, or may appoint an agent to take appropriate steps, to
contact the remaining Certificateholders concerning surrender of their
Certificates, and the cost thereof shall be paid out of the funds and other
assets that remain subject to this Agreement. As soon as practicable after
the
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termination of the Trust, the Trustee shall surrender the Policy to the
Security Insurer for cancellation.
XII.2. Optional Purchase of All Receivables. On each Determination
Date as of which the Class A Certificate Balance is less than 10% of the
Cut-Off Date Class A Certificate Balance, the Servicer and the Seller each
shall have the option to purchase the corpus of the Trust (with the consent
of the Security Insurer, if such purchase would result in a claim on the
Policy or would result in any amount owing to the Security Insurer remaining
unpaid). To exercise such option, the Servicer or the Seller, as the case
may be, shall pay the aggregate Purchase Amounts for the Receivables, plus
the appraised value of any other property (including the right to receive any
future recoveries) held as part of the Trust, such appraisal to be conducted
by an appraiser mutually agreed upon by the Servicer or the Seller, as the
case may be, and the Security Insurer (or the Trustee, if an Insurer Default
shall have accrued and be continuing), and shall succeed to all interests in
and to the Trust Property. The Servicer or Seller shall promptly notify the
Rating Agencies of any proposed exercise of such option. The fees and
expenses related to such appraisal shall be paid by the party exercising the
option to purchase.
XIII MISCELLANEOUS PROVISIONS
XIII.1. Amendment. (a) This Agreement may be amended by the Seller,
the Servicer and the Trustee, with the prior written consent of the Security
Insurer (so long as an Insurer Default shall not have occurred and be
continuing) but without the consent of any of the Certificateholders, (i) to
cure any ambiguity, or (ii) to correct or supplement any provisions in this
Agreement; provided however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interests of
the Certificateholders, provided, further, that if an Insurer Default has
occurred and is continuing, such action shall not amend, modify or limit the
Security Insurer's rights under (i) Section 5.5(a), (ii) any rights to
indemnification to which the Security Insurer is entitled
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hereunder or (iii) any defined terms used in preceding clauses (i) or (ii).
(a) This Agreement may also be amended from time to time by the Seller,
the Servicer and the Trustee with the prior written consent of the Security
Insurer (so long as an Insurer Default shall not have occurred and be
continuing) and with the consent of a Certificate Majority (which consent of
any Holder of a Certificate given pursuant to this Section 13.1(b) or
pursuant to any other provision of this Agreement shall be conclusive and
binding on such Holder and on all future Holders of such Certificate and of
any Certificate issued upon the transfer thereof or in exchange thereof or in
lieu thereof whether or not notation of such consent is made upon the
Certificate) for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Agreement, or of
modifying in any manner the rights of the Holders of Certificates; provided
however, that no such amendment shall (a) increase or reduce in any manner
the amount of, or accelerate or delay the timing of, collections of payments
on Receivables or distributions that shall be required to be made on any
Certificate or the Class A Pass-Through Rate or the Class B Pass-Through Rate
or (b) reduce the aforesaid percentage required to consent to any such
amendment or any waiver hereunder, without the consent of the Holders of all
Certificates then outstanding, provided, further, that if an Insurer Default
has occurred and is continuing, such action shall not amend, modify or limit
the Security Insurer's rights under (i) Section 5.5(a), (ii) any rights to
indemnification to which the Security Insurer is entitled hereunder or (iii)
any defined terms used in preceding clauses (i) or (ii).
(b) Prior to the execution of any such amendment or consent, the Trustee
shall furnish written notification of the substance of such amendment or
consent to each Rating Agency.
(c) Promptly after the execution of any such amendment or consent, the
Trustee shall furnish written notification of the substance of such amendment
or consent to each Certificateholder.
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(d) It shall not be necessary for the consent of Certificateholders
pursuant to Section 13.1(b) to approve the particular form of any proposed
amendment or consent, but it shall be sufficient if such consent shall
approve the substance thereof. The manner of obtaining such consents (and
any other consents of Certificateholders provided for in this Agreement) and
of evidencing the authorization of the execution thereof by
Certificateholders shall be subject to such reasonable requirements as the
Trustee may prescribe, including the establishment of record dates.
(e) Prior to the execution of any amendment to this Agreement, the
Trustee shall be entitled to receive and rely upon an Opinion of Counsel
stating that the execution of such amendment is authorized or permitted by
this Agreement, in addition to the Opinion of Counsel referred to in Section
13.2(i). The Trustee may, but shall not be obligated to, enter into any such
amendment which affects the Trustee's own rights, duties or immunities under
this Agreement or otherwise.
XIII.2. Protection of Title to Trust. (a) The Seller or the Servicer
or both shall execute and file such financing statements and cause to be
executed and filed such continuation and other statements, all in such manner
and in such places as may be required by law fully to preserve, maintain and
protect the interest of the Trust, the Trustee and the Security Insurer under
this Agreement in the Trust Property and in the proceeds thereof. The Seller
or the Servicer or both shall deliver (or cause to be delivered) to the
Trustee and the Security Insurer file-stamped copies of, or filing receipts
for, any document filed as provided above, as soon as available following
such filing.
(a) Neither the Seller nor the Servicer shall change its name, identity
or corporate structure in any manner that would, could or might make any
financing statement or continuation statement filed by the Seller in
accordance with paragraph (a) above seriously misleading within the meaning
of Section 9-402(7) of the UCC, unless it shall have given the Trustee and
the Security Insurer (so long as an Insurer Default shall not have occurred
and be continuing) at least 60 days prior written notice thereof, and shall
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promptly file appropriate amendments to all previously filed financing
statements and continuation statements.
(b) Each of the Seller and the Servicer shall give the Trustee and the
Security Insurer at least 60 days prior written notice of any relocation of
its principal executive office if, as a result of such relocation, the
applicable provisions of the UCC would require the filing of any amendment of
any previously filed financing or continuation statement or of any new
financing statement. The Servicer shall at all times maintain each office
from which it services Receivables and its principal executive office within
the United States of America.
(c) The Servicer shall maintain accounts and records as to each
Receivable accurately and in sufficient detail to permit (i) the reader
thereof to know at any time the status of such Receivable, including payments
and recoveries made and payments owing (and the nature of each) and (ii)
reconciliation between payments or recoveries on (or with respect to) each
Receivable and the amounts from time to time deposited in the Collection
Account in respect of such Receivable.
(d) The Servicer shall maintain its computer systems so that, from and
after the time of sale under this Agreement of the Receivables to the
Trustee, the Servicer's master computer records (including any backup
archives) that refer to any Receivable indicate clearly (with reference to
the particular grantor trust) that the Receivable is owned by the Trust.
Indication of the Trust's ownership of a Receivable shall be deleted from or
modified on the Servicer's computer systems when, and only when, the
Receivable has been paid in full or repurchased by the Seller or the Servicer.
(e) If at any time the Seller or the Servicer proposes to sell, grant a
security interest in, or otherwise transfer any interest in automotive
receivables to any prospective purchaser, lender or other transferee, the
Servicer shall give to such prospective purchaser, lender or other transferee
computer tapes, records or printouts (including any restored from backup
archives) that, if they refer in
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any manner whatsoever to any Receivable, indicate clearly that such
Receivable has been sold and is owned by the Trust unless such Receivable has
been paid in full or repurchased by the Seller or the Servicer.
(f) The Servicer shall permit the Trustee, the Backup Servicer, the
Security Insurer, the Seller and their respective agents, at any time to
inspect, audit and make copies of and abstracts from the Servicer's records
regarding any Receivables or any other portion of the Trust Property.
(g) The Servicer shall furnish to the Trustee, the Backup Servicer, the
Seller and the Security Insurer at any time upon request a list of all
Receivables then held as part of the Trust, together with a reconciliation of
such list to the Schedule of Receivables and to each of the Servicer's
Certificates furnished before such request indicating removal of Receivables
from the Trust. The Trustee shall hold any such list and Schedule of
Receivables for examination by interested parties during normal business
hours at the Corporate Trust Office upon reasonable notice by such Persons of
their desire to conduct an examination.
(h) The Seller and the Servicer shall deliver to the Trustee and the
Security Insurer simultaneously with the execution and delivery of this
Agreement and of each amendment thereto and upon the occurrence of the events
giving rise to an obligation to give notice pursuant to Section 13.2(b) or
(c), an Opinion of Counsel (a) stating that, in the opinion of such Counsel,
all financing statements and continuation statements have been executed and
filed that are necessary fully to preserve and protect the interest of the
Trustee in the Receivables and the other Trust Property, and reciting the
details of such filing or referring to prior Opinions of Counsel in which
such details are given, (b) stating that, in the opinion of such counsel, no
such action is necessary to preserve and protect such interest, or (c)
stating in the opinion of such counsel, any action which is necessary to
preserve and protect such interest during the following 12-month period.
