EXHIBIT 4.2
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Execution Copy
TRUST AGREEMENT
between
AFS FUNDING CORP.
and
BANKERS TRUST (DELAWARE)
Owner Trustee
Dated as of February 17, 1998
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ARTICLE I. DEFINITIONS................................................ 1
SECTION 1.1. Capitalized Terms.......................................... 1
SECTION 1.2. Other Definitional Provisions.............................. 3
ARTICLE II. ORGANIZATION............................................... 3
SECTION 2.1. Name....................................................... 3
SECTION 2.2. Office..................................................... 3
SECTION 2.3. Purposes and Powers........................................ 3
SECTION 2.4. Appointment of Owner Trustee............................... 3
SECTION 2.5. Initial Capital Contribution of Trust Estate............... 3
SECTION 2.6. Declaration of Trust....................................... 3
SECTION 2.7. Title to Trust Property.................................... 3
SECTION 2.8. Situs of Trust............................................. 3
SECTION 2.9. Representations and Warranties of the Depositor............ 3
SECTION 2.10. Covenants of the Certificateholder......................... 3
SECTION 2.11. Federal income tax treatment of the Trust.................. 3
ARTICLE III. CERTIFICATE AND TRANSFER OF INTEREST....................... 3
SECTION 3.1. Initial Ownership.......................................... 3
SECTION 3.2. The Certificate............................................ 3
SECTION 3.3. Authentication of Certificate.............................. 3
SECTION 3.4. Registration of Transfer and Exchange of Certificate....... 3
SECTION 3.5. Mutilated, Destroyed, Lost or Stolen Certificates.......... 3
SECTION 3.6. Persons Deemed Certificateholders.......................... 3
SECTION 3.7. Maintenance of Office or Agency............................ 3
SECTION 3.8. Disposition In Whole But Not In Part....................... 3
SECTION 3.9. ERISA Restrictions......................................... 3
ARTICLE IV. VOTING RIGHTS AND OTHER ACTIONS............................ 3
SECTION 4.1. Prior Notice to Holder with Respect to Certain Matters..... 3
SECTION 4.2. Action by Certificateholder with Respect to Certain Matters 3
SECTION 4.3. Restrictions on Certificateholder's Power.................. 3
SECTION 4.4. Rights of Security Insurer................................. 3
ARTICLE V. AUTHORITY AND DUTIES OF OWNER TRUSTEE...................... 3
SECTION 5.1. General Authority.......................................... 3
SECTION 5.2. General Duties............................................. 3
SECTION 5.3. Action upon Instruction.................................... 3
SECTION 5.4. No Duties Except as Specified in this Agreement
or in Instructions......................................... 3
SECTION 5.5. No Action Except under Specified Documents or Instructions. 3
SECTION 5.6. Restrictions............................................... 3
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ARTICLE VI. CONCERNING THE OWNER TRUSTEE............................... 3
SECTION 6.1. Acceptance of Trusts and Duties............................ 3
SECTION 6.2. Furnishing of Documents.................................... 3
SECTION 6.3. Representations and Warranties............................. 3
SECTION 6.4. Reliance; Advice of Counsel................................ 3
SECTION 6.5. Not Acting in Individual Capacity.......................... 3
SECTION 6.6. Owner Trustee Not Liable for Certificate or Receivables.... 3
SECTION 6.7. Owner Trustee May Own Notes................................ 3
SECTION 6.8. Payments from Owner Trust Estate........................... 3
SECTION 6.9. Doing Business in Other Jurisdictions...................... 3
ARTICLE VII. COMPENSATION OF OWNER TRUSTEE.............................. 3
SECTION 7.1. Owner Trustee's Fees and Expenses.......................... 3
SECTION 7.2. Indemnification............................................ 3
SECTION 7.3. Payments to the Owner Trustee.............................. 3
SECTION 7.4. Non-recourse Obligations................................... 3
ARTICLE VIII....... TERMINATION OF TRUST AGREEMENT 3
SECTION 8.1. Termination of Trust Agreement............................. 3
ARTICLE IX. SUCCESSOR OWNER TRUSTEES AND ADDITIONAL
OWNER TRUSTEES 3
SECTION 9.1. Eligibility Requirements for Owner Trustee................. 3
SECTION 9.2. Resignation or Removal of Owner Trustee.................... 3
SECTION 9.3. Successor Owner Trustee.................................... 3
SECTION 9.4. Merger or Consolidation of Owner Trustee................... 3
SECTION 9.5. Appointment of Co-Trustee or Separate Trustee.............. 3
ARTICLE X. MISCELLANEOUS.............................................. 3
SECTION 10.1. Supplements and Amendments................................. 3
SECTION 10.2. No Legal Title to Owner Trust Estate in Certificateholder.. 3
SECTION 10.3. Limitations on Rights of Others............................ 3
SECTION 10.4. Notices.................................................... 3
SECTION 10.5. Severability............................................... 3
SECTION 10.6. Separate Counterparts...................................... 3
SECTION 10.7. Assignments; Security Insurer.............................. 3
SECTION 10.8. No Recourse................................................ 3
SECTION 10.9. Headings................................................... 3
SECTION 10.10. GOVERNING LAW.............................................. 3
SECTION 10.11. Servicer................................................... 3
EXHIBITS
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Exhibit A Form of Certificate
Exhibit B Form of Certificate of Trust
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TRUST AGREEMENT dated as of February 17, 1998 between AFS FUNDING
CORP., a Nevada corporation (the "Seller"), and Bankers Trust (Delaware), a
Delaware banking corporation as Owner Trustee.
ARTICLE I.
Definitions
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SECTION 1.1. Capitalized Terms. For all purposes of this Agreement,
the following terms shall have the meanings set forth below "AmeriCredit" shall
mean AmeriCredit Financial Services, Inc.
"Agreement" shall mean this Trust Agreement, as the same may be
amended and supplemented from time to time.
"Basic Documents" shall mean this Agreement, the Certificate of Trust,
the Sale and Servicing Agreement, the Spread Account Agreement, the Spread
Account Agreement Supplement, the Insurance Agreement, the Indenture and the
other documents and certificates delivered in connection therewith.
"Benefit Plan" shall have the meaning assigned to such term in Section
3.9.
"Business Trust Statute" shall mean Chapter 38 of Title 12 of the
Delaware Code, 12 Del. Code (S) 3801 et. seq. as the same may be amended from
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time to time.
"Certificate" means a trust certificate evidencing the beneficial
interest of a Certificateholder in the Trust, substantially in the form of
Exhibit A attached hereto.
"Certificate of Trust" shall mean the Certificate of Trust in the form
of Exhibit B to be filed for the Trust pursuant to Section 3810(a) of the
Business Trust Statute.
"Certificate Register" and "Certificate Registrar" shall mean the
register mentioned and the registrar appointed pursuant to Section 3.4.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time, and Treasury Regulations promulgated thereunder.
"Corporate Trust Office" shall mean, with respect to the Owner
Trustee, the principal corporate trust office of the Owner Trustee located at
E.A. Delle Donne Corporate Center, ▇▇▇▇▇▇▇▇▇▇ Building, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇
▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, with a copy of all notices and other documents
to be also furnished to Bankers Trust Company, ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust and Agency Group, Structured Finance,
10th floor, or at such other address as the Owner Trustee may designate by
notice to the Depositor, or the principal
corporate trust office of any successor Owner Trustee (the address of which the
successor owner trustee will notify the Depositor).
