Exhibit 10.14
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SALE AND SERVICING
AGREEMENT
among
AMERICREDIT OWNER TRUST 2003-1,
as Issuer,
AMERICREDIT WAREHOUSE CORPORATION,
as Depositor,
AMERICREDIT FINANCIAL SERVICES, INC.,
as Receivables Seller and as Servicer,
SYSTEMS & SERVICES TECHNOLOGIES, INC.,
as Master Servicer, and
BANK ONE, NA,
as Indenture Trustee
Dated as of March 18, 2003
AMERICREDIT OWNER TRUST 2003-1
RECEIVABLES-BACKED NOTES
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SALE AND SERVICING AGREEMENT, dated as of March 18, 2003 (this
"Agreement"), among AMERICREDIT OWNER TRUST 2003-1, a Delaware statutory trust
(the "Issuer"), AMERICREDIT WAREHOUSE CORPORATION, a Nevada corporation (the
"Depositor"), AMERICREDIT FINANCIAL SERVICES, INC., a Delaware corporation, in
its capacity as the Receivables Seller (the "Receivables Seller"), and in its
capacity as Servicer (the "Servicer"), SYSTEMS & SERVICES TECHNOLOGIES, INC., a
national banking association, as Master Servicer (the "Master Servicer") and
BANK ONE, NA, a national banking association, as Indenture Trustee (the
"Indenture Trustee").
WHEREAS, the Issuer desires from time to time to purchase receivables
arising in connection with motor vehicle retail installment sale contracts made
by or acquired by the Receivables Seller through motor vehicle dealers and third
party lenders;
WHEREAS the Depositor has purchased certain of such receivables from
the Receivables Seller pursuant to a Receivables Purchase and Contribution
Agreement (and shall purchase certain of such Receivables pursuant to RPA
Assignments entered into pursuant thereto);
WHEREAS, the Depositor is willing to sell the receivables to the
Issuer;
WHEREAS the Issuer desires to purchase from the Depositor additional
receivables arising in connection with motor vehicle retail installment sale
contracts to be originated or acquired by the Receivables Seller;
WHEREAS the Master Servicer and the Servicer are willing to service
all such receivables in accordance with this Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereto agree as follows:
ARTICLE I
Definitions.
SECTION 1.1. [Reserved].
SECTION 1.2. Definitional Provisions.
(a) Capitalized terms used herein and not otherwise defined herein have
meanings assigned to them in Annex A hereto, or, if not defined therein, in the
Trust Agreement.
(b) All terms defined in this Agreement shall have the defined meanings
when used in any instrument governed hereby and in any certificate or other
document made or delivered pursuant hereto unless otherwise defined therein.
(c) As used in this Agreement, in any instrument governed hereby and in any
certificate or other document made or delivered pursuant hereto or thereto,
accounting terms not
defined in this Agreement or in any such instrument, certificate or other
document, and accounting terms partly defined in this Agreement or in any such
instrument, certificate or other document to the extent not defined, shall have
the respective meanings given to them under generally accepted accounting
principles as in effect on the date of this Agreement or any such instrument,
certificate or other document, as applicable. To the extent that the definitions
of accounting terms in this Agreement or in any such instrument, certificate or
other document are inconsistent with the meanings of such terms under generally
accepted accounting principles, the definitions contained in this Agreement or
in any such instrument, certificate or other document shall control.
(d) The words "hereof," "herein," "hereunder" and words of similar import
when used in this Agreement shall refer to this Agreement as a whole and not to
any particular provision of this Agreement; Section, Schedule and Exhibit
references contained in this Agreement are references to Sections, Schedules and
Exhibits in or to this Agreement unless otherwise specified; and the term
"including" shall mean "including without limitation."
(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.
Any agreement, instrument or statute defined or referred to herein or in any
instrument or certificate delivered in connection herewith means such agreement,
instrument or statute as from time to time amended, modified or supplemented and
includes (in the case of agreements or instruments) references to all
attachments thereto and instruments incorporated therein; references to a Person
are also to its permitted successors and assigns.
ARTICLE II
Conveyance of Receivables.
SECTION 2.1. Conveyance of Receivables.
(a) Subject to the conditions set forth in paragraph (b) below, on each
Transfer Date the Depositor does hereby sell and contribute to the Issuer
without recourse (subject to the obligations set forth herein), all right, title
and interest of the Depositor in and to:
(i) all Receivables acquired by the Depositor and listed on Schedule A
to the related S&SA Assignment in the form attached hereto as Exhibit B;
(ii) the security interests in the Financed Vehicles granted by
Obligors pursuant to such Receivables and any other interest of the
Depositor acquired from the Receivables Seller in such Financed Vehicles;
(iii) any proceeds and the right to receive proceeds with respect to
such Receivables from claims on any physical damage, credit life or
disability insurance policies covering the related Financed Vehicles or
Obligors and any proceeds from the liquidation of such Receivables;
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(iv) any proceeds from any Receivable repurchased by a Dealer pursuant
to a Dealer Agreement or a Third-Party Lender pursuant to an Auto Loan
Purchase and Sale Agreement as a result of a breach of representation or
warranty in the related Dealer Agreement or Auto Loan Purchase and Sale
Agreement;
(v) all rights under any Service Contracts on the related Financed
Vehicles;
(vi) the related Receivables Files;
(vii) all of the Depositor's right, title and interest in its rights
and benefits, but none of its obligations or burdens, under the Receivables
Purchase and Contribution Agreement (including all RPA Assignments entered
into pursuant thereto), including the delivery requirements,
representations and warranties and the cure and repurchase obligations of
the Receivables Seller under the Receivables Purchase and Contribution
Agreement (and all RPA Assignments entered into pursuant thereto), on or
after the related Cut-off Date; and
(viii) the proceeds of any and all of the foregoing.
On the terms and conditions of this Agreement, on each Transfer Date, the
Depositor agrees to offer for sale, and to sell, a portion of each of the
Receivables (equal to the Sales Price therefor) to be sold hereunder on such
Transfer Date to the Issuer and to contribute to the Owner Trust Estate of the
Issuer the balance of each of the Receivables and to deliver the related
Receivable Files to or at the direction of the Issuer. To the extent the Issuer
has or is able to obtain sufficient funds to pay the Sales Price thereof, the
Issuer agrees to purchase such Receivables offered for sale by the Depositor.
On each Transfer Date after the Closing Date, the Depositor agrees to sell
and contribute to the Issuer Receivables with an aggregate Principal Balance
equal to the Receivables Amortization Amount plus the Required Delinquent
Receivables Amount. In addition, on each Transfer Date after the Closing Date,
the Depositor may sell and contribute to the Issuer Receivables with an
aggregate Principal Balance equal to the unpaid Principal Balance of all
Delinquent Receivables as of such Transfer Date in excess of the Required
Delinquent Receivables Amount to the extent sold or contributed by the
Receivables Seller to the Depositor.
To the extent that on any Transfer Date following the Closing Date the
Receivables Seller sells and contributes Receivables to the Depositor and the
Depositor sells and contributes Receivables to the Issuer in respect of the
Required Delinquent Receivables Amount (or in respect of Delinquent Receivables
in excess of the Required Delinquent Receivables Amount), the Issuer shall
instruct the Indenture Trustee to, and the Indenture Trustee shall, release the
related Delinquent Receivables from the lien of the Indenture and shall instruct
the Custodian to release the related Receivables Files to the Servicer.
It is the intention of the parties hereto that each sale and contribution
contemplated by this Agreement shall constitute an absolute sale and
contribution of the related Receivables from the Depositor to the Issuer and
that the related Receivables shall not be part of the Depositor's estate or
otherwise be considered property of the Depositor in the event of the
bankruptcy, receivership, insolvency, liquidation, conservatorship or similar
proceeding relating to the
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Depositor or any of its property. Except as set forth below, it is not intended
that any amounts available for reimbursement of Receivables be deemed to have
been pledged by the Depositor to the Issuer or the Indenture Trustee to secure a
debt or other obligation of the Depositor. In the event that (A) the purchase of
Receivables by the Issuer is deemed by a court or applicable regulatory,
administrative or other governmental body contrary to the express intent of the
parties to constitute a pledge rather than a sale and contribution of the
Receivables or (B) if amounts available now or in the future for reimbursement
of any Receivables are held to be property of the Depositor or a loan to the
Depositor, or (C) if for any reason this Agreement is held or deemed to be a
financing or some other similar arrangement or agreement, then (i) this
Agreement is and shall be a security agreement within the meaning of Articles 8
and 9 of the UCC; (ii) the Issuer shall be treated as having a first priority,
perfected security interest in and to, and lien on, the Receivables sold and
contributed to the Issuer hereunder; (iii) the agreement of the Depositor
hereunder to sell and contribute the Receivables shall be a grant by the
Depositor to the Issuer of a security interest in all of the Depositor's right
(including the power to convey title thereto), title, and interest, whether now
owned or hereafter acquired, in and to (A) all amounts reimbursable now or in
the future by or with respect to the Receivables and (B) any and all general
intangibles consisting of, arising from or relating to any of the foregoing, and
all proceeds of the conversion, voluntary or involuntary, of the foregoing into
cash, instruments, securities or other property, including without limitation
all such amounts from time to time held or invested in accounts maintained by or
on behalf of the Depositor or by or on behalf of the Issuer, whether in the form
of cash, instruments, securities or other property. The possession by the Issuer
or its agent of notes and such other goods, money, documents or such other items
of property as constitute instruments, money, negotiable documents or chattel
paper, and the filing of a UCC Financing Statement, shall be "possession by the
secured party," or possession by a purchaser or a person designated by such
secured party, for purposes of perfecting the security interest pursuant to the
UCC of any applicable jurisdiction; and notifications to persons holding such
property, and acknowledgments, receipts or confirmations from persons holding
such property, shall be notifications to, or acknowledgments, receipts or
confirmations from, financial intermediaries, bailees or agents (as applicable)
of any such holder for the purpose of perfecting such security interest under
applicable law.
(b) The Depositor shall transfer to the Issuer the Receivables and the
other property and rights related thereto described in paragraph (a) above
subject to the satisfaction of each of the following conditions:
(i) the Depositor shall deliver to the Majority Noteholder and the
Indenture Trustee on or prior to the Business Day immediately preceding
each Transfer Date and each date a Servicer's Report is delivered, an
amended and restated Schedule of Receivables listing all Receivables owned
by the Issuer as of such date (the "Schedule of Receivables");
(ii) as of each Transfer Date, (A) neither the Depositor nor the
Receivables Seller shall be insolvent and neither shall become insolvent as
a result of the transfer of Receivables on such Transfer Date, (B) neither
the Depositor nor the Receivables Seller shall intend to incur or believe
that either of them shall incur debts that would be beyond their respective
abilities to pay as such debts mature, (C) such transfer shall not have
been made with actual intent to hinder, delay or defraud any Person and (D)
neither the assets
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of the Depositor nor the assets of the Receivables Seller shall constitute
unreasonably small capital to carry out their respective businesses as
conducted;
(iii) each of the representations and warranties made by the
Receivables Seller and the Depositor pursuant to Section 3.1 with respect
to the Receivables to be transferred on such Transfer Date shall be true
and correct as of the related Transfer Date, and the Receivables Seller
shall have performed all obligations to be performed by it under the
Receivables Purchase and Contribution Agreement and hereunder on or prior
to such Transfer Date;
(iv) the Receivables Seller shall, at its own expense, on or prior to
the Transfer Date indicate in its computer files that the Receivables
identified in the related RPA Assignment have been sold to the Issuer;
(v) the Depositor and the Receivables Seller shall have taken any
action required to maintain the first priority perfected ownership interest
of the Issuer in the Owner Trust Estate and the first perfected security
interest of the Indenture Trustee in the Collateral;
(vi) no selection procedures adverse to the interests of the
Noteholders shall have been utilized in selecting the related Receivables;
provided, however, that no adverse selection procedures are deemed to have
been utilized with respect to the $800,000,000 in seasoned receivables
which were selected by the Receivables Seller for sale to the Depositor on
the Closing Date; and
(vii) the addition of any such Receivables shall not result in an
adverse tax consequence to the Issuer or the Noteholders.
The Receivables Seller covenants that in the event any of the
foregoing conditions precedent are not satisfied with respect to any Receivable
on the date required as specified above, the Receivables Seller will repurchase
such Receivable from the Depositor who will consequently repurchase such
Receivable from the Issuer in the manner specified in Section 4.7, at a price
equal to the Repurchase Price.
In the event that the Issuer has provided a Redemption Notice to the
Indenture Trustee pursuant to Section 2.16(b) of the Indenture, upon the deposit
of the Redemption Price into the Collection Account, the Indenture Trustee shall
release the Receivables from the Lien of the Indenture and the Issuer may, upon
the direction of the Certificateholders, convey and assign the Receivables free
and clear of the Lien of the Indenture.
SECTION 2.2. Further Encumbrance of the Collateral. (a) Immediately upon
the conveyance to the Issuer by the Depositor of any item of the Collateral
pursuant to Section 2.1, all right, title and interest of the Depositor in and
to such item of the Collateral shall terminate, and all such right, title and
interest shall vest in the Issuer, in accordance with the Trust Agreement and
Sections 3802 and 3805 of the Statutory Trust Statute (as defined in the Trust
Agreement).
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(b) Immediately upon the vesting of the Collateral in the Issuer, the
Issuer shall have the sole right to pledge or otherwise encumber, such
Collateral. Pursuant to the Indenture, the Issuer shall grant a security
interest in the Collateral to the Indenture Trustee securing the repayment of
the Notes. The Certificates shall represent the beneficial ownership interest in
the Collateral, and the Certificateholders shall be entitled to receive
distributions with respect thereto as set forth in the Indenture and the Trust
Agreement.
(c) Following the payment in full of the Notes and the release and
discharge of the Indenture, all covenants of the Issuer under Article III of the
Indenture shall, until payment in full of the Certificates, remain as covenants
of the Issuer for the benefit of the Certificateholders, enforceable by the
Certificateholders to the same extent as such covenants were enforceable by the
Noteholders prior to the discharge of the Indenture. Any rights of the Indenture
Trustee under Article III of the Indenture, following the discharge of the
Indenture, shall vest in Certificateholders.
(d) The Indenture Trustee shall, at such time as there are no Notes
Outstanding and all sums due to the Indenture Trustee and the Secured Parties
pursuant to this Agreement have been paid, release any remaining portion of the
Trust Estate to the Certificateholders.
SECTION 2.3. Class C Notes. In consideration for arranging the transactions
contemplated by the Basic Documents, on the Closing Date, the Issuer shall
deliver the Class C Notes to or at the direction of Deutsche Bank Securities
Inc.
ARTICLE III
The Receivables.
SECTION 3.1. Representations and Warranties of the Receivables Seller and
Depositor.
(a) The Receivables Seller hereby represents and warrants that each of the
representations and warranties set forth on the Schedule of Representations
attached hereto as Schedule B is true and correct with respect to the
Receivables it transferred to the Depositor and the Receivables Seller
acknowledges that both the Depositor and the Issuer have relied on such
representations and warranties in acquiring the Receivables and upon which the
Noteholders shall be deemed to rely in purchasing the Notes. Such
representations and warranties speak as of the execution and delivery of this
Agreement and as of the related Transfer Date, but shall survive the sale and
contribution of the Receivables to the Depositor and the sale and contribution
by the Depositor to the Issuer and the pledge thereof to the Indenture Trustee
pursuant to the Indenture. The Receivables Seller hereby represents and
warrants, on the date hereof and each Transfer Date, that the information set
forth in the Schedule of Receivables is true and correct and that the Schedule
of Receivables lists each Receivable sold and contributed by it to the Depositor
and sold and contributed by the Depositor to the Issuer.
(b) The Depositor hereby represents and warrants that each of the
representations and warranties set forth on the Schedule of Representations
attached hereto as Schedule B is true and correct with respect to the
Receivables it transferred to the Issuer and the Depositor
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acknowledges that the Issuer has relied on such representations and warranties
in acquiring the Receivables and upon which the Noteholders shall be deemed to
rely in purchasing the Notes. Such representations and warranties speak as of
the execution and delivery of this Agreement and as of the related Transfer
Date, but shall survive the sale and contribution of the Receivables to the
Issuer and the pledge thereof to the Indenture Trustee pursuant to the
Indenture. The Depositor hereby represents and warrants, on the date hereof and
each Transfer Date, that the information set forth in the Schedule of
Receivables is true and correct and that the Schedule of Receivables lists each
Receivable sold and contributed to the Issuer.
SECTION 3.2. Repurchase upon Breach.
(a) Each of the Receivables Seller, the Depositor, the Servicer, the Master
Servicer, the Indenture Trustee or the Owner Trustee, as the case may be, shall
inform the Majority Noteholder and the other parties to this Agreement promptly,
which notice shall be in writing, upon the discovery by any such party of any
breach of the Receivables Seller's or Depositor's representations and warranties
made pursuant to Section 3.1. As of the fifth Business Day following the
discovery by the Receivables Seller or Depositor or receipt by the Receivables
Seller or Depositor of notice of such breach, unless such breach is cured by
such date, the Receivables Seller shall have an obligation to repurchase any
Receivable in which the value of such Receivable or the interests of the
Noteholders are materially adversely affected by any such breach as of such
date. In consideration of and simultaneously with the repurchase of the
Receivable, the Receivables Seller shall remit to the Collection Account in the
manner specified in Section 5.4 the Repurchase Price, and the Issuer shall
execute such assignments and other documents reasonably requested by such person
in order to effect such repurchase. Except as otherwise set forth in the next
paragraph, the sole remedy of the Depositor, the Issuer, the Owner Trustee, the
Master Servicer, the Indenture Trustee or the Noteholders with respect to a
breach of representations and warranties pursuant to Section 3.1 and the
agreement contained in this Section shall be the repurchase of Receivables
pursuant to this Section, subject to the conditions contained herein or to
enforce the obligation of the Receivables Seller to repurchase such Receivables
pursuant to the Receivables Purchase and Contribution Agreement (and all RPA
Assignments entered into pursuant thereto) and this Section 3.2. Neither the
Owner Trustee, the Indenture Trustee nor the Custodian shall have any duty to
conduct any affirmative investigation as to the occurrence of any conditions
requiring the repurchase of any Receivable pursuant to this Section 3.2.
In addition to the foregoing and notwithstanding whether the related
Receivable shall have been purchased by the Receivables Seller, the Receivables
Seller shall indemnify the Depositor, the Issuer, the Owner Trustee, the Master
Servicer, the Indenture Trustee, the Custodian and the officers, directors,
agents and employees thereof, and the Noteholders against all costs, expenses,
losses, damages, claims and liabilities, including reasonable fees and expenses
of counsel, which may be asserted against or incurred by any of them as a result
of third party claims arising out of the events or facts giving rise to such
breach.
(b) Pursuant to Section 2.1 of this Agreement, the Depositor conveyed to
the Issuer all of the Depositor's right, title and interest in its rights and
benefits, but none of its obligations or burdens, under the Receivables Purchase
and Contribution Agreement (including all RPA Assignments entered into pursuant
thereto) including the Depositor's rights under the
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Receivables Purchase and Contribution Agreement and the delivery requirements,
representations and warranties and the cure or repurchase obligations of the
Receivables Seller thereunder. The Depositor hereby represents and warrants to
the Issuer that such assignment is valid, enforceable and effective to permit
the Issuer to enforce such obligations of the Receivables Seller under the
Receivables Purchase and Contribution Agreement (and all RPA Assignments entered
into pursuant thereto).
SECTION 3.3. Custody of Receivables Files.
(a) In connection with the sale, transfer and assignment of the Collateral
to the Issuer pursuant to this Agreement and simultaneously with the execution
and delivery of this Agreement, the Indenture Trustee shall enter into the
Custodian Agreement with the Custodian and the Issuer, dated as of March 18,
2003, pursuant to which the Indenture Trustee shall appoint the Custodian, which
shall initially be Bank One Trust Company, N.A., and the Custodian shall accept
such appointment, to act as the agent of the Indenture Trustee as custodian of
the Custodial Files which shall be delivered to the Custodian as agent of the
Indenture Trustee in the manner and within the time periods set forth in the
Custodian Agreement (with respect to each Receivable):
(i) The fully executed original of the Receivable containing a
Protective Stamp; and
(ii) A copy of the Lien Certificate (when received) and otherwise such
documents, if any, that the Receivables Seller keeps on file in accordance
with its customary procedures indicating that the Financed Vehicle is owned
by the Obligor and subject to the interest of the Receivables Seller (or a
Titled Third-Party Lender) as first lienholder or secured party (including
any Lien Certificate received by the Receivables Seller), or, if the Lien
Certificate has not yet been received, either (i) a copy of the application
therefor, showing the Receivables Seller (or a Titled Third-Party Lender)
as secured party or (ii) a copy of the executed and completed Dealer
Agreement related to such Receivable.
(b) If the Receivables Seller does not deliver a copy of the Lien
Certificate with respect to a Receivable within the time periods set forth
above, the Receivables Seller or the Servicer shall deliver a copy of such Lien
Certificate to the Custodian not later than five (5) Business Days after receipt
of such Lien Certificate.
(c) In the event that a copy rather than the original Lien Certificate is
delivered to the Custodian with respect to any Receivable in accordance with
subclause (b) above, the Receivables Seller shall deliver (or cause the Servicer
to deliver) the original of such Lien Certificate (a "Requested Lien
Certificate") to the Custodian within 30 Business Days following its receipt of
written instructions from the Majority Noteholder (with a copy to the Custodian)
to deliver such original Lien Certificate. Within 30 Business Days following its
receipt of written instructions from the Majority Noteholder (with a copy to the
Custodian), the Receivables Seller shall deliver to the Custodian (i)
Assignments of the Receivables to the Indenture Trustee or such other party as
may be specified by the Majority Noteholder, together with any intervening
assignments of the Receivables to the Receivables Seller and/or (ii) a copy of
the original credit
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application of each Obligor, fully executed by each such Obligor, on the
Receivables Seller's customary form, or on a form approved by the Receivables
Seller, for such application, or in the event that the application was obtained
electronically, a printout of the electronic file reflecting the credit
information provided by the Obligor (any of the foregoing documents, together
with any Requested Lien Certificate, a "Demand Document"). All Demand Documents
will be clearly labeled with the loan number to which they correspond, will be
provided to the Custodian grouped in loan number order and will not be contained
within separate file folders.
(d) All of the documents delivered to the Custodian with respect to a
Receivable pursuant to this Section 3.3 shall be included in the Custodial File
of such Receivable.
(e) The Servicer covenants that, in the event the original Lien Certificate
is not delivered pursuant to subclause (c) above, it will track the Receivable
associated with the undelivered original Lien Certificate and deliver a monthly
report to the Majority Noteholder (which report shall list the undelivered
original Lien Certificate and its associated Receivable) until such time as the
original Lien Certificate is delivered to the Custodian. In the event that, with
respect to any Receivable, a copy of, or, if applicable, the original, Lien
Certificate has not been delivered to the Custodian within 210 Business Days
from the Closing Date, the Receivables Seller shall repurchase the Receivable
associated with such undelivered original Lien Certificate from the Depositor
(who will consequently repurchase such Receivable from the Issuer in the manner
specified in Section 4.7), at a price equal to the Repurchase Price within 10
days of the end of such 210 Business Day period.