(i) The Servicer shall deliver to the Trustee and the
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Security Insurer, within 90 days after April 1, 1997, an Opinion of Counsel,
either (a) stating that, in the opinion of such counsel, all financing
statements and continuation statements have been executed and filed that are
necessary fully to preserve and protect the interest of the Trustee in the
Receivables, and reciting the details of such filings or referring to prior
Opinions of Counsel in which such details are given, or (b) stating that, in
the opinion of such counsel, no action shall be necessary to preserve and
protect such interest.
XIII.3. Limitation on Rights of Certificateholders. (a) The death or
incapacity of any Certificateholder shall not operate to terminate this
Agreement or the Trust, nor entitle such Certificateholder's legal
representatives or heirs to claim an accounting or to take any action or
commence any proceeding in any court for a partition or winding up of the
Trust, nor otherwise affect the rights, obligations and liabilities of the
parties to this Agreement or any of them.
(a) No Certificateholder shall have any right to vote (except as
provided in this Section 13.3 or Sections 10.2, 10.5 or 13.1) or in any
manner otherwise control the operation and management of the Trust, or the
obligations of the parties to this Agreement, nor shall anything set forth in
this Agreement, or contained in the terms of the Certificates, be construed
so as to constitute the Certificateholders from time to time as partners or
members of an association; nor shall any Certificateholder be under any
liability to any third person by reason of any action taken by the parties to
this Agreement pursuant to any provision of this Agreement or any Related
Document.
(b) So long as no Insurer Default has occurred and is continuing, except
as otherwise specifically provided herein, whenever Class A Certificateholder
action, consent or approval is required under this Agreement, such action,
consent or approval shall be deemed to have been taken or given on behalf of,
and shall be binding upon, all Class A Certificateholders if the Security
Insurer agrees to take such action or give such consent or approval. If an
Insurer Default shall have occurred and is continuing, no Certifi
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cateholder shall have any right by virtue or by availing itself of any
provisions of this Agreement to institute any suit, action, or proceeding in
equity or at law upon or under or with respect to this Agreement, unless such
Holder previously shall have given to the Trustee a written notice of default
and of the continuance thereof, as provided in this Agreement and unless also
the Holders of Certificates evidencing not less than 25% of the sum of the
Class A Certificate Balance and the Class B Certificate Balance, or, if there
are no Class A Certificates then outstanding, by Holders of Class B
Certificates evidencing not less than 25% of the Class B Certificate Balance
shall have made written request upon the Trustee to institute such action,
suit or proceeding in its own name as Trustee under this Agreement and shall
have offered to the Trustee such reasonable indemnity as it may require
against the costs, expenses and liabilities to be incurred therein or
thereby, and the Trustee, for 30 days after its receipt of such notice,
request, and offer of indemnity, shall have neglected or refused to institute
any such action, suit, or proceeding and during such 30-day period, no
request or waiver inconsistent with such written request has been given to
the Trustee pursuant to and in compliance with this Section 13.3 or Section
10.5; it being understood and intended, and being expressly covenanted by
each Certificateholder with every other Certificateholder and the Trustee,
that no one or more Holders of Certificates shall have any right in any
manner whatever by virtue or by availing itself or themselves of any
provisions of this Agreement to affect, disturb, or prejudice the rights of
the Holders of any other of the Certificates, or to obtain or seek to obtain
priority over or preference to any other such Holder, or to enforce any right
under this Agreement, except in the manner provided in this Agreement and for
the equal, ratable, and common benefit of all Certificateholders. For the
protection and enforcement of the provisions of this Section 13.3, each and
every Certificateholder and the Trustee shall be entitled to such relief as
can be given either at law or in equity. Nothing in this Agreement shall be
construed as giving the Certificateholders any right to make a claim under
the Policy.
XIII.4. Governing Law. This Agreement shall be governed
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by and construed in accordance with the laws of the State of New York without
regard to the principles of conflicts of laws thereof and the obligations,
rights and remedies of the parties under this Agreement shall be determined
in accordance with such laws.
XIII.5. Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions
or terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity
or enforceability of the other provisions of this Agreement or of the
Certificates or the rights of the Holders thereof.
XIII.6. Assignment. Notwithstanding anything to the contrary
contained in this Agreement, except as provided in Section 8.2 or Section 9.2
and as provided in the provisions of the Agreement concerning the resignation
of the Servicer and the Backup Servicer, this Agreement may not be assigned
by the Seller or the Servicer without the prior written consent of the
Trustee and the Security Insurer (or, if an Insurer Default shall have
occurred and be continuing the Trustee and a Certificate Majority).
XIII.7. Certificates Nonassessable and Fully Paid. Certificateholders
shall not be personally liable for obligations of the Trust, the Fractional
Undivided Interests represented by the Certificates shall be nonassessable
for any losses or expenses of the Trust or for any reason whatsoever, and
Certificates upon authentication thereof by the Trustee pursuant to Section
7.2 are and shall be deemed fully paid.
XIII.8. Third-Party Beneficiaries. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective
successors and permitted assigns. Except as otherwise provided in this
Article XIII, no other Person shall have any right or obligation hereunder.
The Security Insurer and its successors and assigns shall be a third-party
beneficiary to the provisions of this Agreement, and shall be entitled to
rely upon and
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directly enforce such provisions of this Agreement so long as no Insurer
Default shall have occurred and be continuing. Except as expressly stated
otherwise herein or in the Related Documents, any right of the Security
Insurer to direct, appoint, consent to, approve of, or take any action under
this Agreement, shall be a right exercised by the Security Insurer in its
sole and absolute discretion. The Security Insurer may disclaim any of its
rights and powers under this Agreement (but not its duties and obligations
under the Policy) upon delivery of a written notice to the Trustee.
XIII.9. Financial Security as Controlling Party. Each
Certificateholder by purchase of the Certificates held by it acknowledges
that the Trustee on behalf of the Trust, as partial consideration of the
issuance of the Policy, has agreed that the Security Insurer shall have
certain rights hereunder for so long as no Insurer Default shall have
occurred and be continuing. So long as an Insurer Default has occurred and
is continuing, any provision giving the Security Insurer the right to direct,
appoint or consent to, approve of, or take any action under this Agreement
shall be inoperative during the period of such Insurer Default and such right
shall instead vest in the Trustee acting at the direction of the Holders of
Certificates. The Security Insurer may disclaim any of its rights and powers
under this Agreement (but not its duties and obligations under the Policy)
upon delivery of a written notice to the Trustee. The Security Insurer may
give or withhold any consent hereunder in its sole and absolute discretion.
XIII.10. Counterparts. This Agreement may be executed simultaneously
in any number of counterparts, each of which counterparts shall be deemed to
be an original, and all of which counterparts shall constitute but one and
the same instrument.
XIII.11. Notices. All demands, notices and communications under this
Agreement shall be in writing, personally delivered or mailed by certified
mail-return receipt requested, and shall be deemed to have been duly given
upon receipt (a) in the case of the Seller and for so long as AmeriCredit is
the Servicer, the Servicer, at the
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following address: AmeriCredit Financial Services, Inc., 200 Bailey Avenue,
Fort Worth, Texas 76107-1220, Attention: Chief Financial Officer, (b) in the
case of the Trustee, and, for so long as the Trustee is the Backup Servicer,
the Trustee, at the Corporate Trust Office, (c) in the case of each Rating
Agency, 99 Church Street, New York, New York 10007 (for Moody's) and 26
Broadway, New York, New York 10004 (for Standard & Poor's), and (d) in the
case of the Security Insurer, Financial Security Assurance, Inc., 350 Park
Avenue, New York, New York 10022, Attention: Surveillance Department, Re:
AmeriCredit Automobile Receivables Trust 1996-A, or at such other address as
shall be designated by any such party in a written notice to the other
parties. Any notice required or permitted to be mailed to a
Certificateholder shall be given by first class mail, postage prepaid, at the
address of such Holder as shown in the Certificate Register, and any notice
so mailed within the time prescribed in this Agreement shall be conclusively
presumed to have been duly given, whether or not the Certificateholder
receives such notice.