"Depositor" shall mean the Seller in its capacity as Depositor
hereunder.
"Distribution Date" shall have the meaning set forth in the Sale and
Servicing Agreement.
"ERISA" shall have the meaning assigned to such term in Section 3.9.
"Expenses" shall have the meaning assigned to such term in Section
7.2.
"Holder" or "Certificateholder" shall mean the person in whose name a
Certificate is registered on the Certificate Register.
"Indemnified Parties" shall have the meaning assigned to such term in
Section 7.2.
"Indenture" shall mean the Indenture dated as of February 17, 1998,
among the Issuer and ▇▇▇▇▇▇ Trust and Savings Bank, as Trust Collateral Agent
and Trustee, as the same may be amended and supplemented from time to time.
"Owner Trust Estate" shall mean all right, title and interest of the
Trust in and to the property and rights assigned to the Trust pursuant to
Article II of the Sale and Servicing Agreement, all funds on deposit from time
to time in the Trust Accounts and all other property of the Trust from time to
time, including any rights of the Owner Trustee and the Trust pursuant to the
Sale and Servicing Agreement and the Spread Account Agreement.
"Owner Trustee" shall mean Bankers Trust (Delaware), a Delaware
banking corporation, not in its individual capacity but solely as owner trustee
under this Agreement, and any successor Owner Trustee hereunder.
"Record Date" shall mean with respect to any Distribution Date, the
close of business on the last Business Day immediately preceding such
Distribution Date.
"Sale and Servicing Agreement" shall mean the Sale and Servicing
Agreement among the Trust, the Seller, AmeriCredit Financial Services, Inc. and
the Trust Collateral Agent, dated as of February 17, 1998, as the same may be
amended and supplemented from time to time.
"Secretary of State" shall mean the Secretary of State of the State of
Delaware.
"Security Insurer" shall mean Financial Security Assurance Inc., or
its successor in interest.
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"Spread Account" shall mean the Series Spread Account established and
maintained pursuant to the Spread Account Agreement.
"Spread Account Agreement" shall mean the Spread Account Agreement,
dated as of December 1, 1994 as amended and restated dated as of February 17,
1998, among the Seller, the Security Insurer, and the Trust Collateral Agent, as
the same may be amended, supplemented or otherwise modified in accordance with
the terms thereof.
"Treasury Regulations" shall mean regulations, including proposed or
temporary regulations, promulgated under the Code. References herein to
specific provisions of proposed or temporary regulations shall include analogous
provisions of final Treasury Regulations or other successor Treasury
Regulations.
"Trust" shall mean the trust established by this Agreement.
"Trust Collateral Agent" shall mean, initially, ▇▇▇▇▇▇ Trust and
Savings Bank, in its capacity as collateral agent, including its successors in
interest, until and unless a successor Person shall have become the Trust
Collateral Agent pursuant to the Sale and Servicing Agreement, and thereafter
"Trust Collateral Agent" shall mean such successor Person.
SECTION 1.2. Other Definitional Provisions.
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(a) Capitalized terms used herein and not otherwise defined have the
meanings assigned to them in the Sale and Servicing Agreement or, if not defined
therein, in the Spread Account Agreement or in the Indenture.
(b) All terms defined in this Agreement shall have the defined meanings
when used in any certificate or other document made or delivered pursuant hereto
unless otherwise defined therein.
(c) As used in this Agreement and in any certificate or other document
made or delivered pursuant hereto or thereto, accounting terms not defined in
this Agreement or in any such certificate or other document, and accounting
terms partly defined in this Agreement or in any such certificate or other
document to the extent not defined, shall have the respective meanings given to
them under generally accepted accounting principles as in effect on the date of
this Agreement or any such certificate or other document, as applicable. To the
extent that the definitions of accounting terms in this Agreement or in any such
certificate or other document are inconsistent with the meanings of such terms
under generally accepted accounting principles, the definitions contained in
this Agreement or in any such certificate or other document shall control.
(d) The words "hereof," "herein," "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement; Section and Exhibit
references contained in this Agreement are references to Sections and Exhibits
in or to this Agreement unless otherwise specified; and the term "including"
shall mean "including without limitation."
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(e) The definitions contained in this Agreement are applicable to the
singular as well as the plural forms of such terms and to the masculine as well
as to the feminine and neuter genders of such terms.
ARTICLE II.
Organization
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SECTION 2.1. Name. There is hereby formed a trust to be known as
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"AmeriCredit Automobile Receivables Trust 1998-A", in which name the Owner
Trustee may conduct the business of the Trust, make and execute contracts and
other instruments on behalf of the Trust and ▇▇▇ and be sued.
SECTION 2.2. Office. The office of the Trust shall be in care of the
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Owner Trustee at the Corporate Trust Office or at such other address as the
Owner Trustee may designate by written notice to the Certificateholder.
SECTION 2.3. Purposes and Powers. (a) The purpose of the Trust is,
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and the Trust shall have the power and authority, to engage in the following
activities:
(i) to issue the Notes pursuant to the Indenture and the Certificate
pursuant to this Agreement, and to sell the Notes;
(ii) with the proceeds of the sale of the Notes, to fund the Pre-Funding
Account, the Capitalized Interest Account and the Spread Account and to pay
the organizational, start-up and transactional expenses of the Trust and to
pay the balance to the Depositor pursuant to the Sale and Servicing
Agreement;
(iii) to assign, grant, transfer, pledge, mortgage and convey the Trust
Estate to the Trust Collateral Agent pursuant to the Indenture for the
benefit of the Security Insurer and the Indenture Trustee on behalf of the
Noteholders and to hold, manage and distribute to the Certificateholder
pursuant to the terms of the Sale and Servicing Agreement any portion of
the Trust Estate released from the Lien of, and remitted to the Trust
pursuant to, the Indenture; (iv) to enter into and perform its obligations
under the Basic Documents to which it is a party;
(v) to engage in those activities, including entering into agreements,
that are necessary, suitable or convenient to accomplish the foregoing or
are incidental thereto or connected therewith; and
(vi) subject to compliance with the Basic Documents, to engage in such
other activities as may be required in connection with conservation of the
Owner Trust Estate and the making of distributions to the Certificateholder
and the Noteholders.
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The Trust is hereby authorized to engage in the foregoing activities. The Trust
shall not engage in any activity other than in connection with the foregoing or
other than as required or authorized by the terms of this Agreement or the Basic
Documents.
SECTION 2.4. Appointment of Owner Trustee. The Depositor hereby
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appoints the Owner Trustee as trustee of the Trust effective as of the date
hereof, to have all the rights, powers and duties set forth herein.
SECTION 2.5. Initial Capital Contribution of Trust Estate. The
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Depositor hereby sells, assigns, transfers, conveys and sets over to the Owner
Trustee, as of the date hereof, the sum of $1. The Owner Trustee hereby
acknowledges receipt in trust from the Depositor, as of the date hereof, of the
foregoing contribution, which shall constitute the initial Owner Trust Estate.
The Depositor shall pay organizational expenses of the Trust as they may arise.
