EXHIBIT 4.2
EXECUTION COPY
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AMENDED AND RESTATED
TRUST AGREEMENT
between
AFS SENSUB CORP.
Seller
and
WILMINGTON TRUST COMPANY
Owner Trustee
Dated as of January 9, 2007
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TABLE OF CONTENTS
ARTICLE I. DEFINITIONS..................................................... 1
SECTION 1.1. Capitalized Terms........................................ 1
SECTION 1.2. Other Definitional Provisions............................ 3
ARTICLE II. ORGANIZATION................................................... 4
SECTION 2.1. Name..................................................... 4
SECTION 2.2. Office................................................... 4
SECTION 2.3. Purposes and Powers...................................... 4
SECTION 2.4. Appointment of Owner Trustee............................. 5
SECTION 2.5. Initial Capital Contribution of Trust Estate............. 5
SECTION 2.6. Declaration of Trust..................................... 5
SECTION 2.7. Title to Trust Property.................................. 6
SECTION 2.8. Situs of Trust........................................... 6
SECTION 2.9. Representations and Warranties of the Depositor.......... 6
SECTION 2.10. Covenants of the Certificateholder....................... 7
SECTION 2.11. Federal Income Tax Treatment of the Trust................ 8
ARTICLE III. CERTIFICATE AND TRANSFER OF INTEREST.......................... 8
SECTION 3.1. Initial Ownership........................................ 8
SECTION 3.2. The Certificate.......................................... 8
SECTION 3.3. Authentication of Certificate............................ 8
SECTION 3.4. Registration of Transfer and Exchange of Certificate..... 9
SECTION 3.5. Mutilated, Destroyed, Lost or Stolen Certificates........ 10
SECTION 3.6. Persons Deemed Certificateholders........................ 10
SECTION 3.7. Maintenance of Office or Agency.......................... 10
SECTION 3.8. Disposition in Whole But Not in Part..................... 10
SECTION 3.9. ERISA Restrictions....................................... 10
ARTICLE IV. VOTING RIGHTS AND OTHER ACTIONS................................ 11
SECTION 4.1. Prior Notice to Holder with Respect to Certain Matters... 11
SECTION 4.2. Action by Certificateholder with Respect to Certain
Matters............................................... 11
SECTION 4.3. Restrictions on Certificateholder's Power................ 12
SECTION 4.4. Rights of Insurer........................................ 12
SECTION 4.5. Action with Respect to Bankruptcy Action................. 12
SECTION 4.6. Covenants and Restrictions on Conduct of Business........ 13
ARTICLE V. AUTHORITY AND DUTIES OF OWNER TRUSTEE........................... 15
SECTION 5.1. General Authority........................................ 15
SECTION 5.2. General Duties........................................... 15
SECTION 5.3. Action upon Instruction.................................. 15
SECTION 5.4. No Duties Except as Specified in this Agreement or in
Instructions.......................................... 16
SECTION 5.5. No Action Except under Specified Documents or
Instructions.......................................... 17
SECTION 5.6. Restrictions............................................. 17
ARTICLE VI. CONCERNING THE OWNER TRUSTEE................................... 17
SECTION 6.1. Acceptance of Trusts and Duties.......................... 17
SECTION 6.2. Furnishing of Documents.................................. 18
SECTION 6.3. Representations and Warranties........................... 19
SECTION 6.4. Reliance; Advice of Counsel.............................. 19
SECTION 6.5. Not Acting in Individual Capacity........................ 20
SECTION 6.6. Owner Trustee Not Liable for Certificate or Receivables.. 20
SECTION 6.7. Owner Trustee May Own Notes.............................. 20
SECTION 6.8. Payments from Owner Trust Estate......................... 20
SECTION 6.9. Doing Business in Other Jurisdictions.................... 21
ARTICLE VII. COMPENSATION OF OWNER TRUSTEE................................. 21
SECTION 7.1. Owner Trustee's Fees and Expenses........................ 21
SECTION 7.2. Indemnification.......................................... 21
SECTION 7.3. Payments to the Owner Trustee............................ 22
SECTION 7.4. Non-recourse Obligations................................. 22
ARTICLE VIII. TERMINATION OF TRUST AGREEMENT............................... 22
SECTION 8.1. Termination of Trust Agreement........................... 22
ARTICLE IX. SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES......... 23
SECTION 9.1. Eligibility Requirements for Owner Trustee............... 23
SECTION 9.2. Resignation or Removal of Owner Trustee.................. 23
SECTION 9.3. Successor Owner Trustee.................................. 24
SECTION 9.4. Merger or Consolidation of Owner Trustee................. 25
SECTION 9.5. Appointment of Co-Trustee or Separate Trustee............ 25
ARTICLE X. MISCELLANEOUS................................................... 26
SECTION 10.1. Supplements and Amendments............................... 26
SECTION 10.2. No Legal Title to Owner Trust Estate in
Certificateholder..................................... 27
SECTION 10.3. Limitations on Rights of Others.......................... 28
SECTION 10.4. Notices.................................................. 28
SECTION 10.5. Severability............................................. 28
SECTION 10.6. Separate Counterparts.................................... 28
SECTION 10.7. Assignments; Insurer and Swap Provider................... 29
SECTION 10.8. No Recourse.............................................. 29
SECTION 10.9. Headings................................................. 29
SECTION 10.10. GOVERNING LAW............................................ 29
SECTION 10.11. Servicer................................................. 29
SECTION 10.12. Nonpetition Covenants.................................... 29
SECTION 10.13. Third Party Beneficiary.................................. 30
SECTION 10.14. Regulation AB............................................ 30
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EXHIBITS
EXHIBIT A FORM OF CERTIFICATE
EXHIBIT B FORM OF CERTIFICATE OF TRUST
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This AMENDED AND RESTATED TRUST AGREEMENT dated as of January 9, 2007
between AFS SENSUB CORP., a Nevada corporation (the "Seller"), and WILMINGTON
TRUST COMPANY, a Delaware banking corporation, as Owner Trustee, amends and
restates in its entirety that certain Trust Agreement dated as of December 5,
2006 between the Seller and the Owner Trustee.
ARTICLE I.
Definitions
SECTION 1.1. Capitalized Terms. For all purposes of this Agreement,
the following terms shall have the meanings set forth below:
"AmeriCredit" shall mean AmeriCredit Financial Services, Inc.
"Agreement" shall mean this Trust Agreement, as the same may be
amended and supplemented from time to time.
"Bankruptcy Action" shall have the meaning assigned to such term in
Section 4.5(a).
"Basic Documents" shall mean this Agreement, the Certificate of Trust,
the Sale and Servicing Agreement, the Indenture, the Spread Account Agreement,
the Underwriting Agreement, the Lockbox Agreement, the Insurance Agreement, the
Indemnification Agreement, the Premium Letter, the Custodian Agreement, the Swap
Agreement and the other documents and certificates delivered in connection
therewith.
"Benefit Plan" shall have the meaning assigned to such term in Section
3.9.
"Certificate" means a trust certificate evidencing the beneficial
interest of a Certificateholder in the Trust, substantially in the form of
Exhibit A attached hereto.
"Certificateholder" or "Holder" shall mean the person in whose name a
Certificate is registered on the Certificate Register.
"Certificate of Trust" shall mean the Certificate of Trust in the form
of Exhibit B to be filed for the Trust pursuant to Section 3810(a) of the
Statutory Trust Statute.
"Certificate Register" and "Certificate Registrar" shall mean the
register mentioned and the registrar appointed pursuant to Section 3.4.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time, and Treasury Regulations promulgated thereunder.
"Corporate Trust Office" shall mean, with respect to the Owner
Trustee, the principal corporate trust office of the Owner Trustee located at
1100 North Market Street, Wilmington, Delaware 19890-0001, Attention: Corporate
Trust Administration, or at such other address as the Owner Trustee may
designate by notice to the Depositor, or the principal
corporate trust office of any successor Owner Trustee (the address of which the
successor owner trustee will notify the Depositor).
"Depositor" shall mean the Seller in its capacity as Depositor
hereunder.
"Distribution Date" shall have the meaning set forth in the Sale and
Servicing Agreement.
"ERISA" shall have the meaning assigned to such term in Section 3.9.
"Expenses" shall have the meaning assigned to such term in Section
7.2.
"Indemnified Parties" shall have the meaning assigned to such term in
Section 7.2.
"Indenture" shall mean the Indenture dated as of January 9, 2007,
among the Trust and Wells Fargo Bank, National Association, as Trust Collateral
Agent and Trustee, as the same may be amended and supplemented from time to
time.
"Insurer" means XL Capital Assurance Inc., or its successor in
interest.
"Owner Trust Estate" shall mean all right, title and interest of the
Trust in and to the property and rights assigned to the Trust pursuant to
Article II of the Sale and Servicing Agreement, all funds on deposit from time
to time in the Trust Accounts and all other property of the Trust from time to
time, including any rights of the Owner Trustee and the Trust pursuant to the
Sale and Servicing Agreement and the Spread Account Agreement.
"Owner Trustee" shall mean Wilmington Trust Company, a Delaware
banking corporation, not in its individual capacity but solely as owner trustee
under this Agreement, and any successor Owner Trustee hereunder.
"Record Date" shall mean with respect to any Distribution Date, the
close of business on the last Business Day immediately preceding such
Distribution Date.
"Responsible Officer" shall mean, with respect to the Owner Trustee,
any officer within the Corporate Trust Administration office of the Owner
Trustee with direct responsibility for the administration of the Trust and also,
with respect to a particular matter, any other officer to whom such matter is
referred because of such officer's knowledge of and familiarity with the
particular subject.
"Sale and Servicing Agreement" shall mean the Sale and Servicing
Agreement dated as of January 9, 2007, among the Trust, the Seller, AmeriCredit
Financial Services, Inc., Wells Fargo Bank, National Association, as Backup
Servicer and Trust Collateral Agent, as the same may be amended and supplemented
from time to time.
"Secretary of State" shall mean the Secretary of State of the State of
Delaware.
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"Spread Account" shall mean the Spread Account established and
maintained pursuant to the Spread Account Agreement.
"Spread Account Agreement" shall mean the Spread Account Agreement
dated as of January 9, 2007, among the Insurer, the Trust, the Trustee, the
Trust Collateral Agent and the Collateral Agent, as the same may be amended,
supplemented or otherwise modified in accordance with the terms thereof.
"Statutory Trust Statute" shall mean Chapter 38 of Title 12 of the
Delaware Code, 12 Del. Code Section 3801 et seq. as the same may be amended from
time to time.
"Swap Agreement" means the ISDA Master Agreement, dated January 18,
2007, between the Trust and the Swap Provider, including the Schedule thereto,
the Credit Support Annex thereto, and the Confirmation relating to the Class A-4
Notes, together with any replacement swap agreement approved by the Insurer (so
long as no Insurer Default has occurred and is continuing); provided, that no
additional swap agreement shall be a "Swap Agreement" under the Basic Documents
for so long as the Swap Agreement is outstanding without the prior, written
consent of the applicable Swap Provider unless the Swap Agreement has terminated
as a result of an Event of Default or Termination Event (each as defined in the
Swap Agreement) relating to the Swap Provider.
"Swap Provider" means Wachovia Bank, National Association, together
with any replacement Swap Provider approved by the Insurer (so long as no
Insurer Default has occurred and is continuing).
"Treasury Regulations" shall mean regulations, including proposed or
temporary regulations, promulgated under the Code. References herein to specific
provisions of proposed or temporary regulations shall include analogous
provisions of final Treasury Regulations or other successor Treasury
Regulations.