XIII.12. Successors and Assigns. This Agreement shall be binding upon
the parties hereof and their respective successors and assigns, and shall
inure to the benefit of and be enforceable by the parties hereof and their
respective successors and assigns permitted hereunder. All covenants and
agreements contained herein shall be binding upon, and inure to the benefit
of, the Trustee and the Certificateholders and their respective permitted
successors and assigns, if any. Any request, notice, direction, consent,
waiver or other instrument or action by any Certificateholder shall bind its
successors and assigns. XIII.13.
IN WITNESS WHEREOF, the Seller, ARC, the Servicer and the Trustee have
caused this Pooling and Servicing Agree ment to be duly executed by their
respective officers, effective as of the day and year first above written.
AMERICREDIT FINANCIAL
SERVICES, INC., as Seller and
Servicer
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By
Name:
Title:
LASALLE NATIONAL BANK,
as Trustee and as Backup
Servicer
By
Name:
Title:
AMERICREDIT RECEIVABLES CORP.
By
Name:
Title:
SCHEDULE A
SCHEDULE OF RECEIVABLES
SCHEDULE B
REPRESENTATIONS AND WARRANTIES OF AMERICREDIT
XIV Characteristics of Receivables. Each Receivable
(A) was originated by a Dealer for the retail sale of a
Financed Vehicle in the ordinary course of such Dealer's
business in accordance with AmeriCredit's credit policies
and such Dealer had all necessary licenses and permits to
originate Receivables in the state where such Dealer was
located, was fully and properly executed by the parties
thereto, was purchased by AmeriCredit from such Dealer under
an existing Dealer Agreement or pursuant to a Dealer
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Assignment with AmeriCredit and was validly assigned by such
Dealer to AmeriCredit pursuant to a Dealer Assignment, (B)
contains customary and enforceable provisions such as to
render the rights and remedies of the holder thereof
adequate for realization against the collateral security,
(D) is a Receivable which provides for level monthly
payments (provided that the period in the first Collection
Period and the payment in the final Collection Period of the
Receivable may be minimally different from the normal period
and level payment) which, if made when due, shall fully
amortize the Amount Financed over the original term and (E)
has not been amended or collections with respect to which
waived, other than as evidenced in the Receivable File
relating thereto.
XV No Fraud or Misrepresentation. Each Receivable
was originated by a Dealer and was sold by the Dealer to
AmeriCredit without any fraud or misrepresentation on the
part of such Dealer in either case.
XVI Compliance with Law. All requirements of
applicable federal, state and local laws, and regulations
thereunder (including, without limitation, usury laws, the
Federal Truth-in-Lending Act, the Equal Credit Opportunity
Act, the Fair Credit Billing Act, the Fair Credit Reporting
Act, the Fair Debt Collection Practices Act, the Federal
Trade Commission Act, the Moss-Magnuson Warranty Act, the
Federal Reserve Board's Regulations "B" and "Z", the
Soldiers' and Sailors' Civil Relief Act of 1940, each
applicable state Motor Vehicle Retail Installment Sales Act,
and state adaptations of the National Consumer Act and of
the Uniform Consumer Credit Code and other consumer credit
laws and equal credit opportunity and disclosure laws) in
respect of the Receivables and the Financed Vehicles, have
been complied with in all material respects, and each
Receivable and the sale of the Financed Vehicle evidenced by
each Receivable complied at the time it was originated or
made and now complies in all material respects with all
applicable legal requirements.
XVII Origination. Each Receivable was originated in
the United States.
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XVIII Binding Obligation. Each Receivable
represents the genuine, legal, valid and binding payment
obligation of the Obligor thereon, enforceable by the holder
thereof in accordance with its terms, except (A) as
enforceability may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting the enforcement of
creditors' rights generally and by equitable limitations on
the availability of specific remedies, regardless of whether
such enforceability is considered in a proceeding in equity
or at law and (B) as such Receivable may be modified by the
application after the Cutoff Date of the Soldiers' and
Sailors' Civil Relief Act of 1940, as amended; and all
parties to each Receivable had full legal capacity to
execute and deliver such Receivable and all other documents
related thereto and to grant the security interest purported
to be granted thereby.
XIX No Government Obligor. No Obligor is the United
States of America or any State or any agency, department,
subdivision or instrumentality thereof.
XX Obligor Bankruptcy. At the Cutoff Date no Obligor
had been identified on the records of AmeriCredit as being
the subject of a current bankruptcy proceeding.
XXI Schedule of Receivables. The information set
forth in the Schedule of Receivables has been produced from
the Electronic Ledger and was true and correct in all
material respects as of the close of business on the Cutoff
Date.
XXII Marking Records. By the Closing Date, AmeriCredit
will have caused the portions of the Electronic Ledger
relating to the Receivables to be clearly and unambiguously
marked to show that the Receivables have been sold to the
Trust by AmeriCredit in accordance with the terms of the
Pooling and Servicing Agreement.
XXIII Computer Tape. The Computer Tape made
available by AmeriCredit to the Trust on the Closing Date
was complete and accurate as of the Cutoff Date and includes
a description of the same Receivables that are described in
the Schedule of Receivables.
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XXIV Adverse Selection. No selection procedures
adverse to the Certificateholders were utilized in selecting
the Receivables from those receivables owned by AmeriCredit
which met the selection criteria contained in the Pooling
and Servicing Agreement.
XXV Chattel Paper. The Receivables constitute chattel
paper within the meaning of the UCC as in effect in the
States of Texas and New York.
XXVI One Original. There is only one original executed
copy of each Receivable.
XXVII Receivable Files Complete. There exists a
Receivable File pertaining to each Receivable and such
Receivable File contains (a) a fully executed original of
the Receivable, (b) the original executed credit
application, or a copy thereof and (c) the original Lien
Certificate or application therefor. Each of such documents
which is required to be signed by the Obligor has been
signed by the Obligor in the appropriate spaces. All blanks
on any form have been properly filled in and each form has
otherwise been correctly prepared. The complete Receivable
File for each Receivable currently is in the possession of
the Custodian.
XXVIII Receivables in Force. No Receivable has been
satisfied, subordinated or rescinded, and the Financed
Vehicle securing each such Receivable has not been released
from the lien of the related Receivable in whole or in part.
No terms of any Receivable have been waived, altered or
modified in any respect since its origination, except by
instruments or documents identified in the Receivable File.
No Receivable has been modified as a result of application
of the Soldiers' and Sailors' Civil Relief Act of 1940, as
amended.
XXIX Lawful Assignment. No Receivable was originated
in, or is subject to the laws of, any jurisdiction the laws
of which would make unlawful, void or voidable the sale,
transfer and assignment of such Receivable under this
Agreement or pursuant to transfers of the Certificates.
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XXX Good Title. Immediately prior to the conveyance
of the Receivables to the Trust pursuant to this Agreement,
AmeriCredit was the sole owner thereof and had good and
indefeasible title thereto, free of any Lien and, upon
execution and delivery of this Agreement by AmeriCredit, the
Trustee shall have good and indefeasible title to and will
be the sole owner of such Receivables, free of any Lien. No
Dealer has a participation in, or other right to receive,
proceeds of any Receivable. Americredit has not taken any
action to convey any right to any Person that would result
in such Person having a right to payments received under the
related Insurance Policies or the related Dealer Agreements
or Dealer Assignments or to payments due under such
Receivables.
XXXI Security Interest in Financed Vehicle. Each
Receivable created or shall create a valid, binding and
enforceable first priority security interest in favor of
AmeriCredit in the Financed Vehicle. The Lien Certificate
and original certificate of title for each Financed Vehicle
show, or if a new or replacement Lien Certificate is being
applied for with respect to such Financed Vehicle the Lien
Certificate will be received within 180 days of the Closing
Date and will show AmeriCredit named as the original secured
party under each Receivable as the holder of a first
priority security interest in such Financed Vehicle. With
respect to each Receivable for which the Lien Certificate
has not yet been returned from the Registrar of Titles,
AmeriCredit has received written evidence from the related
Dealer that such Lien Certificate showing AmeriCredit as
first lienholder has been applied for. AmeriCredit's
security interest has been validly assigned by AmeriCredit
to the Trust pursuant to this Agreement. Immediately after
the sale, transfer and assignment thereof by AmeriCredit to
the Trust, each Receivable will be secured by an enforceable
and perfected first priority security interest in the
Financed Vehicle in favor of the Trustee as secured party,
which security interest is prior to all other Liens upon and
security interests in such Financed Vehicle which now exist
or may hereafter arise or be created (except, as to
priority, for any lien for taxes, labor or materials
affecting a Financed Vehicle). As of the Cutoff Date there
were no Liens or claims for taxes, work, labor or materials
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affecting a Financed Vehicle which are or may be Liens prior
or equal to the Liens of the related Receivable.