SECTION 2.6. Declaration of Trust. The Owner Trustee hereby declares
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that it will hold the Owner Trust Estate in trust upon and subject to the
conditions set forth herein for the use and benefit of the Holder, subject to
the obligations of the Trust under the Basic Documents. It is the intention of
the parties hereto that the Trust constitute a business trust under the Business
Trust Statute and that this Agreement constitute the governing instrument of
such business trust. Effective as of the date hereof, the Owner Trustee shall
have all rights, powers and duties set forth herein and to the extent not
inconsistent herewith, in the Business Trust Statute with respect to
accomplishing the purposes of the Trust. The Owner Trustee shall file the
Certificate of Trust with the Secretary of State.
The Holder shall not have any personal liability for any liability or
obligation of the Trust.
SECTION 2.7. Title to Trust Property. (a) Legal title to all the
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Owner Trust Estate shall be vested at all times in the Trust as a separate legal
entity except where applicable law in any jurisdiction requires title to any
part of the Owner Trust Estate to be vested in a trustee or trustees, in which
case title shall be deemed to be vested in the Owner Trustee, a co-trustee
and/or a separate trustee, as the case may be.
(b) The Holder shall not have legal title to any part of the Trust
Property. The Holder shall be entitled to receive distributions with respect to
its undivided ownership interest therein only in accordance with Article VIII.
No transfer, by operation of law or otherwise, of any right, title or interest
by the Certificateholder of its ownership interest in the Owner Trust Estate
shall operate to terminate this Agreement or the trusts hereunder or entitle any
transferee to an accounting or to the transfer to it of legal title to any part
of the Trust Property.
SECTION 2.8. Situs of Trust. The Trust will be located and
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administered in the State of Delaware. All bank accounts maintained by the Owner
Trustee on behalf of the Trust shall be located in the State of Delaware, the
State of Illinois or the State of New York. Payments will be received by the
Trust only in Delaware or New York and
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payments will be made by the Trust only from Delaware or New York. The Trust
shall not have any employees in any state other than Delaware; provided,
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however, that nothing herein shall restrict or prohibit the Owner Trustee,
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the Servicer or any agent of the Trust from having employees within or
without the State of Delaware. The only office of the Trust will be at the
Corporate Trust Office in Delaware.
SECTION 2.9. Representations and Warranties of the Depositor. The
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Depositor makes the following representations and warranties on which the Owner
Trustee relies in accepting the Owner Trust Estate in trust and issuing the
Certificate and upon which the Security Insurer relies in issuing the Note
Policy.
(a) Organization and Good Standing. The Depositor is duly organized
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and validly existing as a Nevada corporation with power and authority to own its
properties and to conduct its business as such properties are currently owned
and such business is presently conducted and is proposed to be conducted
pursuant to this Agreement and the Basic Documents.
(b) Due Qualification. It is duly qualified to do business as a foreign
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corporation in good standing, and has obtained all necessary licenses and
approvals, in all jurisdictions in which the ownership or lease of its property,
the conduct of its business and the performance of its obligations under this
Agreement and the Basic Documents requires such qualification.
(c) Power and Authority. The Depositor has the corporate power and
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authority to execute and deliver this Agreement and to carry out its terms; the
Depositor has full power and authority to sell and assign the property to be
sold and assigned to and deposited with the Trust and the Depositor has duly
authorized such sale and assignment and deposit to the Trust by all necessary
corporate action; and the execution, delivery and performance of this Agreement
has been duly authorized by the Depositor by all necessary corporate action.
(d) No Consent Required. No consent, license, approval or authorization
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or registration or declaration with, any Person or with any governmental
authority, bureau or agency is required in connection with the execution,
delivery or performance of this Agreement and the Basic Documents, except for
such as have been obtained, effected or made.
(e) No Violation. The consummation of the transactions contemplated by
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this Agreement and the fulfillment of the terms hereof do not conflict with,
result in any breach of any of the terms and provisions of, or constitute (with
or without notice or lapse of time) a default under, the certificate of
incorporation or by-laws of the Depositor, or any material indenture, agreement
or other instrument to which the Depositor is a party or by which it is bound;
nor result in the creation or imposition of any Lien upon any of its properties
pursuant to the terms of any such indenture, agreement or other instrument
(other than pursuant to the Basic Documents); nor violate any law or, to the
best of the Depositor's knowledge, any order, rule or regulation applicable to
the Depositor of any
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court or of any Federal or state regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over the Depositor or its
properties.
(f) No Proceedings. There are no proceedings or investigations pending
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or, to its knowledge threatened against it before any court, regulatory body,
administrative agency or other tribunal or governmental instrumentality having
jurisdiction over it or its properties (A) asserting the invalidity of this
Agreement or any of the Basic Documents, (B) seeking to prevent the issuance of
the Certificate or the Notes or the consummation of any of the transactions
contemplated by this Agreement or any of the Basic Documents, (C) seeking any
determination or ruling that might materially and adversely affect its
performance of its obligations under, or the validity or enforceability of, this
Agreement or any of the Basic Documents, or (D) seeking to adversely affect the
federal income tax or other federal, state or local tax attributes of the
Certificate.
SECTION 2.10. Covenants of the Certificateholder. The Certificateholder
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agrees:
(a) to be bound by the terms and conditions of the Certificate of which
the Holder is the beneficial owner and of this Agreement, including any
supplements or amendments hereto and to perform the obligations of a Holder as
set forth therein or herein, in all respects as if it were a signatory hereto.
This undertaking is made for the benefit of the Trust, the Owner Trustee and the
Security Insurer; and
(b) until the completion of the events specified in Section 8.1(d), not
to, for any reason, institute proceedings for the Trust to be adjudicated a
bankrupt or insolvent, or consent to the institution of bankruptcy or insolvency
proceedings against the Trust, or file a petition seeking or consenting to
reorganization or relief under any applicable federal or state law relating to
bankruptcy, or consent to the appointment of a receiver, liquidator, assignee,
trustee, sequestrator (or other similar official) of the Trust or a substantial
part of its property, or cause or permit the Trust to make any assignment for
the benefit of its creditors, or admit in writing its inability to pay its debts
generally as they become due, or declare or effect a moratorium on its debt or
take any action in furtherance of any such action.
SECTION 2.11. Federal income tax treatment of the Trust. (a) For so
-----------------------------------------
long as the Trust has a single owner for federal income tax purposes, it will,
pursuant to Treasury Regulations promulgated under section 7701 of the Code, be
disregarded as an entity distinct from the Certificateholder for all federal
income tax purposes. Accordingly, for federal income tax purposes, the
Certificateholder will be treated as (i) owning all assets owned by the Trust,
(ii) having incurred all liabilities incurred by the Trust, and (iii) all
transactions between the Trust and the Certificateholder will be disregarded.
(b) In the event that the Trust has two equity owners for federal
income tax purposes, the Trust will be treated as a partnership. At any such
time that the Trust has two equity owners, this Agreement will be amended, in
accordance with Section 10.1
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herein, and appropriate provisions will be added so as to provide for treatment
of the Trust as a partnership.
ARTICLE III.
Certificate and Transfer of Interest
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SECTION 3.1. Initial Ownership. Upon the formation of the Trust by
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the contribution by the Depositor pursuant to Section 2.5 and until the issuance
of the Certificate, the Depositor shall be the sole beneficiary of the Trust.