"Trust" shall mean the trust established by this Agreement.
"Trust Collateral Agent" shall mean, initially, Wells Fargo Bank,
National Association, in its capacity as collateral agent, including its
successors in interest, until and unless a successor Person shall have become
the Trust Collateral Agent pursuant to the Sale and Servicing Agreement, and
thereafter "Trust Collateral Agent" shall mean such successor Person.
SECTION 1.2. Other Definitional Provisions.
(a) Capitalized terms used herein and not otherwise defined have the
meanings assigned to them in the Sale and Servicing Agreement or, if not defined
therein, in the Spread Account Agreement or in the Indenture.
(b) All terms defined in this Agreement shall have the defined
meanings when used in any certificate or other document made or delivered
pursuant hereto unless otherwise defined therein.
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(c) As used in this Agreement and in any certificate or other document
made or delivered pursuant hereto or thereto, accounting terms not defined in
this Agreement or in any such certificate or other document, and accounting
terms partly defined in this Agreement or in any such certificate or other
document to the extent not defined, shall have the respective meanings given to
them under generally accepted accounting principles as in effect on the date of
this Agreement or any such certificate or other document, as applicable. To the
extent that the definitions of accounting terms in this Agreement or in any such
certificate or other document are inconsistent with the meanings of such terms
under generally accepted accounting principles, the definitions contained in
this Agreement or in any such certificate or other document shall control.
(d) The words "hereof," "herein," "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement; Section and Exhibit
references contained in this Agreement are references to Sections and Exhibits
in or to this Agreement unless otherwise specified; and the term "including"
shall mean "including without limitation."
(e) The definitions contained in this Agreement are applicable to the
singular as well as the plural forms of such terms and to the masculine as well
as to the feminine and neuter genders of such terms.
ARTICLE II.
Organization
SECTION 2.1. Name. There is hereby formed a trust to be known as
"AmeriCredit Automobile Receivables Trust 2007-A-X," in which name the Owner
Trustee may conduct the business of the Trust, make and execute contracts and
other instruments on behalf of the Trust and sue and be sued.
SECTION 2.2. Office. The office of the Trust shall be in care of the
Owner Trustee at the Corporate Trust Office or at such other address as the
Owner Trustee may designate by written notice to the Certificateholder.
SECTION 2.3. Purposes and Powers.
The purpose of the Trust is, and the Trust shall have the power and
authority, to engage in the following activities:
(i) to issue the Notes pursuant to the Indenture and the Certificate
pursuant to this Agreement, and to sell the Notes;
(ii) with the proceeds of the sale of the Notes, to fund the Spread
Account and to pay the organizational, start-up and transactional expenses
of the Trust and to pay the balance to the Depositor pursuant to the Sale
and Servicing Agreement;
(iii) to acquire from time to time the Owner Trust Estate, to assign,
grant, transfer, pledge, mortgage and convey the Owner Trust Estate to the
Trust Collateral
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Agent pursuant to the Indenture for the benefit of the Insurer and the
Indenture Trustee on behalf of the Noteholders and to hold, manage and
distribute to the Certificateholder pursuant to the terms of the Sale and
Servicing Agreement any portion of the Owner Trust Estate released from the
Lien of, and remitted to the Trust pursuant to, the Indenture;
(iv) to enter into the Swap Agreement;
(v) to enter into and perform its obligations under the Basic
Documents to which it is a party;
(vi) to engage in those activities, including entering into
agreements, that are necessary, suitable or convenient to accomplish the
foregoing or are incidental thereto or connected therewith (including the
sale, from time to time, of Receivables at the direction of the Servicer
pursuant to Section 4.3(c) of the Sale and Servicing Agreement) and the
filing of state business licenses (and any renewal thereof) as prepared and
instructed by the Certificateholder or Servicer without further consent or
instruction from the Instructing Party, including a Sales Finance Company
Application (and any renewal thereof) with the Pennsylvania Department of
Banking, Licensing Division, and a Financial Regulation Application (and
any renewal thereof) with the Maryland Department of Labor, Licensing and
Regulation; and
(vii) subject to compliance with the Basic Documents, to engage in
such other activities as may be required in connection with conservation of
the Owner Trust Estate and the making of distributions to the
Certificateholder and the Noteholders.
The Trust is hereby authorized to engage in the foregoing activities. The Trust
shall not engage in any activity other than in connection with the foregoing or
other than as required or authorized by the terms of this Agreement or the Basic
Documents.
SECTION 2.4. Appointment of Owner Trustee. The Depositor hereby
appoints the Owner Trustee as trustee of the Trust effective as of the date
hereof, to have all the rights, powers and duties set forth herein. The Owner
Trustee hereby accepts such appointment.
SECTION 2.5. Initial Capital Contribution of Trust Estate. The Owner
Trustee hereby acknowledges receipt in trust from the Depositor of the sum of
$1,000 which contribution shall constitute the initial Owner Trust Estate. The
Seller acknowledges that such contribution has been transferred to, and is being
held by, Wells Fargo Bank, National Association, as agent for the Trust in an
account established by Wells Fargo Bank, National Association, on behalf of the
Trust, which contribution shall constitute the initial Owner Trust Estate. The
Depositor shall pay organizational expenses of the Trust as they may arise.
SECTION 2.6. Declaration of Trust. The Owner Trustee hereby declares
that it will hold the Owner Trust Estate in trust upon and subject to the
conditions set forth herein for the use and benefit of the Holder, subject to
the obligations of the Trust under the Basic Documents. It is the intention of
the parties hereto that the Trust constitute a statutory trust under the
Statutory Trust Statute and that this Agreement constitute the governing
instrument of such statutory trust. Effective as of the date hereof, the Owner
Trustee shall have all rights,
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powers and duties set forth herein and to the extent not inconsistent herewith,
in the Statutory Trust Statute with respect to accomplishing the purposes of the
Trust. The Owner Trustee shall file the Certificate of Trust with the Secretary
of State.
The Holder shall not have any personal liability for any liability or
obligation of the Trust.
SECTION 2.7. Title to Trust Property.
(a) Legal title to all the Owner Trust Estate shall be vested at all
times in the Trust as a separate legal entity except where applicable law in any
jurisdiction requires title to any part of the Owner Trust Estate to be vested
in a trustee or trustees, in which case title shall be deemed to be vested in
the Owner Trustee, a co-trustee and/or a separate trustee, as the case may be.
(b) The Holder shall not have legal title to any part of the Trust
Property. The Holder shall be entitled to receive distributions with respect to
its undivided ownership interest therein only in accordance with Article VIII.
No transfer, by operation of law or otherwise, of any right, title or interest
by the Certificateholder of its ownership interest in the Owner Trust Estate
shall operate to terminate this Agreement or the trusts hereunder or entitle any
transferee to an accounting or to the transfer to it of legal title to any part
of the Trust Property.
SECTION 2.8. Situs of Trust. The Trust will be located and
administered in the State of Delaware. All bank accounts maintained by the Owner
Trustee on behalf of the Trust shall be located in the State of Delaware or the
State of New York. Payments will be received by the Trust only in Delaware or
New York and payments will be made by the Trust only from Delaware or New York.
The Trust shall not have any employees in any state other than Delaware;
provided, however, that nothing herein shall restrict or prohibit the Owner
Trustee, the Servicer or any agent of the Trust from having employees within or
without the State of Delaware. The only office of the Trust will be at the
Corporate Trust Office located in Delaware.
SECTION 2.9. Representations and Warranties of the Depositor. The
Depositor makes the following representations and warranties on which the Owner
Trustee relies in accepting the Owner Trust Estate in trust and issuing the
Certificate and upon which the Insurer relies in issuing the Note Policy.
(a) Organization and Good Standing. The Depositor is duly organized
and validly existing as a Nevada corporation with power and authority to own its
properties and to conduct its business as such properties are currently owned
and such business is presently conducted and is proposed to be conducted
pursuant to this Agreement and the Basic Documents.
(b) Due Qualification. It is duly qualified to do business as a
foreign corporation, is in good standing, and has obtained all necessary
licenses and approvals, in all jurisdictions in which the ownership or lease of
its property, the conduct of its business and the performance of its obligations
under this Agreement and the Basic Documents requires such qualification.
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(c) Power and Authority. The Depositor has the corporate power and
authority to execute and deliver this Agreement and to carry out its terms; the
Depositor has full power and authority to sell and assign the property to be
sold and assigned to and deposited with the Trust and the Depositor has duly
authorized such sale and assignment and deposit to the Trust by all necessary
action; and the execution, delivery and performance of this Agreement has been
duly authorized by the Depositor by all necessary action.
(d) No Consent Required. No consent, license, approval or
authorization or registration or declaration with, any Person or with any
governmental authority, bureau or agency is required in connection with the
execution, delivery or performance of this Agreement and the Basic Documents,
except for such as have been obtained, effected or made.
(e) No Violation. The consummation of the transactions contemplated by
this Agreement and the fulfillment of the terms hereof do not conflict with,
result in any breach of any of the terms and provisions of, or constitute (with
or without notice or lapse of time) a default under the certificate of
incorporation or by-laws of the Depositor, or any material indenture, agreement
or other instrument to which the Depositor is a party or by which it is bound;
nor result in the creation or imposition of any Lien upon any of its properties
pursuant to the terms of any such indenture, agreement or other instrument
(other than pursuant to the Basic Documents); nor violate any law or, to the
best of the Depositor's knowledge, any order, rule or regulation applicable to
the Depositor of any court or of any federal or state regulatory body,
administrative agency or other governmental instrumentality having jurisdiction
over the Depositor or its properties.
(f) No Proceedings. There are no proceedings or investigations pending
or, to its knowledge threatened against it before any court, regulatory body,
administrative agency or other tribunal or governmental instrumentality having
jurisdiction over it or its properties (A) asserting the invalidity of this
Agreement or any of the Basic Documents, (B) seeking to prevent the issuance of
the Certificate or the Notes or the consummation of any of the transactions
contemplated by this Agreement or any of the Basic Documents, (C) seeking any
determination or ruling that might materially and adversely affect its
performance of its obligations under, or the validity or enforceability of, this
Agreement or any of the Basic Documents, or (D) seeking to adversely affect the
federal income tax or other federal, state or local tax attributes of the
Certificate.
SECTION 2.10. Covenants of the Certificateholder. The
Certificateholder agrees:
(a) to be bound by the terms and conditions of the Certificate of
which the Holder is the beneficial owner and of this Agreement, including any
supplements or amendments hereto and to perform the obligations of a Holder as
set forth therein or herein, in all respects as if it were a signatory hereto.
This undertaking is made for the benefit of the Trust, the Owner Trustee and the
Insurer; and
(b) until the completion of the events specified in Section 8.1(d),
not to, for any reason, institute proceedings for the Trust to be adjudicated a
bankrupt or insolvent, or consent to the institution of bankruptcy or insolvency
proceedings against the Trust, or file a
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petition seeking or consenting to reorganization or relief under any applicable
federal or state law relating to bankruptcy, or consent to the appointment of a
receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of the Trust or a substantial part of its property, or cause or permit
the Trust to make any assignment for the benefit of its creditors, or admit in
writing its inability to pay its debts generally as they become due, or declare
or effect a moratorium on its debt or take any action in furtherance of any such
action.
SECTION 2.11. Federal Income Tax Treatment of the Trust.