XXXII All Filings Made. All filings (including,
without limitation, UCC filings) required to be made by any
Person and actions required to be taken or performed by any
Person in any jurisdiction to give the Trustee a first
priority perfected lien on, or ownership interest in, the
Receivables and the proceeds thereof and the Other Conveyed
Property have been made, taken or performed.
XXXIII No Impairment. AmeriCredit has not done
anything to convey any right to any Person that would result
in such Person having a right to payments due under the
Receivable or otherwise to impair the rights of the Trust,
the Security Insurer, the Trustee and the Certificateholders
in any Receivable or the proceeds thereof.
XXXIV Receivable Not Assumable. No Receivable is
assumable by another Person in a manner which would release
the Obligor thereof from such Obligor's obligations to
AmeriCredit with respect to such Receivable.
XXXV No Defenses. No Receivable is subject to any
right of rescission, setoff, counterclaim or defense and no
such right has been asserted or threatened with respect to
any Receivable.
XXXVI No Default. There has been no default,
breach, violation or event permitting acceleration under the
terms of any Receivable (other than payment delinquencies of
not more than 30 days), and no condition exists or event has
occurred and is continuing that with notice, the lapse of
time or both would constitute a default, breach, violation
or event permitting acceleration under the terms of any
Receivable, and there has been no waiver of any of the
foregoing. As of the Cutoff Date no Financed Vehicle had
been repossessed.
XXXVII Insurance. At the time of a purchase of a
Receivable by AmeriCredit from a Dealer, each Financed
Vehicle is required to be covered by a comprehensive and
collision insurance policy (i) in an amount at least equal
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to the lesser of (a) its maximum insurable value or (b) the
principal amount due from the Obligor under the related
Receivable, (ii) naming AmeriCredit as loss payee and (iii)
insuring against loss and damage due to fire, theft,
transportation, collision and other risks generally covered
by comprehensive and collision coverage. Each Receivable
requires the Obligor to maintain physical loss and damage
insurance, naming AmeriCredit and its successors and assigns
as additional insured parties, and each Receivable permits
the holder thereof to obtain physical loss and damage
insurance at the expense of the Obligor if the Obligor fails
to do so. No Financed Vehicle is insured under a policy of
Force-Placed Insurance on the Cutoff Date.
XXXVIII Past Due. At the Cutoff Date no Receivable
was more than 30 days past due.
XXXIX Remaining Principal Balance. At the Cutoff
Date each Receivable had a remaining principal balance equal
to or greater than $250.00 and the Principal Balance of each
Receivable set forth in the Schedule of Receivables is true
and accurate in all material respects.
XL Final Scheduled Payment Date. No Receivable has a
final scheduled payment date after April 12, 2001.
XLI Certain Characteristics. (A) Each Receivable had
a remaining maturity, as of the Cutoff Date, of not more
than 59 months; (B) each Receivable had an original maturity
of not more than 60 months; (C) each Receivable had a
remaining Principal Balance as of the Cutoff Date of at
least $418.41 and not more than $26,110.77; (D) each
Receivable has an Annual Percentage Rate of at least 14.5%
and not more than 33%; (E) no Receivable was more than 30
days past due as of the Cutoff Date and (F) no funds have
been advanced by AmeriCredit, any Dealer, or anyone acting
on behalf of any of them in order to cause any Receivable to
qualify under clause (E) above.
XLII
SCHEDULE C
SERVICING POLICIES AND PROCEDURES
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Note: Applicable Time Periods Will Vary by State
Compliance with state collection laws is required of all
AmeriCredit Collection Personnel. Additionally, AmeriCredit
has chosen to follow the guidelines of the Federal Fair Debt
Collection Practices Act (FDCPA).
The Collection Process
Customer is issued a monthly billing statement 16 to 20 days
before payment is due.
XLII All accounts are issued to the Computer Assisted
Collection System (CACS) at 5 days delinquent or at such
other dates of delinquency as determined by historical
payment patterns of the account.
XLIII Accounts are then segregated into two groups,
those less than 30 days delinquent and those over 30 days
delinquent.
XLIV Accounts less than 30 days delinquent are further
segregated into accounts that have good residential and
business phone numbers and those that do not.
XLV For those that have good phone numbers, they are
assigned to the Melita Group.
XLVI For those without good phone numbers, they are assigned
to the front-end collector.
XLVII In both groups, all reasonable collection efforts
are made to avoid the account rolling over 30 days
delinquent, including the use of collection letters.
Collection letters may be utilized between 15 and 25 days
delinquent.
XLVIII At the time the account reaches 31 days
delinquent, it is assigned to a mid-range collector. At
this time the collector identifies the necessity of any
default notification required by state law.
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XLIX Once the account exceeds 60 days in delinquency, it is
assigned to a hard-core collector. The hard-core collector
then continues the collection effort. If the account cannot
be resolved through normal collection efforts, i.e.
satisfactory payment arrangements, then the account may be
submitted for repossession approval, either voluntary or by
an approved outside contractor or if necessary for
sequestration approval. All repossessions and
sequestrations must be approved by the Director of
Collections or an Assistant Vice President.
L CACS allows the individual collector to accurately
document and update each account pertaining to telephone
calls and correspondence created as a result of contact with
the customer.
Repossessions
If repossession of the collateral occurs, whether voluntary
or involuntary, the following steps are taken:
LI Notification of repossession to proper authorities when
necessary.
LII Inventory of all personal property is taken and a
condition report is done on the vehicle. Pictures are also
taken of the vehicle.
LIII Written notification, as required by state law, to
customer(s) concerning their rights of redemption or
reinstatement along with information on how to obtain any
personal property that was in the vehicle at the time of
repossession.
LIV Written request to the originating dealer for all
refunds due for dealer adds.
LV Collateral disposition through public or private sale,
(dictated by state law), in a commercially reasonable
manner, whenever possible through a Manheim or Adessa Auto
Auction.
LVI After the collateral is liquidated, the debtor(s) is
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notified in writing of the deficiency balance owed, if any.
Use of Due Date Changes
Due dates may be changed subject to the following
conditions:
LVII The account is contractually current or will be brought
current with the due date change.
LVIII Due date changes cannot exceed the total of 15
days over the life of the contract.
LIX The first installment payment has been paid in full.
LX Only one date change in a twelve month period.
LXI Any exceptions to the above stated policy must be
approved by the Director of Collections or an Assistant Vice
President.
Use of Payment Deferments
A payment deferral is offered to customers who have
encountered temporary financial difficulties.
LXII Minimum of six payments have been made on the account.
LXIII The account will be brought current with the
deferment, but not paid ahead.
LXIV A deferment fee is collected on all transactions.
LXV Only one deferment transaction can be performed in a
twelve month period.
LXVI No more than two payments may be deferred in a twelve
month period, and no more than eight total payments may be
deferred over the life of the loan.
LXVII Any exceptions to the above stated policy must be
approved by the Director of Collections or Assistant Vice
President.
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Charge-Offs
LXVIII When a Post Repossession Notice is generated on an
account, the account may be partially charged-off on the
date that the notice legally expires. The partial charge-
off calculation is based on the expected residual value of
the vehicle at time of sale. Adjustments to the account are
made once final liquidation of the vehicle occurs.
LXIX It is AmeriCredit's policy that any account that is not
successfully recovered by 180 days delinquent is submitted
to the Director of Collections for approval and charge-off.
LXX It is AmeriCredit's policy to carry all Chapter 13
bankruptcy accounts until confirmation of the plan. Once
the plan is approved, a partial charge-off is taken for the
unsecured portion of the account. On fully reaffirmed
Chapter 7 bankruptcy accounts, the accounts are deferred
current at the time of discharge.
Deficiency Collections
LXXI Contact is made with the customer in an attempt to
establish acceptable payment arrangements or settlements on
the account.
LXXII If the customer is unwilling to do so, AmeriCredit
may invoke any legal collection remedy that the state
allows, i.e., judgements, garnishments, etc.