(f) The Receivables Seller covenants that in the event any of the foregoing
documents are not delivered in accordance with the terms of the Custodian
Agreement or there exists a defect with respect to any document that adversely
affect the value of any Receivable or the interest of the Noteholders in any
Receivable, the Receivables Seller shall, pursuant to notice provided by the
Exceptions Report, or written notice from the Indenture Trustee, the Master
Servicer or the Majority Noteholder, deliver any such undelivered document(s) or
cure any such defective document(s) within 10 days of such notice. If, at the
end of such 10 day period, the Receivables Seller has failed to deliver an
undelivered document or cure a defective document, the Receivables Seller shall
repurchase any Receivable(s) associated with such undelivered or defective
document(s) from the Depositor (who will consequently repurchase such Receivable
from the Issuer in the manner specified in Section 4.7), at a price equal to the
Repurchase Price.
SECTION 3.4. Credit Scoring Methodology. The Receivables Seller covenants
that it will not amend the credit score model it uses to establish the
AmeriCredit Scores unless it is in possession of statistically valid information
that demonstrates that utilizing the amended model to acquire receivables
benefits both the Receivables Seller and the Noteholders. The methodology of the
amended credit score model shall match the methodology of the model used on the
Closing Date. Any amendment pursuant to this Section 3.4 shall be consistent
with appropriate consumer credit scorecard development standards as well as
statistical research method standards.
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ARTICLE IV
Administration and Servicing of Receivables.
SECTION 4.1. Duties of the Master Servicer. The Master Servicer is hereby
authorized to act as agent for the Issuer and in such capacity shall manage,
service, administer and make collections on the Receivables, and perform the
other servicing actions required under this Agreement. The Master Servicer
agrees that its servicing of the Receivables shall be carried out in accordance
with customary and usual procedures of institutions which service motor vehicle
retail installment sales contracts and, to the extent more exacting, the degree
of skill and attention that the Master Servicer exercises from time to time with
respect to all comparable motor vehicle receivables that it services for itself
or others (the "Servicing Standard"). The Master Servicer's duties shall
include, without limitation, collection and posting of all payments, responding
to inquiries of Obligors on the Receivables, investigating delinquencies,
sending payment coupons to Obligors, reporting any required tax information to
Obligors, monitoring the collateral, complying with the terms of the Lockbox
Agreement, accounting for collections and furnishing monthly and annual
statements to the Indenture Trustee and the Majority Noteholder with respect to
distributions, monitoring the status of Insurance Policies with respect to the
Financed Vehicles and performing the other duties specified herein.
To the extent consistent with the Servicing Standard, the Master
Servicer shall have full power and authority, acting alone, to do any and all
things in connection with such managing, servicing, administration and
collection that it may deem necessary or desirable. Without limiting the
generality of the foregoing, the Master Servicer is hereby authorized and
empowered by the Issuer to execute and deliver, on behalf of the Issuer, any and
all instruments of satisfaction or cancellation, or of partial or full release
or discharge, and all other comparable instruments, with respect to the
Receivables and with respect to the Financed Vehicles; provided, however, that
notwithstanding the foregoing, the Master Servicer shall not, except pursuant to
an order from a court of competent jurisdiction, release an Obligor from payment
of any unpaid amount under any Receivable or waive the right to collect the
unpaid balance of any Receivable from the Obligor except in accordance with the
Servicing Standard.
The Master Servicer is hereby authorized to commence, in its own name
or in the name of the Issuer, a legal proceeding to enforce a Receivable
pursuant to Section 4.3 or to commence or participate in any other legal
proceeding (including, without limitation, a bankruptcy proceeding) relating to
or involving a Receivable, an Obligor or a Financed Vehicle. If the Master
Servicer commences or participates in such a legal proceeding in its own name,
the Issuer shall thereupon be deemed to have automatically assigned such
Receivable to the Master Servicer solely for purposes of commencing or
participating in any such proceeding as a party or claimant, and the Master
Servicer is authorized and empowered by the Issuer to execute and deliver in the
Master Servicer's name any notices, demands, claims, complaints, responses,
affidavits or other documents or instruments in connection with any such
proceeding. The Indenture Trustee shall furnish the Master Servicer with any
limited powers of attorney and other documents which the Master Servicer may
reasonably request and which the Master Servicer deems necessary or appropriate
and take any other steps which the Master Servicer may deem necessary or
appropriate to enable the Master Servicer to carry out its servicing and
administrative duties under this Agreement.
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Notwithstanding the above, the Master Servicer has delegated its
servicing obligations in this Article IV to the Servicer, subject to the
following:
(i) the Servicer shall perform the duties assigned to the Servicer in
this Agreement in accordance with the Servicing Standard;
(ii) so long as the Receivables Seller is the Servicer, the Servicer
shall substantially comply with the policies and procedures described on
Schedule C, as such policies and procedures may be updated from time to
time in the performance of its obligations under this Agreement; to the
extent the Servicer's customary standards, policies and procedures are
consistent with the Servicing Standard, the Receivables Seller may follow
such standards, policies and procedures in performing the duties assigned
to the Servicer hereunder;
(iii) the Master Servicer shall continue to be responsible for any
duties specifically assigned to the Master Servicer in this Agreement;
(iv) in the event the Servicer fails to perform its obligations
hereunder and is removed or terminated as the Servicer, the Master Servicer
shall, upon not less than 30 days written notice from the Majority
Noteholder, be responsible for the Servicer's duties in this Agreement as
if it were the Servicer, except as expressly set forth in Annex B hereto,
provided that the Master Servicer shall not be liable for the Servicer's
breach of its obligations;
(v) within 45 days of the Closing Date, the Master Servicer shall have
conducted an on-site inspection of the Servicer's operations in connection
with this Agreement, and shall conduct additional on-site inspections not
less frequently than every 6 months thereafter. Within 10 days of each such
inspection, the Master Servicer shall deliver a certificate (in a form to
be agreed upon in good faith between the Master Servicer and the Majority
Noteholder) (the "Master Servicer Certificate") certifying that the Master
Servicer has conducted an inspection consistent with this Section 4.1.
During each such inspection, the Master Servicer shall perform certain
review procedures to be agreed upon in good faith by the Master Servicer,
the Majority Noteholder and, prior to an Event of Default, the Servicer,
including, without limitation, such review procedures as the Master
Servicer may require in order to be put in a position to assume the
servicing responsibilities of the Servicer if required hereunder; and
(vi) within 45 days of the Closing Date, the Master Servicer shall
complete all data-mapping, and, upon the receipt of Monthly Tapes pursuant
to Section 4.13: (A) electronically compile the Monthly Tape data in the
Master Servicer's "off-line" computer, and (B) update or amend the
data-mapping pursuant to any updated or amended fields in the Monthly
Tapes.
SECTION 4.2. Collection of Receivable Payments; Modifications of
Receivables; Lockbox Agreements.
(a) Consistent with the Servicing Standard, the Servicer shall make
reasonable efforts to collect all payments called for under the terms and
provisions of the Receivables as and when
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the same shall become due, and shall follow such collection procedures as it
follows with respect to all comparable automobile receivables that it services
for itself or others and otherwise act with respect to the Collateral, the
Dealer Agreements, the Dealer Assignments, the Auto Loan Purchase and Sale
Agreements, the Third-Party Lender Assignments and the Insurance Policies in
such manner as will, in the reasonable judgment of the Servicer, maximize the
amount to be received by the Issuer with respect thereto. The Servicer is
authorized in its discretion to waive any prepayment charge, late payment charge
or any other similar fees that may be collected in the ordinary course of
servicing any Receivable.
(b) The Servicer may at any time agree to a modification or amendment of a
Receivable in order to (i) change the Obligor's regular due date to a date
within the Collection Period in which such due date occurs or (ii) re-amortize
the Scheduled Receivable Payments on the Receivable following a partial
prepayment of principal, in accordance with the Servicing Standard if the
Servicer believes in good faith that such extension, modification or amendment
is necessary to avoid a default on such Receivable, will maximize the amount to
be received by the Issuer with respect to such Receivable, and is otherwise in
the best interests of the Issuer.
(c) The Servicer may grant payment extensions on, or other modifications or
amendments to, a Receivable (in addition to those modifications permitted by
Section 4.2(b)) in accordance with the Servicing Standard if the Servicer
believes in good faith that such extension, modification or amendment is
necessary to avoid a default on such Receivable, will maximize the amount to be
received by the Issuer with respect to such Receivable, and is otherwise in the
best interests of the Issuer; provided, however, that:
(i) In no event may a Receivable be extended more than twice during
any twelve month period or more than eight times during the full term of
such Receivable, provided that if the governing documentation with respect
to any Securitization sponsored by AmeriCredit subsequent to the date
hereof permits more frequent and/or total extensions, such standards shall
be deemed to apply hereto;
(ii) In no event may a Receivable be extended beyond the date 12
months after the original maturity date;
(iii) the Servicer shall not amend or modify a Receivable (except as
provided in Section 4.2(b) and clause (i) and (ii) of this Section 4.2(c))
if an Overcollateralization Shortfall would result therefrom.
(d) The Servicer shall use its best efforts to notify or direct Obligors to
make all payments on the Receivables, whether by check or by direct debit of the
Obligor's bank account, to be made directly to one or more Lockbox Banks, acting
as agent for the Issuer pursuant to a Lockbox Agreement. The Servicer shall use
its best efforts to notify or direct any Lockbox Bank to (i) deposit all
payments on the Receivables in the Lockbox Account no later than the Business
Day after receipt and (ii) transfer by wire transfer of immediately available
funds on each Business Day all cleared funds on deposit in the Lockbox Account
to the Collection Account. The Lockbox Account shall be a demand deposit account
held by the Lockbox Bank, or an Eligible Deposit Account.
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No later than one month after the related Transfer Date, the Servicer
shall have notified each Obligor that makes its payments on the Receivables by
check to make such payments thereafter directly to the Lockbox Bank (except in
the case of Obligors that have already been making such payments to the Lockbox
Bank), and shall have provided each such Obligor with remittance invoices in
order to enable such Obligors to make such payments directly to the Lockbox Bank
for deposit into the Lockbox Account, and the Servicer will continue, not less
often than every three months, to so notify those Obligors who have failed to
make payments to the Lockbox Bank. The Servicer will prohibit payments on
receivables other than the Receivables from being made to the Lockbox Account.
If and to the extent requested by the Majority Noteholder, the Servicer shall
request each Obligor that makes payment on the Receivables by direct debit of
such Obligor's bank account, to execute a new authorization for automatic
payment which in the judgment of the Majority Noteholder is sufficient to
authorize direct debit by the Lockbox Bank on behalf of the Issuer. If at any
time, the Lockbox Bank is unable to directly debit an Obligor's bank account
that makes payment on the Receivables by direct debit and if such inability is
not cured within 15 days or cannot be cured by execution by the Obligor of a new
authorization for automatic payment, the Servicer shall notify such Obligor that
it cannot make payment by direct debit and must thereafter make payment by
check.
Notwithstanding any Lockbox Agreement, or any of the provisions of
this Agreement relating to the Lockbox Agreement, the Servicer shall remain
obligated and liable to the Issuer, the Indenture Trustee and Noteholders for
servicing and administering the Trust Estate in accordance with the provisions
of this Agreement without diminution of such obligation or liability by virtue
thereof.
In the event of a termination of the Servicer (unless the successor
Servicer is the Master Servicer) the outgoing Servicer shall, upon request of
the Majority Noteholder, but at the expense of the outgoing Servicer, deliver to
the successor Servicer all documents and records relating to each such Lockbox
Agreement and an accounting of amounts collected and held by the Lockbox Bank
and, if so directed by the Majority Noteholder, use its best efforts to effect
the orderly and efficient transfer of any Lockbox Agreement to the successor
Servicer. In the event that the Majority Noteholder elects to change the
identity of the Lockbox Bank, the outgoing Servicer, at its expense, shall cause
the Lockbox Bank to deliver, at the direction of the Majority Noteholder, to the
Master Servicer or a successor Lockbox Bank, all documents and records relating
to the Receivables and all amounts held (or thereafter received) by the Lockbox
Bank (together with an accounting of such amounts) and shall otherwise use its
best efforts to effect the orderly and efficient transfer of the lockbox
arrangements and the Servicer shall notify the Obligors to make payments to the
Lockbox Account established by the successor.
(e) The Servicer shall remit all payments by or on behalf of the Obligors
received directly by the Servicer to the Lockbox Bank for deposit into the
Collection Account, in either case, and as soon as practicable, but in no event
later than the Business Day after receipt thereof.
SECTION 4.3. Realization upon Receivables.
(a) Consistent with the Servicing Standard, the Servicer shall use its best
efforts to repossess (or otherwise comparably convert the ownership of) and
liquidate any Financed Vehicle securing a Receivable with respect to which the
Servicer has determined that payments
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thereunder are not likely to be resumed, as soon as is practicable after default
on such Receivable; provided, however, that the Servicer may elect not to
repossess a Financed Vehicle within such time period if in its good faith
judgment it determines that the proceeds ultimately recoverable with respect to
such Receivable would be increased by forbearance; provided, further, however,
that the Servicer shall liquidate any repossessed Financed Vehicle within 90
days after repossession. The Servicer is authorized to follow such customary
practices and procedures as it shall deem necessary or advisable, consistent
with the Servicing Standard, which practices and procedures may include
reasonable efforts to realize upon any recourse to Dealers and Third-Party
Lenders, the sale of the related Financed Vehicle at public or private sale, the
submission of claims under an Insurance Policy and other actions by the Servicer
in order to realize upon such a Receivable. The foregoing is subject to the
provision that, in any case in which the Financed Vehicle shall have suffered
damage, the Servicer shall not expend funds in connection with any repair or
towards the repossession of such Financed Vehicle unless it shall determine in
its discretion that such repair and/or repossession shall increase the proceeds
of liquidation of the related Receivable by an amount greater than the amount of
such expenses. All amounts received upon liquidation of a Financed Vehicle shall
be remitted directly by the Servicer to the Collection Account without deposit
into any intervening account as soon as practicable, but in no event later than
the Business Day after receipt thereof. The Servicer shall be entitled to
recover all reasonable expenses incurred by it in the course of repossessing and
liquidating a Financed Vehicle into cash proceeds, but only out of the cash
proceeds of such Financed Vehicle, any deficiency obtained from the Obligor or
any amounts received from the related Dealer or Third-Party Lender, which
amounts in reimbursement may be retained by the Servicer (and shall not be
required to be deposited as provided in Section 4.2(e)) to the extent of such
expenses. The Servicer shall pay on behalf of the Issuer any personal property
taxes assessed on repossessed Financed Vehicles. The Servicer shall be entitled
to reimbursement of any such tax from Net Liquidation Proceeds with respect to
such Receivable.
(b) If the Servicer elects to commence a legal proceeding to enforce a
Dealer Agreement, Auto Loan Purchase and Sale Agreement, Dealer Assignment or
Third-Party Lender Assignment, the act of commencement shall be deemed to be an
automatic assignment from the Issuer to the Servicer of the rights under such
Dealer Agreement, Auto Loan Purchase and Sale Agreement, Dealer Assignment or
Third-Party Lender Assignment for purposes of collection only. If, however, in
any enforcement suit or legal proceeding it is held that the Servicer may not
enforce a Dealer Agreement, Auto Loan Purchase and Sale Agreement, Dealer
Assignment or Third-Party Lender Assignment on the grounds that it is not a real
party in interest or a Person entitled to enforce the Dealer Agreement, Auto
Loan Purchase and Sale Agreement, Dealer Assignment or Third-Party Lender
Assignment, the Owner Trustee and/or the Indenture Trustee, at the Servicer's
expense, or the Receivables Seller, at the Receivables Seller's expense, shall
take such steps as the Servicer deems reasonably necessary to enforce the Dealer
Agreement, Auto Loan Purchase and Sale Agreement, Dealer Assignment or
Third-Party Lender Assignment, including bringing suit in its name or the name
of the Receivables Seller or of the Issuer and the Owner Trustee and/or the
Indenture Trustee for the benefit of the Noteholders. All amounts recovered
shall be remitted directly by the Servicer as provided in Section 4.2(e).
SECTION 4.4. Insurance.
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(a) The Servicer shall require, in accordance with the Servicing Standard,
that each Financed Vehicle be insured by the related Obligor under the Insurance
Policies referred to in Paragraph 24 of the Schedule of Representations and
Warranties and shall monitor the status of such physical loss and damage
insurance coverage thereafter, in accordance with the Servicing Standard. Each
Receivable requires the Obligor to maintain such physical loss and damage
insurance, naming the Receivables Seller and its successors and assigns as
additional insureds, and permits the holder of such Receivable to obtain
physical loss and damage insurance at the expense of the Obligor if the Obligor
fails to maintain such insurance. If the Servicer shall determine that an
Obligor has failed to obtain or maintain a physical loss and damage Insurance
Policy covering the related Financed Vehicle which satisfies the conditions set
forth in clause (i)(a) of such Paragraph 24 (including, without limitation,
during the repossession of such Financed Vehicle) the Servicer may enforce the
rights of the holder of the Receivable under the Receivable to require the
Obligor to obtain such physical loss and damage insurance in accordance with the
Servicing Standard. The Servicer may maintain a vendor's single interest or
other collateral protection insurance policy with respect to all Financed
Vehicles ("Collateral Insurance") which policy shall by its terms insure against
physical loss and damage in the event any Obligor fails to maintain physical
loss and damage insurance with respect to the related Financed Vehicle. All
policies of Collateral Insurance shall be endorsed with clauses providing for
loss payable to the Servicer. Costs incurred by the Servicer in maintaining such
Collateral Insurance shall be paid by the Servicer.
(b) The Servicer may, if an Obligor fails to obtain or maintain a physical
loss and damage Insurance Policy, obtain insurance with respect to the related
Financed Vehicle and advance on behalf of such Obligor, as required under the
terms of the insurance policy, the premiums for such insurance (such insurance
being referred to herein as "Force-Placed Insurance"). All policies of
Force-Placed Insurance shall be endorsed with clauses providing for loss payable
to the Servicer. Any cost incurred by the Servicer in maintaining such
Force-Placed Insurance shall only be recoverable out of premiums paid by the
Obligors or Net Liquidation Proceeds with respect to the Receivable, as provided
in Section 4.4(c).
(c) In connection with any Force-Placed Insurance obtained hereunder, the
Servicer may, in the manner and to the extent permitted by applicable law,
require the Obligors to repay the entire premium to the Servicer. In no event
shall the Servicer include the amount of the premium in the Amount Financed
under the Receivable. For all purposes of this Agreement, the Insurance Add-On
Amount with respect to any Receivable having Force-Placed Insurance will be
treated as a separate obligation of the Obligor and will not be added to the
Principal Balance of such Receivable, and amounts allocable thereto will not be
available for distribution on the Notes and the Certificates. The Servicer shall
retain and separately administer the right to receive payments from Obligors
with respect to Insurance Add-On Amounts or rebates of Forced-Placed Insurance
premiums. If an Obligor makes a payment with respect to a Receivable having
Force-Placed Insurance, but the Servicer is unable to determine whether the
payment is allocable to the Receivable or to the Insurance Add-On Amount, the
payment shall be applied first to any unpaid Scheduled Receivable Payments and
then to the Insurance Add-On Amount. Net Liquidation Proceeds on any Receivable
will be used first to pay the Principal Balance and accrued interest on such
Receivable and then to pay the related Insurance Add-On Amount. If an Obligor
under a Receivable with respect to which the Servicer has placed Force-Placed
Insurance fails to make scheduled payments of such Insurance Add-On Amount as
due, and the
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Servicer has determined that eventual payment of the Insurance Add-On Amount is
unlikely, the Servicer may, but shall not be required to, purchase such
Receivable from the Issuer for the Repurchase Price on any subsequent
Determination Date. Any such Receivable, and any Receivable with respect to
which the Servicer has placed Force-Placed Insurance which has been paid in full
(excluding any Insurance Add-On Amounts) will be assigned to the Servicer.
(d) The Servicer may ▇▇▇ to enforce or collect upon the Insurance Policies,
in its own name, if possible, or as agent of the Issuer. If the Servicer elects
to commence a legal proceeding to enforce an Insurance Policy, the act of
commencement shall be deemed to be an automatic assignment of the rights of the
Issuer under such Insurance Policy to the Servicer for purposes of collection
only. If, however, in any enforcement suit or legal proceeding it is held that
the Servicer may not enforce an Insurance Policy on the grounds that it is not a
real party in interest or a holder entitled to enforce the Insurance Policy, the
Owner Trustee and/or the Indenture Trustee, at the Servicer's expense, or the
Receivables Seller, at the Receivables Seller's expense, shall take such steps
as the Servicer deems necessary to enforce such Insurance Policy, including
bringing suit in its name or the name of the Issuer and the Owner Trustee and/or
the Indenture Trustee for the benefit of the Noteholders.
(e) The Servicer will cause itself and, shall, upon the direction of the
Majority Noteholder, cause the Master Servicer and/or the Indenture Trustee to
be named as named insured under all policies of Collateral Insurance and will,
upon the request of the Majority Noteholder, provide copies of such policies
showing the Servicer, the Master Servicer and/or the Indenture Trustee as named
insured thereon.
SECTION 4.5. Maintenance of Security Interests in Vehicles.
(a) Consistent with the policies and procedures required by this Agreement,
the Servicer shall take such steps on behalf of the Issuer as are necessary to
maintain perfection of the security interest created by each Receivable in the
related Financed Vehicle, including, but not limited to, obtaining the execution
by the Obligors and the recording, registering, filing, re-recording, re-filing,
and re-registering of all security agreements, financing statements and
continuation statements as are necessary to maintain the security interest
granted by the Obligors under the respective Receivables. The Indenture Trustee
hereby authorizes the Servicer, and the Servicer agrees, to take any and all
steps necessary to re-perfect such security interest on behalf of the Issuer as
necessary because of the relocation of a Financed Vehicle or for any other
reason. In the event that the assignment of a Receivable to the Issuer is
insufficient, without a notation on the related Financed Vehicle's certificate
of title, or without fulfilling any additional administrative requirements under
the laws of the state in which the Financed Vehicle is located, to perfect a
security interest in the related Financed Vehicle in favor of the Issuer, the
Servicer hereby agrees that the designation of the Receivables Seller (or a
Titled Third-Party Lender) as the secured party on the certificate of title is
in its capacity as Servicer as agent of the Issuer.
(b) Upon the occurrence of a Servicer Termination Event or an Event of
Default, the Indenture Trustee and the Servicer shall take or cause to be taken
such action as may, in the opinion of counsel to the Indenture Trustee, be
necessary to perfect or re-perfect the security interests in the Financed
Vehicles securing the Receivables in the name of the Issuer by amending the
title documents of such Financed Vehicles or by such other reasonable means as
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may, in the opinion of counsel to the Indenture Trustee, be necessary, or as
directed by the Majority Noteholders.