(a) For so long as the Trust has a single owner for federal income tax
purposes, it will, pursuant to Treasury Regulations promulgated under section
7701 of the Code, be disregarded as an entity distinct from the
Certificateholder for all federal income tax purposes. Accordingly, for federal
income tax purposes, the Certificateholder will be treated as (i) owning all
assets owned by the Trust, (ii) having incurred all liabilities incurred by the
Trust and (iii) all transactions between the Trust and the Certificateholder
will be disregarded.
(b) Neither the Owner Trustee nor any Certificateholder will, under
any circumstances, and at any time, make an election on IRS Form 8832 or
otherwise, to classify the Trust as an association taxable as a corporation for
federal, state or any other applicable tax purpose.
(c) In the event that the Trust has two or more equity owners for
federal income tax purposes, the Trust will be treated as a partnership. At any
such time that the Trust has two or more equity owners, this Agreement will be
amended, in accordance with Section 10.1 herein, and appropriate provisions will
be added so as to provide for treatment of the Trust as a partnership.
ARTICLE III.
Certificate and Transfer of Interest
SECTION 3.1. Initial Ownership. Upon the formation of the Trust by the
contribution by the Depositor pursuant to Section 2.5 and until the issuance of
the Certificate to the initial Certificateholder, the Depositor shall be the
sole beneficiary of the Trust.
SECTION 3.2. The Certificate. The Certificate shall be executed on
behalf of the Trust by manual or facsimile signature of an authorized officer of
the Owner Trustee. A Certificate bearing the manual or facsimile signatures of
individuals who were, at the time when such signatures shall have been affixed,
authorized to sign on behalf of the Trust, shall be validly issued and entitled
to the benefit of this Agreement, notwithstanding that such individuals or any
of them shall have ceased to be so authorized prior to the authentication and
delivery of such Certificate or did not hold such offices at the date of
authentication and delivery of such Certificate. A transferee of a Certificate
shall become a Certificateholder, and shall be entitled to the rights and
subject to the obligations of a Certificateholder hereunder, upon due
registration of such Certificate in such transferee's name pursuant to Section
3.4.
SECTION 3.3. Authentication of Certificate. Concurrently with the sale
of the Receivables to the Trust pursuant to the Sale and Servicing Agreement,
the Owner Trustee shall
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cause the Certificate to be executed on behalf of the Trust, authenticated and
delivered to or upon the written order of the Depositor, signed by its chairman
of the board, its president or any vice president, its treasurer or any
assistant treasurer without further corporate action by the Depositor, in
authorized denominations. Notwithstanding the foregoing and without any
additional action, the Depositor hereby directs that the Certificate be issued
in the name of, and delivered to, AFS SenSub Corp., as initial
Certificateholder. No Certificate shall entitle its holder to any benefit under
this 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, executed by the Owner Trustee or Wilmington Trust Company as
the Owner Trustee's authentication agent, by manual signature; such
authentication shall constitute conclusive evidence that such Certificate shall
have been duly authenticated and delivered hereunder. The Certificate shall be
dated the date of its authentication.
SECTION 3.4. Registration of Transfer and Exchange of Certificate. The
Certificate Registrar shall keep or cause to be kept, at the office or agency
maintained pursuant to Section 3.7, a Certificate Register in which, subject to
such reasonable regulations as it may prescribe, the Owner Trustee shall provide
for the registration of the Certificate and of transfers and exchanges of the
Certificate as herein provided. Wilmington Trust Company shall be the initial
Certificate Registrar.
The Certificate Registrar shall provide the Trust Collateral Agent
with the name and address of the Certificateholder on the Closing Date. Upon any
transfers of the Certificate, the Certificate Registrar shall notify the Trust
Collateral Agent of the name and address of the transferee in writing, by
facsimile, on the day of such transfer.
Upon surrender for registration of transfer of the Certificate at the
office or agency maintained pursuant to Section 3.7, the Owner Trustee shall
execute, authenticate and deliver (or shall cause Wilmington Trust Company as
its authenticating agent to authenticate and deliver), in the name of the
designated transferee, a new Certificate dated the date of authentication by the
Owner Trustee or any authenticating agent.
A Certificate presented or surrendered for registration of transfer or
exchange shall be accompanied by a written instrument of transfer in form
satisfactory to the Owner Trustee and the Certificate Registrar duly executed by
the Certificateholder or his attorney duly authorized in writing, with such
signature guaranteed by an "eligible guarantor institution" meeting the
requirements of the Certificate Registrar, which requirements include membership
or participation in the Securities Transfer Agent's Medallion Program ("STAMP")
or such other "signature guarantee program" as may be determined by the
Certificate Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Exchange Act. Each Certificate surrendered for registration
of transfer or exchange shall be canceled and subsequently disposed of by the
Owner Trustee in accordance with its customary practice.
No service charge shall be made for any registration of transfer or
exchange of the Certificate, but the Owner Trustee or the Certificate Registrar
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 the
Certificate.
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SECTION 3.5. Mutilated, Destroyed, Lost or Stolen Certificates. If (a)
any mutilated Certificate shall be surrendered to the Certificate Registrar, or
if the Certificate Registrar shall receive evidence to its satisfaction of the
destruction, loss or theft of any Certificate and (b) there shall be delivered
to the Certificate Registrar, the Owner Trustee and (unless an Insurer Default
shall have occurred and be continuing) the Insurer, such security or indemnity
as may be required by them to save each of them harmless, then in the absence of
notice that such Certificate shall have been acquired by a bona fide purchaser,
the Owner Trustee on behalf of the Trust shall execute and the Owner Trustee, or
Wilmington Trust Company, as the Owner Trustee's authenticating agent, shall
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of like class, tenor
and denomination. In connection with the issuance of any new Certificate under
this Section, the Owner Trustee or the Certificate Registrar may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection therewith. Any duplicate Certificate issued
pursuant to this Section shall constitute conclusive evidence of an ownership
interest in the Trust, as if originally issued, whether or not the lost, stolen
or destroyed Certificate shall be found at any time.
SECTION 3.6. Persons Deemed Certificateholders. Every Person by virtue
of becoming a Certificateholder in accordance with this Agreement shall be
deemed to be bound by the terms of this Agreement. Prior to due presentation of
the Certificate for registration of transfer, the Owner Trustee, the Certificate
Registrar and the Insurer and any agent of the Owner Trustee, the Certificate
Registrar and the Insurer, may treat the person in whose name any Certificate
shall be registered in the Certificate Register as the owner of such Certificate
for the purpose of receiving distributions pursuant to the Sale and Servicing
Agreement and for all other purposes whatsoever, and none of the Owner Trustee,
the Certificate Registrar or the Insurer nor any agent of the Owner Trustee, the
Certificate Registrar or the Insurer shall be bound by any notice to the
contrary.
SECTION 3.7. Maintenance of Office or Agency. The Owner Trustee shall
maintain an office or offices or agency or agencies where the Certificate may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Owner Trustee in respect of the Certificate and the Basic
Documents may be served. The Owner Trustee initially designates the Corporate
Trust Office for such purposes. The Owner Trustee shall give prompt written
notice to the Depositor, the Certificateholder and (unless an Insurer Default
shall have occurred and be continuing) the Insurer of any change in the location
of the Certificate Register or any such office or agency.
SECTION 3.8. Disposition in Whole But Not in Part. The Certificate may
be transferred in whole but not in part. Any attempted transfer of the
Certificate that would divide the ownership of the Owner Trust Estate shall be
void. The Owner Trustee shall cause any Certificate issued to contain a legend
stating "THIS CERTIFICATE IS NOT TRANSFERABLE, EXCEPT UNDER THE LIMITED
CONDITIONS SPECIFIED IN THE TRUST AGREEMENT."
SECTION 3.9. ERISA Restrictions. The Certificate may not be acquired
by or for the account of (i) an employee benefit plan (as defined in Section
3(3) of the Employee Retirement Income Security Act of 1974, as amended
("ERISA")) that is subject to the
10
provisions of Title I of ERISA, (ii) a plan (as defined in Section 4975(e)(1) of
the Code) that is subject to Section 4975 of the Code, or (iii) any entity whose
underlying assets include assets of a plan described in (i) or (ii) above by
reason of such plan's investment in the entity (each, a "Benefit Plan"). By
accepting and holding its beneficial ownership interest in its Certificate, the
Holder thereof shall be deemed to have represented and warranted that it is not
a Benefit Plan.
ARTICLE IV.
Voting Rights and Other Actions
SECTION 4.1. Prior Notice to Holder with Respect to Certain Matters.
With respect to the following matters, the Owner Trustee shall not take action
unless at least 30 days before the taking of such action, the Owner Trustee
shall have notified the Certificateholder in writing of the proposed action and
the Certificateholder shall not have notified the Owner Trustee in writing prior
to the 30th day after such notice is given that the Certificateholder has
withheld consent or provided alternative direction:
(a) the election by the Trust to file an amendment to the Certificate
of Trust (unless such amendment is required to be filed under the Statutory
Trust Statute or unless such amendment would not materially and adversely affect
the interests of the Holder);
(b) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is required;
(c) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is not required and such
amendment materially adversely affects the interest of the Certificateholder; or
(d) except pursuant to Section 12.1(b) of the Sale and Servicing
Agreement, the amendment, change or modification of the Sale and Servicing
Agreement, except to cure any ambiguity or defect or to amend or supplement any
provision in a manner that would not materially adversely affect the interests
of the Certificateholder.
The Owner Trustee shall notify the Certificateholder in writing of any
appointment of a successor Note Registrar or Trust Collateral Agent within five
Business Days after receipt of notice thereof.
SECTION 4.2. Action by Certificateholder with Respect to Certain
Matters. The Owner Trustee shall not have the power, except upon the direction
of the Certificateholder or the Insurer in accordance with the Basic Documents,
to (a) remove the Servicer under the Sale and Servicing Agreement pursuant to
Section 9.2 thereof or (b) except as expressly provided in the Basic Documents,
sell the Receivables after the termination of the Indenture. The Owner Trustee
shall take the actions referred to in the preceding sentence only upon written
instructions signed by the Certificateholder and the furnishing of
indemnification satisfactory to the Owner Trustee by the Certificateholder.
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SECTION 4.3. Restrictions on Certificateholder's Power.
(a) The Certificateholder shall not direct the Owner Trustee to take
or refrain from taking any action if such action or inaction would be contrary
to any obligation of the Trust or the Owner Trustee under this Agreement or any
of the Basic Documents or would be contrary to Section 2.3 nor shall the Owner
Trustee be obligated to follow any such direction, if given.
(b) The Certificateholder shall not 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 or any Basic Document, unless the Certificateholder is the Instructing
Party pursuant to Section 5.3 and unless the Certificateholder previously shall
have given to the Owner Trustee a written notice of default and of the
continuance thereof, as provided in this Agreement, and also unless the
Certificateholder shall have made written request upon the Owner Trustee to
institute such action, suit or proceeding in its own name as Owner Trustee under
this Agreement and shall have offered to the Owner Trustee such reasonable
indemnity as it may require against the costs, expenses and liabilities to be
incurred therein or thereby, and the Owner 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 Owner Trustee pursuant to and in compliance with this Section
or Section 5.3. For the protection and enforcement of the provisions of this
Section, the Certificateholder and the Owner Trustee shall be entitled to such
relief as can be given either at law or in equity.