SECTION 3.2. The Certificate. The Certificate shall be executed on
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behalf of the Trust by manual or facsimile signature of an authorized officer of
the Owner Trustee. A Certificate bearing the manual or facsimile signatures of
individuals who were, at the time when such signatures shall have been affixed,
authorized to sign on behalf of the Trust, shall be validly issued and entitled
to the benefit of this Agreement, notwithstanding that such individuals or any
of them shall have ceased to be so authorized prior to the authentication and
delivery of such Certificate or did not hold such offices at the date of
authentication and delivery of such Certificate. A transferee of a Certificate
shall become a Certificateholder, and shall be entitled to the rights and
subject to the obligations of a Certificateholder hereunder, upon due
registration of such Certificate in such transferee's name pursuant to Section
3.4.
SECTION 3.3. Authentication of Certificate. Concurrently with the
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initial sale of the Receivables to the Trust pursuant to the Sale and Servicing
Agreement, the Owner Trustee shall cause the Certificate to be executed on
behalf of the Trust, authenticated and delivered to or upon the written order of
the Depositor, signed by its chairman of the board, its president or any vice
president, its treasurer or any assistant treasurer without further corporate
action by the Depositor, in authorized denominations. No Certificate shall
entitle its holder to any benefit under this Agreement, or shall be valid for
any purpose, unless there shall appear on such Certificate a certificate of
authentication substantially in the form set forth in Exhibit A, executed by the
Owner Trustee or Bankers Trust Company as the Owner Trustee's authentication
agent, by manual signature; such authentication shall constitute conclusive
evidence that such Certificate shall have been duly authenticated and delivered
hereunder. The Certificate shall be dated the date of its authentication.
SECTION 3.4. Registration of Transfer and Exchange of Certificate.
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The Certificate Registrar shall keep or cause to be kept, at the office or
agency maintained pursuant to Section 3.7, a Certificate Register in which,
subject to such reasonable regulations as it may prescribe, the Owner Trustee
shall provide for the registration of the Certificate and of transfers and
exchanges of the Certificate as herein provided. Bankers Trust Company shall be
the initial Certificate Registrar.
The Certificate Registrar shall provide the Trust Collateral Agent
with the name and address of the Certificateholder on the Closing Date. Upon
any transfers of the
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Certificate, the Certificate Registrar shall notify the Trust Collateral Agent
of the name and address of the transferee in writing, by facsimile, on the day
of such transfer.
Upon surrender for registration of transfer of the Certificate at the
office or agency maintained pursuant to Section 3.7, the Owner Trustee shall
execute, authenticate and deliver (or shall cause Bankers Trust Company as its
authenticating agent to authenticate and deliver), in the name of the designated
transferee, a new Certificate dated the date of authentication by the Owner
Trustee or any authenticating agent.
A Certificate presented or surrendered for registration of transfer or
exchange shall be accompanied by a written instrument of transfer in form
satisfactory to the Owner Trustee and the Certificate Registrar duly executed by
the Certificateholder or his attorney duly authorized in writing, with such
signature guaranteed by an "eligible guarantor institution" meeting the
requirements of the Certificate Registrar, which requirements include membership
or participation in the Securities Transfer Agent's Medallion Program ("STAMP")
or such other "signature guarantee program" as may be determined by the
Certificate Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Exchange Act. Each Certificate surrendered for registration
of transfer or exchange shall be canceled and subsequently disposed of by the
Owner Trustee in accordance with its customary practice.
No service charge shall be made for any registration of transfer or
exchange of the Certificate, but the Owner Trustee or the Certificate Registrar
may require payment of a sum sufficient to cover any tax or governmental charge
that may be imposed in connection with any transfer or exchange of the
Certificate.
SECTION 3.5. Mutilated, Destroyed, Lost or Stolen Certificates. If
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(a) any mutilated Certificate shall be surrendered to the Certificate Registrar,
or if the Certificate Registrar shall receive evidence to its satisfaction of
the destruction, loss or theft of any Certificate and (b) there shall be
delivered to the Certificate Registrar, the Owner Trustee and (unless an Insurer
Default shall have occurred and be continuing) the Security Insurer, such
security or indemnity as may be required by them to save each of them harmless,
then in the absence of notice that such Certificate shall have been acquired by
a bona fide purchaser, the Owner Trustee on behalf of the Trust shall execute
and the Owner Trustee, or Bankers Trust Company, as the Owner Trustee's
authenticating agent, shall authenticate and deliver, in exchange for or in lieu
of any such mutilated, destroyed, lost or stolen Certificate, a new Certificate
of like class, tenor and denomination. In connection with the issuance of any
new Certificate under this Section, the Owner Trustee or the Certificate
Registrar may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection therewith. Any duplicate
Certificate issued pursuant to this Section shall constitute conclusive evidence
of an ownership interest in the Trust, as if originally issued, whether or not
the lost, stolen or destroyed Certificate shall be found at any time.
SECTION 3.6. Persons Deemed Certificateholders. Every Person by
---------------------------------
virtue of becoming a Certificateholder in accordance with this Agreement shall
be deemed to be bound by the terms of this Agreement. Prior to due presentation
of the
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Certificate for registration of transfer, the Owner Trustee, the Certificate
Registrar and the Security Insurer and any agent of the Owner Trustee, the
Certificate Registrar and the Security Insurer, may treat the person in whose
name any Certificate shall be registered in the Certificate Register as the
owner of such Certificate for the purpose of receiving distributions pursuant to
the Sale and Servicing Agreement and for all other purposes whatsoever, and none
of the Owner Trustee, the Certificate Registrar or the Security Insurer nor any
agent of the Owner Trustee, the Certificate Registrar or the Security Insurer
shall be bound by any notice to the contrary.
SECTION 3.7. Maintenance of Office or Agency. The Owner Trustee shall
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maintain in New York, an office or offices or agency or agencies where the
Certificate may be surrendered for registration of transfer or exchange and
where notices and demands to or upon the Owner Trustee in respect of the
Certificate and the Basic Documents may be served. The Owner Trustee initially
designates Bankers Trust Company, ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, as
its principal corporate trust office for such purposes. The Owner Trustee shall
give prompt written notice to the Depositor, the Certificateholder and (unless
an Insurer Default shall have occurred and be continuing) the Security Insurer
of any change in the location of the Certificate Register or any such office or
agency.
SECTION 3.8. Disposition In Whole But Not In Part. The Certificate
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may be transferred in whole but not in part. Any attempted transfer of the
Certificate that would divide the ownership of the Trust Estate shall be void.
The Certificate is only transferable (i) to an Affiliate of AmeriCredit Corp.
whose stock has been pledged to the Security Insurer or (ii) to another entity
with the prior written consent of the Security Insurer in its sole discretion.
The Owner Trustee shall cause any Certificate issued to contain a legend stating
"THIS CERTIFICATE IS NOT TRANSFERABLE, EXCEPT UNDER THE LIMITED CONDITIONS
SPECIFIED IN THE TRUST AGREEMENT".
SECTION 3.9. ERISA Restrictions. The Certificate may not be acquired
------------------
by or for the account of (i) an employee benefit plan (as defined in Section
3(3) of the Employee Retirement Income Security Act of 1974, as amended
("ERISA")) that is subject to the provisions of Title I of ERISA, (ii) a plan
described in Section 4975(e)(1) of the Internal Revenue Code of 1986, as
amended, or (iii) any entity whose underlying assets include plan assets by
reason of a plan's investment in the entity (each, a "Benefit Plan"). By
accepting and holding its beneficial ownership interest in its Certificate, the
Holder thereof shall be deemed to have represented and warranted that it is not
a Benefit Plan.