The Receivables Seller hereby agrees to pay all expenses related to
such perfection or reperfection and to take all action necessary therefor. In
addition, prior to the occurrence of an Event of Default or Servicer Termination
Event, the Majority Noteholder may instruct the Indenture Trustee and the
Servicer to take or cause to be taken such action as may, in the opinion of
counsel to the Majority Noteholder, be necessary to perfect or re-perfect the
security interest in the Financed Vehicles underlying the Receivables in the
name of the Issuer, including by amending the title documents of such Financed
Vehicles or by such other reasonable means as may, in the opinion of counsel to
the Majority Noteholder, be necessary. The Receivables Seller hereby appoints
the Indenture Trustee as its attorney-in-fact to take any and all steps required
to be performed by the Receivables Seller pursuant to this Section 4.5(b) (it
being understood that and agreed that the Indenture Trustee shall have no
obligation to take such steps with respect to all perfection or reperfection,
except as pursuant to the Basic Documents to which it is a party and to which
the Receivables Seller has paid all expenses), including execution of
certificates of title or any other documents in the name and stead of the
Receivables Seller and the Indenture Trustee hereby accepts such appointment.
SECTION 4.6. Covenants, Representations, and Warranties of Servicer. By its
execution and delivery of this Agreement, the Servicer makes the following
representations, warranties and covenants on which the Indenture Trustee relies
in accepting the Receivables and in authenticating the Notes and on which the
Noteholders rely in purchasing and making advances under the Notes.
(a) The Servicer covenants as follows:
(i) Liens in Force. The Financed Vehicle securing each Receivable
shall not be released in whole or in part from the security interest
granted by the Receivable, except upon payment in full of the Receivable or
as otherwise contemplated herein;
(ii) No Impairment. The Servicer shall do nothing to impair the rights
of the Issuer or the Noteholders in any Collateral, the Dealer Agreements,
the Auto Loan Purchase and Sale Agreements, the Dealer Assignments, the
Third-Party Lender Assignments or the Insurance Policies except as
otherwise expressly provided herein;
(iii) No Amendments. The Servicer shall not extend or otherwise amend
the terms of any Receivable, except in accordance with Section 4.2; and
(iv) Restrictions on Liens. The Servicer shall not (i) create, incur
or suffer to exist, or agree to create, incur or suffer to exist, or
consent to cause or permit in the future (upon the happening of a
contingency or otherwise) the creation, incurrence or existence of any Lien
or restriction on transferability of the Receivables except for the Lien in
favor of the Indenture Trustee for the benefit of the Noteholders and the
restrictions on transferability imposed by this Agreement or (ii) sign or
file under the UCC of any jurisdiction any financing statement which names
the Receivables Seller or the Servicer as a debtor, or sign any security
agreement authorizing any secured party thereunder to
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file such financing statement, with respect to the Receivables, except in
each case any such instrument solely securing the rights and preserving the
Lien of the Indenture Trustee, for the benefit of the Noteholders.
(v) Notices. Within 10 days after the date any material change in or
amendment to the Servicing Collection and Credit Policy and Procedures is
made, the Servicer will deliver to the Issuer, the Indenture Trustee and
the Majority Noteholder a copy of the Servicing Collection and Credit
Policy and Procedures then in effect indicating such change or amendment.
The Receivables Seller shall not change the Servicing Collection and Credit
Policy and Procedures or the manner in which it services the Receivables in
any way that would have a material adverse effect on the Receivables or the
Noteholders.
SECTION 4.7. Purchase of Receivables Upon Breach of Covenant. Upon
discovery by any of the Servicer, a Responsible Officer of the Indenture
Trustee, the Owner Trustee or a Responsible Officer of the Master Servicer of a
breach of any of the covenants set forth in Sections 3.3(e), 3.3(f), 4.5 or
4.6(a), the party discovering such breach shall give prompt written notice to
the others; provided, however, that the failure to give any such notice shall
not affect any obligation of the Receivables Seller as Servicer under this
Section. As of the fifth Business Day following its discovery or receipt of
notice of any breach of any covenant set forth in Sections 3.3(e), 3.3(f), 4.5
or 4.6(a) which adversely affects the interests of the Noteholders in any
Receivable (including any Liquidated Receivable) or the related Financed
Vehicle, the Receivables Seller shall, unless such breach shall have been cured
in all respects, purchase from the Issuer the Receivable affected by such breach
and, on the related Determination Date, the Receivables Seller shall pay the
Repurchase Price. It is understood and agreed that the obligation of the
Receivables Seller to purchase any Receivable (including any Liquidated
Receivable) with respect to which such a breach has occurred and is continuing
shall, if such obligation is fulfilled, constitute the sole remedy against the
Receivables Seller for such breach available to the Depositor, the Noteholders,
the Owner Trustee, the Master Servicer or the Indenture Trustee; provided,
however, that the Receivables Seller shall indemnify the Issuer, the Depositor,
the Master Servicer, the Owner Trustee, the Indenture Trustee and the
Noteholders from and against all costs, expenses, losses, damages, claims and
liabilities, including reasonable fees and expenses of counsel, which may be
asserted against or incurred by any of them as a result of third party claims
arising out of the events or facts giving rise to such breach. This section
shall survive the termination of this Agreement and the earlier removal or
resignation of the Indenture Trustee and/or the Master Servicer.
SECTION 4.8. Total Servicing Fee; Payment of Certain Expenses. On each
Payment Date, the Servicer shall be entitled to receive out of the Collection
Account in accordance with the priority of payments set forth in Section 2.10(c)
of the Indenture, the Servicing Fee for the related Collection Period. The
Servicer shall be required to pay all expenses incurred by it in connection with
its activities under this Agreement (including taxes imposed on the Servicer,
expenses incurred in connection with distributions and reports made by the
Servicer to Noteholders and all other fees and expenses of the Owner Trustee,
the Master Servicer, the Custodian or the Indenture Trustee, except taxes levied
or assessed against the Issuer, and claims against the Issuer in respect of
indemnification, which taxes and claims in respect of indemnification against
the Issuer are expressly stated to be for the account of the
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Receivables Seller). The fees and expenses of the Owner Trustee, the Master
Servicer, the Indenture Trustee, the Custodian, the Lockbox Bank (and any fees
under the Lockbox Agreement) and the Independent Accountants shall be paid from
Available Funds pursuant to the Indenture. Notwithstanding the foregoing, if the
Servicer shall not be the Receivables Seller, a successor to the Receivables
Seller as Servicer including the Master Servicer permitted by Section 8.3 shall
not be liable for taxes levied or assessed against the Issuer or claims against
the Issuer in respect of indemnification.
SECTION 4.9. Servicer's Certificate. No later than 10:00 a.m. Eastern time
on each Determination Date, the Servicer shall deliver (e-mail or facsimile
delivery being acceptable) to the Owner Trustee, the Indenture Trustee, the
Master Servicer and the Majority Noteholder a Servicer's Certificate executed by
a Responsible Officer of the Servicer containing among other things, (i) all
information necessary to enable the Indenture Trustee to make any withdrawal and
deposit required by Section 2.10(c) of the Indenture and to make the
distributions required by Section 2.10(c) of the Indenture, (ii) a listing of
all Purchased Receivables and Administrative Receivables purchased during the
related Collection Period, identifying the Receivables so purchased, and (iii)
all information necessary to enable the Master Servicer to reconcile and
recalculate the following sections of the Servicer's Certificate: the Monthly
Period Receivables Principal Balance Calculation Section, the Reconciliation of
Collection Account Section, the Statistical Data (Current and Historical)
Section and the Delinquency Section. Receivables purchased by the Servicer or by
the Receivables Seller during the related Collection Period and each Receivable
which became a Liquidated Receivable or which was paid in full during the
related Collection Period shall be identified by account number (as set forth in
the Schedule of Receivables). In addition to the information set forth in the
preceding sentence, the Servicer's Certificate shall also contain the following
information: (a) whether any Event of Default has occurred as of such
Determination Date; and (b) whether any Event of Default that may have occurred
as of a prior Determination Date is deemed cured as of such Determination Date.
Any Noteholder shall be entitled to notify the Servicer of any error it
discovers in any Servicer's Certificate.
SECTION 4.10. Annual Statement as to Compliance, Notice of Servicer
Termination Event.
(a) The Servicer shall deliver to the Owner Trustee, the Indenture Trustee,
the Master Servicer and the Majority Noteholder, on or before October 31 (or 120
days after the end of the Servicer's fiscal year, if other than June 30) of each
year, beginning on October 31, 2003, an officer's certificate signed by any
Responsible Officer of the Servicer, dated as of June 30 (or other applicable
date) of such year, stating that (i) a review of the activities of the Servicer
during the preceding 12-month period (or such other period as shall have elapsed
from the Closing Date to the date of the first such certificate (which period
shall not be less than six months)) and of its performance under this Agreement
has been made under such officer's supervision, and (ii) to such officer's
knowledge, based on such review, the Servicer has fulfilled all its obligations
under this Agreement throughout such period, or, if there has been a default in
the fulfillment of any such obligation, specifying each such default known to
such officer and the nature and status thereof.
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(b) The Receivables Seller or the Servicer shall deliver to the Owner
Trustee, the Indenture Trustee, the Master Servicer, the Majority Noteholder,
and the Servicer or the Receivables Seller (as applicable) promptly after having
obtained knowledge thereof, but in no event later than two (2) Business Days
thereafter, written notice in an officer's certificate of any event which with
the giving of notice or lapse of time, or both, would become a Servicer
Termination Event or Event of Default.
SECTION 4.11. Annual Independent Accountants' Report.
The Servicer shall cause a firm of nationally recognized independent
certified public accountants (the "Independent Accountants"), who may also
render other services to the Servicer or to the Receivables Seller, to deliver
to the Owner Trustee, the Indenture Trustee, the Master Servicer and the
Majority Noteholder, on or before October 31 (or 120 days after the end of the
Servicer's fiscal year, if other than June 30) of each year, beginning on
October 31, 2003, with respect to the twelve months ended the immediately
preceding June 30 (or other applicable date) (or such other period as shall have
elapsed from the Closing Date to the date of such certificate (which period
shall not be less than six months)), a statement (the "Accountants' Report")
addressed to the Board of Directors of the Servicer, to the Owner Trustee, the
Indenture Trustee, the Master Servicer and to the Majority Noteholder, to the
effect that such firm has audited the books and records of AmeriCredit Corp., in
which the Servicer is included as a consolidated subsidiary, and issued its
report thereon in connection with the audit report on the consolidated financial
statements of AmeriCredit Corp. and that (1) such audit was made in accordance
with generally accepted auditing standards, and accordingly included such tests
of the accounting records and such other auditing procedures as such firm
considered necessary in the circumstances; (2) the firm is independent of the
Receivables Seller and the Servicer within the meaning of the Code of
Professional Ethics of the American Institute of Certified Public Accountants,
and (3) includes a report on the application of agreed upon procedures to (A)
three randomly selected Servicer's Certificates including the delinquency,
default and loss statistics required to be specified therein noting whether any
exceptions or errors in the Servicer's Certificates were found and (B) a
statistically significant number of randomly selected Receivables Files as
determined by such Independent Accountants. If the long-term senior unsecured
debt of AmeriCredit Corp. is rated by either Standard & Poor's or Moody's below
B or B2, respectively, or if an Event of Default shall have occurred and be
continuing, then the Servicer will cause the Independent Accountants to deliver
an Accountants' Report quarterly to the Owner Trustee, the Indenture Trustee,
the Master Servicer and the Majority Noteholder on or before January 31, April
30, July 31 and October 31 of each year with respect to the three months ended
the immediately preceding September 30, December 31, March 31 or June 30, as
applicable.
SECTION 4.12. Access to Certain Documentation and Information Regarding
Receivables. The Servicer shall provide to representatives of the Owner Trustee,
the Indenture Trustee, the Master Servicer and the Majority Noteholder
reasonable access to the documentation regarding the Receivables. In each case,
such access shall be afforded without charge but only upon reasonable request
and during normal business hours. Nothing in this Section shall affect the
obligation of the Servicer to observe any applicable law prohibiting disclosure
of information regarding the Obligors, and the failure of the Servicer to
provide access
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as provided in this Section as a result of such obligation shall not constitute
a breach of this Section.
SECTION 4.13. Monthly Tape. On or before the Determination Date, of each
month, the Servicer will deliver to the Indenture Trustee, the Master Servicer
and each Noteholder a computer tape and a diskette (or any other electronic
transmission acceptable to the Indenture Trustee and the Master Servicer) (the
"Monthly Tape") in a format acceptable to the Indenture Trustee and the Master
Servicer containing the information with respect to the Receivables as of last
day of the related Collection Period necessary for preparation of the Servicer's
Certificate relating to the immediately preceding Collection Period and
necessary to review the application of collections as provided in Section 5.3.
The Master Servicer shall use such tape or diskette (or other electronic
transmission acceptable to the Indenture Trustee and the Master Servicer) to (i)
confirm that the Servicer's Certificate is complete on its face, (ii) confirm
that such tape, diskette or other electronic transmission is in readable form,
(iii) verify the mathematical accuracy of all calculations contained within the
Monthly Period Receivables Principal Balance Calculation Section, the
Reconciliation of Collection Account Section, the Statistical Data (Current and
Historical) Section and the Delinquency Section, (iv) based on the information
in the Monthly Tape, reconcile and recalculate the following sections of the
Servicer's Certificate: the Monthly Period Receivables Principal Balance
Calculation Section, the Reconciliation of Collection Account Section, the
Statistical Data (Current and Historical) Section and the Delinquency Section
and (v) calculate and confirm (A) the aggregate amount distributable as
principal on the related Payment Date to the Notes, (B) the aggregate amount
distributable as interest on the related Payment Date to the Notes, (C) any
amounts distributable on the related Payment Date which are to be paid with
funds withdrawn from the Collateral Account and (D) all other amounts
distributable on the related Payment Date in accordance with Section 2.10(c) of
the Indenture. In the event that the Master Servicer reports any discrepancies,
the Servicer and the Master Servicer shall attempt to reconcile such
discrepancies prior to the next succeeding Payment Date, but in the absence of a
reconciliation, the Servicer's Certificate shall control for the purpose of
calculations and distributions with respect to the next succeeding Payment Date.
In the event that the Master Servicer and the Servicer are unable to reconcile
discrepancies with respect to a Servicer's Certificate by the next succeeding
Payment Date, the Servicer shall cause the Independent Accountants, at the
Servicer's expense, to audit the Servicer's Certificate and, prior to the last
day of the month after the month in which such Servicer's Certificate was
delivered, reconcile the discrepancies. The effect, if any, of such
reconciliation shall be reflected in the Servicer's Certificate for such next
succeeding Determination Date. In addition, upon the occurrence of a Servicer
Termination Event the Servicer shall deliver to the Master Servicer its
Collection Records and its Monthly Records within 15 days after demand therefor
and a computer tape containing as of the close of business on the date of demand
all of the data maintained by the Servicer in computer format in connection with
servicing the Receivables.
SECTION 4.14. Retention and Termination of Servicer. The Servicer hereby
covenants and agrees to act as such under this Agreement for an initial term,
commencing on the Closing Date and ending on June 30, 2003, which term shall be
subject to automatic termination unless renewed by the Majority Noteholder in
writing for successive quarterly terms ending on each successive, September 30,
December 31, March 31 and June 30, until the Notes and the Certificates are paid
in full. The Majority Noteholder shall give written notice at least 15
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Business Days prior to the end of the related calendar quarter that such term
will be extended for an additional quarter. Each such notice (a "Servicer
Extension Notice") shall be delivered by the Majority Noteholder to the
Indenture Trustee and the Servicer. If no Servicer Extension Notice is given 15
Business Days prior to the end of the related calendar quarter, the Servicer
acknowledges that its rights and obligations as Servicer hereunder shall
automatically terminate at the end of the then current calendar quarter.
SECTION 4.15. Fidelity Bond and Errors and Omissions Policy. The Servicer
has obtained, and shall continue to maintain in full force and effect, a
Fidelity Bond and Errors and Omissions Policy of a type and in such amount as is
customary for servicers engaged in the business of servicing automobile
receivables, and will provide a copy thereof to the Indenture Trustee.
SECTION 4.16. Dispositions. (a) On or after the Facility Termination Date,
the Majority Noteholder may, in its sole discretion, and from time to time,
require that the Issuer effect Dispositions in accordance with this Agreement,
including in accordance with this Section 4.16.
(b) In consideration of the consideration received from the Depositor under
the Receivables Purchase and Contribution Agreement, the Receivables Seller
hereby agrees and covenants that in connection with each Disposition it shall
effect the following:
(i) make such representations and warranties concerning the
Receivables as of the "cut-off date" of the related Disposition to the
Disposition Participants as may be necessary to effect the Disposition and
such additional representations and warranties as may be necessary, in the
reasonable opinion of any of the Disposition Participants, to effect such
Disposition; provided, that, to the extent that the Receivables Seller has
at the time of the Disposition actual knowledge of any facts or
circumstances that would render any of such representations and warranties
materially false or misleading, the Receivables Seller may notify the
Disposition Participants of such facts or circumstances and, in such event,
shall have no obligation to make such materially false or misleading
representation and warranty;
(ii) supply such information, opinions of counsel, letters from law
and/or accounting firms and other documentation and certificates regarding
the Receivables and related matters as any Disposition Participant shall
reasonably request to effect a Disposition and enter into such
indemnification agreements customary for such transaction relating to or in
connection with the Disposition as the Disposition Participants may
reasonably require;
(iii) make itself available for and engage in good faith consultation
with the Disposition Participants concerning information to be contained in
any document, agreement, private placement memorandum, or filing with the
Securities and Exchange Commission relating to the Receivables Seller or
the Receivables in connection with a Disposition and shall use reasonable
efforts to compile any information and prepare any reports and certificates
that, in the reasonable judgment of the Disposition Participants, are
suitable for inclusion in such documentation and shall convey such
information,
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reports and certificates to the Disposition Participants in a form
reasonably requested by such Disposition Participants;
(iv) to implement the foregoing and to otherwise effect a Disposition,
enter into, or arrange for its Affiliates to enter into insurance and
indemnity agreements, underwriting or placement agreements, servicing
agreements, purchase agreements and any other documentation upon terms
which may reasonably be required of or reasonably deemed appropriate by the
Disposition Participants in order to effect a Disposition; and
(v) take such further actions as may be reasonably necessary to effect
the foregoing.
(c) The Issuer shall effect Dispositions at the direction of the Majority
Noteholder in accordance with the terms of this Agreement and the Basic
Documents. In connection therewith, the Issuer agrees to assist the Receivables
Seller in such Dispositions and accordingly it shall, at the request and
direction of the Majority Noteholder:
(i) transfer, deliver and sell all or a portion of the Receivables, as
of the "cut-off dates" of the related Dispositions, to such Disposition
Participants as may be necessary to effect the Dispositions;
(ii) deposit the cash Disposition Proceeds into the Note Payment
Account for application pursuant to Section 2.10(c)of the Indenture;
(iii) to the extent that a Securitization creates any Retained
Securities, to accept such Retained Securities in accordance with the terms
of this Agreement and sell or retain such Retained Securities at the
direction of the Majority Noteholder; and
(iv) take such further actions, including executing and delivering
documents, certificates and agreements, as may be reasonably necessary to
effect such Dispositions.
(d) The Servicer hereby covenants that it will take such actions as may be
reasonably necessary to effect Dispositions as the Disposition Participants may
request and direct, including without limitation providing the Receivables
Seller such information as may be required to make representations and
warranties required hereunder, and covenants that it will make such
representations and warranties regarding its servicing of the Receivables
hereunder as of the Cut-off Date of the related Disposition as reasonably
required by the Disposition Participants.
(e) Except as otherwise expressly set forth under this Section 4.16, the
parties' rights and obligations under this Section 4.16 shall continue
notwithstanding the occurrence of an Event of Default.
(f) The Disposition Participants (and the Majority Noteholder to the extent
directing the Disposition Participants) shall be independent contractors to the
Issuer and shall have no fiduciary obligations to the Issuer or any of its
Affiliates. In that connection, the Disposition Participants shall not be liable
for any error of judgment made in good faith and shall not be liable with
respect to any action they take or omit to take in good faith in the performance
of their duties.
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(g) For the avoidance of doubt, the Noteholders shall not have the right to
direct Dispositions prior to the Facility Termination Date.
ARTICLE V
Trust Accounts; Distributions.
SECTION 5.1. Establishment of Trust Accounts.
(a) (i) The Indenture Trustee, on behalf of the Noteholders, shall
establish and maintain in its own name an Eligible Deposit Account (the
"Collection Account"), bearing a designation clearly indicating that the
funds deposited therein are held for the benefit of the Indenture Trustee
on behalf of the Noteholders. The Collection Account shall initially be
established with the Indenture Trustee.
(ii) The Indenture Trustee, on behalf of the Noteholders, shall
establish and maintain in its own name an Eligible Deposit Account (the
"Note Payment Account"), bearing a designation clearly indicating that the
funds deposited therein are held for the benefit of the Indenture Trustee
on behalf of the Noteholders. The Note Payment Account shall initially be
established with the Indenture Trustee.
(iii) The Indenture Trustee, on behalf of the Noteholders, shall
establish and maintain in its own name an Eligible Deposit Account (the
"Collateral Account"), bearing a designation clearly indicating that the
funds deposited therein are held for the benefit of the Indenture Trustee
on behalf of the Noteholders. The Collateral Account shall initially be
established with the Indenture Trustee. There shall be deposited to the
Collateral Account any amount delivered by the Issuer to the holder of the
Collateral Account that the Issuer designates in writing to such holder
(with a copy to the Majority Noteholder) to be deposited in the Collateral
Account.
(b) Funds on deposit in the Collection Account, the Note Payment Account
and the Collateral Account (collectively, the "Trust Accounts") and the Lockbox
Accounts shall be invested by the Indenture Trustee (or any custodian with
respect to funds on deposit in any such account) in Eligible Investments
selected in writing by the Majority Noteholder (pursuant to standing
instructions or otherwise). All such Eligible Investments shall be held by or on
behalf of the Indenture Trustee for the benefit of the Noteholders. Funds on
deposit in any Account shall be invested in Eligible Investments that will
mature so that such funds will be available at the close of business on the
Business Day immediately preceding the following Payment Date. Funds deposited
in a Trust Account on the day immediately preceding a Payment Date upon the
maturity of any Eligible Investments are required to be invested overnight. All
Eligible Investments will be held to maturity.
(c) All investment earnings of moneys deposited in the Trust Accounts shall
be deposited (or caused to be deposited) by the Indenture Trustee in the
Collection Account, and any loss resulting from such investments shall be
charged to such account. The Majority Noteholder will not direct the Indenture
Trustee to make any investment of any funds held in any of the Trust Accounts
unless the security interest granted and perfected in such account will
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continue to be perfected in such investment, in either case without any further
action by any Person.
(d) The Indenture Trustee shall not in any way be held liable by reason of
any insufficiency in any of the Trust Accounts resulting from any loss on any
Eligible Investment included therein except for losses attributable to the
Indenture Trustee's negligence or bad faith or its failure to make payments on
such Eligible Investments issued by the Indenture Trustee, in its commercial
capacity as principal obligor and not as trustee, in accordance with their
terms.