SECTION 4.4. Rights of Insurer. Notwithstanding anything to the
contrary in the Basic Documents, without the prior written consent of the
Insurer (so long as no Insurer Default shall have occurred and be continuing),
the Owner Trustee shall not (i) remove the Servicer, (ii) initiate any claim,
suit or proceeding by the Trust or compromise any claim, suit or proceeding
brought by or against the Trust, other than with respect to the enforcement of
any Receivable or any rights of the Trust thereunder, (iii) authorize the merger
or consolidation of the Trust with or into any other statutory trust or other
entity (other than in accordance with Section 3.10 of the Indenture) or (iv)
amend the Certificate of Trust (unless such amendment is required to be filed
under the Statutory Trust Statute).
SECTION 4.5. Action with Respect to Bankruptcy Action
(a) The Trust shall not, without the prior written consent of the
Owner Trustee, (a) institute any proceedings to adjudicate the Trust a bankrupt
or insolvent, (b) consent to the institution of bankruptcy or insolvency
proceedings against the Trust, (c) file a petition seeking or consenting to
reorganization or relief under any applicable federal or state law relating to
bankruptcy with respect to the Trust, (d) consent to the appointment of a
receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of the Trust or a substantial part of its property, (e) make any
assignment for the benefit of the Trust's creditors; (f) cause the Trust to
admit in writing its inability to pay its debts generally as they become due; or
(g) take any action in furtherance of any of the foregoing (any of the above
foregoing actions, a "Bankruptcy Action"). In considering whether to give or
withhold written consent to a Bankruptcy Action by the Trust, the Owner Trustee,
with the consent of the Certificateholders (hereby given, which
12
consent the Certificateholders believe to be in the best interests of the
Certificateholders and the Trust), shall consider the interest of the
Noteholders and the Insurer in addition to the interests of the Trust and
whether the Trust is insolvent; provided, however, that the Owner Trustee shall
not be deemed to owe any fiduciary duty to the Noteholders or the Insurer. The
Owner Trustee shall have no duty to give such written consent to a Bankruptcy
Action by the Trust if the Owner Trustee shall not have been furnished (at the
expense of the Trust) or the Person that requested that such letter be furnished
to the Owner Trustee) a letter from an independent accounting firm of national
reputation stating that in the opinion of such firm the Trust is then insolvent.
The Owner Trustee (as such and in its individual capacity) shall not be
personally liable to any Person on account of the Owner Trustee's good faith
reliance on the provisions of this Section or in connection with the Owner
Trustee's giving prior written consent to a Bankruptcy Action by the Trust in
accordance herewith, or withholding such consent, in good faith, and neither the
Trust nor any Certificateholder shall have any claim for breach of fiduciary
duty or otherwise against the Owner Trustee (as such and in its individual
capacity) for giving or withholding its consent to any such Bankruptcy Action.
(b) The parties hereto stipulate and agree that no Certificateholder
has power to commence any Bankruptcy Action on the part of the Trust or to
direct the Owner Trustee to take any Bankruptcy Action on the part of the Trust
except as provided in Section 4.5(a). To the extent permitted by applicable law,
the consent of the Insurer and the Trust Collateral Agent shall be obtained
prior to taking any Bankruptcy Action by the Trust.
(c) The provisions of this Section do not constitute an
acknowledgement or admission by the Trust, the Owner Trustee, any
Certificateholder or any creditor of the Trust that the Trust is eligible to be
a debtor, under the United States Bankruptcy Code, 11 U.S.C. Sections 101 et
seq., as amended.
SECTION 4.6. Covenants and Restrictions on Conduct of Business.
(a) The Trust agrees to abide by the following restrictions:
(i) other than as contemplated by the Basic Documents and related
documentation, the Trust shall not incur any indebtedness;
(ii) other than as contemplated by the Basic Documents and related
documentation, the Trust shall not engage in any dissolution, liquidation,
consolidation, merger or sale of assets;
(iii) the Trust shall not engage in any business activity in which it
is not currently engaged other than as contemplated by the Basic Documents
and related documentation; and
(iv) the Trust shall not form, or cause to be formed, any subsidiaries
and shall not own or acquire any asset other than as contemplated by the
Basic Documents and related documentation.
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(b) The Trust shall:
(i) maintain books and records separate from any other person or
entity;
(ii) maintain its office and bank accounts separate from any other
person or entity;
(iii) not commingle its assets with those of any other person or
entity;
(iv) conduct its own business in its own name and use stationery or
other business forms under its own name and not that of any
Certificateholder or any Affiliate;
(v) other than as contemplated by the Basic Documents and related
documentation, pay its own liabilities and expenses only out of its own
funds;
(vi) observe all formalities required under the Statutory Trust
Statute;
(vii) not guarantee or become obligated for the debts of any other
person or entity;
(viii) not hold out its credit as being available to satisfy the
obligation of any other person or entity;
(ix) not acquire the obligations or securities of its
Certificateholders or its Affiliates;
(x) other than as contemplated by the Basic Documents and related
documentation, not make loans to any other person or entity or buy or hold
evidence of indebtedness issued by any other person or entity;
(xi) other than as contemplated by the Basic Documents and related
documentation, not pledge its assets for the benefit of any other person or
entity;
(xii) hold itself out as a separate entity from each Certificateholder
and not conduct any business in the name of any Certificateholder;
(xiii) correct any known misunderstanding regarding its separate
identity;
(xiv) not identify itself as a division of any other person or entity;
and
(xv) except as required or specifically provided in the Trust
Agreement, the Trust will conduct business with the Certificateholders or
any Affiliate thereof on an arm's length basis.
(c) So long as the Notes or any other amounts owed under the Indenture
remain outstanding, the Trust shall not amend this Section 4.6 unless the Rating
Agency Condition has been satisfied and without the prior written consent of the
Insurer.
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ARTICLE V.
Authority and Duties of Owner Trustee
SECTION 5.1. General Authority.
(a) The Owner Trustee is authorized and directed to execute and
deliver the Basic Documents to which the Trust is named as a party, each
certificate or other document attached as an exhibit to or contemplated by the
Basic Documents to which the Trust is named as a party and any amendment thereto
and on behalf of the Trust, each state business license (and any renewal
thereof) prepared by the Certificateholder or Servicer, including a Sales
Finance Company Application (and any renewal thereof) with the Pennsylvania
Department of Banking, Licensing Division, and a Financial Regulation
Application (and any renewal thereof) with the Maryland Department of Labor,
Licensing and Regulation, in each case, in such form as the Depositor shall
approve as evidenced conclusively by the Owner Trustee's execution thereof, and
on behalf of the Trust, to direct the Indenture Trustee to authenticate and
deliver Class A-1 Notes in the aggregate principal amount of $217,000,000, Class
A-2 Notes in the aggregate principal amount of $348,000,000, Class A-3 Notes in
the aggregate principal amount of $248,000,000 and Class A-4 Notes in the
aggregate principal amount of $387,000,000. In addition to the foregoing, the
Owner Trustee is authorized, but shall not be obligated, to take all actions
required of the Trust pursuant to the Basic Documents. The Owner Trustee is
further authorized from time to time to take such action as the Instructing
Party recommends with respect to the Basic Documents so long as such activities
are consistent with the terms of the Basic Documents.
(b) The Owner Trustee shall sign on behalf of the Trust any applicable
tax returns of the Trust, unless applicable law requires a Certificateholder to
sign such documents.
SECTION 5.2. General Duties. It shall be the duty of the Owner Trustee
to discharge (or cause to be discharged) all of its responsibilities pursuant to
the terms of this Agreement and the Sale and Servicing Agreement and to
administer the Trust in the interest of the Holder, subject to the Basic
Documents and in accordance with the provisions of this Agreement.
Notwithstanding the foregoing, the Owner Trustee shall be deemed to have
discharged its duties and responsibilities hereunder and under the Basic
Documents to the extent the Servicer has agreed in the Sale and Servicing
Agreement to perform any act or to discharge any duty of the Trust or the Owner
Trustee hereunder or under any Basic Document, and the Owner Trustee shall not
be liable for the default or failure of the Servicer to carry out its
obligations under the Sale and Servicing Agreement.
SECTION 5.3. Action upon Instruction.
(a) Subject to Article IV and the terms of the Spread Account
Agreement, the Insurer (so long as an Insurer Default shall not have occurred
and be continuing) or the Certificateholder (if an Insurer Default shall have
occurred and be continuing) (the "Instructing Party") shall have the exclusive
right to direct the actions of the Owner Trustee in the management of the Trust,
so long as such instructions are not inconsistent with the express terms set
forth herein or in any Basic Document, provided, however, that the Owner Trustee
shall be permitted to treat the Insurer as the Instructing Party until such time
as the Owner Trustee has
15
received written notice that the Insurer is no longer the Instructing Party as a
result of the occurrence and continuance of an Insurer Default. The Instructing
Party shall not instruct the Owner Trustee in a manner inconsistent with this
Agreement or the Basic Documents.
(b) The Owner Trustee shall not be required to take any action
hereunder or under any Basic Document if the Owner Trustee shall have reasonably
determined, or shall have been advised by counsel, that such action is likely to
result in liability on the part of the Owner Trustee or is contrary to the terms
hereof or of any Basic Document or is otherwise contrary to law.
(c) Whenever the Owner Trustee is unable to decide between alternative
courses of action permitted or required by the terms of this Agreement or any
Basic Document, the Owner Trustee shall promptly give notice (in such form as
shall be appropriate under the circumstances) to the Instructing Party
requesting instruction as to the course of action to be adopted, and to the
extent the Owner Trustee acts in good faith in accordance with any written
instruction of the Instructing Party received, the Owner Trustee shall not be
liable on account of such action to any Person. If the Owner Trustee shall not
have received appropriate instruction within ten days of such notice (or within
such shorter period of time as reasonably may be specified in such notice or may
be necessary under the circumstances) it may, but shall be under no duty to,
take or refrain from taking such action, not inconsistent with this Agreement or
the Basic Documents, as it shall deem to be in the best interests of the
Certificateholder, and shall have no liability to any Person for such action or
inaction.
(d) In the event that the Owner Trustee is unsure as to the
application of any provision of this Agreement or any Basic Document or any such
provision is ambiguous as to its application, or is, or appears to be, in
conflict with any other applicable provision, or in the event that this
Agreement permits any determination by the Owner Trustee or is silent or is
incomplete as to the course of action that the Owner Trustee is required to take
with respect to a particular set of facts, the Owner Trustee may give notice (in
such form as shall be appropriate under the circumstances) to the Instructing
Party requesting instruction and, to the extent that the Owner Trustee acts or
refrains from acting in good faith in accordance with any such instruction
received, the Owner Trustee shall not be liable, on account of such action or
inaction, to any Person. If the Owner Trustee shall not have received
appropriate instruction within 10 days of such notice (or within such shorter
period of time as reasonably may be specified in such notice or may be necessary
under the circumstances) it may, but shall be under no duty to, take or refrain
from taking such action, not inconsistent with this Agreement or the Basic
Documents, as it shall deem to be in the best interests of the
Certificateholder, and shall have no liability to any Person for such action or
inaction.