ARTICLE IV.
Voting Rights and Other Actions
-------------------------------
SECTION 4.1. Prior Notice to Holder with Respect to Certain Matters.
------------------------------------------------------
With respect to the following matters, the Owner Trustee shall not take action
unless at least 30 days before the taking of such action, the Owner Trustee
shall have notified the Certificateholder in writing of the proposed action and
the Certificateholder shall not
10
have notified the Owner Trustee in writing prior to the 30th day after such
notice is given that the Certificateholder has withheld consent or provided
alternative direction :
(a) the election by the Trust to file an amendment to the Certificate
of Trust (unless such amendment is required to be filed under the Business Trust
Statute or unless such amendment would not materially and adversely affect the
interests of the Holder);
(b) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is required;
(c) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is not required and such
amendment materially adversely affects the interest of the Certificateholder; or
(d) except pursuant to Section 12.1(b) of the Sale and Servicing
Agreement, the amendment, change or modification of the Sale and Servicing
Agreement, except to cure any ambiguity or defect or to amend or supplement any
provision in a manner that would not materially adversely affect the interests
of the Certificateholder.
The Owner Trustee shall notify the Certificateholder in writing of any
appointment of a successor Note Registrar or Trust Collateral Agent within five
Business Days after receipt of notice thereof.
SECTION 4.2. Action by Certificateholder with Respect to Certain
---------------------------------------------------
Matters. The Owner Trustee shall not have the power, except upon the direction
-------
of the Certificateholder or the Security Insurer in accordance with the Basic
Documents, to (a) remove the Servicer under the Sale and Servicing Agreement
pursuant to Section 7.1 thereof or (b) except as expressly provided in the Basic
Documents, sell the Receivables after the termination of the Indenture. The
Owner Trustee shall take the actions referred to in the preceding sentence only
upon written instructions signed by the Certificateholder and the furnishing of
indemnification satisfactory to the Owner Trustee by the Certificateholder.
SECTION 4.3. Restrictions on Certificateholder's Power. (a) The
-----------------------------------------
Certificateholder shall not direct the Owner Trustee to take or refrain from
taking any action if such action or inaction would be contrary to any obligation
of the Trust or the Owner Trustee under this Agreement or any of the Basic
Documents or would be contrary to Section 2.3 nor shall the Owner Trustee be
obligated to follow any such direction, if given.
(b) The Certificateholder shall not have any right by virtue or by
availing itself of any provisions of this Agreement to institute any suit,
action, or proceeding in equity or at law upon or under or with respect to this
Agreement or any Basic Document, unless the Certificateholder is the Instructing
Party pursuant to Section 5.3 and unless the Certificateholder previously shall
have given to the Owner Trustee a written notice of default and of the
continuance thereof, as provided in this Agreement, and also unless
11
Certificateholder shall have made written request upon the Owner Trustee to
institute such action, suit or proceeding in its own name as Owner Trustee under
this Agreement and shall have offered to the Owner Trustee such reasonable
indemnity as it may require against the costs, expenses and liabilities to be
incurred therein or thereby, and the Owner Trustee, for 30 days after its
receipt of such notice, request, and offer of indemnity, shall have neglected or
refused to institute any such action, suit, or proceeding, and during such 30-
day period no request or waiver inconsistent with such written request has been
given to the Owner Trustee pursuant to and in compliance with this Section or
Section 5.3. For the protection and enforcement of the provisions of this
Section, the Certificateholder and the Owner Trustee shall be entitled to such
relief as can be given either at law or in equity.
SECTION 4.4. Rights of Security Insurer. Notwithstanding anything to
--------------------------
the contrary in the Basic Documents, without the prior written consent of the
Security Insurer (so long as no Insurer Default shall have occurred and be
continuing), the Owner Trustee shall not (i) remove the Servicer, (ii) initiate
any claim, suit or proceeding by the Trust or compromise any claim, suit or
proceeding brought by or against the Trust, other than with respect to the
enforcement of any Receivable or any rights of the Trust thereunder, (iii)
authorize the merger or consolidation of the Trust with or into any other
business trust or other entity (other than in accordance with Section 3.10 of
the Indenture) or (iv) amend the Certificate of Trust.
ARTICLE V.
Authority and Duties of Owner Trustee
-------------------------------------
SECTION 5.1. General Authority. (a) The Owner Trustee is authorized
-----------------
and directed to execute and deliver the Basic Documents to which the Trust is
named as a party and each certificate or other document attached as an exhibit
to or contemplated by the Basic Documents to which the Trust is named as a party
and any amendment thereto, in each case, in such form as the Depositor shall
approve as evidenced conclusively by the Owner Trustee's execution thereof, and
on behalf of the Trust, to direct the Indenture Trustee to authenticate and
deliver Class A-1 Notes in the aggregate principal amount of $97,000,000, Class
A-2 Notes in the aggregate principal amount of $200,000,000 and Class A-3 Notes
in the aggregate principal amount of $128,000,000. In addition to the foregoing,
the Owner Trustee is authorized, but shall not be obligated, to take all actions
required of the Trust pursuant to the Basic Documents. The Owner Trustee is
further authorized from time to time to take such action as the Instructing
Party recommends with respect to the Basic Documents so long as such activities
are consistent with the terms of the Basic Documents.
(b) The Owner Trustee shall sign on behalf of the Trust any applicable
tax returns of the Trust, unless applicable law requires a Certificateholder to
sign such documents.
SECTION 5.2. General Duties. It shall be the duty of the Owner
--------------
Trustee to discharge (or cause to be discharged) all of its responsibilities
pursuant to the terms of this
12
Agreement and the Sale and Servicing Agreement and to administer the Trust in
the interest of the Holder, subject to the Basic Documents and in accordance
with the provisions of this Agreement. Notwithstanding the foregoing, the Owner
Trustee shall be deemed to have discharged its duties and responsibilities
hereunder and under the Basic Documents to the extent the Servicer has agreed in
the Sale and Servicing Agreement to perform any act or to discharge any duty of
the Trust or the Owner Trustee hereunder or under any Basic Document, and the
Owner Trustee shall not be liable for the default or failure of the Servicer to
carry out its obligations under the Sale and Servicing Agreement.
SECTION 5.3. Action upon Instruction. (a) Subject to Article IV and
-----------------------
the terms of the Spread Account Agreement, the Security Insurer (so long as an
Insurer Default shall not have occurred and be continuing) or the
Certificateholder (if an Insurer Default shall have occurred and be continuing)
(the "Instructing Party") shall have the exclusive right to direct the actions
of the Owner Trustee in the management of the Trust, so long as such
instructions are not inconsistent with the express terms set forth herein or in
any Basic Document. The Instructing Party shall not instruct the Owner Trustee
in a manner inconsistent with this Agreement or the Basic Documents.
(b) The Owner Trustee shall not be required to take any action
hereunder or under any Basic Document if the Owner Trustee shall have reasonably
determined, or shall have been advised by counsel, that such action is likely to
result in liability on the part of the Owner Trustee or is contrary to the terms
hereof or of any Basic Document or is otherwise contrary to law.