(e) If (i) the Majority Noteholder shall have failed to give investment
directions in writing for any funds on deposit in the Trust Accounts to the
Indenture Trustee by 1:00 p.m. Eastern Time (or such other time as may be agreed
by the Issuer and Indenture Trustee) on any Business Day; or (ii) a Default or
Event of Default shall have occurred and be continuing with respect to the Notes
but the Notes shall not have been declared due and payable, or, if such Notes
shall have been declared due and payable following an Event of Default, amounts
collected or receivable from the Trust Estate are being applied as if there had
not been such a declaration; then the Indenture Trustee shall, to the fullest
extent practicable, invest and reinvest funds in the Trust Accounts in the
investment described in clause (g) of the definition of Eligible Investments.
(f) (i) The Indenture Trustee shall possess all right, title and interest
in all funds on deposit from time to time in the Trust Accounts and in all
proceeds thereof and all such funds, investments, proceeds and income shall be
part of the Owner Trust Estate. Except as otherwise provided herein, the Trust
Accounts shall be under the sole dominion and control of the Indenture Trustee
for the benefit of the Noteholders. If, at any time, any of the Trust Accounts
ceases to be an Eligible Deposit Account, the Indenture Trustee shall within
five Business Days establish a new Trust Account as an Eligible Deposit Account
and shall transfer any cash and/or any investments to such new Trust Account.
(ii) With respect to the Trust Account Property, the Indenture Trustee
agrees that:
(A) any Trust Account Property that is held in deposit accounts
shall be held solely in the Eligible Deposit Accounts; and, except as
otherwise provided herein, each such Eligible Deposit Account shall be
subject to the exclusive custody and control of the Indenture Trustee,
and the Indenture Trustee shall have sole signature authority with
respect thereto;
(B) any Trust Account Property that constitutes Physical Property
shall be delivered to the Indenture Trustee in accordance with
paragraph (a) of the definition of "Delivery" and shall be held,
pending maturity or disposition, solely by the Indenture Trustee or a
financial intermediary (as such term is defined in Section 8-313(4) of
the UCC) acting solely for the Indenture Trustee;
(C) any Trust Account Property that is a book-entry security held
through the Federal Reserve System pursuant to Federal book-entry
regulations shall be delivered in accordance with paragraph (b) of the
definition of "Delivery"
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and shall be maintained by the Indenture Trustee, pending maturity or
disposition, through continued book-entry registration of such Trust
Account Property as described in such paragraph; and
(D) any Trust Account Property that is an "uncertificated
security" under Article 8 of the UCC and that is not governed by
clause (C) above shall be delivered to the Indenture Trustee in
accordance with paragraph (c) of the definition of "Delivery" and
shall be maintained by the Indenture Trustee, pending maturity or
disposition, through continued registration of the Indenture Trustee's
(or its nominee's) ownership of such security.
(g) Reserved.
(h) The Indenture Trustee acknowledges that, pursuant to the provisions of
a Hedge Agreement, the Hedge Counterparty may be required to post collateral
with the Indenture Trustee to secure the Hedge Counterparty's obligations under
the Hedge Agreement. The Indenture Trustee agrees to hold such collateral in the
Collection Account or a sub-account thereof. The Indenture Trustee further
agrees to follow such written instructions relating to the administration of,
and transfers from such account, as may be delivered by the Servicer (unless
such instructions are revoked by the Majority Noteholder).
SECTION 5.2. Certain Reimbursements to the Servicer. The Servicer will be
entitled to be reimbursed pursuant to Section 2.10(c) of the Indenture from
amounts on deposit in the Collection Account with respect to a Collection Period
for amounts previously deposited in the Collection Account but later determined
by the Servicer to have resulted from mistaken deposits or postings or checks
returned for insufficient funds. The amount to be reimbursed hereunder shall be
paid to the Servicer on the related Payment Date pursuant to Section 2.10(c) of
the Indenture upon certification by the Servicer of such amounts and the
provision of such information to the Indenture Trustee and the Majority
Noteholder as may be necessary to verify the accuracy of such certification;
provided, however, that the Servicer must provide such clarification and request
and receive such reimbursement within 12 months of such mistaken deposit,
posting, or returned check. In the event that the Majority Noteholder notifies
the Servicer within 12 months of such reimbursement that it has not received
evidence satisfactory to it of the Servicer's entitlement to reimbursement
pursuant to this Section, the Majority Noteholder may give the Indenture Trustee
notice in writing to such effect, following receipt of which the Indenture
Trustee shall not make a distribution to the Servicer in respect of such amount
pursuant to Section 2.10(c) of the Indenture, or if the Servicer prior thereto
has been reimbursed pursuant to Section 2.10(c) of the Indenture, the Indenture
Trustee shall withhold such amounts from amounts otherwise distributable to the
Servicer on the next succeeding Payment Date. The Servicer will additionally be
entitled to receive from amounts on deposit in the Collection Account, pursuant
to such provisions of this Agreement, with respect to a Collection Period any
amounts paid by Obligors that were collected in the Lockbox Account but that do
not relate to principal and interest payments due on the Receivables.
SECTION 5.3. Application of Collections. All collections for the Collection
Period shall be applied by the Servicer as follows:
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With respect to each Simple Interest Receivable (other than a
Purchased Receivable), payments by or on behalf of the Obligor shall be applied
to interest and principal in accordance with the Simple Interest Method. With
respect to each Pre-Computed Receivable, payments by or on behalf of the Obligor
shall be applied to interest and principal in accordance with the terms thereof.
SECTION 5.4. Additional Deposits. The Servicer and the Receivables Seller,
as applicable, shall transfer or cause to be deposited in the Collection Account
on the Determination Date on which such obligations are due the aggregate
Repurchase Price with respect to Purchased Receivables. The proceeds of any
purchase or sale of the assets of the Issuer described in Section 4.16 hereof
shall be deposited in the Collection Account.
SECTION 5.5. Remittances. On each Payment Date, the Indenture Trustee shall
deposit amounts in the Collection Account, to the extent of Available Funds, to
the Note Payment Account for remittance by the Indenture Trustee in accordance
with Section 2.10(c) of the Indenture.
ARTICLE VI
The Receivables Seller.
SECTION 6.1. Representations of Receivables Seller. The Receivables Seller
makes the following representations on which the Noteholders shall be deemed to
have relied in purchasing and making advances under the Notes and on which the
Issuer is deemed to have relied in acquiring the Receivables from the Depositor
and on which the Depositor relied in acquiring the Receivables from the
Receivables Seller and on which the Majority Noteholder, Indenture Trustee and
Master Servicer may rely. The representations speak as of the execution and
delivery of this Agreement and as of the applicable Transfer Date, and shall
survive the sale of the Receivables to the Issuer and the pledge thereof to the
Indenture Trustee pursuant to the Indenture.
(a) Schedule of Representations. The representations and warranties set
forth on the Schedule of Representations attached hereto as Schedule B are true
and correct.
(b) Organization and Good Standing. The Receivables Seller has been duly
organized and is validly existing as a corporation in good standing under the
laws of the State of Delaware, with power and authority to own its properties
and to conduct its business as such properties are currently owned and such
business is currently conducted, and had at all relevant times, and now has,
power, authority and legal right to acquire, own and sell the Collateral
transferred to the Issuer.
(c) Due Qualification. The Receivables Seller is duly qualified to do
business as a foreign corporation in good standing and has obtained all
necessary licenses and approvals in all jurisdictions where the failure to do so
would materially adversely affect the Receivables Seller's ability to transfer
the Collateral to the Issuer pursuant to this Agreement, or the validity or
enforceability of the Collateral or to perform the Receivables Seller's
obligations hereunder and under the Basic Documents.
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(d) Power and Authority. The Receivables Seller has the power and authority
to execute and deliver this Agreement and its Basic Documents and to carry out
its terms and their terms, respectively; the Receivables Seller has full power
and authority to sell and assign the Collateral to be sold and assigned to and
deposited with the Issuer by it and has duly authorized such sale and assignment
to the Issuer by all necessary corporate action; and the execution, delivery and
performance of this Agreement and Basic Documents have been duly authorized by
the Receivables Seller by all necessary corporate action.
(e) Valid Sale, Binding Obligations. This Agreement effects a valid sale,
transfer and assignment of the related Collateral, enforceable against the
Receivables Seller and creditors of and purchasers from the Receivables Seller;
and this Agreement and the Receivables Seller's Basic Documents, when duly
executed and delivered, shall constitute legal, valid and binding obligations of
the Receivables Seller enforceable in accordance with their respective terms,
except as enforceability may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of creditors'
rights generally and by equitable limitations on the availability of specific
remedies, regardless of whether such enforceability is considered in a
proceeding in equity or at law.
(f) No Violation. The consummation of the transactions contemplated by this
Agreement and the Basic Documents and the fulfillment of the terms of this
Agreement and the Basic Documents shall not conflict with, result in any breach
of any of the terms and provisions of or constitute (with or without notice,
lapse of time or both) a default under the certificate of incorporation or
by-laws of the Receivables Seller, or any indenture, agreement, mortgage, deed
of trust or other instrument to which the Receivables Seller is a party or by
which it is bound, or result in the creation or imposition of any Lien upon any
of its properties pursuant to the terms of any such indenture, agreement,
mortgage, deed of trust or other instrument, other than this Agreement, or
violate any law, order, rule or regulation applicable to the Receivables Seller
of any court or of any federal or state regulatory body, administrative agency
or other governmental instrumentality having jurisdiction over the Receivables
Seller or any of its properties.
(g) No Proceedings. There are no proceedings or investigations pending or,
to the Receivables Seller's knowledge, threatened against the Receivables
Seller, before any court, regulatory body, administrative agency or other
tribunal or governmental instrumentality having jurisdiction over the
Receivables Seller or its properties (A) asserting the invalidity of this
Agreement or any of the Basic Documents, (B) seeking to prevent the issuance of
the Securities or the consummation of any of the transactions contemplated by
this Agreement or any of the Basic Documents, (C) seeking any determination or
ruling that might materially adversely affect the performance by the Receivables
Seller of its obligations under, or the validity or enforceability of, this
Agreement or any of the Basic Documents, or (D) seeking to adversely affect the
federal income tax or other federal, state or local tax attributes of the
Securities.
(h) True Sale. The Receivables are being transferred with the intention of
removing them from the Receivables Seller's estate pursuant to Section 541 of
the Bankruptcy Code, as the same may be amended from time to time.
(i) Chief Executive Office. The chief executive office of the Receivables
Seller is at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇.
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SECTION 6.2. Corporate Existence. (a) During the term of this Agreement,
the Receivables Seller and the Depositor will keep in full force and effect its
existence, rights and franchises as a corporation under the laws of the
jurisdiction of its incorporation and will obtain and preserve its qualification
to do business in each jurisdiction in which such qualification is or shall be
necessary to protect the validity and enforceability of this Agreement, the
Basic Documents and each other instrument or agreement necessary or appropriate
to the proper administration of this Agreement and the transactions contemplated
hereby.
(b) During the term of this Agreement, the Receivables Seller and the
Depositor shall observe the applicable legal requirements for the recognition of
the Receivables Seller or Depositor, as applicable, as a legal entity separate
and apart from its Affiliates, including as follows (provided, however, that the
limitations set forth in subsections (ix), (x), (xi) and (xiv) shall be
applicable solely to the Depositor and shall not limit the Receivables Seller's
activities):
(i) maintain corporate records and books of account separate from
those of its Affiliates;
(ii) except as otherwise provided in this Agreement, not commingle its
assets and funds with those of its Affiliates;
(iii) hold such appropriate meetings of its Board of Directors as are
necessary to authorize all corporate actions required by law to be
authorized by the Board of Directors, shall keep minutes of such meetings
and of meetings of its stockholder(s) and observe all other customary
corporate formalities (and any successor Receivables Seller or Depositor,
as applicable, not a corporation shall observe similar procedures in
accordance with its governing documents and applicable law);
(iv) at all times hold itself out to the public under its own name as
a legal entity separate and distinct from its Affiliates;
(v) conduct all transactions and dealings with its Affiliates on an
arm's-length basis;
(vi) obtain proper authorization for all action requiring such
authorization;
(vii) pay its own operating expenses and liabilities from its own
funds;
(viii) continuously maintain its resolutions, agreements and other
instruments underlying the transactions described in this Agreement as part
of its official records;
(ix) the Depositor shall not maintain bank accounts or other
depository accounts to which any Affiliate is an account party or from
which any Affiliate has the power to make withdrawals;
(x) the Depositor shall not amend, supplement or otherwise modify its
organizational documents, except in accordance therewith;
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(xi) the Depositor shall not create, incur, assume or suffer to exist
any indebtedness on which it is obligated, except as contemplated by this
Agreement and the other Basic Documents. It shall not assume, guarantee,
endorse or otherwise be or become directly or contingently liable for the
obligations of any Person by, among other things, agreeing to purchase any
obligation of another Person (other than the Receivables), agreeing to
advance funds to such Person or causing or assisting such Person to
maintain any amount of capital. It shall not be party to any indenture,
agreement, mortgage, deed of trust or other instrument other than this
Agreement and the other Basic Documents;
(xii) not enter into, or be a party to any transaction with any of its
Affiliates, except as contemplated by this Agreement and the other Basic
Documents;
(xiii) observe all procedures required by its organizational documents
and preserve and maintain its existence, rights, franchises and privileges
in the jurisdiction of its formation and qualify and remain qualified in
good standing in each jurisdiction where the failure to preserve and
maintain such existence, rights, franchises, privileges and qualifications
would materially adversely affect the interests hereunder of the
Noteholders or its ability to perform its obligations hereunder; and
(xiv) the Depositor shall not form, or cause to be formed, any
subsidiaries; or make or suffer to exist any loans or advances to, or
extend any credit to, or make any investments (by way of transfer of
property, contributions to capital, purchase of stock or securities or
evidences of indebtedness (other than the Receivables), acquisition of the
business or assets, or otherwise) in, any Affiliate or any other Person
except as otherwise permitted herein.
SECTION 6.3. Liability of Receivables Seller; Indemnities. The Receivables
Seller shall be liable in accordance herewith only to the extent of the
obligations specifically undertaken by it under this Agreement.
The Receivables Seller shall indemnify, defend and hold harmless the
Issuer, the Owner Trustee, the Servicer, the Master Servicer, the Majority
Noteholder, the Custodian and the Indenture Trustee and their respective
officers, directors, employees and agents from and against (i) any taxes that
may at any time be asserted against any such Person with respect to the
transactions contemplated in this Agreement and any of the Basic Documents
(except any income taxes arising out of fees paid to the Owner Trustee, the
Servicer, the Master Servicer, the Custodian and the Indenture Trustee),
including any sales, gross receipts, general corporation, tangible personal
property, privilege or license taxes and costs and expenses in defending against
the same (ii) any loss, liability or expense incurred by reason of the
Receivables Seller's willful misfeasance, bad faith or negligence in the
performance of its duties under this Agreement, or by reason of reckless
disregard of its obligations and duties under this Agreement (iii) any and all
costs, expenses, losses, claims, damages and liabilities arising out of, or
incurred in connection with the acceptance or performance of the trusts and
duties set forth herein and in the Basic Documents except to the extent that
such cost, expense, loss, claim, damage or liability shall be due to the willful
misfeasance, bad faith or negligence (except for errors in judgment) of the
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Owner Trustee, Indenture Trustee, the Majority Noteholder, Master Servicer and
the Custodian, respectively.
Indemnification under this Section shall survive the resignation or
removal of the Servicer, Owner Trustee, the Master Servicer, the Custodian or
the Indenture Trustee and the termination of this Agreement or the Indenture or
the Trust Agreement, as applicable, and shall include reasonable fees and
expenses of counsel and other expenses of litigation. If the Receivables Seller
shall have made any indemnity payments pursuant to this Section and the Person
to or on behalf of whom such payments are made thereafter shall collect any of
such amounts from others, such Person shall promptly repay such amounts to the
Receivables Seller, without interest.
SECTION 6.4. Merger or Consolidation of, or Assumption of the Obligations
of the Receivables Seller. Any Person (a) into which the Receivables Seller may
be merged or consolidated, (b) which may result from any merger or consolidation
to which the Receivables Seller shall be a party or (c) which may succeed to the
properties and assets of the Receivables Seller substantially as a whole, which
Person in any of the foregoing cases executes an agreement of assumption to
perform every obligation of the Receivables Seller under this Agreement, shall
be the successor to the Receivables Seller hereunder without the execution or
filing of any document or any further act by any of the parties to this
Agreement; provided, however, that (i) if the debt rating of the surviving
entity by Standard & Poor's or Moody's would be lower after giving effect to
such transaction than prior to giving effect to the transaction, such
transaction shall constitute a Servicer Termination Event, (ii) immediately
after giving effect to such transaction, no representation or warranty made
pursuant to Section 3.1 shall have been breached and no Servicer Termination
Event, and no event which, after notice or lapse of time, or both, would become
a Servicer Termination Event shall have happened and be continuing, (iii) the
Receivables Seller shall have delivered to the Owner Trustee, the Indenture
Trustee and the Majority Noteholder an Officer's Certificate and an Opinion of
Counsel each stating that such consolidation, merger or succession and such
agreement of assumption comply with this Section and that all conditions
precedent, if any, provided for in this Agreement relating to such transaction
have been complied with and (iv) the Receivables Seller shall have delivered to
the Owner Trustee, the Indenture Trustee, the Master Servicer and the Majority
Noteholder an Opinion of Counsel stating that, in the opinion of such counsel,
either (A) all financing statements and continuation statements and amendments
thereto have been executed and filed that are necessary fully to preserve and
protect the interest of the Indenture Trustee and the Owner Trustee,
respectively, in the Receivables and reciting the details of such filings or (B)
no such action shall be necessary to preserve and protect such interest.
Notwithstanding anything herein to the contrary, the execution of the foregoing
agreement of assumption and compliance with clauses (i), (ii), (iii), (iv) and
(v) above shall be conditions to the consummation of the transactions referred
to in clauses (a), (b) or (c) above.
SECTION 6.5. Limitation on Liability of the Receivables Seller and Others.
The Receivables Seller and any director or officer or employee or agent of the
Receivables Seller may rely in good faith on the advice of counsel or on any
document of any kind, prima facie properly executed and submitted by any Person
respecting any matters arising under any Basic Document. The Receivables Seller
shall not be under any obligation to appear in, prosecute or
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defend any legal action that shall not be incidental to its obligations under
this Agreement, and that in its opinion may involve it in any expense or
liability.
SECTION 6.6. Ownership of the Certificates or Notes. The Receivables Seller
and any Affiliate thereof may in its individual or any other capacity become the
owner or pledgee of Certificates or Notes with the same rights as it would have
if it were not the Receivables Seller or an Affiliate thereof, except as
expressly provided herein or in any Basic Document. Notes or Certificates so
owned by the Receivables Seller or such Affiliate shall have an equal and
proportionate benefit under the provisions of the Basic Documents, without
preference, priority, or distinction as among all of the Notes or Certificates;
provided, however, that any Notes or Certificates owned by the Receivables
Seller or any Affiliate thereof, during the time such Notes or Certificates are
owned by such party, shall be without voting rights for any purpose set forth in
the Basic Documents. The Receivables Seller shall notify the Owner Trustee, the
Indenture Trustee and the Majority Noteholder with respect to any transfer of
any Certificate.
ARTICLE VII
The Servicer and the Master Servicer.
SECTION 7.1. Representations of Servicer. The Servicer makes the following
representations on which the Noteholders shall be deemed to have relied in
purchasing and making advances under the Notes and on which the Issuer is deemed
to have relied in acquiring the Receivables from the Depositor and on which the
Depositor is deemed to have relied in acquiring the Receivables from the
Receivables Seller. The representations speak as of the execution and delivery
of this Agreement and as of the Closing Date and as of the applicable Transfer
Date, and shall survive the sale of the Receivables to the Issuer and the pledge
thereof to the Indenture Trustee pursuant to the Indenture.
(i) Organization and Good Standing. The Servicer has been duly
organized and is validly existing and in good standing under the laws of
its jurisdiction of organization, with power, authority and legal right to
own its properties and to conduct its business as such properties are
currently owned and such business is currently conducted, and had at all
relevant times, and now has, power, authority and legal right to enter into
and perform its obligations under this Agreement;
(ii) Due Qualification. The Servicer is duly qualified to do business
in good standing and has obtained all necessary licenses and approvals, in
all jurisdictions in which the ownership or lease of property or the
conduct of its business (including the servicing of the Receivables as
required by this Agreement) requires or shall require such qualification;
(iii) Power and Authority. The Servicer has the power and authority to
execute and deliver this Agreement and its Basic Documents and to carry out
its terms and their terms, respectively, and the execution, delivery and
performance of this Agreement and
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the Servicer's Basic Documents have been duly authorized by the Servicer by
all necessary corporate action;
(iv) Binding Obligation. This Agreement and the Servicer's Basic
Documents shall constitute legal, valid and binding obligations of the
Servicer enforceable in accordance with their respective terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization, or
other similar laws affecting the enforcement of creditors' rights generally
and by equitable limitations on the availability of specific remedies,
regardless of whether such enforceability is considered in a proceeding in
equity or at law;
(v) No Violation. The consummation of the transactions contemplated by
this Agreement and the Servicer's Basic Documents, and the fulfillment of
the terms of this Agreement and the Servicer's Basic Documents, shall not
conflict with, result in any breach of any of the terms and provisions of,
or constitute (with or without notice or lapse of time) a default under,
the articles of incorporation or bylaws of the Servicer, or any indenture,
agreement, mortgage, deed of trust or other instrument to which the
Servicer is a party or by which it is bound, or result in the creation or
imposition of any Lien upon any of its properties pursuant to the terms of
any such indenture, agreement, mortgage, deed of trust or other instrument,
other than this Agreement, or violate any law, order, rule or regulation
applicable to the Servicer of any court or of any federal or state
regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Servicer or any of its
properties;
(vi) No Proceedings. There are no proceedings or investigations
pending or, to the Servicer's knowledge, threatened against the Servicer,
before any court, regulatory body, administrative agency or other tribunal
or governmental instrumentality having jurisdiction over the Servicer or
its properties (A) asserting the invalidity of this Agreement or any of the
Basic Documents, (B) seeking to prevent the issuance of the Securities or
the consummation of any of the transactions contemplated by this Agreement
or any of the Basic Documents, or (C) seeking any determination or ruling
that might materially adversely affect the performance by the Servicer of
its obligations under, or the validity or enforceability of, this Agreement
or any of the Basic Documents or (D) seeking to adversely affect the
federal income tax or other federal, state or local tax attributes of the
Securities;
(vii) No Consents. The Servicer is not required to obtain the consent
of any other party or any consent, license, approval or authorization, or
registration or declaration with, any governmental authority, bureau or
agency in connection with the execution, delivery, performance, validity or
enforceability of this Agreement which has not already been obtained.