SECTION 5.4. No Duties Except as Specified in this Agreement or in
Instructions. The Owner Trustee shall not have any duty or obligation to manage,
make any payment with respect to, register, record, sell, dispose of, or
otherwise deal with the Owner Trust Estate, or to otherwise take or refrain from
taking any action under, or in connection with, any document contemplated hereby
to which the Owner Trustee is a party, except as expressly provided by the terms
of this Agreement or in any document or written instruction received by the
Owner Trustee pursuant to Section 5.3; and no implied duties or obligations
shall be read into this Agreement or any Basic Document against the Owner
Trustee. The Owner Trustee shall
16
have no responsibility for filing any financing or continuation statement in any
public office at any time or to otherwise perfect or maintain the perfection of
any security interest or lien granted to it hereunder or to prepare or file any
Commission filing (including any filings required pursuant to the Sarbanes-Oxley
Act of 2002 or any rule or regulation promulgated thereunder) for the Trust or
to record this Agreement or any Basic Document. The Owner Trustee nevertheless
agrees that it will, at its own cost and expense, promptly take all action as
may be necessary to discharge any Liens on any part of the Owner Trust Estate
that result from actions by, or claims against, the Owner Trustee (solely in its
individual capacity) and that are not related to the ownership or the
administration of the Owner Trust Estate.
SECTION 5.5. No Action Except under Specified Documents or
Instructions. The Owner Trustee shall not manage, control, use, sell, dispose of
or otherwise deal with any part of the Owner Trust Estate except (i) in
accordance with the powers granted to and the authority conferred upon the Owner
Trustee pursuant to this Agreement, (ii) in accordance with the Basic Documents
and (iii) in accordance with any document or instruction delivered to the Owner
Trustee pursuant to Section 5.3.
SECTION 5.6. Restrictions. The Owner Trustee shall not take any action
(a) that is inconsistent with the purposes of the Trust set forth in Section 2.3
or (b) that, to the actual knowledge of the Owner Trustee, would result in the
Trust's becoming taxable as a corporation for federal income tax purposes. The
Certificateholder shall not direct the Owner Trustee to take action that would
violate the provisions of this Section.
ARTICLE VI.
Concerning the Owner Trustee
SECTION 6.1. Acceptance of Trusts and Duties. The Owner Trustee
accepts the trusts hereby created and agrees to perform its duties hereunder
with respect to such trusts but only upon the terms of this Agreement. The Owner
Trustee also agrees to disburse all moneys actually received by it constituting
part of the Owner Trust Estate upon the terms of the Basic Documents and this
Agreement. The Owner Trustee shall not be answerable or accountable hereunder or
under any Basic Document under any circumstances, except (i) for its own willful
misconduct, bad faith or negligence, (ii) in the case of the inaccuracy of any
representation or warranty contained in Section 6.3 expressly made by the Owner
Trustee, (iii) for liabilities arising from the failure of the Owner Trustee to
perform obligations expressly undertaken by it in the last sentence of Section
5.4 hereof, (iv) for any investments issued by the Owner Trustee or any branch
or affiliate thereof in its commercial capacity or (v) for taxes, fees or other
charges on, based on or measured by, any fees, commissions or compensation
received by the Owner Trustee. In particular, but not by way of limitation (and
subject to the exceptions set forth in the preceding sentence):
(a) the Owner Trustee shall not be liable for any error of judgment
made by a Responsible Officer of the Owner Trustee (except in the case of
willful misconduct, bad faith or negligence);
17
(b) the Owner Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in accordance with the instructions of the
Instructing Party, the Servicer or the Certificateholder;
(c) no provision of this Agreement or any Basic Document shall require
the Owner Trustee to expend or risk funds or otherwise incur any financial
liability in the performance of any of its rights or powers hereunder or under
any Basic Document if the Owner Trustee shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured or provided to it;
(d) under no circumstances shall the Owner Trustee be liable for
indebtedness evidenced by or arising under any of the Basic Documents, including
the principal of and interest on the Notes;
(e) the Owner Trustee shall not be responsible for or in respect of
the validity or sufficiency of this Agreement or for the due execution hereof by
the Depositor or for the form, character, genuineness, sufficiency, value or
validity of any of the Owner Trust Estate or for or in respect of the validity
or sufficiency of the Basic Documents, other than the certificate of
authentication on the Certificate, and the Owner Trustee shall in no event
assume or incur any liability, duty or obligation to the Insurer, Trustee, Trust
Collateral Agent, the Collateral Agent, any Noteholder or to any
Certificateholder, other than as expressly provided for herein and in the Basic
Documents;
(f) the Owner Trustee shall not be liable for the default or
misconduct of the Insurer, the Trustee, the Trust Collateral Agent or the
Servicer under any of the Basic Documents or otherwise and the Owner Trustee
shall have no obligation or liability to perform the obligations under this
Agreement or the Basic Documents that are required to be performed by the
Trustee under the Indenture or the Trust Collateral Agent or the Servicer under
the Sale and Servicing Agreement; and
(g) the Owner 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 otherwise or in relation to this
Agreement or any Basic Document, at the request, order or direction of the
Instructing Party or the Certificateholder, unless such Instructing Party or
Certificateholder has offered to the Owner Trustee security or indemnity
satisfactory to it against the costs, expenses and liabilities that may be
incurred by the Owner Trustee therein or thereby. The right of the Owner Trustee
to perform any discretionary act enumerated in this Agreement or in any Basic
Document shall not be construed as a duty, and the Owner Trustee shall not be
answerable for other than its negligence, bad faith or willful misconduct in the
performance of any such act.
SECTION 6.2. Furnishing of Documents. The Owner Trustee shall furnish
to the Certificateholder promptly upon receipt of a written request therefor,
duplicates or copies of all reports, notices, requests, demands, certificates,
financial statements and any other instruments furnished to the Owner Trustee
under the Basic Documents.
18
SECTION 6.3. Representations and Warranties. The Owner Trustee hereby
represents and warrants to the Depositor, the Holder and the Insurer (which
shall have relied on such representations and warranties in issuing the Note
Policy), that:
(a) It is a Delaware banking corporation, duly organized and validly
existing in good standing under the laws of the State of Delaware. It has all
requisite corporate power and authority to execute, deliver and perform its
obligations under this Agreement.
(b) It has taken all corporate action necessary to authorize the
execution and delivery by it of this Agreement, and this Agreement will be
executed and delivered by one of its officers who is duly authorized to execute
and deliver this Agreement on its behalf.
(c) Neither the execution nor the delivery by it of this Agreement,
nor the consummation by it of the transactions contemplated hereby nor
compliance by it with any of the terms or provisions hereof will contravene any
federal or Delaware state law, governmental rule or regulation governing the
banking or trust powers of the Owner Trustee or any judgment or order binding on
it, or constitute any default under its charter documents or by-laws or any
indenture, mortgage, contract, agreement or instrument to which it is a party or
by which any of its properties may be bound.
(d) The Agreement has been, or, when executed and delivered will have
been, duly authorized, validly executed and delivered by the Owner Trustee and
constitutes, a valid and binding agreement of the Owner Trustee, enforceable
against the Owner Trustee in accordance with its terms, except to the extent
that enforceability may (A) be subject to insolvency, reorganization,
moratorium, or other similar laws, regulations or procedures of general
applicability now or hereinafter in effect relating to or affecting creditor's
rights generally and (B) be limited by general principles of equity (whether
considered in a proceeding at law or in equity).
SECTION 6.4. Reliance; Advice of Counsel.
(a) The Owner Trustee shall incur no liability to anyone in acting
upon any signature, instrument, notice, resolution, request, consent, order,
certificate, report, opinion, bond or other document or paper believed by it to
be genuine and believed by it to be signed by the proper party or parties. The
Owner Trustee may accept a certified copy of a resolution of the board of
directors or other governing body of any corporate party as conclusive evidence
that such resolution has been duly adopted by such body and that the same is in
full force and effect. As to any fact or matter the method of the determination
of which is not specifically prescribed herein, the Owner Trustee may for all
purposes hereof rely on a certificate, signed by the president or any vice
president or by the treasurer, secretary or other authorized officers of the
relevant party, as to such fact or matter, and such certificate shall constitute
full protection to the Owner Trustee for any action taken or omitted to be taken
by it in good faith in reliance thereon.
(b) In the exercise or administration of the trusts hereunder and in
the performance of its duties and obligations under this Agreement or the Basic
Documents, the Owner Trustee (i) may act directly or through its agents or
attorneys pursuant to agreements entered into with any of them, and the Owner
Trustee shall not be liable for the conduct or
19
misconduct of such agents or attorneys if such agents or attorneys shall have
been selected by the Owner Trustee with reasonable care, and (ii) may consult
with counsel, accountants and other skilled persons to be selected with
reasonable care and employed by it. The Owner Trustee shall not be liable for
anything done, suffered or omitted in good faith by it in accordance with the
written opinion or advice of any such counsel, accountants or other such persons
and according to such opinion not contrary to this Agreement or any Basic
Document.
SECTION 6.5. Not Acting in Individual Capacity. Except as provided in
this Article VI, in accepting the trust hereby created Wilmington Trust Company
acts solely as Owner Trustee hereunder and not in its individual capacity and
all Persons having any claim against the Owner Trustee by reason of the
transactions contemplated by this Agreement or any Basic Document shall look
only to the Owner Trust Estate for payment or satisfaction thereof.
SECTION 6.6. Owner Trustee Not Liable for Certificate or Receivables.
The recitals contained herein and in the Certificate (other than the signature
and countersignature of the Owner Trustee on the Certificate) shall be taken as
the statements of the Depositor and the Owner Trustee assumes no responsibility
for the correctness thereof. The Owner Trustee makes no representations as to
the validity or sufficiency of this Agreement, of any Basic Document or of the
Certificate (other than the signature and countersignature of the Owner Trustee
on the Certificate) or the Notes, or of any Receivable or related documents. The
Owner Trustee shall at no time have any responsibility or liability for or with
respect to the legality, validity and enforceability of any Receivable, or the
perfection and priority of any security interest created by any Receivable in
any Financed Vehicle or the maintenance of any such perfection and priority, or
for or with respect to the sufficiency of the Owner Trust Estate or its ability
to generate the payments to be distributed to Certificateholder under this
Agreement or the Noteholders under the Indenture, including, without limitation:
the existence, condition and ownership of any Financed Vehicle; the existence
and enforceability of any insurance thereon; the existence and contents of any
Receivable on any computer or other record thereof; the validity of the
assignment of any Receivable to the Trust or of any intervening assignment; the
completeness of any Receivable; the performance or enforcement of any
Receivable; the compliance by the Depositor, the Servicer or any other Person
with any warranty or representation made under any Basic Document or in any
related document or the accuracy of any such warranty or representation or any
action of the Trustee or the Servicer or any subservicer taken in the name of
the Owner Trustee.
SECTION 6.7. Owner Trustee May Own Notes. The Owner Trustee in its
individual or any other capacity may become the owner or pledgee of the Notes
and may deal with the Depositor, the Trustee and the Servicer in banking
transactions with the same rights as it would have if it were not Owner Trustee.
SECTION 6.8. Payments from Owner Trust Estate. All payments to be made
by the Owner Trustee under this Agreement or any of the Basic Documents to which
the Trust or the Owner Trustee is a party shall be made only from the income and
proceeds of the Owner Trust Estate and only to the extent that the Owner Trustee
shall have received income or proceeds from the Owner Trust Estate to make such
payments in accordance with the terms hereof. Wilmington Trust Company, or any
successor thereto, in its individual capacity, shall
20
not be liable for any amounts payable under this Agreement or any of the Basic
Documents to which the Trust or the Owner Trustee is a party.