(c) Whenever the Owner Trustee is unable to decide between alternative
courses of action permitted or required by the terms of this Agreement or any
Basic Document, the Owner Trustee shall promptly give notice (in such form as
shall be appropriate under the circumstances) to the Instructing Party
requesting instruction as to the course of action to be adopted, and to the
extent the Owner Trustee acts in good faith in accordance with any written
instruction of the Instructing Party received, the Owner Trustee shall not be
liable on account of such action to any Person. If the Owner Trustee shall not
have received appropriate instruction within ten days of such notice (or within
such shorter period of time as reasonably may be specified in such notice or may
be necessary under the circumstances) it may, but shall be under no duty to,
take or refrain from taking such action, not inconsistent with this Agreement or
the Basic Documents, as it shall deem to be in the best interests of the
Certificateholder, and shall have no liability to any Person for such action or
inaction.
(d) In the event that the Owner Trustee is unsure as to the application
of any provision of this Agreement or any Basic Document or any such provision
is ambiguous as to its application, or is, or appears to be, in conflict with
any other applicable provision, or in the event that this Agreement permits any
determination by the Owner Trustee or is silent or is incomplete as to the
course of action that the Owner Trustee is required to take with respect to a
particular set of facts, the Owner Trustee may give notice (in such form as
shall be appropriate under the circumstances) to the Instructing Party
requesting instruction and, to the extent that the Owner Trustee acts or
13
refrains from acting in good faith in accordance with any such instruction
received, the Owner Trustee shall not be liable, on account of such action or
inaction, to any Person. If the Owner Trustee shall not have received
appropriate instruction within 10 days of such notice (or within such shorter
period of time as reasonably may be specified in such notice or may be necessary
under the circumstances) it may, but shall be under no duty to, take or refrain
from taking such action, not inconsistent with this Agreement or the Basic
Documents, as it shall deem to be in the best interests of the
Certificateholder, and shall have no liability to any Person for such action or
inaction.
SECTION 5.4. No Duties Except as Specified in this Agreement or in
-----------------------------------------------------
Instructions. The Owner Trustee shall not have any duty or obligation to manage,
------------
make any payment with respect to, register, record, sell, dispose of, or
otherwise deal with the Owner Trust Estate, or to otherwise take or refrain from
taking any action under, or in connection with, any document contemplated hereby
to which the Owner Trustee is a party, except as expressly provided by the terms
of this Agreement or in any document or written instruction received by the
Owner Trustee pursuant to Section 5.3; and no implied duties or obligations
shall be read into this Agreement or any Basic Document against the Owner
Trustee. The Owner Trustee shall have no responsibility for filing any financing
or continuation statement in any public office at any time or to otherwise
perfect or maintain the perfection of any security interest or lien granted to
it hereunder or to prepare or file any Commission filing for the Trust or to
record this Agreement or any Basic Document. The Owner Trustee nevertheless
agrees that it will, at its own cost and expense, promptly take all action as
may be necessary to discharge any Liens on any part of the Owner Trust Estate
that result from actions by, or claims against, the Owner Trustee (solely in its
individual capacity) and that are not related to the ownership or the
administration of the Owner Trust Estate.
SECTION 5.5. No Action Except under Specified Documents or
---------------------------------------------
Instructions. The Owner Trustee shall not manage, control, use, sell, dispose of
------------
or otherwise deal with any part of the Owner Trust Estate except (i) in
accordance with the powers granted to and the authority conferred upon the Owner
Trustee pursuant to this Agreement, (ii) in accordance with the Basic Documents
and (iii) in accordance with any document or instruction delivered to the Owner
Trustee pursuant to Section 5.3.
SECTION 5.6. Restrictions. The Owner Trustee shall not take any
------------
action (a) that is inconsistent with the purposes of the Trust set forth in
Section 2.3 or (b) that, to the actual knowledge of the Owner Trustee, would
result in the Trust's becoming taxable as a corporation for Federal income tax
purposes. The Certificateholder shall not direct the Owner Trustee to take
action that would violate the provisions of this Section.
ARTICLE VI.
Concerning the Owner Trustee
----------------------------
SECTION 6.1. Acceptance of Trusts and Duties. The Owner Trustee
-------------------------------
accepts the trusts hereby created and agrees to perform its duties hereunder
with respect to such trusts but only upon the terms of this Agreement. The Owner
Trustee also agrees
14
to disburse all moneys actually received by it constituting part of the Owner
Trust Estate upon the terms of the Basic Documents and this Agreement. The Owner
Trustee shall not be answerable or accountable hereunder or under any Basic
Document under any circumstances, except (i) for its own willful misconduct, bad
faith or negligence, (ii) in the case of the inaccuracy of any representation or
warranty contained in Section 6.3 expressly made by the Owner Trustee, (iii) for
liabilities arising from the failure of the Owner Trustee to perform obligations
expressly undertaken by it in the last sentence of Section 5.4 hereof, (iv) for
any investments issued by the Owner Trustee or any branch or affiliate thereof
in its commercial capacity or (v) for taxes, fees or other charges on, based on
or measured by, any fees, commissions or compensation received by the Owner
Trustee. In particular, but not by way of limitation (and subject to the
exceptions set forth in the preceding sentence):
(a) the Owner Trustee shall not be liable for any error of judgment
made by a Responsible Officer of the Owner Trustee;
(b) the Owner Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in accordance with the instructions of the
Instructing Party, the Servicer or the Certificateholder;
(c) no provision of this Agreement or any Basic Document shall require
the Owner Trustee to expend or risk funds or otherwise incur any financial
liability in the performance of any of its rights or powers hereunder or under
any Basic Document if the Owner Trustee shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured or provided to it;
(d) under no circumstances shall the Owner Trustee be liable for
indebtedness evidenced by or arising under any of the Basic Documents, including
the principal of and interest on the Notes;
(e) the Owner Trustee shall not be responsible for or in respect of the
validity or sufficiency of this Agreement or for the due execution hereof by the
Depositor or for the form, character, genuineness, sufficiency, value or
validity of any of the Owner Trust Estate or for or in respect of the validity
or sufficiency of the Basic Documents, other than the certificate of
authentication on the Certificate, and the Owner Trustee shall in no event
assume or incur any liability, duty or obligation to the Security Insurer,
Trustee, Trust Collateral Agent, the Collateral Agent, any Noteholder or to any
Certificateholder, other than as expressly provided for herein and in the Basic
Documents;
(f) the Owner Trustee shall not be liable for the default or misconduct
of the Security Insurer, the Trustee, the Trust Collateral Agent or the Servicer
under any of the Basic Documents or otherwise and the Owner Trustee shall have
no obligation or liability to perform the obligations under this Agreement or
the Basic Documents that are required to be performed by the Trustee under the
Indenture or the Trust Collateral Agent or the Servicer under the Sale and
Servicing Agreement; and
15
(g) the Owner Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Agreement, or to institute, conduct or
defend any litigation under this Agreement or otherwise or in relation to this
Agreement or any Basic Document, at the request, order or direction of the
Instructing Party or the Certificateholder, unless such Instructing Party or
Certificateholder has offered to the Owner Trustee security or indemnity
satisfactory to it against the costs, expenses and liabilities that may be
incurred by the Owner Trustee therein or thereby. The right of the Owner Trustee
to perform any discretionary act enumerated in this Agreement or in any Basic
Document shall not be construed as a duty, and the Owner Trustee shall not be
answerable for other than its negligence, bad faith or willful misconduct in the
performance of any such act.