SECTION 7.2. Representations of Master Servicer. The Master Servicer makes
the following representations on which the Noteholders shall be deemed to have
relied in purchasing and making advances under the Notes and on which the Issuer
is deemed to have relied in acquiring the Receivables from the Depositor and on
which the Depositor is deemed to have relied in acquiring the Receivables from
the Receivables Seller.
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(i) Organization and Good Standing. The Master Servicer has been duly
organized and is validly existing and in good standing under the laws of
its jurisdiction of organization, with power, authority and legal right to
own its properties and to conduct its business as such properties are
currently owned and such business is currently conducted, and had at all
relevant times, and now has, power, authority and legal right to enter into
and perform its obligations under this Agreement;
(ii) Due Qualification. The Master Servicer is duly qualified to do
business in good standing and has obtained all necessary licenses and
approvals, in all jurisdictions in which the ownership or lease of property
or the conduct of its business (including the servicing of the Receivables
as required by this Agreement) requires or shall require such
qualification;
(iii) Power and Authority. The Master Servicer has the power and
authority to execute and deliver this Agreement and to carry out its terms,
and the execution, delivery and performance of this Agreement has been duly
authorized by the Master Servicer by all necessary corporate action;
(iv) Binding Obligation. This Agreement shall constitute legal, valid
and binding obligations of the Master Servicer enforceable in accordance
with their respective terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization, or other similar laws affecting the
enforcement of creditors' rights generally and by equitable limitations on
the availability of specific remedies, regardless of whether such
enforceability is considered in a proceeding in equity or at law;
(v) No Violation. The consummation of the transactions contemplated by
this Agreement, and the fulfillment of the terms of this Agreement, shall
not conflict with, result in any breach of any of the terms and provisions
of, or constitute (with or without notice or lapse of time) a default
under, the articles of incorporation or bylaws of the Master Servicer, or
any indenture, agreement, mortgage, deed of trust or other instrument to
which the Master Servicer is a party or by which it is bound, or result in
the creation or imposition of any Lien upon any of its properties pursuant
to the terms of any such indenture, agreement, mortgage, deed of trust or
other instrument, other than this Agreement, or violate any law, order,
rule or regulation applicable to the Master Servicer of any court or of any
federal or state regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over the Master Servicer
or any of its properties;
(vi) No Proceedings. There are no proceedings or investigations
pending or, to the Master Servicer's knowledge, threatened against the
Master Servicer, before any court, regulatory body, administrative agency
or other tribunal or governmental instrumentality having jurisdiction over
the Master Servicer or its properties (A) asserting the invalidity of this
Agreement or any of the Basic Documents, (B) seeking to prevent the
issuance of the Securities or the consummation of any of the transactions
contemplated by this Agreement or any of the Basic Documents, or (C)
seeking any determination or ruling that might adversely affect the
performance by the Master Servicer of its obligations under, or the
validity or enforceability of, this Agreement or
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any of the Basic Documents or (D) seeking to adversely affect the federal
income tax or other federal, state or local tax attributes of the
Securities;
(vii) No Consents. The Master Servicer is not required to obtain the
consent of any other party or any consent, license, approval or
authorization, or registration or declaration with, any governmental
authority, bureau or agency in connection with the execution, delivery,
performance, validity or enforceability of this Agreement which has not
already been obtained.
SECTION 7.3. Liability of Servicer and Master Servicer; Indemnities.
(a) The Servicer (in its capacity as such) and the Master Servicer shall
each be liable hereunder only to the extent of the obligations in this Agreement
specifically undertaken by the Servicer or the Master Servicer, as applicable,
and the representations made by the Servicer or the Master Servicer, as
applicable.
(b) The Servicer shall defend, indemnify and hold harmless the Issuer, the
Depositor, the Indenture Trustee, the Owner Trustee, the Master Servicer and the
Noteholders, their respective officers, directors, agents and employees, from
and against: (i) all costs, expenses, losses, damages, claims and liabilities,
including reasonable fees and expenses of counsel and expenses of litigation
arising out of or resulting from the use, ownership or operation by the Servicer
or any Affiliate thereof of any Financed Vehicle; (ii) any taxes with respect to
the sale of Receivables in connection with servicing hereunder that may at any
time be asserted against any of such parties with respect to the transactions
contemplated in this Agreement, including, without limitation, any sales, gross
receipts, tangible or intangible personal property, privilege or license taxes
(but not including any federal or other income taxes, including franchise taxes
asserted with respect to, and as of the date of, the sale of the Collateral to
the Issuer or the issuance and original sale of the Securities) and costs and
expenses in defending against the same; (iii) any and all costs, expenses,
losses, claims, damages, and liabilities to the extent that such cost, expense,
loss, claim, damage, or liability arose out of, or was imposed upon the Issuer,
the Depositor, the Owner Trustee, the Indenture Trustee, the Master Servicer or
the Noteholders by reason of the breach of this Agreement by the Servicer, the
violation of federal or state securities laws by the Servicer, the negligence,
misfeasance, or bad faith of the Servicer in the performance of its duties under
this Agreement or by reason of reckless disregard of its obligations and duties
under this Agreement; and (iv) any and all loss, liability or expense, (other
than overhead and expenses incurred in the normal course of business) incurred
by each of them in connection with the acceptance or administration of the
Issuer and the performance of their duties under the Basic Documents other than
if such loss, liability or expense was incurred by the Depositor, the Owner
Trustee, the Indenture Trustee or the Master Servicer as a result of any such
entity's willful misconduct, bad faith or negligence. Notwithstanding the
foregoing, the Servicer shall not be obligated to indemnify for any such loss,
liability or expense arising from actions taken by the Servicer at the direction
of the Majority Noteholder.
(c) The Master Servicer shall defend, indemnify and hold harmless the
Issuer, the Depositor, the Indenture Trustee, the Owner Trustee, the Servicer,
their respective officers, directors, agents and employees and the Noteholders
from and against: (i) all costs, expenses, losses, damages, claims and
liabilities, including reasonable fees and expenses of counsel and
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expenses of litigation arising out of or resulting from the use, ownership or
operation by the Master Servicer or any Affiliate thereof of any Financed
Vehicle; and (ii) any and all costs, expenses, losses, claims, damages, and
liabilities to the extent that such cost, expense, loss, claim, damage, or
liability arose out of, or was imposed upon the Issuer, the Depositor, the Owner
Trustee, the Indenture Trustee, the Servicer or the Noteholders by reason of the
breach of this Agreement by the Master Servicer, the violation of federal or
state securities laws by the Master Servicer, the negligence, misfeasance, or
bad faith of the Master Servicer in the performance of its duties under this
Agreement or by reason of reckless disregard of its obligations and duties under
this Agreement.
(d) Indemnification under this Article shall include, without limitation,
reasonable fees and expenses of counsel and expenses of litigation. If the
Servicer has made any indemnity payments pursuant to this Article and the
recipient thereafter collects any of such amounts from others, the recipient
shall promptly repay such amounts collected to the Servicer, without interest.
SECTION 7.4. Merger or Consolidation of, or Assumption of the Obligations
of the Servicer or Master Servicer.
(a) The Servicer shall not merge or consolidate with any other person,
convey, transfer or lease substantially all its assets as an entirety to another
Person, or permit any other Person to become the successor to the Servicer's
business unless, after the merger, consolidation, conveyance, transfer, lease or
succession, the successor or surviving entity shall be capable of fulfilling the
duties of the Servicer contained in this Agreement and, if the debt rating of
the surviving entity from Standard & Poor's or Moody's would be lowered as a
result of such transaction, such transaction shall constitute a Servicer
Termination Event. Any corporation (i) into which the Servicer may be merged or
consolidated, (ii) resulting from any merger or consolidation to which the
Servicer shall be a party, (iii) which acquires by conveyance, transfer, or
lease substantially all of the assets of the Servicer, or (iv) succeeding to the
business of the Servicer, in any of the foregoing cases shall execute an
agreement of assumption to perform every obligation of the Servicer under this
Agreement and, whether or not such assumption agreement is executed, shall be
the successor to the Servicer under this Agreement without the execution or
filing of any paper or any further act on the part of any of the parties to this
Agreement, anything in this Agreement to the contrary notwithstanding; provided,
however, that nothing contained herein shall be deemed to release the Servicer
from any obligation. The Servicer shall provide notice of any merger,
consolidation or succession pursuant to this Section to the Owner Trustee, the
Indenture Trustee, the Master Servicer and the Noteholders. Notwithstanding the
foregoing, the Servicer shall not merge or consolidate with any other Person or
permit any other Person to become a successor to the Servicer's business, unless
(x) immediately after giving effect to such transaction, no representation or
warranty made pursuant to Section 4.6 shall have been breached (for purposes
hereof, such representations and warranties shall speak as of the date of the
consummation of such transaction) and no event that, after notice or lapse of
time, or both, would become an Event of Default shall have occurred and be
continuing, (y) the Servicer shall have delivered to the Owner Trustee, the
Indenture Trustee, Master Servicer and the Majority Noteholder an Officer's
Certificate and an Opinion of Counsel each stating that such consolidation,
merger or succession and such agreement of assumption comply with this Section
and that all conditions precedent, if any, provided for in this Agreement
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relating to such transaction have been complied with, and (z) the Servicer shall
have delivered to the Owner Trustee, the Indenture Trustee and the Majority
Noteholder an Opinion of Counsel, stating in the opinion of such counsel, either
(A) all financing statements and continuation statements and amendments thereto
have been executed and filed that are necessary to preserve and protect the
interest of the Issuer in the Trust Estate and reciting the details of the
filings or (B) no such action shall be necessary to preserve and protect such
interest.
(b) The Master Servicer shall not merge or consolidate with any other
person, convey, transfer or lease substantially all its assets as an entirety to
another Person, or permit any other Person to become the successor to the Master
Servicer's business unless, after the merger, consolidation, conveyance,
transfer, lease or succession, the successor or surviving entity shall be
capable of fulfilling the duties of the Master Servicer contained in this
Agreement and, if the surviving entity shall not be the Master Servicer or the
debt rating of the surviving entity from Standard & Poor's or ▇▇▇▇▇'▇ would be
below investment grade as a result of such transaction, shall be acceptable to
the Majority Noteholder. Any corporation (i) into which the Master Servicer may
be merged or consolidated, (ii) resulting from any merger or consolidation to
which the Master Servicer shall be a party, (iii) which acquires by conveyance,
transfer or lease substantially all of the assets of the Master Servicer, or
(iv) succeeding to the business of the Master Servicer, in any of the foregoing
cases shall execute an agreement of assumption to perform every obligation of
the Master Servicer under this Agreement and, whether or not such assumption
agreement is executed, shall be the successor to the Master Servicer under this
Agreement without the execution or filing of any paper or any further act on the
part of any of the parties to this Agreement, anything in this Agreement to the
contrary notwithstanding; provided, however, that nothing contained herein shall
be deemed to release the Master Servicer from any obligation.
SECTION 7.5. Limitation on Liability of Servicer, Master Servicer and
Others. Neither the Servicer, the Master Servicer nor any of the directors or
officers or employees or agents of the Servicer or Master Servicer shall be
under any liability to the Issuer or the Noteholders, except as provided in this
Agreement, for any action taken or for refraining from the taking of any action
pursuant to this Agreement; provided, however, that this provision shall not
protect the Servicer, the Master Servicer or any such person against any
liability that would otherwise be imposed by reason of a breach of this
Agreement or willful misfeasance, bad faith or negligence (excluding errors in
judgment) in the performance of duties; provided further that this provision
shall not affect any liability to indemnify the Indenture Trustee and the Owner
Trustee for costs, taxes, expenses, claims, liabilities, losses or damages paid
by the Indenture Trustee and the Owner Trustee, in their individual capacities.
The Servicer, the Master Servicer and any director, officer, employee or agent
of the Servicer or Master Servicer may rely in good faith on the written advice
of counsel or on any document of any kind prima facie properly executed and
submitted by any Person respecting any matters arising under this Agreement.
SECTION 7.6. Delegation of Duties. The Servicer may delegate duties under
this Agreement to an Affiliate of the Servicer with the prior written consent of
the Indenture Trustee, the Owner Trustee, the Master Servicer and the Majority
Noteholder. The Servicer also may at any time perform through sub-contractors
the specific duties of (i) repossession of Financed Vehicles, (ii) tracking
Financed Vehicles' insurance and (iii) pursuing the collection of deficiency
balances on certain Liquidated Receivables, in each case, without the consent of
the
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Majority Noteholder and may perform other specific duties through such
sub-contractors in accordance with the Servicing Standard, provided, however,
that no such delegation or sub-contracting duties by the Servicer shall relieve
the Servicer of its responsibility with respect to such duties. Neither the
Servicer nor any party acting as Servicer hereunder shall appoint any
subservicer hereunder without the prior written consent of the Majority
Noteholder, the Indenture Trustee and the Master Servicer.
SECTION 7.7. Servicer and Master Servicer Not to Resign. Subject to the
provisions of Section 7.4, neither the Servicer nor the Master Servicer shall
resign from the obligations and duties imposed on it by this Agreement as
Servicer or Master Servicer except upon a determination that by reason of a
change in legal requirements the performance of its duties under this Agreement
would cause it to be in violation of such legal requirements in a manner which
would have a material adverse effect on the Servicer or the Master Servicer, as
the case may be, and the Majority Noteholder does not elect to waive the
obligations of the Servicer or the Master Servicer, as the case may be, to
perform the duties which render it legally unable to act or to delegate those
duties to another Person. Any such determination permitting the resignation of
the Servicer or Master Servicer shall be evidenced by an Opinion of Counsel to
such effect delivered and acceptable to the Indenture Trustee, the Owner Trustee
and the Majority Noteholder. No resignation of the Servicer shall become
effective until the Master Servicer or an entity acceptable to the Majority
Noteholder shall have assumed the responsibilities and obligations of the
Servicer. No resignation of the Master Servicer shall become effective until, an
entity acceptable to the Majority Noteholder shall have assumed the
responsibilities and obligations of the Master Servicer; provided, however, that
(i) in the event a successor Master Servicer is not appointed within 60 days
after the Master Servicer has given notice of its resignation and has provided
the Opinion of Counsel required by this Section, the Master Servicer may
petition a court for its removal and (ii) the Master Servicer may resign with
the written consent of the Majority Noteholder.
ARTICLE VIII
Servicer Termination.
SECTION 8.1. Servicer Termination Event. For purposes of this Agreement,
each of the following shall constitute a "Servicer Termination Event":
(a) Any failure by the Servicer to deliver to the Indenture Trustee for
distribution to Noteholders any proceeds or payment required to be so delivered
under the terms of this Agreement that continues unremedied for a period of two
Business Days (one Business Day with respect to payment of Repurchase Prices);
or
(b) Failure by the Servicer to deliver to the Indenture Trustee and the
Majority Noteholder the Servicer's Certificate by the second Business Day prior
to the Payment Date, or failure on the part of the Servicer to observe its
covenants and agreements set forth in Section 7.4(a); or
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(c) Failure on the part of the Servicer to duly observe or perform any
other covenants or agreements of the Servicer set forth in this Agreement, which
failure materially and adversely affects the Noteholders (as determined by the
Noteholders in their sole discretion) and continues unremedied for a period of
30 days after knowledge thereof by the Servicer or after the date on which
written notice of such failure, requiring the same to be remedied, shall have
been given to the Servicer by the Indenture Trustee, the Master Servicer or the
Majority Noteholder; or
(d) The entry of a decree or order for relief by a court or regulatory
authority having jurisdiction in respect of either the Servicer or AmeriCredit
Corp. in an involuntary case under the federal bankruptcy laws, as now or
hereafter in effect, or another present or future, federal bankruptcy,
insolvency or similar law, or appointing a receiver, liquidator, assignee,
trustee, custodian, sequestrator or other similar official of either the
Servicer or AmeriCredit Corp. or of any substantial part of their respective
property or ordering the winding up or liquidation of the affairs of either the
Servicer or AmeriCredit Corp. and the continuance of any such decree or order
unstayed and in effect for a period of 60 consecutive days or the commencement
of an involuntary case under the federal bankruptcy laws, as now or hereinafter
in effect, or another present or future federal or state bankruptcy, insolvency
or similar law and such case is not dismissed within 60 days; or
(e) The commencement by either the Servicer or AmeriCredit Corp. of a
voluntary case under the federal bankruptcy laws, as now or hereafter in effect,
or any other present or future, federal or state, bankruptcy, insolvency or
similar law, or the consent by either the Servicer or AmeriCredit Corp. to the
appointment of or taking possession by a receiver, liquidator, assignee,
trustee, custodian, sequestrator or other similar official of either the
Servicer or AmeriCredit Corp. or of any substantial part of their respective
property or the making by either the Servicer or AmeriCredit Corp. of an
assignment for the benefit of creditors or the failure by either the Servicer or
AmeriCredit Corp. generally to pay its debts as such debts become due or the
taking of corporate action by the Servicer in furtherance of any of the
foregoing; or
(f) Any representation, warranty or statement of the Servicer made in this
Agreement or any certificate, report or other writing delivered pursuant hereto
shall prove to be incorrect in any material respect as of the time when the same
shall have been made (excluding, however, any representation or warranty set
forth in the definition of "Eligible Receivable"), and the incorrectness of such
representation, warranty or statement has a material adverse effect on the
Issuer or the Noteholders and, within 30 days after knowledge thereof by the
Servicer or after written notice thereof shall have been given to the Servicer
by the Indenture Trustee, the Master Servicer or the Majority Noteholder or the
circumstances or condition in respect of which such representation, warranty or
statement was incorrect shall not have been eliminated or otherwise cured; or
(g) The Tangible Net Worth of AmeriCredit Corp. shall be less than the sum
of (i) $1,750,000,000 and (ii) 75% of the cumulative positive net income
(without deduction for negative net income) of AmeriCredit Corp. for each fiscal
quarter since September 30, 2002, as reported in each annual report on Form 10-K
and periodic report on Form 10-Q filed by AmeriCredit Corp. with the Securities
and Exchange Commission; or
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(h) The Majority Noteholder shall have failed to deliver a Servicer
Extension Notice pursuant to Section 4.14; or
(i) The rating of any successor by merger, consolidation, transfer, lease
or succession to the Receivables Seller or the Servicer fails to comply with the
requirements of Section 6.4 or 7.4, respectively; or
(j) An Event of Default has occurred and is continuing.
SECTION 8.2. Consequences of a Servicer Termination Event. If a Servicer
Termination Event shall occur and be continuing, the Majority Noteholder, by
fifteen days' prior notice given in writing to the Servicer, the Master Servicer
and the Indenture Trustee or by non-extension of the term of the Servicer as
referred to in Section 4.14, may terminate all of the rights and obligations of
the Servicer under this Agreement. On or after the receipt by the Servicer of
such written notice or upon termination of the term of the Servicer, all
authority, power, obligations and responsibilities of the Servicer under this
Agreement, whether with respect to the Notes, the Certificates or the Collateral
or otherwise, automatically shall pass to, be vested in and become obligations
and responsibilities of the Master Servicer (or such other successor Servicer
appointed by the Indenture Trustee); provided, however, that the successor
Servicer shall have no liability with respect to any obligation which was
required to be performed by the terminated Servicer prior to the date that the
successor Servicer becomes the Servicer or any claim of a third party based on
any alleged action or inaction of the terminated Servicer and such successor
Servicer shall be indemnified by the Issuer, payable from Available Funds
pursuant to Section 2.10(c) of the Indenture, against all costs, expenses,
losses, damages, claims and liabilities, including reasonable fees and expenses
of counsel, which may be asserted against or incurred by it as a result of third
party claims relating to any obligation which was required to be performed by
the terminated Servicer prior to the date that the successor Servicer becomes
the Servicer or any claim of a third party based on any alleged action or
inaction of the terminated Servicer. The successor Servicer is authorized and
empowered by this Agreement to execute and deliver, on behalf of the terminated
Servicer, as attorney-in-fact or otherwise, any and all documents and other
instruments and to do or accomplish all other acts or things necessary or
appropriate to effect the purposes of such notice of termination, whether to
complete the transfer and endorsement of the Collateral and related documents to
show the Issuer as lienholder or secured party on the related Lien Certificates,
or otherwise. The terminated Servicer agrees to cooperate with the successor
Servicer in effecting the termination of the responsibilities and rights of the
terminated Servicer under this Agreement, including, without limitation, the
transfer to the successor Servicer for administration by it of all cash amounts
that shall at the time be held by the terminated Servicer for deposit, or have
been deposited by the terminated Servicer, in the Collection Account or
thereafter received with respect to the Receivables and the delivery to the
successor Servicer of all Receivable Files, Monthly Records and Collection
Records and a computer tape in readable form as of the most recent Business Day
containing all information necessary to enable the successor Servicer to service
the Collateral. If requested by the Majority Noteholder, the successor Servicer
shall terminate the Lockbox Agreement and direct the Obligors to make all
payments under the Receivables directly to the successor Servicer (in which
event the successor Servicer shall process such payments in accordance with
Section 4.2(e)), or to a lockbox established by the successor Servicer at the
direction of the Majority Noteholder, at the successor Servicer's expense. Such
expense shall be reimbursed in accordance with Section
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2.10(c) of the Indenture. The terminated Servicer shall grant the Indenture
Trustee, the successor Servicer and the Majority Noteholder reasonable access to
the terminated Servicer's premises.
SECTION 8.3. Appointment of Successor.
(a) On and after the time the Servicer receives a notice of termination
pursuant to Section 8.2, upon non-extension of the servicing term as referred to
in Section 4.14, or upon the resignation of the Servicer pursuant to Section
7.7, the Master Servicer shall be the successor in all respects to the Servicer
in its capacity as servicer under this Agreement and the transactions set forth
or provided for in this Agreement, and shall be subject to all the rights,
responsibilities, restrictions, duties, liabilities and termination provisions
relating thereto placed on the Servicer by the terms and provisions of this
Agreement except as otherwise set forth in Annex B hereto. The Indenture Trustee
and such successor shall take such action, consistent with this Agreement, as
shall be necessary to effectuate any such succession. If a successor Servicer is
acting as Servicer hereunder, it shall be subject to term-to-term servicing as
referred to in Section 4.14 and to termination under Section 8.2 upon the
occurrence of any Servicer Termination Event applicable to it as Servicer.
(b) If upon the termination of the Servicer pursuant to Section 8.2 or the
resignation of the Servicer pursuant to Section 7.7, the Indenture Trustee
appoints a successor Servicer other than the Master Servicer, the Master
Servicer shall not be relieved of its duties as Master Servicer hereunder.
(c) Any successor Servicer shall be entitled to such compensation (whether
payable out of the Collection Account or otherwise) as the Servicer would have
been entitled to under this Agreement if the Servicer had not resigned or been
terminated hereunder; provided, however that, notwithstanding the foregoing, if
the Master Servicer is the successor Servicer, the Master Servicer shall be
entitled to the applicable Master Servicer Fee and all other fees and expenses
related to succeeding the Servicer as set forth in Schedule 1 to Annex B. All
such fees and expenses of the Master Servicer shall be reimbursed from the
Available Funds in accordance with Section 2.10(c) of the Indenture.