SECTION 6.9. Doing Business in Other Jurisdictions. Notwithstanding
anything contained herein to the contrary, neither Wilmington Trust Company or
any successor thereto, nor the Owner Trustee shall be required to take any
action in any jurisdiction other than in the State of Delaware if the taking of
such action will, even after the appointment of a co-trustee or separate trustee
in accordance with Section 9.5 hereof, (i) require the consent or approval or
authorization or order of or the giving of notice to, or the registration with
or the taking of any other action in respect of, any state or other governmental
authority or agency of any jurisdiction other than the State of Delaware; (ii)
result in any fee, tax or other governmental charge under the laws of the State
of Delaware becoming payable by Wilmington Trust Company (or any successor
thereto); or (iii) subject Wilmington Trust Company (or any successor thereto)
to personal jurisdiction in any jurisdiction other than the State of Delaware
for causes of action arising from acts unrelated to the consummation of the
transactions by Wilmington Trust Company (or any successor thereto) or the Owner
Trustee, as the case may be, contemplated hereby.
ARTICLE VII.
Compensation of Owner Trustee
SECTION 7.1. Owner Trustee's Fees and Expenses. The Owner Trustee
shall receive as compensation for its services hereunder such fees as have been
separately agreed upon before the date hereof between AmeriCredit and the Owner
Trustee, and the Owner Trustee shall be entitled to be reimbursed by the
Depositor for its other reasonable expenses hereunder, including the reasonable
compensation, expenses and disbursements of such agents, representatives,
experts and counsel as the Owner Trustee may employ in connection with the
exercise and performance of its rights and its duties hereunder and under the
Basic Documents. AmeriCredit Corp. shall be jointly and severally liable for the
fees and expenses owing to the Owner Trustee under this Section 7.1.
SECTION 7.2. Indemnification. The Depositor shall be liable as primary
obligor for, and shall indemnify the Owner Trustee and its officers, directors,
successors, assigns, agents and servants (collectively, the "Indemnified
Parties") from and against, any and all liabilities, obligations, losses,
damages, taxes, claims, actions and suits, and any and all reasonable costs,
expenses and disbursements (including reasonable legal fees and expenses) of any
kind and nature whatsoever (collectively, "Expenses") which may at any time be
imposed on, incurred by, or asserted against the Owner Trustee or any
Indemnified Party in any way relating to or arising out of this Agreement, the
Basic Documents, the Owner Trust Estate, the administration of the Owner Trust
Estate or the action or inaction of the Owner Trustee hereunder, except only
that the Depositor shall not be liable for or required to indemnify the Owner
Trustee from and against Expenses arising or resulting from any of the matters
described in the third sentence of Section 6.1. The indemnities contained in
this Section and the rights under Section 7.1 shall survive the resignation or
termination of the Owner Trustee or the termination of this Agreement. In any
event of any claim, action or proceeding for which indemnity will be sought
pursuant to this Section, the Owner Trustee's choice of legal counsel
21
shall be subject to the approval of the Depositor which approval shall not be
unreasonably withheld. AmeriCredit Corp. shall be jointly and severally liable
for the indemnification duties and obligations of the Depositor which are
described in this Section 7.2.
SECTION 7.3. Payments to the Owner Trustee. Any amounts paid to the
Owner Trustee pursuant to this Article VII shall be deemed not to be a part of
the Owner Trust Estate immediately after such payment.
SECTION 7.4. Non-recourse Obligations. Notwithstanding anything in
this Agreement or any Basic Document, the Owner Trustee agrees in its individual
capacity and in its capacity as Owner Trustee for the Trust that all obligations
of the Trust to the Owner Trustee individually or as Owner Trustee for the Trust
shall be with recourse to the Owner Trust Estate only and specifically shall be
without recourse to the assets of the Holder.
ARTICLE VIII.
Termination of Trust Agreement
SECTION 8.1. Termination of Trust Agreement.
(a) This Agreement and the Trust shall terminate in accordance with
Section 3808 of the Statutory Trust Statute and be of no further force or effect
upon the latest of (i) the maturity or other liquidation of the last Receivable
(including the purchase by the Servicer at its option or by the Seller at its
option of the corpus of the Trust as described in Section 10.1 of the Sale and
Servicing Agreement) and the subsequent distribution of amounts in respect of
such Receivables as provided in the Basic Documents, or (ii) the payment to the
Certificateholder of all amounts required to be paid to it pursuant to this
Agreement and the payment to the Insurer of all amounts payable or reimbursable
to it pursuant to the Sale and Servicing Agreement or the Insurance Agreement
and the payment to the Swap Provider of all amounts payable to it pursuant to
the Swap Agreement; provided, however, that the rights to indemnification under
Section 7.2 and the rights under Section 7.1 shall survive the termination of
the Trust. The Seller or the Servicer shall promptly notify the Owner Trustee
and the Insurer of any prospective termination pursuant to this Section. The
bankruptcy, liquidation, dissolution, death or incapacity of the
Certificateholder, shall not (x) operate to terminate this Agreement or the
Trust, nor (y) entitle the Certificateholder's legal representatives or heirs to
claim an accounting or to take any action or proceeding in any court for a
partition or winding up of all or any part of the Trust or Owner Trust Estate
nor (z) otherwise affect the rights, obligations and liabilities of the parties
hereto.
(b) Neither the Depositor nor the Certificateholder shall be entitled
to revoke or terminate the Trust.
(c) Notice of any termination of the Trust, specifying the
Distribution Date upon which the Certificateholder shall surrender the
Certificate to the Trust Collateral Agent for payment of the final distribution
and cancellation, shall be given by the Owner Trustee by letter to the
Certificateholder mailed within five Business Days of receipt of notice of such
termination from the Servicer given pursuant to Section 10.1(c) of the Sale and
Servicing Agreement, stating (i) the Distribution Date upon or with respect to
which final payment of the Certificate shall be
22
made upon presentation and surrender of the Certificate at the office of the
Trust Collateral Agent therein designated, (ii) the amount of any such final
payment, (iii) that the Record Date otherwise applicable to such Distribution
Date is not applicable, payments being made only upon presentation and surrender
of the Certificate at the office of the Trust Collateral Agent therein specified
and (iv) interest will cease to accrue on the Certificate. The Owner Trustee
shall give such notice to the Trust Collateral Agent and the Insurer at the time
such notice is given to the Certificateholder. Upon presentation and surrender
of the Certificate, the Trust Collateral Agent shall cause to be distributed to
the Certificateholder amounts distributable on such Distribution Date pursuant
to Section 5.7 of the Sale and Servicing Agreement.
In the event that the Certificateholder shall not surrender the
Certificate for cancellation within six months after the date specified in the
above mentioned written notice, the Owner Trustee shall give a second written
notice to the Certificateholder to surrender the Certificate for cancellation
and receive the final distribution with respect thereto. If within one year
after the second notice the Certificate shall not have been surrendered for
cancellation, the Owner Trustee may take appropriate steps, or may appoint an
agent to take appropriate steps, to contact the Certificateholder concerning
surrender of its Certificate, and the cost thereof shall be paid out of the
funds and other assets that shall remain subject to this Agreement. Any funds
remaining in the Trust after exhaustion of such remedies shall be distributed,
subject to applicable escheat laws, by the Owner Trustee to the Holder.
(d) Upon the completion of the winding up of the Trust in accordance
with Section 3808 of the Statutory Trust Statute and its termination, the Owner
Trustee shall cause the Certificate of Trust to be canceled by filing a
certificate of cancellation with the Secretary of State in accordance with the
provisions of Section 3810 of the Statutory Trust Statute.
ARTICLE IX.
Successor Owner Trustees and Additional Owner Trustees
SECTION 9.1. Eligibility Requirements for Owner Trustee. The Owner
Trustee shall at all times be a corporation (i) satisfying the provisions of
Section 3807(a) of the Statutory Trust Statute; (ii) authorized to exercise
corporate trust powers; (iii) having a combined capital and surplus of at least
$50,000,000 and subject to supervision or examination by federal or state
authorities; and (iv) acceptable to the Insurer in its sole discretion, so long
as an Insurer Default shall not have occurred and be continuing. If such
corporation shall publish 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, 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
Owner Trustee shall cease to be eligible in accordance with the provisions of
this Section, the Owner Trustee shall resign immediately in the manner and with
the effect specified in Section 9.2.
SECTION 9.2. Resignation or Removal of Owner Trustee. The Owner
Trustee may at any time resign and be discharged from the trusts hereby created
by giving written notice thereof to the Depositor, the Insurer and the Servicer.
Upon receiving such notice of resignation, the Depositor shall promptly appoint
a successor Owner Trustee by written
23
instrument, in duplicate, one copy of which instrument shall be delivered to the
resigning Owner Trustee and one copy to the successor Owner Trustee, provided
that the Depositor shall have received written confirmation from each of the
Rating Agencies that the proposed appointment will not result in an increased
capital charge to the Insurer by either of the Rating Agencies. If no successor
Owner Trustee shall have been so appointed and have accepted appointment within
30 days after the giving of such notice of resignation, the resigning Owner
Trustee or the Insurer may petition any court of competent jurisdiction for the
appointment of a successor Owner Trustee.
If at any time the Owner Trustee shall cease to be eligible in
accordance with the provisions of Section 9.1 and shall fail to resign after
written request therefor by the Depositor, or if at any time the Owner Trustee
shall be legally unable to act, or shall be adjudged bankrupt or insolvent, or a
receiver of the Owner Trustee or of its property shall be appointed, or any
public officer shall take charge or control of the Owner Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation, then the Depositor with the consent of the Insurer (so long as an
Insurer Default shall not have occurred and be continuing) may remove the Owner
Trustee. If the Depositor shall remove the Owner Trustee under the authority of
the immediately preceding sentence, the Depositor shall promptly appoint a
successor Owner Trustee by written instrument, in duplicate, one copy of which
instrument shall be delivered to the outgoing Owner Trustee so removed, one copy
to the Insurer and one copy to the successor Owner Trustee and payment of all
fees owed to the outgoing Owner Trustee.
Any resignation or removal of the Owner Trustee and appointment of a
successor Owner Trustee pursuant to any of the provisions of this Section shall
not become effective until acceptance of appointment by the successor Owner
Trustee pursuant to Section 9.3 and payment of all fees and expenses owed to the
outgoing Owner Trustee. The Depositor shall provide notice of such resignation
or removal of the Owner Trustee to each of the Rating Agencies.
SECTION 9.3. Successor Owner Trustee. Any successor Owner Trustee
appointed pursuant to Section 9.2 shall execute, acknowledge and deliver to the
Depositor, the Servicer, the Insurer and to its predecessor Owner Trustee an
instrument accepting such appointment under this Agreement, and thereupon the
resignation or removal of the predecessor Owner Trustee shall become effective
and such successor Owner Trustee, without any further act, deed or conveyance,
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
Owner Trustee. The predecessor Owner Trustee shall upon payment of its fees and
expenses deliver to the successor Owner Trustee all documents and statements and
monies held by it under this Agreement; and the Depositor and the predecessor
Owner 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 Owner Trustee all such rights, powers, duties and
obligations.
No successor Owner Trustee shall accept appointment as provided in
this Section unless at the time of such acceptance such successor Owner Trustee
shall be eligible pursuant to Section 9.1.
24
Upon acceptance of appointment by a successor Owner Trustee pursuant
to this Section, the Servicer shall mail notice of the successor of such Owner
Trustee to the Certificateholder, the Trustee, the Noteholders, the Insurer and
the Rating Agencies. If the Servicer shall fail to mail such notice within 10
days after acceptance of appointment by the successor Owner Trustee, the
successor Owner Trustee shall cause such notice to be mailed at the expense of
the Servicer.