SECTION 6.2. Furnishing of Documents. The Owner Trustee shall furnish
-----------------------
to the Certificateholder promptly upon receipt of a written request therefor,
duplicates or copies of all reports, notices, requests, demands, certificates,
financial statements and any other instruments furnished to the Owner Trustee
under the Basic Documents.
SECTION 6.3. Representations and Warranties. The Owner Trustee hereby
------------------------------
represents and warrants to the Depositor, the Holder and the Security Insurer
(which shall have relied on such representations and warranties in issuing the
Note Policy), that:
(a) It is a Delaware banking corporation, duly organized and validly
existing in good standing under the laws of the State of Delaware. It has all
requisite corporate power and authority to execute, deliver and perform its
obligations under this Agreement.
(b) It has taken all corporate action necessary to authorize the
execution and delivery by it of this Agreement, and this Agreement will be
executed and delivered by one of its officers who is duly authorized to execute
and deliver this Agreement on its behalf.
(c) Neither the execution nor the delivery by it of this Agreement, nor
the consummation by it of the transactions contemplated hereby nor compliance by
it with any of the terms or provisions hereof will contravene any federal or
Delaware state law, governmental rule or regulation governing the banking or
trust powers of the Owner Trustee or any judgment or order binding on it, or
constitute any default under its charter documents or by-laws or any indenture,
mortgage, contract, agreement or instrument to which it is a party or by which
any of its properties may be bound.
SECTION 6.4. Reliance; Advice of Counsel. (a) The Owner Trustee shall
---------------------------
incur no liability to anyone in acting upon any signature, instrument, notice,
resolution, request, consent, order, certificate, report, opinion, bond or other
document or paper believed by it to be genuine and believed by it to be signed
by the proper party or parties. The Owner Trustee may accept a certified copy of
a resolution of the board of directors or other governing body of any corporate
party as conclusive evidence that such
16
resolution has been duly adopted by such body and that the same is in full force
and effect. As to any fact or matter the method of the determination of which is
not specifically prescribed herein, the Owner Trustee may for all purposes
hereof rely on a certificate, signed by the president or any vice president or
by the treasurer, secretary or other authorized officers of the relevant party,
as to such fact or matter, and such certificate shall constitute full protection
to the Owner Trustee for any action taken or omitted to be taken by it in good
faith in reliance thereon.
(b) In the exercise or administration of the trusts hereunder and in
the performance of its duties and obligations under this Agreement or the Basic
Documents, the Owner Trustee (i) may act directly or through its agents or
attorneys pursuant to agreements entered into with any of them, and the Owner
Trustee shall not be liable for the conduct or misconduct of such agents or
attorneys if such agents or attorneys shall have been selected by the Owner
Trustee with reasonable care, and (ii) may consult with counsel, accountants and
other skilled persons to be selected with reasonable care and employed by it.
The Owner Trustee shall not be liable for anything done, suffered or omitted in
good faith by it in accordance with the written opinion or advice of any such
counsel, accountants or other such persons and according to such opinion not
contrary to this Agreement or any Basic Document.
SECTION 6.5. Not Acting in Individual Capacity. Except as provided in
---------------------------------
this Article VI, in accepting the trusts hereby created Bankers Trust (Delaware)
acts solely as Owner Trustee hereunder and not in its individual capacity and
all Persons having any claim against the Owner Trustee by reason of the
transactions contemplated by this Agreement or any Basic Document shall look
only to the Owner Trust Estate for payment or satisfaction thereof.
SECTION 6.6. Owner Trustee Not Liable for Certificate or
-------------------------------------------
Receivables. The recitals contained herein and in the Certificate (other than
-----------
the signature and countersignature of the Owner Trustee on the Certificate)
shall be taken as the statements of the Depositor and the Owner Trustee assumes
no responsibility for the correctness thereof. The Owner Trustee makes no
representations as to the validity or sufficiency of this Agreement, of any
Basic Document or of the Certificate (other than the signature and
countersignature of the Owner Trustee on the Certificate) or the Notes, or of
any Receivable or related documents. The Owner Trustee shall at no time have
any responsibility or liability for or with respect to the legality, validity
and enforceability of any Receivable, or the perfection and priority of any
security interest created by any Receivable in any Financed Vehicle or the
maintenance of any such perfection and priority, or for or with respect to the
sufficiency of the Owner Trust Estate or its ability to generate the payments to
be distributed to Certificateholder under this Agreement or the Noteholders
under the Indenture, including, without limitation: the existence, condition
and ownership of any Financed Vehicle; the existence and enforceability of any
insurance thereon; the existence and contents of any Receivable on any computer
or other record thereof; the validity of the assignment of any Receivable to the
Trust or of any intervening assignment; the completeness of any Receivable; the
performance or enforcement of any Receivable; the compliance by the Depositor,
the Servicer or any other Person with any warranty or representation made under
any Basic Document or in
17
any related document or the accuracy of any such warranty or representation or
any action of the Trustee or the Servicer or any subservicer taken in the name
of the Owner Trustee.
SECTION 6.7. Owner Trustee May Own Notes. The Owner Trustee in its
---------------------------
individual or any other capacity may become the owner or pledgee of the Notes
and may deal with the Depositor, the Trustee and the Servicer in banking
transactions with the same rights as it would have if it were not Owner Trustee.
SECTION 6.8. Payments from Owner Trust Estate. All payments to be
--------------------------------
made by the Owner Trustee under this Agreement or any of the Basic Documents to
which the Trust or the Owner Trustee is a party shall be made only from the
income and proceeds of the Owner Trust Estate and only to the extent that the
Owner Trust shall have received income or proceeds from the Owner Trust Estate
to make such payments in accordance with the terms hereof. Bankers Trust
(Delaware), or any successor thereto, in its individual capacity, shall not be
liable for any amounts payable under this Agreement or any of the Basic
Documents to which the Trust or the Owner Trustee is a party.
SECTION 6.9. Doing Business in Other Jurisdictions. Notwithstanding
-------------------------------------
anything contained to the contrary, neither Bankers Trust (Delaware) or any
successor thereto, nor the Owner Trustee shall be required to take any action in
any jurisdiction other than in the State of Delaware if the taking of such
action will, even after the appointment of a co-trustee or separate trustee in
accordance with Section 9.5 hereof, (i) require the consent or approval or
authorization or order of or the giving of notice to, or the registration with
or the taking of any other action in respect of, any state or other governmental
authority or agency of any jurisdiction other than the State of Delaware; (ii)
result in any fee, tax or other governmental charge under the laws of the State
of Delaware becoming payable by Bankers Trust (Delaware) (or any successor
thereto); or (iii) subject Bankers Trust (Delaware) (or any successor thereto)
to personal jurisdiction in any jurisdiction other than the State of Delaware
for causes of action arising from acts unrelated to the consummation of the
transactions by Bankers Trust (Delaware) (or any successor thereto) or the Owner
Trustee, as the case may be, contemplated hereby.
ARTICLE VII.
Compensation of Owner Trustee
-----------------------------
SECTION 7.1. Owner Trustee's Fees and Expenses. The Owner Trustee
---------------------------------
shall receive as compensation for its services hereunder such fees as have been
separately agreed upon before the date hereof between AmeriCredit and the Owner
Trustee, and the Owner Trustee shall be entitled to be reimbursed by the
Depositor for its other reasonable expenses hereunder, including the reasonable
compensation, expenses and disbursements of such agents, representatives,
experts and counsel as the Owner Trustee may employ in connection with the
exercise and performance of its rights and its duties hereunder and under the
Basic Documents.