SECTION 8.4. Master Servicer Termination. Prior to an appointment as
successor Servicer, the Majority Noteholder may (a) terminate all of the rights
and obligations of the Master Servicer under this Agreement in the event of a
breach of any of the representations or warranties, covenants or obligations of
the Master Servicer contained in this Agreement or (b) in its sole discretion,
without cause and upon not less than 30 days' notice, terminate the rights and
obligations of the Master; provided however, that if the Master Servicer is
terminated by the Majority Noteholder without cause within the first 3 months
after the Closing Date, the Master Servicer will be entitled to the applicable
Master Servicer Fee for the period beginning on the date of such termination and
ending on the date 3 months from the Closing Date. The terminated Master
Servicer agrees to cooperate with any successor Master Servicer appointed by the
Majority Noteholder in effecting the termination of the responsibilities and
rights of the terminated Master Servicer under this Agreement, including,
without limitation, the delivery to the successor Master Servicer of all
documents, records and electronic information related to the Receivables in the
possession of the Master Servicer. Expenses incurred by the Master Servicer
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in respect of the foregoing sentence shall be reimbursed in accordance with
Section 2.10(c) of the Indenture.
SECTION 8.5. Notification to Noteholders. Upon any termination of, or
appointment of a successor to, the Servicer or the Master Servicer, the
Indenture Trustee shall give prompt written notice thereof to each Noteholder.
SECTION 8.6. Waiver of Past Defaults. The Majority Noteholder may, on
behalf of all Noteholders, waive any default by the Servicer or the Master
Servicer in the performance of its obligations hereunder and its consequences.
Upon any such waiver of a past default, such default shall cease to exist, and
any Servicer Termination Event arising therefrom shall be deemed to have been
remedied for every purpose of this Agreement. No such waiver shall extend to any
subsequent or other default or impair any right consequent thereto.
ARTICLE IX
Termination.
SECTION 9.1. Termination.
(a) This Agreement shall terminate upon either: (A) the later of (i) the
satisfaction and discharge of the Indenture and payment to the Secured Parties
of all amounts due and owing in accordance with the provisions hereof or (ii)
the disposition of all funds with respect to the last Receivable and any other
Collateral, and the remittance of all funds due hereunder and the payment of all
amounts due and payable, including, in both cases, without limitation,
indemnification payments payable pursuant to any Basic Document to the Indenture
Trustee, the Owner Trustee, the Issuer, the Master Servicer, the Servicer, the
Custodian and the Noteholders, written notice of the occurrence of either of
which shall be provided to the Indenture Trustee by the Servicer; or (B) the
mutual consent of the Servicer, the Depositor and all Securityholders in writing
and delivered to the Indenture Trustee by the Servicer.
(b) Notice of any termination of the Issuer shall be given by the Servicer
to the Owner Trustee, the Master Servicer, the Indenture Trustee and the
Majority Noteholder as soon as practicable after the Servicer has received
notice thereof.
(c) Following the satisfaction and discharge of the Indenture and the
payment in full of the principal of and interest on the Notes and other amounts
due to the Noteholders, the Certificateholders will succeed to the rights of the
Noteholders hereunder and the Owner Trustee will succeed to the rights of, and
assume the obligations of, the Indenture Trustee pursuant to this Agreement.
ARTICLE X
Administrative Duties of the Servicer.
SECTION 10.1. Administrative Duties.
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(a) Duties with Respect to the Indenture. The Servicer shall perform all
its duties and the duties of the Issuer under the Indenture. In addition, the
Servicer shall consult with the Owner Trustee as the Servicer deems appropriate
regarding the duties of the Issuer under the Indenture. The Servicer shall
monitor the performance of the Issuer and shall advise the Owner Trustee when
action is necessary to comply with the Issuer's duties under the Indenture. The
Servicer shall prepare for execution by the Issuer or shall cause the
preparation by other appropriate Persons of all such documents, reports,
filings, instruments, certificates and opinions as it shall be the duty of the
Issuer to prepare, file or deliver pursuant to the Indenture. In furtherance of
the foregoing, the Servicer shall take all necessary action that is the duty of
the Issuer to take pursuant to the Indenture.
(b) Duties with Respect to the Issuer.
(i) In addition to the duties of the Servicer set forth in this
Agreement or any of the Basic Documents, the Servicer shall perform such
calculations and shall prepare for execution by the Issuer or the Owner
Trustee or shall cause the preparation by other appropriate Persons of all
such documents, reports, filings, instruments, certificates and opinions as
it shall be the duty of the Issuer or the Owner Trustee to prepare, file or
deliver pursuant to this Agreement or any of the Basic Documents or under
state and federal tax and securities laws, and at the request of the Owner
Trustee shall take all appropriate action that it is the duty of the Issuer
to take pursuant to this Agreement or any of the Basic Documents. In
accordance with the directions of the Issuer or the Owner Trustee, the
Servicer shall administer, perform or supervise the performance of such
other activities in connection with the Trust Estate (including the Basic
Documents) as are not covered by any of the foregoing provisions and as are
expressly requested by the Issuer or the Owner Trustee and are reasonably
within the capability of the Servicer.
(ii) Notwithstanding anything in this Agreement or any of the Basic
Documents to the contrary, the Servicer shall be responsible for promptly
notifying the Owner Trustee and the Indenture Trustee in the event that any
withholding tax is imposed on the Issuer's payments (or allocations of
income) to an Owner (as defined in the Trust Agreement) as contemplated
this Agreement. Any such notice shall be in writing and specify the amount
of any withholding tax required to be withheld by the Owner Trustee or the
Indenture Trustee pursuant to such provision.
(iii) Notwithstanding anything in this Agreement or the Basic
Documents to the contrary, the Servicer shall be responsible for
performance of the duties of the Issuer set forth in Section 5.2 and 5.5 of
the Trust Agreement with respect to, among other things, accounting and
reports to Owners (as defined in the Trust Agreement).
(iv) The Servicer shall perform the duties of the Servicer specified
in Section 10.2 of the Trust Agreement required to be performed in
connection with the resignation or removal of the Owner Trustee, and any
other duties expressly required to be performed by the Servicer under this
Agreement or any of the Basic Documents.
(v) In carrying out the foregoing duties or any of its other
obligations under this Agreement, the Servicer may enter into transactions
with or otherwise deal with any
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of its Affiliates; provided, however, that the terms of any such
transactions or dealings shall be in accordance with any directions
received from the Issuer and shall be, in the Servicer's opinion, no less
favorable to the Issuer in any material respect.
(c) Tax Matters. The Servicer shall prepare and file, on behalf of the
Receivables Seller, all tax returns, tax elections, financial statements and
such annual or other reports attributable to the activities engaged in by the
Issuer as are necessary for preparation of tax reports, including without
limitation forms 1099. All tax returns will be signed by the Receivables Seller.
(d) Non-Ministerial Matters. With respect to matters that in the reasonable
judgment of the Servicer are non-ministerial, the Servicer shall not take any
action pursuant to this Article unless within a reasonable time before the
taking of such action, the Servicer shall have notified the Owner Trustee and
the Indenture Trustee of the proposed action and the Owner Trustee and, with
respect to items (A), (B), (C) and (D) below, the Indenture Trustee shall not
have withheld consent or provided an alternative direction. For the purpose of
the preceding sentence, "non-ministerial matters" shall include:
(A) the amendment of or any supplement to the Indenture;
(B) the initiation of any claim or lawsuit by the Issuer and the
compromise of any action, claim or lawsuit brought by or against the
Issuer (other than in connection with the collection of the
Receivables);
(C) the amendment, change or modification of this Agreement or
any of the Basic Documents;
(D) the appointment of successor Note Registrars, successor
Paying Agents and successor Indenture Trustees pursuant to the
Indenture or the appointment of successor Servicers or the consent to
the assignment by the Note Registrar, Paying Agent or Indenture
Trustee of its obligations under the Indenture; and
(E) the removal of the Indenture Trustee.
(e) Exceptions. Notwithstanding anything to the contrary in this Agreement,
except as expressly provided herein or in the other Basic Documents, the
Servicer, in its capacity hereunder, shall not be obligated to, and shall not,
(1) make any payments to the Noteholders or Certificateholders under the Basic
Documents, (2) take any other action that the Issuer directs the Servicer not to
take on its behalf or (3) in connection with its duties hereunder assume any
indemnification obligation of any other Person.
SECTION 10.2. Records. The Servicer shall maintain appropriate books of
account and records relating to services performed under this Agreement, which
books of account and records shall be accessible for inspection by the Issuer at
any time during normal business hours.
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SECTION 10.3. Additional Information to be Furnished to the Issuer. The
Servicer shall furnish to the Issuer and the Noteholders from time to time such
additional information regarding the Collateral as the Issuer shall reasonably
request.
ARTICLE XI
Miscellaneous Provisions.
SECTION 11.1. Amendment. This Agreement may be amended from time to time by
the parties hereto, with the prior written consent of the Majority Noteholder,
to cure any ambiguity, to correct or supplement any provisions in this
Agreement, to comply with any changes in the Code, or to make any other
provisions with respect to matters or questions arising under this Agreement
which shall not be inconsistent with the provisions of this Agreement; provided,
however, that such action shall not, as evidenced by an Opinion of Counsel
delivered to the Issuer and the Indenture Trustee, adversely affect in any
respect the interests of any Noteholder.
This Agreement may also be amended from time to time by the parties
hereto, with the consent of the Majority Noteholder for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions
of this Agreement or of modifying in any manner the rights of the Noteholders;
provided, however, that no such amendment shall (a) increase or reduce in any
manner the amount of, or accelerate or delay the timing of, collections of
payments on Receivables or distributions that shall be required to be made for
the benefit of the Noteholders or (b) reduce the aforesaid percentage of the
outstanding principal amount of the Notes, the Holders of which are required to
consent to any such amendment, without the consent of the Holders of all the
outstanding Notes of each class affected thereby.
Promptly after the execution of any such amendment or consent, the
Indenture Trustee shall furnish written notification of the substance of such
amendment or consent to each Noteholder.
It shall not be necessary for the consent of the Majority Noteholder
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 Majority Noteholder provided for in this Agreement) and of
evidencing the authorization of any action by the Majority Noteholder shall be
subject to such reasonable requirements as the Indenture Trustee may prescribe.
Prior to the execution of any amendment to this Agreement, the Owner
Trustee, the Depositor, the Indenture Trustee, the Majority Noteholder and the
Master Servicer shall be entitled to receive and conclusively rely upon an
Opinion of Counsel stating that the execution of such amendment is authorized or
permitted by this Agreement and the Opinion of Counsel referred to in Section
11.2(h)(1) has been delivered. The Owner Trustee, the Depositor, the Indenture
Trustee, the Master Servicer and the Majority Noteholder may, but shall not be
obligated to, enter into any such amendment which affects the Issuer's, the
Owner Trustee's, the
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Depositor's, the Indenture Trustee's, the Master Servicer's or the Majority
Noteholder's, as applicable, own rights, duties or immunities under this
Agreement or otherwise.
SECTION 11.2. Protection of Title to Trust Estate. (a) The Receivables
Seller shall execute and file such financing statements and cause to be executed
and filed such continuation statements, all in such manner and in such places as
may be required by law fully to preserve, maintain and protect the interest of
the Issuer and the interests of the Indenture Trustee in the Receivables and in
the proceeds thereof. The Receivables Seller shall deliver (or cause to be
delivered) to the Majority Noteholder, the Owner Trustee and the Indenture
Trustee file-stamped copies of, or filing receipts for, any document filed as
provided above, as soon as available following such filing.
(b) None of the Receivables Seller, Depositor or the Servicer shall change
its name, identity or corporate structure in any manner that would, could or
might make any financing statement or continuation statement filed in accordance
with paragraph (a) above seriously misleading within the meaning of 9-506 of the
UCC, unless it shall have given the Majority Noteholder, the Owner Trustee and
the Indenture Trustee at least five days' prior written notice thereof and shall
have promptly filed appropriate amendments to all previously filed financing
statements or continuation statements. Promptly upon such filing, the
Receivables Seller, Depositor or the Servicer, as the case may be, shall deliver
an Opinion of Counsel in form and substance reasonably satisfactory to the
Indenture Trustee, stating either (A) all financing statements and continuation
statements have been executed and filed that are necessary fully to preserve and
protect the interest of the Issuer and the Indenture Trustee in the Receivables,
and reciting the details of such filings or referring to prior Opinions of
Counsel in which such details are given, or (B) no such action shall be
necessary to preserve and protect such interest.
(c) Each of the Receivables Seller, Depositor and the Servicer shall have
an obligation to give the Majority Noteholder, the Owner Trustee and the
Indenture Trustee at least 60 days' prior written notice of any change in the
jurisdiction of its formation or organization if, as a result of such change,
the applicable provisions of the UCC would require the filing of any amendment
of any previously filed financing or continuation statement or of any new
financing statement and shall promptly file any such amendment. The Servicer
shall at all times maintain each office from which it shall service Receivables,
and its principal executive office, within the United States of America and, in
the case of servicing offices, Canada or such other locations as may be approved
by the Majority Noteholder.
(d) The Servicer shall maintain accounts and records as to each Receivable
accurately and in sufficient detail to permit (i) the reader thereof to know at
any time the status of such Receivable, including payments and recoveries made
and payments owing (and the nature of each) and (ii) reconciliation between
payments or recoveries on (or with respect to) each Receivable and the amounts
from time to time deposited in the Collection Account in respect of such
Receivable.
(e) The Servicer shall maintain its computer systems so that, from and
after the time of sale under this Agreement of the Receivables to the Issuer,
the Servicer's master computer records (including any backup archives) that
refer to a Receivable shall indicate clearly the interest of the Issuer in such
Receivable and that such Receivable is owned by the Issuer.
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Indication of the Issuer's interest in a Receivable shall be deleted from or
modified on the Servicer's computer systems when, and only when, the related
Receivable shall have been paid in full or repurchased.
(f) If at any time either Receivables Seller or the Servicer shall propose
to sell, grant a security interest in or otherwise transfer any interest in
automotive receivables to any prospective purchaser, lender or other transferee,
the Servicer shall give to such prospective purchaser, lender or other
transferee computer tapes, records or printouts (including any restored from
backup archives) that, if it shall refer in any manner whatsoever to any
Receivable, shall indicate clearly that such Receivable has been sold and is
owned by the Issuer.
(g) Upon request, the Servicer shall furnish to the Majority Noteholder,
the Owner Trustee, the Master Servicer or to the Indenture Trustee, within five
Business Days, a list of all Receivables (by contract number and name of
Obligor) then held as part of the Issuer, together with a reconciliation of such
list to the Schedule of Receivables and to each of the Servicer's Certificates
furnished before such request indicating removal of Receivables from the Issuer.
(h) The Servicer shall deliver to the Majority Noteholder, the Master
Servicer, the Owner Trustee and the Indenture Trustee:
(1) promptly after the execution and delivery of the Agreement
and, if required pursuant to Section 11.1, of each amendment, an Opinion of
Counsel stating that, in the opinion of such Counsel, in form and substance
reasonably satisfactory to the Indenture Trustee, either (A) all financing
statements and continuation statements have been executed and filed that
are necessary fully to preserve and protect the interest of the Issuer and
the Indenture Trustee in the Receivables, and reciting the details of such
filings or referring to prior Opinions of Counsel in which such details are
given, or (B) no such action shall be necessary to preserve and protect
such interest; and
(2) within 90 days after the beginning of each calendar year
beginning with the first calendar year beginning more than three months
after the Cut-off Date, an Opinion of Counsel, dated as of a date during
such 90-day period, stating that, in the opinion of such counsel, either
(A) all financing statements and continuation statements have been executed
and filed that are necessary fully to preserve and protect the interest of
the Issuer and the Indenture Trustee in the Receivables, and reciting the
details of such filings or referring to prior Opinions of Counsel in which
such details are given, or (B) no such action shall be necessary to
preserve and protect such interest.
Each Opinion of Counsel referred to in clause (1) or (2) above shall
specify any action necessary (as of the date of such opinion) to be taken in the
following year to preserve and protect such interest.
SECTION 11.3. Notices. All demands, notices and communications upon or to
the Receivables Seller, the Servicer, the Owner Trustee or the Indenture Trustee
under this Agreement shall be in writing, personally delivered, or mailed by
certified mail, return receipt requested, and shall be deemed to have been duly
given upon receipt (a) in the case of the Depositor to AmeriCredit Warehouse
Corporation, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇
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89509, Attention: Chief Financial Officer, (b) in the case of the Receivables
Seller or the Servicer to AmeriCredit Financial Services, Inc., ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention: Chief Financial Officer,
(c) in the case of the Issuer or the Owner Trustee, at the Corporate Trust
Office of the Owner Trustee, Deutsche Bank Trust Company Delaware, ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Corporate Trust, and
(d) in the case of the Indenture Trustee, at the Corporate Trust Office. Any
notice required or permitted to be mailed to a Noteholder shall be given by
first class mail, postage prepaid, at the address of such Holder as shown in the
Note Register. Any notice so mailed within the time prescribed in the Agreement
shall be conclusively presumed to have been duly given, whether or not the
Noteholder shall receive such notice.
SECTION 11.4. Assignment. This Agreement shall inure to the benefit of and
be binding upon the parties hereto and their respective successors and permitted
assigns. Notwithstanding anything to the contrary contained herein, except as
provided in Sections 6.4 and 7.3 and as provided in the provisions of this
Agreement concerning the resignation of the Servicer, this Agreement may not be
assigned by the Receivables Seller or the Servicer without the prior written
consent of the Owner Trustee, the Indenture Trustee, the Master Servicer and the
Majority Noteholder.
SECTION 11.5. Limitations on Rights of Others. The provisions of this
Agreement are solely for the benefit of the parties hereto, the Hedge
Counterparties and the Noteholders, as third-party beneficiaries. Nothing in
this Agreement, whether express or implied, shall be construed to give to any
other Person any legal or equitable right, remedy or claim in the Owner Trust
Estate or under or in respect of this Agreement or any covenants, conditions or
provisions contained herein.
SECTION 11.6. Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
SECTION 11.7. Separate Counterparts. This Agreement may be executed by the
parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
SECTION 11.8. Headings. The headings of the various Articles and Sections
herein are for convenience of reference only and shall not define or limit any
of the terms or provisions hereof.
SECTION 11.9. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REFERENCE TO ITS CONFLICT OF LAWS PROVISIONS (EXCEPT FOR SECTION 5-1401 OF THE
NEW YORK GENERAL OBLIGATIONS LAW), AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF
THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS. WITH
RESPECT TO ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR
THE
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TRANSACTIONS CONTEMPLATED HEREBY, EACH PARTY IRREVOCABLY SUBMITS TO THE
NON-EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND THE UNITED
STATES DISTRICT COURT LOCATED IN THE BOROUGH OF MANHATTAN, CITY OF NEW YORK, AND
EACH PARTY IRREVOCABLY WAIVES ANY OBJECTION WHICH IT MAY HAVE AT ANY TIME TO THE
LAYING OF VENUE OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING
HERETO BROUGHT IN ANY SUCH COURT, IRREVOCABLY WAIVES ANY CLAIM THAT ANY SUCH
SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN ANY
INCONVENIENT FORUM AND FURTHER IRREVOCABLY WAIVES THE RIGHT TO OBJECT, WITH
RESPECT TO SUCH CLAIM, SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT,
THAT SUCH COURT DOES NOT HAVE JURISDICTION OVER SUCH PARTY, PROVIDED THAT
SERVICE OF PROCESS IS MADE BY ANY LAWFUL MEANS. NOTHING IN THIS SECTION 11.9
SHALL AFFECT THE RIGHT OF ANY PARTY HERETO OR ITS ASSIGNEES, OR OF THE
NOTEHOLDER OR ITS ASSIGNEES, TO BRING ANY OTHER ACTION OR PROCEEDING AGAINST ANY
PARTY HERETO OR ITS PROPERTY IN THE COURTS OF OTHER JURISDICTIONS.
SECTION 11.10. Assignment to Indenture Trustee. The Receivables Seller
hereby acknowledges and consents to any mortgage, pledge, assignment and grant
of a security interest by the Issuer to the Indenture Trustee pursuant to the
Indenture for the benefit of the Noteholders of all right, title and interest of
the Issuer in, to and under the Receivables and/or the assignment of any or all
of the Issuer's rights and obligations hereunder to the Indenture Trustee.
SECTION 11.11. Non-petition Covenants. Notwithstanding any prior
termination of this Agreement, the Servicer, the Depositor and the Receivables
Seller shall not, prior to the date which is one year and one day after the
termination of this Agreement with respect to the Issuer, acquiesce, petition or
otherwise invoke or cause the Issuer to invoke the process of any court or
government authority for the purpose of commencing or sustaining a case against
the Issuer under any federal or state bankruptcy, insolvency or similar law or
appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or
other similar official of the Issuer or any substantial part of its property, or
ordering the winding up or liquidation of the affairs of the Issuer.
(a) Notwithstanding any prior termination of this Agreement, the Servicer
and the Receivables Seller shall not, prior to the date that is one year and one
day after the termination of this Agreement with respect to the Depositor,
acquiesce to, petition or otherwise invoke or cause the Depositor to invoke the
process of any court or government authority for the purpose of commencing or
sustaining a case against the Depositor under any federal or state bankruptcy,
insolvency or similar law, appointing a receiver, liquidator, assignee, trustee,
custodian, sequestrator, or other similar official of the Depositor or any
substantial part of its property, or ordering the winding up or liquidation of
the affairs of the Depositor.
SECTION 11.12. Limitation of Liability of Owner Trustee and the Indenture
Trustee. Notwithstanding anything contained herein to the contrary, this
Agreement has been countersigned by Deutsche Bank Trust
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Company Delaware not in its individual capacity but solely in its capacity as
Owner Trustee of the Issuer and in no event shall Deutsche Bank Trust Company
Delaware in its individual capacity or, except as expressly provided in the
Trust Agreement, as Owner Trustee have any liability for the representations,
warranties, covenants, agreements or other obligations of the Issuer hereunder
or in any of the certificates, notices or agreements delivered pursuant hereto,
as to all of which recourse shall be had solely to the assets of the Issuer. For
all purposes of this Agreement, in the performance of its duties or obligations
hereunder or in the performance of any duties or obligations of the Issuer
hereunder, the Owner Trustee shall be subject to, and entitled to the benefits
of, the terms and provisions of Articles V, VI and VII of the Trust Agreement.
(a) Notwithstanding anything contained herein to the contrary, this
Agreement has been executed and delivered by Bank One, NA, not in its individual
capacity but solely as Indenture Trustee and in no event shall Bank One, NA,
have any liability for the representations, warranties, covenants, agreements or
other obligations of the Issuer hereunder or in any of the certificates, notices
or agreements delivered pursuant hereto, as to all of which recourse shall be
had solely to the assets of the Issuer.
(b) In no event shall Bank One, NA, in any of its capacities hereunder, be
deemed to have assumed any duties of the Owner Trustee under the Delaware
Statutory Trust Statute, common law, or the Trust Agreement.