EXHIBIT A
FORM OF CLASS A CERTIFICATE
SEE ATTACHED PAGES FOR CERTAIN DEFINITIONS
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
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OR THE SECURITIES LAWS OF ANY STATE IN RELIANCE UPON
EXEMPTIONS PROVIDED BY THE SECURITIES ACT AND SUCH STATE
SECURITIES LAWS. NO RESALE OR OTHER TRANSFER OF THIS
CERTIFICATE MAY BE MADE UNLESS SUCH RESALE OR TRANSFER (A)
IS MADE IN ACCORDANCE WITH SECTION 7.3 OF THE POOLING AND
SERVICING AGREEMENT AND (B) IS MADE (i) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT,
(ii) IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND APPLICABLE STATE
SECURITIES LAWS, (iii) TO THE SELLER OR (iv) TO A PERSON WHO
THE TRANSFEROR REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER
THE SECURITIES ACT THAT IS AWARE THAT THE RESALE OR OTHER
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A AND (C) UPON
THE SATISFACTION OF CERTAIN OTHER REQUIREMENTS SPECIFIED IN
THE AGREEMENT. NEITHER THE SELLER, THE SERVICER NOR THE
TRUSTEE IS OBLIGATED TO REGISTER THE CERTIFICATES UNDER THE
SECURITIES ACT OR ANY APPLICABLE STATE SECURITIES LAWS.
NO RESALE OR OTHER TRANSFER OF THIS CERTIFICATE
MAY BE MADE UNLESS THE CERTIFICATE REGISTRAR SHALL HAVE
RECEIVED A REPRESENTATION LETTER IN SUBSTANTIALLY THE FORM
REQUIRED BY THE AGREEMENT REFERRED TO BELOW FROM THE TRANS
FEREE OF THIS CERTIFICATE OR SUCH OTHER REPRESENTATIONS (OR
AN OPINION OF COUNSEL) AS MAY BE APPROVED BY THE SELLER OR
CS FIRST BOSTON CORPORATION, TO THE EFFECT THAT SUCH A
TRANSFER MAY BE MADE PURSUANT TO AN EXEMPTION FROM THE
SECURITIES ACT, INCLUDING RULE 144A THEREUNDER, AND
APPLICABLE STATE SECURITIES LAWS AND (A) SUCH TRANSFEREE
WILL NOT ACQUIRE THIS CERTIFICATE WITH THE ASSETS OF ANY
"EMPLOYEE BENEFIT PLAN" AS DEFINED IN SECTION 3(3) OF THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA") OR SECTION 4975(e)(1) OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE "CODE"), (B) SPECIFIED CONDITIONS
OF AN "UNDERWRITER EXEMPTION" DESCRIBED IN SECTION V(h) OF
PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 ARE SATISFIED
WITH RESPECT TO SUCH TRANSFEREE OR (C) IN THE CASE OF A
TRANSFER TO AN INSURANCE COMPANY GENERAL ACCOUNT, EITHER (A)
ABOVE, (B) ABOVE OR, PURSUANT TO SECTION I OF PROHIBITED
TRANSACTION CLASS EXEMPTION 95-60 ("PTCE 95-60"), THE
ACQUISITION AND HOLDING OF THE CERTIFICATE AND, PURSUANT TO
SECTION III OF PTCE 95-60, THE SERVICING, MANAGEMENT AND
OPERATION OF THE TRUST ARE, WITH RESPECT TO SUCH TRANSFEREE,
126
EXEMPT FROM THE "PROHIBITED TRANSACTION" PROVISIONS OF ERISA
AND THE CODE.
AMERICREDIT AUTOMOBILE RECEIVABLES TRUST 1996-A
5.70% ASSET BACKED CERTIFICATE, CLASS A
NUMBER
A-1 $____________
THIS CERTIFIES THAT ____________ is the registered
owner of a ____________ dollars nonassessable, fully-paid,
fractional undivided interest in the AmeriCredit Automobile
Receivables Trust 1996-A (the "Trust") formed by AmeriCredit
Financial Services, Inc., a Delaware corporation (the
"Seller"). The Trust was created pursuant to a Pooling and
Servicing Agreement dated as of February 12, 1996 (the
"Agreement"), among AmeriCredit Financial Services, Inc.
("AmeriCredit"), as seller and servicer (the "Seller" or the
"Servicer"), and LaSalle National Bank, as trustee (the
"Trustee"), a summary of certain of the pertinent provisions
of which is set forth below. Reference is made to the
further provisions of this Class A Certificate set forth in
the attached pages 3 through 7, which further provisions
shall for all purposes have the same effect as if set forth
at this place. Unless the certificate of authentication
hereon shall have been executed by an authorized signatory
of the Trustee, by manual signature, this Class A Cer
tificate shall not entitle the holder hereof to any benefit
under the Agreement or be valid for any purpose. All
capitalized terms not otherwise defined herein have the
meanings assigned to them in the Agreement.
IN WITNESS WHEREOF, the Trustee on behalf of the
Trust and not in its individual capacity has caused this
Class A Certificate to be duly executed.
AMERICREDIT AUTOMOBILE
RECEIVABLES TRUST 1996-A
By: LASALLE NATIONAL
BANK, as Trustee
127
By:
DATED: ___________, 1996
This is one of the Class A Certificates referred
to in the within-mentioned Agreement.
LaSalle National Bank, as
Trustee
By:______________________________
Authorized Signatory
This Certificate evidences a fractional undivided interest in the Trust,
as defined above, the property of which includes a pool of retail installment
sale contracts secured by new and used automobiles and light trucks and sold
to the Trust by the Seller. This Certificate does not represent an interest
in or obligation of the Seller, in its individual capacity or as the Servicer
or any of their respective affiliates thereof, except to the extent described
below.
To the extent not otherwise defined herein, the capitalized terms used
herein have the meanings assigned to them in the Agreement. This Certificate
is one of the duly authorized Certificates designated as "5.70% Asset Backed
Certificates, Class A" (herein called the "Class A Certificates"). Also
issued under the Agreement are Certificates designated as "5.70% Asset
Backed Certificates, Class B" (the "Class B Certificates"). The Class B
Certificates and the Class A Certificates are hereinafter collectively called
the "Certificates." The Class A Certificates represent initially, or in
the aggregate, 92% of the principal balance of all Certificates. This Class A
Certificate is issued under and is subject to the terms, provisions, and
conditions of the Agreement, to which Agreement the holder of this Class A
Certificate by virtue of the acceptance hereof assents and by which such
holder is bound. The property of the Trust includes (as more fully
128
described in the Agreement) a pool of retail installment sale contracts for
new and used automobiles and light duty trucks (the "Receivables"), certain
monies due thereunder on or after February 12, 1996, security interests in
the vehicles financed thereby, certain bank accounts and the proceeds
thereof, property securing the Receivables and held by the Trustee, proceeds
from claims on physical damage, credit life and disability insurance policies
covering vehicles financed thereby and the obligors thereunder, all
Collateral Insurance relating to the Receivables and the financed vehicles,
certain rights against Dealers and in contracts with Dealers, all right,
title and interest of the Seller in and to this Agreement and any and all
proceeds of the foregoing.
Under the Agreement, there will be distributed on the 12th day of each
month or, if such 12th day is not a Business Day, the next Business Day (the
"Distribution Date"), commencing on April 12, 1996, to the person in whose
name this Class A Certificate is registered at the close of business on the
last day of the prior calendar month (the "Accounting Date"), to the extent
available from the Amount Available, such Class A Certificateholder's
fractional undivided interest in the sum of the Class A Interest Distributable
Amount for such Distribution Date, any outstanding Class A Interest Carryover
Shortfall for such Distribution Date, the Class A Principal Distributable Amount
for such Distribution Date and any Class A Principal Carryover Shortfall for
such Distribution Date.
Except as otherwise provided in the Agreement, distributions on this
Class A Certificate will be made by the Trustee by wire transfer (as provided
in the Agreement), check or money order mailed to the Class A Certificateholder
of record in the Certificate Register without the presentation or surrender of
this Class A Certificate or the making of any notation hereon. Except as
otherwise provided in the Agreement and notwithstanding the above, the final
distribution on this Class A Certificate will be made after due notice by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Class A Certificate at the office or agency maintained for
that purpose by the Trustee in Chicago, Illinois. The
129
Accounting Date otherwise applicable to such distribution shall not be
applicable.
The Certificates do not represent an obligation of, or an interest in,
the Seller, the Servicer, the Trustee or any affiliate of any of them. The
Certificates are limited in right of payment to certain collections and
recoveries respecting the Receivables, all as more specifically set forth
in the Agreement. A copy of the Agreement may be examined during normal
business hours at the principal office of the Seller, and at such other
places, if any, designated by the Seller, by any Certificateholder upon
request.