SECTION 9.4. Merger or Consolidation of Owner Trustee. Any corporation
into which the Owner Trustee may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Owner Trustee shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of the
Owner Trustee, shall be the successor of the Owner Trustee hereunder, provided
such corporation shall be eligible pursuant to Section 9.1, without the
execution or filing of any instrument or any further act on the part of any of
the parties hereto, anything herein to the contrary notwithstanding; provided,
further, that the Owner Trustee shall mail notice of such merger or
consolidation to the Rating Agencies and the Insurer.
SECTION 9.5. Appointment of Co-Trustee or Separate Trustee.
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 Owner Trust Estate or any Financed Vehicle may at the time be located,
the Servicer and the Owner Trustee acting jointly shall have the power and shall
execute and deliver all instruments to appoint one or more Persons approved by
the Owner Trustee and the Insurer to act as co-trustee, jointly with the Owner
Trustee, or separate trustee or separate trustees, of all or any part of the
Owner Trust Estate, and to vest in such Person, in such capacity, such title to
the Trust, or any part thereof, and, subject to the other provisions of this
Section, such powers, duties, obligations, rights and trusts as the Servicer and
the Owner Trustee may consider necessary or desirable. If the Servicer shall not
have joined in such appointment within 15 days after the receipt by it of a
request to do so, the Owner Trustee subject, unless an Insurer Default shall
have occurred and be continuing, to the approval of the Insurer (which approval
shall not be unreasonably withheld) shall have the power to make such
appointment. No co-trustee or separate trustee under this Agreement shall be
required to meet the terms of eligibility as a successor trustee pursuant to
Section 9.1 and no notice of the appointment of any co-trustee or separate
trustee shall be required pursuant to Section 9.3.
Each 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 Owner Trustee shall be conferred upon and exercised or performed
by the Owner Trustee and such separate trustee or co-trustee jointly (it
being understood that such separate trustee or co-trustee is not authorized
to act separately without the Owner 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, the Owner 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
or any portion thereof in any such
25
jurisdiction) shall be exercised and performed singly by such separate
trustee or co-trustee, but solely at the direction of the Owner 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 and the Owner Trustee acting jointly may at any
time accept the resignation of or remove any separate trustee or
co-trustee.
Any notice, request or other writing given to the Owner Trustee shall
be deemed to have been given to each of the 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. 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 Owner
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 Owner Trustee. Each such instrument shall be filed with the Owner
Trustee and a copy thereof given to the Servicer and the Insurer.
Any separate trustee or co-trustee may at any time appoint the Owner
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
Owner Trustee, to the extent permitted by law, without the appointment of a new
or successor trustee.
ARTICLE X.
Miscellaneous
SECTION 10.1. Supplements and Amendments.
(a) This Agreement may be amended by the Depositor and the Owner
Trustee, with the prior written consent of the Insurer (so long as an Insurer
Default shall not have occurred and be continuing) and the consent of the Swap
Provider (unless, as set forth in an Opinion of Counsel to the Trust, such
amendment could not be expected to have a material adverse effect on the Swap
Provider) and with prior written notice to the Rating Agencies, without the
consent of any of the Noteholders or the Certificateholder, (i) to cure any
ambiguity or defect or (ii) to correct, supplement or modify any provisions in
this Agreement; provided, however, that such action shall not, as evidenced by
an Opinion of Counsel delivered to the Insurer and the Owner Trustee which may
be based upon a certificate of the Servicer, adversely affect in any material
respect the interests of any Noteholder or Certificateholder.
(b) This Agreement may also be amended from time to time, with the
prior written consent of the Insurer (so long as an Insurer Default shall not
have occurred and be continuing) and the consent of the Swap Provider (unless,
as set forth in an Opinion of Counsel to the Trust, such amendment could not be
expected to have a material adverse effect on the
26
Swap Provider) by the Depositor and the Owner Trustee, with prior written notice
to the Rating Agencies, to the extent such amendment materially and adversely
affects the interests of the Noteholders, with the consent of the Noteholders
evidencing not less than a majority of the Outstanding Amount of the Notes, and
the consent of the Certificateholder (which consent of any Holder of a
Certificate or Note given pursuant to this Section or pursuant to any other
provision of this Agreement shall be conclusive and binding on such Holder) for
the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Agreement or of modifying in any manner the rights
of the Noteholders or the Certificateholder; provided, however, that subject to
the express rights of the Insurer under the Basic Documents, no such amendment
shall (a) increase or reduce in any manner the amount of, or accelerate or delay
the timing of, collections of payments on Receivables or distributions that
shall be required to be made for the benefit of the Noteholders or the
Certificateholder or (b) reduce the aforesaid percentage of the Outstanding
Amount of the Notes and the Certificate Balance required to consent to any such
amendment, without the consent of the Holders of all the outstanding Notes and
the Certificateholder.
Promptly after the execution of any such amendment or consent, the
Owner Trustee shall furnish written notification of the substance of such
amendment or consent to the Certificateholder, the Trustee, the Swap Provider
and each of the Rating Agencies.
It shall not be necessary for the consent of Certificateholder, the
Noteholders or the Trustee pursuant to this Section to approve the particular
form of any proposed amendment or consent, but it shall be sufficient if such
consent shall approve the substance thereof. The manner of obtaining such
consents (and any other consents of the Certificateholder provided for in this
Agreement or in any other Basic Document) and of evidencing the authorization of
the execution thereof by Certificateholder shall be subject to such reasonable
requirements as the Owner Trustee may prescribe. Promptly after the execution of
any amendment to the Certificate of Trust, the Owner Trustee shall cause the
filing of such amendment with the Secretary of State.
Prior to the execution of any amendment to this Agreement or the
Certificate of Trust, the Owner Trustee shall be entitled to receive and rely
upon an Opinion of Counsel (which shall also be delivered to the Insurer)
stating that the execution of such amendment is authorized or permitted by this
Agreement and that all conditions precedent to the execution and delivery of
such amendment have been satisfied. The Owner Trustee may, but shall not be
obligated to, enter into any such amendment which affects the Owner Trustee's
own rights, duties or immunities under this Agreement or otherwise.
(c) Notwithstanding the foregoing, if an Insurer Default has occurred
and is continuing, no amendment under this Section 10.1 shall materially
adversely affect the Insurer without the Insurer's prior written consent.
SECTION 10.2. No Legal Title to Owner Trust Estate in
Certificateholder. The Certificateholder shall not have legal title to any part
of the Owner Trust Estate. The Certificateholder shall be entitled to receive
distributions in accordance with Article VIII. No transfer, by operation of law
or otherwise, of any right, title or interest of the Certificateholder to and in
its ownership interest in the Owner Trust Estate shall operate to terminate this
Agreement
27
or the trust hereunder or entitle any transferee to an accounting or to the
transfer to it of legal title to any part of the Owner Trust Estate.
SECTION 10.3. Limitations on Rights of Others. The provisions of this
Agreement are solely for the benefit of the Owner Trustee, the Depositor, the
Certificateholder, the Servicer and, to the extent expressly provided herein,
the Insurer, the Swap Provider, the Trustee and the Noteholders, and nothing in
this Agreement, whether express or implied, shall be construed to give to any
other Person any legal or equitable right, remedy or claim in the Owner Trust
Estate or under or in respect of this Agreement or any covenants, conditions or
provisions contained herein.
SECTION 10.4. Notices.
(a) Unless otherwise expressly specified or permitted by the terms
hereof, all notices shall be in writing and shall be deemed given upon receipt
personally delivered, delivered by overnight courier or mailed first class mail
or certified mail, in each case return receipt requested, and shall be deemed to
have been duly given upon receipt, if to the Owner Trustee, addressed to the
Corporate Trust Office; if to the Depositor, addressed to AFS SenSub Corp., 2265
B Renaissance Drive, Suite 17, Las Vegas, Nevada 89119, Attention: Chief
Financial Officer, with a copy to AFS SenSub Corp., c/o AmeriCredit Financial
Services, Inc., 801 Cherry Street, Suite 3900, Fort Worth, Texas 76102,
Attention: Chief Financial Officer; if to the Insurer, addressed to the Insurer,
XL Capital Assurance Inc., 1221 Avenue of the Americas, New York, New York
10020, Attention: Surveillance, Facsimile No.: (212) 478-3587, Confirmation:
(212) 478-3400 (in each case in which notice or other communication to XLCA
refers to an Event of Default, a claim on the Note Policy or with respect to
which failure on the part of XLCA to respond shall be deemed to constitute
consent or acceptance, then a copy of such notice or other communication should
also be sent to the attention of the General Counsel "URGENT MATERIAL
ENCLOSED"); or, as to each party, at such other address as shall be designated
by such party in a written notice to each other party.
(b) Any notice required or permitted to be given to a
Certificateholder shall be given by first-class mail, postage prepaid, at the
address of the Holder. 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.
SECTION 10.5. Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
SECTION 10.6. Separate Counterparts. This Agreement may be executed by
the parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
28
SECTION 10.7. Assignments; Insurer and Swap Provider. This Agreement
shall inure to the benefit of and be binding upon the parties hereto and the
Insurer, the Swap Provider and their respective successors and permitted
assigns.
SECTION 10.8. No Recourse. The Certificateholder by accepting a
Certificate acknowledges that the Certificate represents a beneficial interest
in the Trust only and does not represent interests in or obligations of the
Seller, the Servicer, the Owner Trustee, the Trustee, the Insurer, the Swap
Provider or any Affiliate thereof and no recourse may be had against such
parties or their assets, except as may be expressly set forth or contemplated in
this Agreement, the Certificate or the Basic Documents.
SECTION 10.9. Headings. The headings of the various Articles and
Sections herein are for convenience of reference only and shall not define or
limit any of the terms or provisions hereof.
SECTION 10.10. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT
REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
SECTION 10.11. Servicer. The Servicer is authorized to prepare, or
cause to be prepared, execute and deliver on behalf of the Trust the Swap
Agreement and all such documents, reports, filings, instruments, certificates
and opinions as it shall be the duty of the Trust or Owner Trustee to prepare,
file or deliver pursuant to the Basic Documents. Upon written request, the Owner
Trustee shall execute and deliver to the Servicer a limited power of attorney
appointing the Servicer the Trust's agent and attorney-in-fact to prepare, or
cause to be prepared, execute and deliver all such documents, reports, filings,
instruments, certificates and opinions.
SECTION 10.12. Nonpetition Covenants. (a) Notwithstanding any prior
termination of this Agreement, the Certificateholder shall not, prior to the
date which is one year and one day after the termination of this Agreement with
respect to the Trust, acquiesce, petition or otherwise invoke or cause the Trust
to invoke the process of any court or government authority for the purpose of
commencing or sustaining a case against the Trust under any federal or state
bankruptcy, insolvency or similar law or appointing a receiver, liquidator,
assignee, trustee, custodian, sequestrator or other similar official of the
Trust or any substantial part of its property, or ordering the winding up or
liquidation of the affairs of the Trust.
(b) Notwithstanding any prior termination of this Agreement, but
subject to the provisions of Section 4.5, the Owner Trustee shall not, prior to
the date which is one year and one day after the termination of this Agreement,
with respect to the Trust, acquiesce, petition or otherwise invoke or cause the
Trust to invoke the process of any court or government authority for the purpose
of commencing or sustaining an involuntary case against the Trust under any
federal or state bankruptcy, insolvency or similar law or appointing a receiver,
liquidator, assignee, trustee, custodian, sequestrator or other similar official
of the Trust or any substantial part of its property, or ordering the winding up
or liquidation of the affairs of the Trust.