SECTION 11.13. Independence of the Servicer. For all purposes of this
Agreement, the Servicer shall be an independent contractor and shall not be
subject to the supervision of the Issuer, the Indenture Trustee, the Master
Servicer or the Owner Trustee with respect to the manner in which it
accomplishes the performance of its obligations hereunder. Unless expressly
authorized by this Agreement, the Servicer shall have no authority to act for or
represent the Issuer or the Owner Trustee in any way and shall not otherwise be
deemed an agent of the Issuer or the Owner Trustee.
SECTION 11.14. No Joint Venture. Nothing contained in this Agreement (i)
shall constitute the Servicer and either of the Issuer or the Owner Trustee as
members of any partnership, joint venture, association, syndicate,
unincorporated business or other separate entity, (ii) shall be construed to
impose any liability as such on any of them or (iii) shall be deemed to confer
on any of them any express, implied or apparent authority to incur any
obligation or liability on behalf of the others.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their respective duly authorized officers as
of the day and the year first above written.
AMERICREDIT OWNER TRUST 2003-1
By: DEUTSCHE BANK TRUST COMPANY
DELAWARE, not in its individual
capacity but solely as Owner Trustee
on behalf of the Issuer.
By: /s/ ▇▇▇▇▇ ▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Vice President
AMERICREDIT WAREHOUSE CORPORATION, as
Depositor,
By: /s/ J. ▇▇▇▇▇▇▇ ▇▇▇
-------------------------------------
Name: J. ▇▇▇▇▇▇▇ ▇▇▇
Title: Senior Vice President -
Associate Counsel
AMERICREDIT FINANCIAL SERVICES, INC., as
Receivables Seller and as Servicer,
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Senior Vice President, Finance
[Sale and Servicing Agreement]
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SYSTEMS & SERVICES TECHNOLOGIES, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇
Title: EVP / Secretary / Gen. Counsel
Acknowledged and accepted by
BANK ONE, NA,
not in its individual capacity but solely
as Indenture Trustee
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Authorized Signer
[Sale and Servicing Agreement]
SCHEDULE A
SCHEDULE OF RECEIVABLES
[On File with AmeriCredit, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇, and the Trustee]
SCHEDULE B
REPRESENTATIONS AND WARRANTIES OF THE RECEIVABLES SELLER
1. Characteristics of Receivables. Each Receivable (A) was originated (i)
by the Receivables Seller, (ii) by a Dealer and purchased by the Receivables
Seller from such Dealer under an existing Dealer Agreement or pursuant to a
Dealer Assignment with the Receivables Seller and was validly assigned by such
Dealer to the Receivables Seller pursuant to a Dealer Assignment or (iii) by a
Third-Party Lender and purchased by the Receivables Seller from such Third-Party
Lender under an existing Auto Loan Purchase and Sale Agreement or pursuant to a
Third-Party Lender Assignment with the Receivables Seller and was validly
assigned by such Third-Party Lender to the Receivables Seller pursuant to a
Third-Party Lender Assignment, (B) was originated by the Receivables Seller,
such Dealer or such Third-Party Lender for the retail sale of a Financed Vehicle
in the ordinary course of the Receivables Seller's, the Dealer's or the
Third-Party Lender's business, in each case was originated in accordance with
the Receivables Seller's credit policies and was fully and properly executed by
the parties thereto, and the Receivables Seller, each Dealer and each
Third-Party Lender had all necessary licenses and permits to originate
Receivables in the state where the Receivables Seller, each such Dealer or each
such Third-Party Lender was located, (C) contains customary and enforceable
provisions such as to render the rights and remedies of the holder thereof
adequate for realization against the collateral security, (D) is a fully
amortizing Simple Interest Receivable or Pre-Computed Receivable which provides
for level monthly payments (provided that the period in the first Collection
Period and the payment in the final Collection Period of the Receivable may be
minimally different from the normal period and level payment) which, if made
when due, shall fully amortize the Amount Financed over the original term and
(E) has not been amended or collections with respect to which waived, other than
as evidenced in the Receivable File relating thereto.
2. Fraud or Misrepresentation. Each Receivable was originated (i) by the
Receivables Seller, (ii) by a Dealer and was sold by the Dealer to the
Receivables Seller, or (iii) by a Third-Party Lender and was sold by the
Third-Party Lender to the Receivables Seller, without any fraud or
misrepresentation on the part of such Dealer or Third-Party Lender in any case.
3. Compliance with Law. All requirements of applicable federal, state and
local laws, and regulations thereunder (including, without limitation, usury
laws, the Federal Truth-in-Lending Act, the Equal Credit Opportunity Act, the
Fair Credit Billing Act, the Fair Credit Reporting Act, the Fair Debt Collection
Practices Act, the Federal Trade Commission Act, the ▇▇▇▇-▇▇▇▇▇▇▇▇ Warranty Act,
the Federal Reserve Board's Regulations "B" and "Z" (including amendments to the
Federal Reserve's Official Staff Commentary to Regulation Z, effective October
1, 1998, concerning negative equity loans), the Soldiers' and Sailors' Civil
Relief Act of 1940, each applicable state Motor Vehicle Retail Installment Sales
Act, and state adaptations of the National Consumer Act and of the Uniform
Consumer Credit Code and other consumer credit laws and equal credit opportunity
and disclosure laws) in respect of the Receivables and the Financed Vehicles,
have been complied with in all material respects, and each Receivable and the
sale of the Financed Vehicle evidenced by each Receivable complied at the time
it was
originated or made and now complies in all material respects with all applicable
legal requirements.
4. Origination. Each Receivable is the Dollar denominated obligation of an
Obligor domiciled in the United States of America (exclusive of any Territories
of the United States of America) at the time of origination.
5. Binding Obligation. Each Receivable represents the genuine, legal, valid
and binding payment obligation of the Obligor thereon, enforceable by the holder
thereof in accordance with its terms, except (A) as enforceability may be
limited by bankruptcy, insolvency, reorganization or similar laws affecting the
enforcement of creditors' rights generally and by equitable limitations on the
availability of specific remedies, regardless of whether such enforceability is
considered in a proceeding in equity or at law and (B) as such Receivable may be
modified by the application after the Cut-off Date of the Soldiers' and Sailors'
Civil Relief Act of 1940, as amended; and all parties to each Receivable had
full legal capacity to execute and deliver such Receivable and all other
documents related thereto and to grant the security interest purported to be
granted thereby.
6. No Government Obligor. No Obligor is the United States of America or any
State or any agency, department, subdivision or instrumentality thereof.
7. Obligor Bankruptcy. No Obligor has been identified on the records of the
Receivables Seller as being the subject of a current bankruptcy proceeding, nor
does the Receivables Seller have notice that an Obligor is the subject of a
current bankruptcy proceeding.
8. Schedule of Receivables. The information set forth in the Schedule of
Receivables has been produced from the Electronic Ledger and was true and
correct in all respects as of the close of business on the related Cut-off Date.
9. Marking Records. By the Closing Date or Transfer Date, as applicable,
the Servicer will have caused the portions of the Electronic Ledger relating to
the Receivables to be clearly and unambiguously marked to show that the
Receivables have been sold to the Issuer in accordance with the terms of the
Sale and Servicing Agreement.
10. Computer Tape. The Computer Tape made available by the Receivables
Seller to the Issuer on the Closing Date or Transfer Date, as applicable, was
complete and accurate as of the related Cut-off Date and includes a description
of the same Receivables that are described in the Schedule of Receivables,
including, without limitation, the following information with respect to each
such Receivable: loan number, remaining balance ($), original balance ($),
remaining term (months), original term (months), WAC (%), vehicle identification
number, the AmeriCredit Score, 1st payment date (date), next payment date
(date), last scheduled payment date (date), payment amount ($).
11. Adverse Selection. No selection procedures adverse to the Noteholders
were utilized in selecting the Receivables from those receivables owned by the
Receivables Seller which met the selection criteria contained in the Sale and
Servicing Agreement; provided, however, that no adverse selection procedures are
deemed to have been utilized with respect to
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the $800,000,000 in seasoned receivables which were selected by the Receivables
Seller for sale to the Depositor on the Closing Date.
12. Chattel Paper. The Receivables constitute tangible chattel paper within
the meaning of the UCC as in effect in the States of Texas, New York, Nevada and
Delaware.
13. One Original. There is only one original executed copy of each
Receivable.
14. Receivable Files Complete. There exists a Receivable File pertaining to
each Receivable and such Receivable File contains the documents required to be
contained therein. Each of such documents which is required to be signed by the
Obligor has been signed by the Obligor in the appropriate spaces. All blanks on
any form have been properly filled in and each form has otherwise been correctly
prepared.
15. Receivables in Force. No Receivable has been satisfied, subordinated or
rescinded, and the Financed Vehicle securing each such Receivable has not been
released from the lien of the related Receivable in whole or in part. No terms
of any Receivable have been waived, altered or modified in any respect since its
origination, except by instruments or documents identified in the Receivable
File.
16. Lawful Assignment. No Receivable was originated in, or is subject to
the laws of, any jurisdiction the laws of which would make unlawful, void or
voidable the sale, transfer and assignment of such Receivable under this
Agreement or pursuant to transfers of the Securities.
17. Good Title. Immediately prior to the conveyance of the Receivables to
the Issuer pursuant to this Agreement, the Receivables Seller was the sole owner
thereof and had good and indefeasible title thereto, free of any Lien and, upon
execution and delivery of this Agreement by the Receivables Seller, the Issuer
shall have good and indefeasible title to and will be the sole owner of such
Receivables, free of any Lien. No Dealer or Third-Party Lender has a
participation in, or other right to receive, proceeds of any Receivable. The
Receivables Seller has not taken any action to convey any right to any Person
that would result in such Person having a right to payments received under the
related Insurance Policies or the related Dealer Agreements, Auto Loan Purchase
and Sale Agreements, Dealer Assignments or Third-Party Lender Assignments or to
payments due under such Receivables.
18. Security Interest in Financed Vehicle. Each Receivable created or shall
create a valid, binding and enforceable first priority security interest in
favor of the Receivables Seller in the Financed Vehicle. The Lien Certificate
and original certificate of title for each Financed Vehicle show, or if a new or
replacement Lien Certificate is being applied for with respect to such Financed
Vehicle the Lien Certificate will be received within 180 days of the Closing
Date or related Transfer Date, as applicable, and will show the Receivables
Seller (or a Titled Third-Party Lender) named as the original secured party
under each Receivable as the holder of a first priority security interest in
such Financed Vehicle. With respect to each Receivable for which the Lien
Certificate has not yet been returned from the Registrar of Titles, the
Receivables Seller has applied for or received written evidence from the related
Dealer or Third-Party Lender that such Lien Certificate showing the Receivables
Seller (or a Titled Third-Party Lender) as first lienholder has been applied for
and the Receivables Seller's security interest has been validly
-3-
assigned to the Issuer pursuant to this Agreement. Immediately after the sale,
transfer and assignment thereof by the Receivables Seller to the Issuer, each
Receivable will be secured by an enforceable and perfected first priority
security interest in the Financed Vehicle in favor of the Indenture Trustee as
secured party, which security interest is prior to all other Liens upon and
security interests in such Financed Vehicle which now exist or may hereafter
arise or be created (except, as to priority, for any lien for taxes, labor or
materials affecting a Financed Vehicle). There are no Liens or claims for taxes,
work, labor or materials affecting a Financed Vehicle which are or may be Liens
prior or equal to the Liens of the related Receivable.
19. All Filings Made. All filings (including, without limitation, UCC
filings) required to be made by any Person and actions required to be taken or
performed by any Person in any jurisdiction to give the Issuer a first priority
perfected lien on, or ownership interest in, the Collateral and any proceeds
thereof have been made, taken or performed.
20. No Impairment. The Receivables Seller has not done anything to convey
any right to any Person that would result in such Person having a right to
payments due under the Receivable or otherwise to impair the rights of the
Issuer, the Depositor, the Indenture Trustee and the Noteholders in any
Receivable or the proceeds thereof.
21. Receivable Not Assumable. No Receivable is assumable by another Person
in a manner which would release the Obligor thereof from such Obligor's
obligations to the Receivables Seller with respect to such Receivable.
22. No Defenses. No Receivable is subject to any right of rescission,
setoff, counterclaim or defense and no such right has been asserted or
threatened with respect to any Receivable.
23. No Default. There has been no default, breach, violation or event
permitting acceleration under the terms of any Receivable (other than payment
delinquencies of not more than 30 days), and no condition exists or event has
occurred and is continuing that with notice, the lapse of time or both would
constitute a default, breach, violation or event permitting acceleration under
the terms of any Receivable, and there has been no waiver of any of the
foregoing. No Financed Vehicle has been repossessed.
24. Insurance. At the time of an origination of a Receivable by the
Receivables Seller or a purchase of a Receivable by the Receivables Seller from
a Dealer or Third-Party Lender, each Financed Vehicle is required to be covered
by a comprehensive and collision insurance policy (i) in an amount at least
equal to the lesser of (a) its maximum insurable value or (b) the principal
amount due from the Obligor under the related Receivable, (ii) naming the
Receivables Seller as loss payee and (iii) insuring against loss and damage due
to fire, theft, transportation, collision and other risks generally covered by
comprehensive and collision coverage. Each Receivable requires the Obligor to
maintain physical loss and damage insurance, naming the Receivables Seller and
its successors and assigns as additional insured parties, and each Receivable
permits the holder thereof to obtain physical loss and damage insurance at the
expense of the Obligor if the Obligor fails to do so. No Financed Vehicle is
insured under a policy of Force-Placed Insurance.
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25. Past Due. No Receivable is a Defaulted Receivable or a Delinquent
Receivable.
26. Remaining Principal Balance. The Principal Balance of each Receivable
set forth in the Monthly Tape is true and accurate in all respects.
27. Certain Characteristics of Receivables. (A) Each Receivable had a
remaining maturity, as of the related Cut-off Date, of not less than 6 months
but not more than 72 months; (B) each Receivable had an original maturity of at
least 6 months but not more than 72 months; (C) no Receivable had an AmeriCredit
Score less than 205; (D) each Receivable had a remaining Principal Balance as of
the related Cut-off Date of at least $250 and not more than $80,000 as of the
related Cut-off Date; (E) each Receivable has an Annual Percentage Rate of at
least 6.00% and not more than 33.00%; (F) no Receivable is more than 30 days
past due; (G) no funds have been advanced by the Receivables Seller, any Dealer,
any Third-Party Lender, or anyone acting on behalf of any of them in order to
cause any Initial Receivable to qualify under clause (F) above; and (H) no
Obligor is an employee of the Receivables Seller or any Affiliate thereof.
28. No Financed Repossessions. No Receivable is secured by a vehicle which
is a financed repossession.
29. Aging. Other than the Receivables sold and contributed by the
Receivables Seller on the Closing Date, each Receivable was originated at least
31 days but not more than 60 days prior to the Transfer Date.
30. No Corporate Obligor. No Obligor is a corporation, partnership or
limited liability company.
31. Extensions. As of the applicable Transfer Date, no Receivable has had
its payments extended or deferred since its origination.
32. Rewrite of Loan Number. No Receivable has been rewritten to a new loan
number in connection with a refinancing of the related Financed Vehicle.
33. No Future Advances. The full amount of each Receivables has been
advanced and there are no requirements for future advances under the related
Contract.
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SCHEDULE C
SERVICING POLICIES AND PROCEDURES
Note: Applicable Time Periods Will Vary by State
Compliance with state collection laws is required of all the Servicer's
Collection Personnel. Additionally, the Servicer has chosen to follow the
guidelines of the Federal Fair Debt Collection Practices Act (FDCPA).
The Collection Process
The Servicer mails each customer a monthly billing statement 16 to 20 days
before payment is due.
A. All accounts are issued to the Computer Assisted Collection System (CACS)
at 5 days delinquent or at such other dates of delinquency as determined by
historical payment patterns of the account.
B. The CACS segregates accounts into two groups: loans less than 30 days
delinquent and those over 30 days delinquent.
C. Loans delinquent for less than 30 days are then further segregated into two
groups: accounts that have good phone numbers and those that do not.
D. Loans with good phone numbers are transferred to the Davox system (the
Servicer's predictive dialing system). The system automatically dials the
phone number related to a delinquent account. When a connection is made,
the account is then routed to the next available account representative.
E. Loans without good phone numbers are assigned to front-end collectors.
F. All reasonable collection efforts are made in an attempt to prevent these
accounts from becoming 30+ days delinquent - this includes the use of
collection letters. Collection letters may be utilized between 15th and
25th days of delinquency.
G. When an account reaches 31 days delinquent, a collector determines if any
default notification is required in the state where the debtor lives.
H. When an account exceeds 61 days delinquent, the loan is assigned to a
hard-core collector who will continue the collection effort. If the account
cannot be resolved through normal collection efforts (i.e., satisfactory
payment arrangements) then the account may be submitted for repossession
approval. An officer must approve all repossession requests.
I. CACS allows each collector to accurately document and update each customer
file when contact (verbal or written) is made.
Repossessions
If repossession of the collateral occurs, the following steps are taken:
A. Proper authorities are notified (if applicable).
B. An inventory of all personal property is taken and a condition report is
prepared on the vehicle.
C. Written notification, as required by state law, is sent to the customer(s)
stating their rights of redemption or reinstatement along with information
on how to obtain any personal property that was in the vehicle at the time
of repossession.
D. Written request to the originating dealer for all refunds due for dealer
adds is made.
E. Collateral disposition through public or private sale, (dictated by state
law), in a commercially reasonable manner, through a third-party auto
auction.
F. After the collateral is liquidated, the debtor(s) is notified in writing of
the deficiency balance owed, if any.
Use of Due Date Changes
Due dates may be changed subject to the following conditions:
A. The account is contractually current or will be brought current with the
due date change.
B. Due date changes cannot exceed the total of 15 days over the life of the
contract.
C. The first installment payment has been paid in full.
D. Only one due date change in a twelve month period.
E. An officer must approve any exceptions to the above stated policy.
Use of Payment Deferments
A payment deferral is offered to customers who have the desire and capacity to
make future payments but who have encountered temporary financial difficulties,
with management approval.
A. Without prior approval, minimum of six payments have been made on the
account and a minimum of nine payments have been made since the most recent
deferment (if any).
B. The account will be brought current with the deferment, but not paid ahead,
without management approval.
C. A deferment fee is collected on all transactions.
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D. No more than eight total payments may be deferred over the life of the
loan, without management approval.
E. No single payment deferral may defer payment for more than two payment
periods.
An officer must approve any exceptions to the above stated policy.
Charge-Offs
It is the Servicer's policy that any account that is not successfully recovered
by 120 days delinquent is submitted to an officer for approval and charge-off.
It is the Servicer's policy to carry all Chapter 13 bankruptcy accounts until
120 days delinquent. A partial charge-off is taken for the unsecured portion of
the account. On fully reaffirmed Chapter 7 bankruptcy accounts, the accounts can
be deferred current at the time of discharge.
Deficiency Collections
Accounts are assigned to third party collection agencies for deficiency
collections.
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EXHIBIT A
SERVICER'S CERTIFICATE
[On File with AmeriCredit and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇]
EXHIBIT B
FORM OF S&SA ASSIGNMENT
ASSIGNMENT NO. OF RECEIVABLES ("S&SA Assignment"), dated (the "Transfer
-----
Date"), by AMERICREDIT WAREHOUSE CORPORATION, (the "Depositor") to AmeriCredit
Owner Trust 2003-1 (the "Issuer") pursuant to the Sale and Servicing Agreement
referred to below.
WITNESSETH:
WHEREAS, the Depositor, the Issuer AmeriCredit Financial Services, Inc.,
Systems & Services Technologies, Inc. and Bank One, NA are the parties to the
Sale and Servicing Agreement, dated as of March 18, 2003 (the "Agreement"),
hereinafter as such agreement may have been, or may from time to time be,
amended, supplemented or otherwise modified;
WHEREAS, pursuant to the Agreement, the Depositor wishes to sell and
contribute those Receivables listed on Schedule A hereto (the "Related
Receivables") to the Issuer on the "Related Transfer Date" described herein in
exchange for cash consideration and other good and valid consideration the
receipt and sufficiency of which is hereby acknowledged; and
WHEREAS, the Issuer is willing to acquire such Related Receivables subject
to the terms and conditions hereof and of the Agreement;
NOW THEREFORE, the Depositor and the Issuer hereby agree as follows:
1. Defined Terms. All capitalized terms defined in the Agreement and used
herein shall have such defined meanings when used herein, unless otherwise
defined herein.
2. Designation of Receivables. The Depositor does hereby deliver herewith a
Receivables Schedule containing a true and complete list of the Related
Receivables to be conveyed on , 2003 (the "Related Transfer Date"). Such
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list is marked as Schedule A to this S&SA Assignment and is hereby incorporated
into and made a part of this S&SA Assignment.
3. Conveyance of Receivables. The Depositor hereby sells and contributes to
the Issuer (the "Assignment"), without recourse and on a servicing released
basis (except as expressly provided in the Agreement), all right, title and
interest of the Depositor in and to: (i) the Related Receivables originated or
acquired by the Depositor and listed on the Schedule A hereto; (ii) the security
interests in the Financed Vehicles granted by Obligors pursuant to such Related
Receivables and any other interest of the Depositor in such Financed Vehicles;
(iii) any proceeds and the right to receive proceeds with respect to such
Related Receivables from claims on any physical damage, credit life or
disability insurance policies covering the related Financed Vehicles or Obligors
and any proceeds from the liquidation of such Related Receivables; (iv) any
proceeds from any Related Receivable repurchased by a Dealer pursuant to a
Dealer Agreement or a Third-Party Lender pursuant to an Auto Loan Purchase and
Sale Agreement as a result of a breach of representation or warranty in the
related Dealer Agreement or Auto Loan Purchase and
Sale Agreement; (v) all rights under any Service Contracts on the related
Financed Vehicles; (vi) the related Receivable Files; and (vii) and the proceeds
of any and all of the foregoing.
4. Issuer's Acknowledge Assignment. As of the Related Transfer Date,
pursuant to this S&SA Assignment and Section 2.1(a) of the Agreement, the Issuer
acknowledges its receipt of the Related Receivables listed on the attached
Receivables Schedule and all other related property in the Trust Estate.
5. Acceptance of Rights But Not Obligations. The foregoing sale,
contribution, transfer, assignment, set over and conveyance does not, and is not
intended to, result in a creation or an assumption by the Issuer of any
obligation of the Depositor or any other Person in connection with this S&SA
Assignment or under any agreement or instrument relating thereto except as
specifically set forth herein.
6. Depositor Acknowledges Receipt of Sales Price and Contribution to
Capital. The Depositor hereby acknowledges that, if applicable, it has received
the Sales Price (or it has otherwise been distributed at its direction) with
respect to the Related Receivables and it has contributed the Receivables in
excess of such Sales Price to the capital of the Issuer.
7. Conditions Precedent. The conditions precedent in Section 2.1(b) of the
Agreement have been satisfied.