As provided in the Agreement, so long as no Insurer Default has occurred
and is continuing, with certain exceptions whenever Class A
Certificateholder action, consent or approval is required under the
Agreement, such action, consent or approval shall be deemed to have been
taken or given on behalf of, and shall be binding upon, all Class A
Certificateholders if the Security Insurer agrees to take such action or give
such consent or approval. If an Insurer Default shall have occurred and is
continuing, no Certificateholder shall have any right by virtue or by
availing itself of any provisions of the Agreement to institute any suit,
action, or proceeding in equity or at law upon or under or with respect to
the Agreement, unless such Holder previously shall have given to the Trustee
a written notice of default and of the continuance thereof, as provided in
the Agreement and unless also the Holders of Certificates evidencing not less
than 25% of the sum of the Class A Certificate Balance and the Class B
Certificate Balance, or, if there are no Class A Certificates then
outstanding, by Holders of Class B Certificates evidencing not less than 25%
of the Class B Certificate Balance shall have made written request upon the
Trustee to institute such action, suit or proceeding in its own name as
Trustee under the Agreement.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Seller and the rights of the Certificateholders under the Agreement at any
time by
130
the Seller and the Trustee with the consent of the Security Insurer
and the Holders of Certificates, voting together as a Class, evidencing not
less than a Certificate Majority. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and on all future
Holders of this Certificate and of any Certificate issued upon the registration
of transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations set
forth therein, the transfer of this Certificate is registrable in the
Certificate Registrar upon surrender of this Certificate for registration of
transfer at the offices or agencies maintained by the Trustee in its capacity
as Certificate Registrar, or by any successor Certificate Registrar, in the
City of Chicago, Illinois, accompanied by a written instrument of transfer in
form satisfactory to the Trustee and the Certificate Registrar duly executed
by the holder hereof or such holder's attorney duly authorized in writing,
and thereupon one or more new Certificates of authorized denominations
evidencing the same aggregate interest in the Trust will be issued to the
designated transferee.
The Class A Certificates and the Class B Certificates are issuable only
as registered Certificates without coupons in denominations of $1,000 and
integral multiples of $1,000 in excess thereof; however, one Certificate of
each such Class may be issued in a denomination representing or including
any remaining portion of the original Class A Certificate Balance or the
original Class B Certificate Balance, as the case may be. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates
are exchangeable for new Certificates of authorized denominations evidencing
the same aggregate denomination, as requested by the holder surrendering
the same. No service charge will be made for any such registration of
transfer or exchange, but the Trustee may require payment of a sum sufficient
to cover any
131
tax or governmental charges payable in connection therewith.
The Trustee, the Certificate Registrar, and any agent of the Trustee or
the Certificate Registrar may treat the person in whose name this Class A
Certificate is registered as the owner hereof for all purposes, and neither
the Trustee, the Certificate Registrar, nor any such agent shall be affected
by any notice to the contrary.
Each Certificateholder by purchase of the Certificates held by it
acknowledges that the Seller, as partial consideration of the issuance of the
Policy, has agreed that the Security Insurer shall have certain rights
hereunder for so long as no Insurer Default shall have occurred and be
continuing. So long as an Insurer Default has occurred and is continuing, any
provision giving the Security Insurer the right to direct, appoint or consent
to, approve of, or take any action under this Agreement shall be inoperative
during the period of such Insurer Default and such right shall instead vest
in the Trustee acting at the direction of the Holders of Certificates. The
Security Insurer may disclaim any of its rights and powers under this
Agreement (but not its duties and obligations under the Policy) upon delivery
of a written notice to the Trustee. The Security Insurer may give or withhold
any consent hereunder in its sole and absolute discretion.
The obligations and responsibilities created by the Agreement and the
Trust created thereby shall terminate upon the payment to Certificateholders
of all amounts required to be paid to them pursuant to the Agreement and the
disposition of all property held as part of the Trust. The Servicer of the
Receivables may at its option purchase the corpus of the Trust at a price
specified in the Agreement, and such purchase of the Receivables and other
property of the Trust will effect early retirement of the Certificates;
however, such right of purchase is exercisable only as of the last day of any
Collection Period as of which the Class A Certificate Balance is less than
10% of the Cut-Off Date Class A Certificate Balance.
The recitals contained herein (other than the certificate of
authentication herein) shall be taken as the
132
statements of the Seller or the Servicer, as the case may be, and the Trustee
assumes no responsibility for the correctness thereof. The Trustee makes no
representations as to the validity or sufficiency of this Certificate (other
than the certificate of authentication herein), or of any Receivable or
related document.
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
(Please print or typewrite name and address, including postal zip code,
of assignee)
the within Certificate, and all rights thereunder, hereby
irrevocably constituting and appointing
________________________ Attorney to transfer said
Certificate on the books of the Certificate Registrar, with
full power of substitution in the premises.
Dated:
_____________________________*
Signature Guaranteed:
_____________________________*
* NOTICE: The signature to this assignment must correspond
133
with the name as it appears upon the face of the within Certificate in
every particular, without alteration, enlargement or any change whatever.
Such signature must be guaranteed by a member firm of the New York Stock
Exchange or a commercial bank or trust company.
EXHIBIT B
FORM OF CLASS B CERTIFICATE
SEE ATTACHED PAGES FOR CERTAIN DEFINITIONS
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF CERTAIN PAYMENTS TO THE
CLASS A CERTIFICATES AS DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN. IN
ADDITION, ALL DISTRIBUTIONS HEREON ARE SUBJECT TO THE PRIOR CLAIMS OF CERTAIN
PARTIES TO RECEIVE AMOUNTS ON DEPOSIT IN THE SPREAD ACCOUNT.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE
IN RELIANCE UPON EXEMPTIONS PROVIDED BY THE SECURITIES ACT AND SUCH STATE
SECURITIES LAWS. NO RESALE OR OTHER TRANSFER OF THIS CERTIFICATE MAY BE MADE
UNLESS SUCH RESALE OR TRANSFER (A) IS MADE IN ACCORDANCE WITH SECTION 7.3 OF
THE POOLING AND SERVICING AGREEMENT AND (B) IS MADE (i) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, (ii) IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT
AND APPLICABLE STATE SECURITIES LAWS, (iii) TO THE SELLER OR (iv) TO A PERSON
WHO THE TRANSFEROR REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL
BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT THAT IS AWARE
THAT THE RESALE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A AND
(C) UPON THE SATISFACTION OF CERTAIN OTHER REQUIREMENTS SPECIFIED IN THE
AGREEMENT. NEITHER THE SELLER, THE SERVICER, THE TRUST NOR THE TRUSTEE IS
OBLIGATED TO REGISTER THE CERTIFICATES UNDER THE SECURITIES ACT OR ANY
APPLICABLE STATE SECURITIES LAWS.
NO RESALE OR OTHER TRANSFER OF THIS CERTIFICATE
134
MAY BE MADE UNLESS THE CERTIFICATE REGISTRAR SHALL HAVE RECEIVED A
REPRESENTATION LETTER IN SUBSTANTIALLY THE FORM REQUIRED BY THE AGREEMENT
REFERRED TO BELOW FROM THE TRANSFEREE OF THIS CERTIFICATE OR SUCH OTHER
REPRESENTATIONS (OR AN OPINION OF COUNSEL) AS MAY BE APPROVED BY THE SELLER
OR CS FIRST BOSTON CORPORATION, TO THE EFFECT THAT SUCH A TRANSFER MAY BE
MADE PURSUANT TO AN EXEMPTION FROM THE SECURITIES ACT, INCLUDING RULE 144A
THEREUNDER, AND APPLICABLE STATE SECURITIES LAWS AND (A) SUCH TRANSFEREE
WILL NOT ACQUIRE THIS CERTIFICATE WITH THE ASSETS OF ANY "EMPLOYEE BENEFIT
PLAN" AS DEFINED IN SECTION 3(3) OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED ("ERISA") OR SECTION 4975(e)(1) OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), (B) IN THE CASE OF A TRANSFER
TO AN INSURANCE COMPANY GENERAL ACCOUNT, EITHER (A) ABOVE OR, PURSUANT TO
SECTION I OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 ("PTCE 95-60"), THE
ACQUISITION AND HOLDING OF THE CERTIFICATE AND, PURSUANT TO SECTION III OF
PTCE 95-60, THE SERVICING, MANAGEMENT AND OPERATION OF THE TRUST ARE, WITH
RESPECT TO SUCH TRANSFEREE, EXEMPT FROM THE "PROHIBITED TRANSACTION"
PROVISIONS OF ERISA AND THE CODE.
AMERICREDIT AUTOMOBILE RECEIVABLES TRUST 1996-A
ASSET BACKED CERTIFICATE, CLASS B
NUMBER
RB $____________
THIS CERTIFIES THAT ____________ is the registered owner of a $_______
dollars nonassessable, fully-paid, fractional undivided interest in the
AmeriCredit Automobile Receivables Trust 1996-A (the "Trust") formed by
AmeriCredit Financial Services, Inc., a Delaware corporation (the "Seller").