29
SECTION 10.13. Third Party Beneficiary. The Insurer and the Swap
Provider shall be an express third party beneficiary of this Agreement, entitled
to enforce the provisions hereof as if a party hereto.
SECTION 10.14. Regulation AB. The Owner Trustee acknowledges and
agrees that the purpose of this Section 10.14 is to facilitate compliance by the
Trust with the provisions of Regulation AB and related rules and regulations of
the Commission. The Owner Trustee acknowledges that interpretations of the
requirements of Regulation AB may change over time, whether due to interpretive
guidance provided by the Commission or its staff, consensus among participants
in the asset-backed securities markets, advice of counsel, or otherwise, and
agrees hereby to comply with reasonable requests made by the Servicer in good
faith for delivery of information under these provisions on the basis of
evolving interpretations of Regulation AB. The Owner Trustee shall cooperate
fully with the Servicer and the Trust to deliver to the Servicer and the Trust
any and all statements, reports, certifications, records and any other
information necessary in the good faith determination of the Servicer to permit
the Servicer and the Trust to comply with the provisions of Regulation AB,
together with such disclosures relating to the Owner Trustee reasonably believed
by the Servicer to be necessary in order to effect such compliance.
[Remainder of page intentionally left blank.]
30
IN WITNESS WHEREOF, the parties hereto have caused this Trust
Agreement to be duly executed by their respective officers hereunto duly
authorized as of the day and year first above written.
WILMINGTON TRUST COMPANY,
as Owner Trustee
By: /s/ Michele C. Harra
------------------------------------
Name: Michele C. Harra
Title: Financial Services Officer
AFS SENSUB CORP.,
By: /s/ Sheli Fitzgerald
------------------------------------
Name: Sheli Fitzgerald
Title: Vice President, Structured
Finance
ACKNOWLEDGED AND AGREED TO:
AMERICREDIT CORP.,
Solely with respect to Sections 7.1
and 7.2
By: /s/ Susan B. Sheffield
---------------------------------
Name: Susan B. Sheffield
Title: Senior Vice President,
Structured Finance
[Amended and Restated Trust Agreement]
EXHIBIT A
NUMBER
R-1
SEE REVERSE FOR CERTAIN DEFINITIONS
THIS CERTIFICATE IS NOT TRANSFERABLE,
EXCEPT UNDER THE LIMITED CONDITIONS
SPECIFIED IN THE TRUST AGREEMENT
ASSET BACKED CERTIFICATE
evidencing a beneficial ownership interest in certain distributions of the
Trust, as defined below, the property of which includes a pool of retail
installment sale contracts secured by new or used automobiles, vans or light
duty trucks and sold to the Trust by AFS SenSub Corp.
(THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF AFS SENSUB
CORP. OR ANY OF ITS AFFILIATES, EXCEPT TO THE EXTENT DESCRIBED BELOW.)
THIS CERTIFIES THAT AFS SenSub Corp. is the registered owner of a
nonassessable, fully-paid, beneficial ownership interest in certain
distributions of AmeriCredit Automobile Receivables Trust 2007-A-X (the "Trust")
formed by AFS SenSub Corp., a Nevada corporation (the "Seller").
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is the Certificate referred to in the within-mentioned Trust
Agreement.
WILMINGTON TRUST COMPANY not in its
individual capacity but solely as Owner
Trustee
by:
------------------------------------
Authenticating Agent
by:
------------------------------------
The Trust was created pursuant to a Trust Agreement dated as of December 5,
2006, as amended and restated as of January 9, 2007 (the "Trust Agreement"),
between the Seller and Wilmington Trust Company, as owner trustee (the "Owner
Trustee"), a summary of certain of the pertinent provisions of which is set
forth below. To the extent not otherwise defined herein, the capitalized terms
used herein have the meanings assigned to them in the Trust Agreement.
This is the duly authorized Certificate designated as "Asset Backed
Certificate" (herein called the "Certificate"). Also issued under the Indenture,
dated as of January 9, 2007, among the Trust, Wells Fargo Bank, National
Association, as trustee and trust collateral agent, are four classes of Notes
designated as "Class A-1 5.3146% Asset Backed Notes" (the "Class A-1 Notes"),
"Class A-2 5.29% Asset Backed Notes" (the "Class A-2 Notes"), "Class A-3 5.19%
Asset Backed Notes" (the "Class A-3 Notes") and "Class A-4 Floating Rate Asset
Backed Notes" (the "Class A-4 Notes" and together with the Class A-1 Notes, the
Class A-2 Notes and the Class A-3 Notes, the "Notes"). This Certificate is
issued under and is subject to the terms, provisions and conditions of the Trust
Agreement, to which Trust Agreement the holder of this Certificate by virtue of
the acceptance hereof assents and by which such holder is bound. The property of
the Trust includes a pool of retail installment sale contracts secured by new
and used automobiles, vans or light duty trucks (the "Receivables"), all monies
due thereunder on or after the Cutoff Date, security interests in the vehicles
financed thereby, certain bank accounts and the proceeds thereof, proceeds from
claims on certain insurance policies and certain other rights under the Trust
Agreement and the Sale and Servicing Agreement, all right, to and interest of
the Seller in and to the Purchase Agreement dated as of January 9, 2007 among
AmeriCredit Financial Services, Inc. and the Seller and all proceeds of the
foregoing.
The holder of this Certificate acknowledges and agrees that its rights to
receive distributions in respect of this Certificate are subordinated to the
rights of the Noteholders as described in the Sale and Servicing Agreement, the
Indenture and the Trust Agreement, as applicable.
Distributions on this Certificate will be made as provided in the Trust
Agreement or any other Basic Document by wire transfer or check mailed to the
Certificateholder without the presentation or surrender of this Certificate or
the making of any notation hereon. Except as otherwise provided in the Trust
Agreement and notwithstanding the above, the final distribution on this
Certificate will be made after due notice by the Owner Trustee of the pendency
of such distribution and only upon presentation and surrender of this
Certificate at the office or agency maintained for the purpose by the Owner
Trustee in the Corporate Trust Office.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, 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 officer of the Owner Trustee, by manual signature, this
Certificate shall not entitle the holder hereof to any benefit under the Trust
Agreement or the Sale and Servicing Agreement or be valid for any purpose.
A-2
THIS CERTIFICATE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW
PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
A-3
IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust and not in
its individual capacity, has caused this Certificate to be duly executed.
AMERICREDIT AUTOMOBILE RECEIVABLES TRUST
2007-A-X
By: WILMINGTON TRUST COMPANY
not in its individual capacity but
solely as Owner Trustee
Dated: January 18, 2007 By:
------------------------------------
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(Reverse of Certificate)
The Certificate does not represent an obligation of, or an interest in, the
Seller, the Servicer, the Owner Trustee or any Affiliates of any of them and no
recourse may be had against such parties or their assets, except as may be
expressly set forth or contemplated herein or in the Trust Agreement, the
Indenture or the Basic Documents. In addition, this Certificate is not
guaranteed by any governmental agency or instrumentality and is limited in right
of payment to certain collections with respect to the Receivables, all as more
specifically set forth herein and in the Sale and Servicing Agreement. A copy of
each of the Sale and Servicing Agreement and the Trust 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
written request.
The Trust Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Seller under the Trust Agreement at any time by the Seller and the Owner Trustee
with the consent of the Note Majority and the Certificateholder. 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 transfer hereof or in exchange hereof or in lieu hereof whether
or not notation of such consent is made upon this Certificate. The Trust
Agreement also permits the amendment thereof, in certain limited circumstances,
without the consent of the Certificateholder.
As provided in the Trust Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices or agencies of the Certificate Registrar maintained by
the Owner Trustee in the Corporate Trust Office, accompanied by a written
instrument of transfer in form satisfactory to the Owner Trustee and the
Certificate Registrar duly executed by the holder hereof or such holder's
attorney duly authorized in writing, and thereupon a new Certificate evidencing
the same aggregate interest in the Trust will be issued to the designated
transferee. The initial Certificate Registrar appointed under the Trust
Agreement is Wilmington Trust Company. No service charge will be made for any
such registration of transfer or exchange, but the Owner Trustee or the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or governmental charge payable in connection therewith.
The Owner Trustee, the Insurer and any agent of the Owner Trustee or the
Insurer may treat the person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Owner Trustee, the Insurer nor
any such agent shall be affected by any notice to the contrary.
The obligations and responsibilities created by the Trust Agreement and the
Trust created thereby shall terminate upon the payment to the Certificateholder
of all amounts required to be paid to it pursuant to the Trust Agreement and the
Sale and Servicing Agreement and the disposition of all property held as part of
the Trust. The Seller or the Servicer of the Receivables may at its option
purchase the corpus of the Trust at a price specified in the Sale and Servicing
Agreement, and such purchase of the Receivables and other property of the Trust
will effect early retirement of the Certificate; however, such right of purchase
is exercisable, subject to
A-5
certain restrictions, only as of the last day of any Collection Period as of
which the Pool Balance is 10% or less of the Original Pool Balance.
The Certificate may not be acquired by (a) an employee benefit plan (as
defined in Section 3(3) of ERISA) that is subject to the provisions of Title I
of ERISA, (b) a plan (as defined in Section 4975(e)(1) of the Code) that is
subject to Section 4975 or (c) any entity whose underlying assets include assets
of a plan described in (a) or (b) above by reason of such plan's investment in
the entity (each, a "Benefit Plan"). By accepting and holding this Certificate,
the Holder hereof shall be deemed to have represented and warranted that it is
not a Benefit Plan.
The recitals contained herein shall be taken as the statements of the
Depositor or the Servicer, as the case may be, and the Owner Trustee assumes no
responsibility for the correctness thereof. The Owner Trustee makes no
representations as to the validity or sufficiency of this Certificate or of any
Receivable or related document.
Unless the certificate of authentication hereon shall have been executed by an
authorized officer of the Owner Trustee, by manual or facsimile signature, this
Certificate shall not entitle the Holder hereof to any benefit under the Trust
Agreement or the Sale and Servicing Agreement or be valid for any purpose.
A-6
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 type 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 of
the registered owner as it appears on the face of the within Certificate in
every particular, without alteration, enlargement or any change whatever.
Such signature must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Certificate Registrar, which requirements
include membership or participation in STAMP or such other "signature
guarantee program" as may be determined by the Certificate Registrar in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
A-7
EXHIBIT B
FORM OF
CERTIFICATE OF TRUST
OF
AMERICREDIT AUTOMOBILE RECEIVABLES TRUST 2007-A-X
THIS Certificate of Trust of AMERICREDIT AUTOMOBILE RECEIVABLES TRUST
2007-A-X (the "Trust") is being duly executed and filed on behalf of the Trust
by the undersigned, as trustee, to form a statutory trust under the Delaware
Statutory Trust Act (12 Del. C. Section 3801 et seq.) (the "Act").
1. Name. The name of the statutory trust formed by this Certificate of
Trust is "AmeriCredit Automobile Receivables Trust 2007-A-X."
2. Delaware Trustee. The name and business address of the trustee of
the Trust in the State of Delaware is Wilmington Trust Company, 1100 North
Market Street, Wilmington, Delaware 19890-0001.
3. Effective Date. This Certificate of Trust shall be effective upon
filing.
IN WITNESS WHEREOF, the undersigned has duly executed this Certificate
of Trust in accordance with Section 3811(a)(1) of the Act.
WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as
trustee of the Trust
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------