8. Amendment of the Agreement. The Agreement is hereby amended by providing
that all references to the "Agreement", "this Agreement" and "herein" shall be
deemed from and after the Transfer Date to be a dual reference to the Agreement
as supplemented by this S&SA Assignment. Except as expressly amended hereby, all
of the representations, warranties, terms, covenants and conditions of the
Agreement shall remain unamended and the Agreement shall continue to be, and
shall remain, in full force and effect in accordance with its terms and except
as expressly provided herein, this S&SA Assignment shall not constitute or be
deemed to constitute a waiver of compliance with or consent to noncompliance
with any term or provision of the Agreement.
9. Counterparts. This S&SA Assignment may be executed in any number of
counterparts all of which taken together shall constitute one and the same
instrument.
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IN WITNESS WHEREOF, the Depositor and the Issuer have caused this S&SA
Assignment to be duly executed on their behalf by their respective officers
thereunto duly authorized as of the day and year first above written.
AMERICREDIT WAREHOUSE CORPORATION,
as Depositor
By:
Name:
Title:
AMERICREDIT OWNER TRUST 2003-1,
as Receivables Seller
By: DEUTSCHE BANK TRUST COMPANY
DELAWARE, not in its individual
capacity but solely as Owner Trustee
By:
Name:
Title:
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ANNEX A
ANNEX B
If, pursuant to the terms and conditions of the Sale and Servicing
Agreement, the Master Servicer shall become the Servicer, the following Sections
shall be amended as follows:
Section 4.3(a). The following provision shall follow the third sentence of
Section 4.3(a):
"Notwithstanding anything to the contrary contained herein, following the
repossession and sale of the related Financed Vehicle by the Servicer, the
Servicer shall not be obligated to pursue any deficiency collections against the
related Obligor except pursuant to a separate agreement between the Issuer and
the Servicer with the consent of the Majority Noteholder."
Section 4.3(a). The last four sentences of Section 4.3(a) shall be replaced in
their entirety by the following sentences:
"All amounts received upon liquidation of a Financed Vehicle shall be
remitted directly by the Servicer to the Lockbox Account no later than the
Business Day after receipt thereof. The Servicer shall be entitled to recover
all reasonable expenses incurred by it in the course of repossessing and
liquidating a Financed Vehicle into cash proceeds from the aggregate Liquidation
Proceeds. The Servicer shall pay on behalf of the Issuer any personal property
taxes assessed on repossessed Financed Vehicles. The Servicer shall be entitled
to reimbursement of any such tax from the aggregate Liquidation Proceeds."
Section 4.3(a). The following sentence shall be added to the end of Section
4.3(a):
"In the event the Servicer is not fully reimbursed for all reasonable
expenses incurred pursuant to this Section 4.3(a), the Servicer shall be
entitled to recover such unreimbursed amounts from Available Funds in accordance
with Section 2.10(c) of the Indenture."
Section 4.3(b). Section 4.3(b) shall be replaced in its entirety by the
following provision:
"The Servicer shall use all reasonable efforts to enforce or collect upon a
Dealer Agreement, Auto Loan Purchase and Sale Agreement, Dealer Assignment or
Third-Party Lender Assignment. If the Servicer is unable to enforce or collect
upon any such agreement without commencing a legal proceeding, the Servicer
shall advise the Majority Noteholder whether, in its reasonable judgment,
commencing a legal proceeding to enforce or collect upon such agreements is
advisable, and shall only commence a legal proceeding to enforce such agreements
or commence or participate in any other legal proceeding relating to or
involving such agreements if directed to do so by the Majority Noteholder. If
the Servicer is directed to commence a legal proceeding to enforce a Dealer
Agreement, Auto Loan Purchase and Sale Agreement, Dealer Assignment or
Third-Party Lender Assignment, the act of commencement shall be deemed to be an
automatic assignment from the Issuer to the Servicer of the rights under such
Dealer Agreement, Auto Loan Purchase and Sale Agreement, Dealer Assignment or
Third-Party Lender Assignment for purposes of collection only. If, however, in
any enforcement suit or legal proceeding it is held that the Servicer may not
enforce a Dealer Agreement, Auto Loan Purchase and Sale Agreement, Dealer
Assignment or Third-Party Lender Assignment on the grounds that it is not a real
party in interest or a Person entitled to enforce the Dealer Agreement, Auto
Loan Purchase and Sale Agreement, Dealer Assignment or Third-Party Lender
Assignment, the Owner
Trustee and/or the Indenture Trustee, at the Servicer's expense, or the
Receivables Seller, at the Receivables Seller's expense, shall take such steps
as the Servicer deems reasonably necessary to enforce the Dealer Agreement, Auto
Loan Purchase and Sale Agreement, Dealer Assignment or Third-Party Lender
Assignment, including bringing suit in its name or the name of the Receivables
Seller or of the Issuer and the Owner Trustee and/or the Indenture Trustee for
the benefit of the Noteholders. The Servicer shall be reimbursed from Available
Funds, in accordance with Section 2.10(c) of the Indenture, for all reasonable
expenses incurred pursuant to any legal action undertaken pursuant to this
Section at the direction of the Majority Noteholder."
Section 4.4(a). The first sentence of Section 4.4(a) shall be replaced in its
entirety by the following sentence:
"The Servicer shall require, in accordance with the Servicing Standard,
that each Financed Vehicle be insured by the related Obligor under the Insurance
Policies referred to in Paragraph 24 of the Schedule of Representations and
Warranties and shall monitor the status of such physical loss and damage
insurance coverage thereafter to the extent that it receives notice of
determination or non-renewal thereof; provided, however, that in no event will
the Servicer be required to retain a third-party service to monitor such
physical loss and damage insurance coverage."
Section 4.4(d). Section 4.4(d) shall be replaced in its entirety by the
following provision:
"The Servicer shall use all reasonable efforts to enforce or collect upon the
Insurance Policies. If the Servicer is unable to enforce or collect upon the
Insurance Policies without commencing a legal proceeding, the Servicer shall
advise the Majority Noteholder whether, in its reasonable judgment, commencing a
legal proceeding to enforce or collect upon the Insurance Policies is advisable,
and shall only commence a legal proceeding in its own name (or, if possible, as
an agent of the Issuer) to enforce the Insurance Policies or commence or
participate in any other legal proceeding relating to or involving the Insurance
Policies if directed to do so by the Majority Noteholder. If the Servicer is
directed to commence a legal proceeding to enforce an Insurance Policy, the act
of commencement shall be deemed to be an automatic assignment of the rights of
the Issuer under such Insurance Policy to the Servicer for purposes of
collection only. If, however, in any enforcement suit or legal proceeding it is
held that the Servicer may not enforce an Insurance Policy on the grounds that
it is not a real party in interest or a holder entitled to enforce the Insurance
Policy, the Owner Trustee and/or the Indenture Trustee, at the Servicer's
expense, or the Receivables Seller, at the Receivables Seller's expense, shall
take such steps as the Servicer deems necessary to enforce such Insurance
Policy, including bringing suit in its name or the name of the Issuer and the
Owner Trustee and/or the Indenture Trustee for the benefit of the Noteholders.
The Servicer shall be reimbursed from Available Funds, in accordance with
Section 2.10(c) of the Indenture, for all reasonable expenses incurred pursuant
to any legal action undertaken at the direction of the Majority Noteholder."
Section 4.5(a). The following sentence shall be added to the end of Section
4.5(a):
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"The Servicer shall be entitled to recover all reasonable expenses incurred
pursuant to this Section 4.5(a) from Available Funds in accordance with Section
2.10(c) of the Indenture."
Section 4.5(b). The following sentence shall be added to the end of Section
4.5(b):
"The Servicer shall be entitled to recover all reasonable expenses incurred
pursuant to this Section 4.5(b) from Available Funds in accordance with Section
2.10(c) of the Indenture."
Section 4.11. Section 4.11 shall be replaced in its entirety by the following
sentence:
"Annual Report of Accountants.
The Master Servicer shall cause a firm of independent certified public
accountants, which may also render other services to the Master Servicer or its
affiliates, to deliver to the Indenture Trustee, within 120 days after the end
of each fiscal year, commencing with the fiscal year ending December 31, 2003,
(i) an opinion by a firm of independent certified public accountants on the
financial position of the Master Servicer at the end of the relevant fiscal year
and the results of operations and changes in financial position of the Master
Servicer for such year then ended on the basis of an examination conducted in
accordance with generally accepted auditing standards, and (ii) a report from
such independent certified public accountants to the effect that based on an
examination of certain specified documents and records relating to the servicing
of the Master Servicer's loan portfolio conducted substantially in compliance
with SAS 70 (the "Applicable Accounting Standards"), such firm is of the opinion
that such servicing has been conducted in compliance with the Applicable
Accounting Standards except for (a) such exceptions as such firm shall believe
to be immaterial and (b) such other exceptions as shall be set forth in such
statement."
Section 4.14. The last 3 sentences of Section 4.14 shall be replaced in their
entirety by the following:
"The Majority Noteholder shall give written notice at lease 60 days prior
to the end of the related calendar quarter that such term will be extended for
an additional quarter. Each such notice (a "Servicer Extension Notice") shall be
delivered by the Majority Noteholder to the Indenture Trustee and the Servicer.
If no Servicer Extension Notice is given 60 days prior to the end of the related
calendar quarter, the Servicer acknowledges that its rights and obligations as
Servicer hereunder shall automatically terminate at the end of the then current
calendar quarter and the Servicer shall be entitled to a termination fee equal
to the greater of (i) the Master Servicer Fee for the final month of the
Servicer's term and (ii) $65,000."
Section 4.15. Section 4.15 shall be replaced in its entirety by the following
provision:
"Fidelity Bond and Errors and Omissions Policy. The Servicer has obtained,
and shall continue to maintain in full force and effect, a Fidelity Bond and
Errors and Omissions Policy of a type and in such amount as is customary for
servicers engaged in the business of servicing automobile receivables; provided,
however, that, with the consent of the Majority Noteholder (not to be
unreasonably withheld), the Servicer shall be deemed to have fulfilled its
obligation
-3-
pursuant to this Section 4.15 if it has obtained and continues to
maintain in full force and effect, a self-insured Fidelity Bond and Errors and
Omissions Policy through ▇▇ ▇▇▇▇▇▇ Chase Bank or any of its affiliates."
Section 5.4. Section 5.4 shall be replaced in its entirety by the following
provision:
"The Receivables Seller shall transfer or cause to be deposited in the
Collection Account on the Determination Date on which such obligations are due
the aggregate Repurchase Price with respect to Purchased Receivables. The
proceeds of any purchase or sale of the assets of the Issuer described in
Section 4.16 hereof shall be deposited in the Collection Account."
Section 8.1. Section 8.1 shall be replaced in its entirety with the following
provision:
"Servicer Termination Event. For purposes of this Agreement, each of the
following shall constitute a "Servicer Termination Event":
(a) Any failure by the Servicer to deliver to the Indenture Trustee for
distribution to Noteholders any proceeds or payment required to be so delivered
under the terms of this Agreement that continues unremedied for a period of two
Business Days; or
(b) Failure by the Servicer to deliver to the Indenture Trustee and the
Majority Noteholder the Servicer's Certificate by the second Business Day prior
to the Payment Date, or failure on the part of the Servicer to observe its
covenants and agreements set forth in Section 7.4(a); or
(c) Failure on the part of the Servicer to duly observe or perform any
other covenants or agreements of the Servicer set forth in this Agreement, which
failure materially and adversely affects the Noteholders (as determined by the
Noteholders in their sole discretion) and continues unremedied for a period of
30 days after knowledge thereof by the Servicer or after the date on which
written notice of such failure, requiring the same to be remedied, shall have
been given to the Servicer by the Indenture Trustee, the Master Servicer or the
Majority Noteholder; or
(d) The entry of a decree or order for relief by a court or regulatory
authority having jurisdiction in respect of the Servicer in an involuntary case
under the federal bankruptcy laws, as now or hereafter in effect, or another
present or future, federal bankruptcy, insolvency or similar law, or appointing
a receiver, liquidator, assignee, trustee, custodian, sequestrator or other
similar official of the Servicer or of any substantial part of their respective
property or ordering the winding up or liquidation of the affairs of the
Servicer and the continuance of any such decree or order unstayed and in effect
for a period of 60 consecutive days or the commencement of an involuntary case
under the federal bankruptcy laws, as now or hereinafter in effect, or another
present or future federal or state bankruptcy, insolvency or similar law and
such case is not dismissed within 60 days; or
(e) The commencement by the Servicer of a voluntary case under the federal
bankruptcy laws, as now or hereafter in effect, or any other present or future,
federal or state, bankruptcy, insolvency or similar law, or the consent by the
Servicer to the appointment of or
-4-
taking possession by a receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of the Servicer or of any substantial
part of their respective property or the making by the Servicer of an assignment
for the benefit of creditors or the failure by the Servicer generally to pay its
debts as such debts become due or the taking of corporate action by the Servicer
in furtherance of any of the foregoing; or
(f) The Majority Noteholder shall have failed to deliver a Servicer
Extension Notice pursuant to Section 4.14; or
(g) The rating of any successor by merger, consolidation, transfer, lease
or succession to the Servicer fails to comply with the requirements of Section
6.4 or 7.4, respectively."
Section 10.1. The Servicer shall cooperate in good faith with the Issuer and the
Majority Noteholder to provide for performance of the administrative functions
required to be performed by the Issuer under the Basic Documents and shall
perform such administrative functions as may be reasonably requested by the
Majority Noteholder and the Issuer. The Servicer shall be entitled to
reimbursement of expenses related to performing and providing for the
performance of such administrative functions pursuant to Section 2.10(c).
Section 11.2(h). The following sentence shall be added to the end of Section
11.2(h):
"The Servicer shall be reimbursed for all reasonable expenses incurred
pursuant to this Section 11.2(h) from Available Funds in accordance with Section
2.10(c) of the Indenture."
Schedule C to the Sale and Servicing Agreement shall be replaced in its
entirety by the Servicer with a schedule of servicing policies and procedures
that is acceptable to the Majority Noteholder.
Attached hereto as Schedule 1 is the Master Servicer Fee Schedule.
Except as expressly set forth in this Annex B, all other terms, provisions
and conditions of the Sale and Servicing Agreement shall remain in full force
and effect.
-5-
Schedule 1 to Annex B
SYSTEMS & SERVICES TECHNOLOGIES, INC.
A SUBSIDIARY OF JPMORGAN CHASE
SERVICING FEE PROPOSAL:
DEUTSCHE BANK / AMERICREDIT
WHOLE LOAN TRANSACTION
▇▇▇▇▇ ▇▇, ▇▇▇▇
▇. FEES
A. Master and Standby Servicing/(1)/
1. One-Time Setup Fee $20,000
2. Monthly Fee/(2)/ the greater of 5 bsp or
$10,000 per month
B. Successor Servicing/(3)/
1. One Time Boarding Fee/(4)/ $5.00 per loan
2. Monthly Fee/(2)(5)/
a. Remaining term of 36
months or more: the
greater of 225 bsp or
$14.00 per month
b. Remaining term of 36
months or less: $19.00 per month
3. Minimum Monthly Fee $3,000
II. EXPENSES
A. Standby Servicing and Transfer Expenses
SST shall be reimbursed for all costs and expenses incurred in connection
with its Standby Servicing duties and the transfer of contracts to SST for
successor servicing. Such costs and expenses include, but are not limited
to, those related to travel, obligor mailings, freight and file shipping.
B. Successor Servicing Expenses/(2)/
SST shall be reimbursed for all out-of-pocket expenses including, but not
limited to, those associated with asset recovery, liquidation, travel,
lodging, legal proceedings related to replevin actions or obligor
bankruptcies, statement and mailing costs, title processing, bank charges,
field calls, and insurance tracking, if any. Additionally, SST shall
receive an administrative fee
amounting to 3% of the funds advanced by SST to cover any such expenses
during any monthly collection period. In order to avoid this administrative
fee, Deutsche Bank (or another party, as appropriate) may at any time
during the term establish and fund an advance account to be utilized by SST
to cover all such expenses and costs provided in this section for any
monthly collection period. Any such advance account must be fully funded on
a monthly basis in an amount sufficient to cover the out-of-pocket expenses
projected by SST for each subsequent monthly collection period.
III. MISCELLANEOUS/(3)/
A. Claim Filing Costs
In the event SST files insurance claims in connection with any contract
serviced by SST, SST shall receive $25.00 per filing.
B. Administrative Fees/Servicing Charges
SST shall receive all administrative fees, including extension processing
fees, NSF fees and late charges received by SST during any monthly
collection period.
C. Deficiency Collections
Under separate agreement, SST may provide deficiency collections services
on a contingency fee basis.
----------
/(1)/ Standby services limited to: (i) monthly receipt of an electronic loan
data transmission, including all relevant obligor contact information including
address and phone numbers, loan balance, payment information, and comment
histories (ii) receipt of and verification some information supplied on the
month-end servicer statement
/(2)/ Basis points are annualized (i.e., applicable basis points/12) and shall
be based on end of month outstanding principal balance for the immediately
preceding Collection Period of each individual Active Contract, as defined
below.
/(3)/ These items shall only apply to SST's performance of successor servicing
duties.
/(4)/ Boarding Fees shall not exceed $200,000
/(5)/ SST shall receive this fee for all "Active Contracts" for any full or
partial month where it functions as the Servicer. Active Contract is defined as
any contract other than: (i) prepaid, fully satisfied contracts; (ii) contracts
in which the asset has been liquidated and SST has posted the liquidation
proceeds or any other anticipated proceeds (e.g., credit enhancement insurance);
or (iii) contracts in which SST has completed all work in connection with
processing and receiving insurance payoffs. There shall be a $0.50 monthly
servicing fee for each contract that is not an Active Contract until such time
as SST is duly instructed to write the obligor's balance down to $0.00.
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ARTICLE I Definitions..........................................................................1
SECTION 1.1. [Reserved]......................................................................1
SECTION 1.2. Definitional Provisions.........................................................1
ARTICLE II Conveyance of Receivables.............................................................2
SECTION 2.1. Conveyance of Receivables.......................................................2
SECTION 2.2. Further Encumbrance of the Collateral...........................................5
SECTION 2.3. Class C Notes...................................................................6
ARTICLE III The Receivables......................................................................6
SECTION 3.1. Representations and Warranties of the Receivables Seller and
Depositor ...................................................................6
SECTION 3.2. Repurchase upon Breach..........................................................7
SECTION 3.3. Custody of Receivables Files....................................................8
SECTION 3.4. Credit Scoring Methodology......................................................9
ARTICLE IV Administration and Servicing of Receivables.........................................10
SECTION 4.1. Duties of the Master Servicer..................................................10
SECTION 4.2. Collection of Receivable Payments; Modifications of Receivables; Lockbox
Agreements..................................................................11
SECTION 4.3. Realization upon Receivables...................................................13
SECTION 4.4. Insurance......................................................................14
SECTION 4.5. Maintenance of Security Interests in Vehicles..................................16
SECTION 4.6. Covenants, Representations, and Warranties of Servicer.........................17
SECTION 4.7. Purchase of Receivables Upon Breach of Covenant................................18
SECTION 4.8. Total Servicing Fee; Payment of Certain Expenses...............................18
SECTION 4.9. Servicer's Certificate.........................................................19
SECTION 4.10. Annual Statement as to Compliance, Notice of Servicer Termination Event........19
SECTION 4.11. Annual Independent Accountants' Report.........................................20
SECTION 4.12. Access to Certain Documentation and Information Regarding Receivables..........20
SECTION 4.13. Monthly Tape...................................................................21
SECTION 4.14. Retention and Termination of Servicer..........................................21
SECTION 4.15. Fidelity Bond and Errors and Omissions Policy..................................22
SECTION 4.16. Dispositions...................................................................22
ARTICLE V Trust Accounts; Distributions.......................................................24
SECTION 5.1. Establishment of Trust Accounts................................................24
SECTION 5.2. Certain Reimbursements to the Servicer.........................................26
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SECTION 5.3. Application of Collections.....................................................26
SECTION 5.4. Additional Deposits............................................................27
SECTION 5.5. Remittances....................................................................27
ARTICLE VI The Receivables Seller..............................................................27
SECTION 6.1. Representations of Receivables Seller..........................................27
SECTION 6.2. Corporate Existence............................................................29
SECTION 6.3. Liability of Receivables Seller; Indemnities...................................30
SECTION 6.4. Merger or Consolidation of, or Assumption of the Obligations of the
Receivables Seller..........................................................31
SECTION 6.5. Limitation on Liability of the Receivables Seller and Others...................31
SECTION 6.6. Ownership of the Certificates or Notes.........................................32
ARTICLE VII The Servicer and the Master Servicer................................................32
SECTION 7.1. Representations of Servicer....................................................32
SECTION 7.2. Representations of Master Servicer.............................................33
SECTION 7.3. Liability of Servicer and Master Servicer; Indemnities.........................35
SECTION 7.4. Merger or Consolidation of, or Assumption of the Obligations of the
Servicer or Master Servicer.................................................36
SECTION 7.5. Limitation on Liability of Servicer, Master Servicer and Others................37
SECTION 7.6. Delegation of Duties...........................................................37
SECTION 7.7. Servicer and Master Servicer Not to Resign.....................................38
ARTICLE VIII Servicer Termination................................................................38
SECTION 8.1. Servicer Termination Event.....................................................38
SECTION 8.2. Consequences of a Servicer Termination Event...................................40
SECTION 8.3. Appointment of Successor.......................................................41
SECTION 8.4. Master Servicer Termination....................................................41
SECTION 8.5. Notification to Noteholders....................................................42
SECTION 8.6. Waiver of Past Defaults........................................................42
ARTICLE IX Termination.........................................................................42
SECTION 9.1. Termination....................................................................42
ARTICLE X Administrative Duties of the Servicer...............................................42
SECTION 10.1. Administrative Duties..........................................................42
SECTION 10.2. Records........................................................................44
SECTION 10.3. Additional Information to be Furnished to the Issuer...........................45
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ARTICLE XI Miscellaneous Provisions............................................................45
SECTION 11.1. Amendment......................................................................45
SECTION 11.2. Protection of Title to Trust Estate............................................46
SECTION 11.3. Notices........................................................................47
SECTION 11.4. Assignment.....................................................................48
SECTION 11.5. Limitations on Rights of Others................................................48
SECTION 11.6. Severability...................................................................48
SECTION 11.7. Separate Counterparts..........................................................48
SECTION 11.8. Headings.......................................................................48
SECTION 11.9. Governing Law..................................................................48
SECTION 11.10. Assignment to Indenture Trustee................................................49
SECTION 11.11. Non-petition Covenants.........................................................49
SECTION 11.12. Limitation of Liability of Owner Trustee and the Indenture Trustee.............49
SECTION 11.13. Independence of the Servicer...................................................50
SECTION 11.14. No Joint Venture...............................................................50
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SCHEDULES
Schedule A Schedules of Receivables
Schedule B Representations and Warranties of the Receivables Seller and
the Servicer
Schedule C Servicing Policies and Procedures
EXHIBITS
Exhibit A Form of Servicer's Certificate
Exhibit B Form of S&SA Assignment
ANNEXES
Annex A Defined Terms
Annex B Modified Master Servicer Provisions
i