The Trust was created pursuant to a Pooling and Servicing Agreement dated as
of February 12, 1996 (the "Agreement"), among AmeriCredit Financial Services,
Inc. ("AmeriCredit"), as seller and servicer (the "Seller" or the "Servicer"),
and LaSalle National Bank, as Trustee (the "Trustee"), a summary of certain
of the pertinent provisions of which is set forth below.
Reference is made to the further provisions of this Class B Certificate
set forth in the attached pages 3 through 7, which further provisions shall for
all purposes
135
have the same effect as if set forth at this place. Unless the certificate of
authentication hereon shall have been executed by an authorized signatory of
the Trustee, by manual signature, this Class B Certificate shall not entitle
the holder hereof to any benefit under the Agreement or be valid for any
purpose. All capitalized terms not otherwise defined herein have the meanings
assigned to them in the Agreement.
IN WITNESS WHEREOF, the Trustee on behalf of the Trust and not in its
individual capacity has caused this Class B Certificate to be duly executed.
AMERICREDIT AUTOMOBILE
RECEIVABLES TRUST 1996-A
By: LaSalle National
Bank, as Trustee
By:
DATED: ___________, 1996
This is one of the Class B Certificates referred
to in the within-mentioned Agreement.
LaSalle National Bank, as
Trustee
By:___________________________
Authorized Signatory
This Certificate evidences a fractional undivided interest in the Trust,
as defined below, the property of which includes a pool of retail installment
sale contracts secured by new and used automobiles and light duty trucks and
sold to the Trust by the Seller. This Certificate does not represent an
interest in or obligation of the Seller, in its individual capacity or as the
Servicer or any of their respective affiliates thereof, except to the
extent
136
described below.
To the extent not otherwise defined herein, the capitalized terms used
herein have the meanings assigned to them in the Agreement. This Certificate
is one of the duly authorized Certificates designated as "Asset Backed
Certificates, Class B" (herein called the "Class B Certificates"). Also
issued under the Agreement are Certificates designated as "5.70% Asset
Backed Certificates, Class A" (the "Class A Certificates"). The Class B
Certificates and the Class A Certificates are hereinafter collectively called
the "Certificates." This Class B Certificate is issued under and is subject
to the terms, provisions, and conditions of the Agreement, to which Agreement
the holder of this Class B Certificate by virtue of the acceptance hereof
assents and by which such holder is bound. The property of the Trust includes
(as more fully de scribed in the Agreement) a pool of retail installment sale
contracts for new and used automobiles and light duty trucks (the
"Receivables"), certain monies due thereunder on or after February 12, 1996,
security interests in the vehicles financed thereby, certain bank accounts
and the proceeds thereof, property securing the Receivables and held by the
Trustee, proceeds from claims on physical damage, credit life and disability
insurance policies covering vehicles financed thereby and the obligors
thereunder, all Collateral Insurance relating to the Receivables and the
financed vehicles, certain rights against Dealers and in contracts with
Dealers, all right, title and interest of the Seller in and to this Agreement
and any and all proceeds of the foregoing. The rights of the holders of the
Class B Certificates to receive certain payments are subordinated to the
rights of the holders of the Class A Certificates, as set forth in the
Agreement. In addition, all distributions hereon are subject to the prior
claims of certain parties to receive amounts on deposit in the Spread Account.
Under the Agreement, on the 12th day of each month or, if such 12th day
is not a Business Day, the next Business Day (the "Distribution Date"),
commencing on April 12, 1996, the Class B Distributable Amount (as defined in
the Agreement) will be applied as follows:
137
_ (A) to the Security Insurer, to the extent of any amounts owing
to the Security Insurer under the Insurance Agreement and not paid, whether or
not AmeriCredit is also obligated to pay such amounts; and
_ (B) to the Collateral Agent for deposit in the Spread Account the
remaining Available Funds; and
Amounts will only be distributed to the Holder of the Class B
Certificate as such amounts are released from the Spread Account. However,
for all purposes of the Agreement and for federal income tax purposes the
full amount of the Class B Distributable Amount will be deemed distributed to
the Class B Certificateholders on each Distribution Date, notwithstanding
that all of such amount shall be turned over to the Security Insurer or
deposited to the Spread Account on such Distribution Date.
Amounts released from the Spread Account on such Distribution Date shall
be paid to the person in whose name this Class B Certificate is registered at
the close of business on the last day of the prior calendar month (the
"Accounting Date").
Except as otherwise provided in the Agreement, distributions on this
Class B Certificate will be made by the Trustee by wire transfer (as provided
in the Agreement), check or money order mailed to the Class B
Certificateholder of record in the Certificate Register without the
presentation or surrender of this Class B Certificate or the making of any
notation hereon. Except as otherwise provided in the Agreement and
notwithstanding the above, the final distribution on this Class B Certificate
will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Class B
Certificate at the office or agency maintained for that purpose by the
Trustee in Chicago, Illinois.
The Certificates do not represent an obligation of, or an interest in,
the Seller, the Servicer, the Trustee or any affiliate of any of them. The
Certificates are limited in right of payment to certain collections and
recoveries respecting the Receivables, all as more
138
specifically set forth in the Agreement. A copy of the Agreement may be
examined during normal business hours at the principal office of the Seller,
and at such other places, if any, designated by the Seller, by any
Certificateholder upon request.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Seller and the rights of the Certificateholders under the Agreement at any
time by the Seller and the Trustee with the consent of the Security Insurer
and the Holders of Certificates, voting together as a Class, evidencing not
less than a Certificate Majority. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and on all future
Holders of this Certificate and of any Certificate issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof
whether or not notation of such consent is made upon this Certificate. The
Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the Holders of any of the Certificates.
Notwithstanding the foregoing, however, no consent of any Class A
Certificateholder or Class B Certificateholder shall be required in
connection with any amendment in order for the Seller to sell, assign,
transfer or otherwise dispose of the excess interest.
As provided in the Agreement and subject to certain limitations set
forth therein, the transfer of this Certificate is registrable in the
Certificate Registrar upon surrender of this Certificate for registration of
transfer at the offices or agencies maintained by the Trustee in its capacity
as Certificate Registrar, or by any successor Certificate Registrar, in
Chicago, Illinois, accompanied by a written instrument of transfer in form
satisfactory to the Trustee and the Certificate Registrar duly executed by
the holder hereof or such holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of authorized denominations evidencing
the same aggregate interest in the Trust will be issued to the designated
transferee.
The Class A Certificates and Class B Certificates
139
are issuable only as registered Certificates without coupons in denominations
of $1,000,000 and integral multiples of $1,000 in excess thereof; however,
one Certificate of each such Class may be issued in a denomination
representing or including any remaining portion of the original Class A
Certificate Balance or the original Class B Certificate Balance, as the case
may be. As provided in the Agreement and subject to certain limitations
therein set forth, Certificates are exchangeable for new Certificates of
authorized denominations evidencing the same aggregate denomination, as
requested by the holder surrendering the same. No service charge will be
made for any such registration of transfer or exchange, but the Trustee may
require payment of a sum sufficient to cover any tax or governmental charges
payable in connection therewith.
Each Certificateholder by purchase of the Certificates held by it
acknowledges that the Trustee, as partial consideration of the issuance of
the Policy, has agreed that the Security Insurer shall have certain rights
hereunder for so long as no Insurer Default shall have occurred and be
continuing. So long as an Insurer Default has occurred and is continuing, any
provision giving the Security Insurer the right to direct, appoint or consent
to, approve of, or take any action under this Agreement shall be inoperative
during the period of such Insurer Default and such right shall instead vest
in the Trustee acting at the direction of the Holders of Certificates. The
Security Insurer may disclaim any of its rights and powers under this
Agreement (but not its duties and obligations under the Policy) upon delivery
of a written notice to the Trustee. The Security Insurer may give or withhold
any consent hereunder in its sole and absolute discretion.
The Trustee, the Certificate Registrar, and any agent of the Trustee or
the Certificate Registrar may treat the person in whose name this Class B
Certificate is registered as the owner hereof for all purposes, and neither
the Trustee, the Certificate Registrar, nor any such agent shall be affected
by any notice to the contrary.
The obligations and responsibilities created by the Agreement and the
Trust created thereby shall terminate upon the payment to Certificateholders
of all amounts required to be paid to them pursuant to the Agreement and the
disposition of all property held as part of the Trust. The Servicer of the
Receivables may at its option purchase the corpus of the Trust at a price
specified in the Agreement, and such purchase of the Receivables and other
property of the Trust will effect early retirement of the Certificates;
however, such right of purchase is exercisable only as of the last day of any
Collection Period as of which the Class A Certificate Balance is less than
10% of the Cut-Off Date Class A Certificate Balance.
The recitals contained herein (other than the certificate of
authentication herein) shall be taken as the statements of the Seller or the
Servicer, as the case may be, and the Trustee assumes no responsibility for
the correctness thereof. The Trustee makes no representations as to the
validity or sufficiency of this Certificate (other than the certificate of
authentication herein), or of any Receivable or related document.
140
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers
unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
(Please print or typewrite name and address, including
postal zip code, of assignee)
the within Certificate, and all rights thereunder, hereby
irrevocably constituting and appointing
________________________ Attorney to transfer said
Certificate on the books of the Certificate Registrar, with
full power of substitution in the premises.
Dated:
_____________________________*
Signature Guaranteed:
_____________________________*
* NOTICE: The signature to this assignment must correspond
with the name as it appears upon the face of the within
Certificate in every particular, without alteration,
enlargement or any change whatever. Such signature must be
guaranteed by a member firm of the New York Stock Exchange
or a commercial bank or trust company.
141
EXHIBIT C
FORM OF SERVICER'S CERTIFICATE
POOLING AND SERVICING AGREEMENT
RELATING TO
AMERICREDIT AUTOMOBILE RECEIVABLES TRUST 1996-A
among
AMERICREDIT FINANCIAL SERVICES, INC.
as Seller and Servicer,
AMERICREDIT RECEIVABLES CORP.,
as Initial Class B Certificateholder
and
LASALLE NATIONAL BANK
as Trustee, Backup Servicer and Collateral Agent
______________________
Dated as of February 12, 1996
______________________
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS 1
Section 1.1. Definitions 1
Section 1.2. Usage of Terms 18
Section 1.3. Calculations 18
Section 1.4. Section References 18
Section 1.5. Action by or Consent of
Certificateholders 18
Section 1.6. No Recourse 18
Section 1.7. Material Adverse Effect 19
ARTICLE II CREATION OF TRUST 19
Section 2.1. Creation of Trust 19
ARTICLE III CONVEYANCE OF RECEIVABLES; ACCEPTANCE BY TRUSTEE;
ORIGINAL ISSUANCE OF CERTIFICATES 19
Section 3.1. Conveyance of Receivables 19
Section 3.2. Custody of Receivable Files 20
Section 3.3. Conditions to Issuance by Trust 21
Section 3.4. Representations and Warranties of Seller 21
Section 3.5. Repurchase of Receivables Upon Breach of Warranty 23
Section 3.6. [Reserved] 24
Section 3.7.Collecting Lien Certificates Not Delivered on the
Closing Date 24
Section 3.8.Trustee's Assignment of Administrative Receivables
and Warranty Receivables 24
ARTICLE IV ADMINISTRATION AND SERVICING OF RECEIVABLES 24
Section 4.1. Duties of the Servicer. 24
Section 4.2. Collection of Receivable Payments; Modifications of
Receivables; Lockbox Agreements 25
Section 4.3. Realization Upon Receivables 28
Section 4.4. Insurance 29
Section 4.5. Maintenance of Security Interests in Vehicles 31
Section 4.6. Covenants, Representations, and Warranties of
Servicer 32
Section 4.7. Purchase of Receivables Upon Breach of Covenant 34
Section 4.8. Total Servicing Fee; Payment of Certain Expenses by
Servicer; Compensating Interest 35
Section 4.9. Servicer's Certificate 35
Section 4.10. Annual Statement as to Compliance, Notice of
Servicer Termination Event 36
Section 4.11. Annual Independent Accountants' Report 37
Section 4.12. Access to Certain Documentation and Information
Regarding Receivables 37
Section 4.13. Monthly Tape 37
Section 4.14. Retention and Termination of Servicer 38
Section 4.15. Fidelity Bond and Errors and Omissions Policy. 39
ARTICLE V DISTRIBUTIONS; STATEMENTS TO CERTIFICATE HOLDERS 39
Section 5.1. Accounts 39
Section 5.2. Collections 40
Section 5.3. Application of Collections 40
Section 5.4. Additional Deposits 41
Section 5.5. Distributions 41
Section 5.6. Net Deposits 43
Section 5.7. Statements to Certificate holders 43
Section 5.8. Optional Deposits by the Security Insurer 45
ARTICLE VI THE SPREAD ACCOUNT AND THE POLICY; COVENANTS OF THE INITIAL
CLASS B CERTIFICATEHOLDER 45
Section 6.1. Initial Purchase; Spread Account 45
Section 6.2. Policy 45
Section 6.3. Withdrawals from Spread Account 45
Section 6.4. Claims Under Policy 46
Section 6.5. Preference Claims; Direction of Proceedings 47
Section 6.6. Surrender of Policy 48
Section 6.7. Special Purpose Entity 48
Section 6.8. Restrictions on Liens 49
Section 6.9. Creation of Indebtedness; Guarantees 49
Section 6.10. Other Activities 49
ARTICLE VII THE CERTIFICATES 50
Section 7.1. The Certificates 50
Section 7.2. Authentication of Certificates 50
Section 7.3. Registration of Transfer and
Exchange of Certificates 51
Section 7.4. Mutilated, Destroyed, Lost
or Stolen Certificates 53
Section 7.5. Persons Deemed Owners 54
Section 7.6. Access to List of Certificateholders'
Names and Addresses 54
Section 7.7. Maintenance of Office or Agency 54
Section 7.8. Affiliated Group May Own Certificates 54
ARTICLE VIII THE SELLER 55
Section 8.1. Liability of Seller. 55
Section 8.2. Merger or Consolidation of, or Assumption of the
Obligations of Seller; Amendment of Certificate of
Incorporation 55
Section 8.3. Limitation on Liability of
Seller and Others 55
ARTICLE IX THE SERVICER 56
Section 9.1. Liability of Servicer; Indemnities 56
Section 9.2. Merger or Consolidation of, or Assumption of the
Obligations of the Servicer or Backup Servicer 57
Section 9.3. Limitation on Liability of Servicer, Backup
Servicer and Others 58
Section 9.4. Delegation of Duties 58
Section 9.5. Servicer and Backup Servicer Not to Resign 59
ARTICLE X SERVICER TERMINATION EVENTS 60
Section 10.1. Servicer Termination Event 60
Section 10.2. Consequences of a Servicer Termination Event 61
Section 10.3. Appointment of Successor 62
Section 10.4. Notification to Certificateholders 63
Section 10.5. Waiver of Past Defaults 63
ARTICLE XI THE TRUSTEE 64
Section 11.1. Duties of Trustee 64
Section 11.2. Trustee's Assignment of Administrative Receivables
and Warranty Receivables 65
Section 11.3. Certain Matters Affecting the Trustee 66
Section 11.4. Trustee Not Liable for Certificates or
Receivables 67
Section 11.5. Trustee May Own Certificates 68
Section 11.6. Trustee's Fees and Expenses; Indemnification 68
Section 11.7. Eligibility Requirements for Trustee 69
Section 11.8. Resignation or Removal of Trustee 69
Section 11.9. Successor Trustee 70
Section 11.10. Merger or Consolidation of Trustee 71
Section 11.11. Appointment of Co-Trustee or Separate Trustee 71
Section 11.12. Representations and Warranties of Trustee 72
Section 11.13. Tax Returns 73
Section 11.14. Trustee May Enforce Claims Without Possession
of Certificates 73
Section 11.15. Suit for Enforcement 73
Section 11.16. Rights to Direct Trustee 74
ARTICLE XII TERMINATION 74
Section 12.1. Termination of the Trust 74
Section 12.2. Optional Purchase of All Receivables 75
ARTICLE XIII MISCELLANEOUS PROVISIONS 76
Section 13.1. Amendment 76
Section 13.2. Protection of Title to Trust 77
Section 13.3. Limitation on Rights of Certificateholders 79
Section 13.4. Governing Law 80
Section 13.5. Severability of Provisions 80
Section 13.6. Assignment 80
Section 13.7. Certificates Nonassessable
and Fully Paid 80
Section 13.8. Third-Party Beneficiaries 81
Section 13.9. Financial Security as Controlling Party 81
Section 13.10. Counterparts 81
Section 13.11. Notices 81
Section 13.12. Successors and Assigns 82
SCHEDULES
Schedule A Schedule of Receivables
Schedule B Representations and Warranties of
Americredit
Schedule C Servicing Policies and Procedures
EXHIBITS
Exhibit A Form of Class A Certificate
Exhibit B Form of Class B Certificate
Exhibit C Form of Servicer's Certificate