18
SECTION 7.2. Indemnification. The Depositor shall be liable as
---------------
primary obliger for, and shall indemnify the Owner Trustee and its officers,
directors, successors, assigns, agents and servants (collectively, the
"Indemnified Parties") from and against, any and all liabilities, obligations,
losses, damages, taxes, claims, actions and suits, and any and all reasonable
costs, expenses and disbursements (including reasonable legal fees and expenses)
of any kind and nature whatsoever (collectively, "Expenses") which may at any
time be imposed on, incurred by, or asserted against the Owner Trustee or any
Indemnified Party in any way relating to or arising out of this Agreement, the
Basic Documents, the Owner Trust Estate, the administration of the Owner Trust
Estate or the action or inaction of the Owner Trustee hereunder, except only
that the Depositor shall not be liable for or required to indemnify the Owner
Trustee from and against Expenses arising or resulting from any of the matters
described in the third sentence of Section 6.1. The indemnities contained in
this Section and the rights under Section 7.1 shall survive the resignation or
termination of the Owner Trustee or the termination of this Agreement. In any
event of any claim, action or proceeding for which indemnity will be sought
pursuant to this Section, the Owner Trustee's choice of legal counsel shall be
subject to the approval of the Depositor which approval shall not be
unreasonably withheld.
SECTION 7.3. Payments to the Owner Trustee. Any amounts paid to the
-----------------------------
Owner Trustee pursuant to this Article VII shall be deemed not to be a part of
the Owner Trust Estate immediately after such payment.
SECTION 7.4. Non-recourse Obligations. Notwithstanding anything in
------------------------
this Agreement or any Basic Document, the Owner Trustee agrees in its individual
capacity and in its capacity as Owner Trustee for the Trust that all obligations
of the Trust to the Owner Trustee individually or as Owner Trustee for the Trust
shall be recourse to the Owner Trust Estate only and specifically shall not be
recourse to the assets of the Holder.
ARTICLE VIII.
Termination of Trust Agreement
------------------------------
SECTION 8.1. Termination of Trust Agreement. (a) This Agreement and
------------------------------
the Trust shall terminate and be of no further force or effect upon the latest
of (i) the maturity or other liquidation of the last Receivable (including the
purchase by the Servicer at its option of the corpus of the Trust as described
in Section 10.1 of the Sale and Servicing Agreement) and the subsequent
distribution of amounts in respect of such Receivables as provided in the Basic
Documents, or (ii) the payment to the Certificateholder of all amounts required
to be paid to it pursuant to this Agreement and the payment to the Security
Insurer of all amounts payable or reimbursable to it pursuant to the Sale and
Servicing Agreement; provided, however, that the rights to indemnification
-------- -------
under Section 7.2 and the rights under Section 7.1 shall survive the termination
of the Trust. The Servicer shall promptly notify the Owner Trustee and the
Security Insurer of any prospective termination pursuant to this Section. The
bankruptcy, liquidation, dissolution, death or incapacity of the
Certificateholder, shall not (x) operate to terminate this Agreement or the
Trust, nor (y) entitle the Certificateholder's legal
19
representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of all or any part of the
Trust or Owner Trust Estate nor (z) otherwise affect the rights, obligations and
liabilities of the parties hereto.
(b) Neither the Depositor nor the Certificateholder shall be entitled
to revoke or terminate the Trust.
(c) Notice of any termination of the Trust, specifying the Distribution
Date upon which the Certificateholder shall surrender the Certificate to the
Trust Collateral Agent for payment of the final distribution and cancellation,
shall be given by the Owner Trustee by letter to the Certificateholder mailed
within five Business Days of receipt of notice of such termination from the
Servicer given pursuant to Section 10.1(c) of the Sale and Servicing Agreement,
stating (i) the Distribution Date upon or with respect to which final payment of
the Certificate shall be made upon presentation and surrender of the Certificate
at the office of the Trust Collateral Agent therein designated, (ii) the amount
of any such final payment, (iii) that the Record Date otherwise applicable to
such Distribution Date is not applicable, payments being made only upon
presentation and surrender of the Certificate at the office of the Trust
Collateral Agent therein specified and (iv) interest will cease to accrue on the
Certificate. The Owner Trustee shall give such notice to the Trust Collateral
Agent at the time such notice is given to the Certificateholder. Upon
presentation and surrender of the Certificate, the Trust Collateral Agent shall
cause to be distributed to the Certificateholder amounts distributable on such
Distribution Date pursuant to Section 5.7 of the Sale and Servicing Agreement.
In the event that the Certificateholder shall not surrender the
Certificate for cancellation within six months after the date specified in the
above mentioned written notice, the Owner Trustee shall give a second written
notice to the Certificateholder to surrender the Certificate for cancellation
and receive the final distribution with respect thereto. If within one year
after the second notice all the Certificate shall not have been surrendered for
cancellation, the Owner Trustee may take appropriate steps, or may appoint an
agent to take appropriate steps, to contact the Certificateholder concerning
surrender of its Certificate, and the cost thereof shall be paid out of the
funds and other assets that shall remain subject to this Agreement. Any funds
remaining in the Trust after exhaustion of such remedies shall be distributed,
subject to applicable escheat laws, by the Owner Trustee to the Holder.
(d) Upon the winding up of the Trust and its termination, the Owner Trustee
shall cause the Certificate of Trust to be canceled by filing a certificate
of cancellation with the Secretary of State in accordance with the
provisions of Section 3810 of the Business Trust Statute.
ARTICLE IX.
Successor Owner Trustees and Additional Owner Trustees
------------------------------------------------------
SECTION 9.1. Eligibility Requirements for Owner Trustee. The Owner
------------------------------------------
Trustee shall at all times be a corporation (i) satisfying the provisions of
Section 3807(a)
20
of the Business Trust Statute; (ii) authorized to exercise corporate trust
powers; (iii) having a combined capital and surplus of at least $50,000,000 and
subject to supervision or examination by Federal or State authorities; and (iv)
acceptable to the Security Insurer in its sole discretion, so long as an Insurer
Default shall not have occurred and be continuing. If such corporation shall
publish reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purpose of this Section, the combined capital and surplus of such corporation
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. In case at any time the Owner Trustee
shall cease to be eligible in accordance with the provisions of this Section,
the Owner Trustee shall resign immediately in the manner and with the effect
specified in Section 9.2.
SECTION 9.2. Resignation or Removal of Owner Trustee. The Owner Trustee
---------------------------------------
may at any time resign and be discharged from the trusts hereby created by
giving written notice thereof to the Depositor, the Security Insurer and the
Servicer. Upon receiving such notice of resignation, the Depositor shall
promptly appoint a successor Owner Trustee by written instrument, in duplicate,
one copy of which instrument shall be delivered to the resigning Owner Trustee
and one copy to the successor Owner Trustee, provided that the Depositor shall
have received written confirmation from each of the Rating Agencies that the
proposed appointment will not result in an increased capital charge to the
Security Insurer by either of the Rating Agencies. If no successor Owner Trustee
shall have been so appointed and have accepted appointment within 30 days after
the giving of such notice of resignation, the resigning Owner Trustee or the
Security Insurer may petition any court of competent jurisdiction for the
appointment of a successor Owner Trustee.
If at any time the Owner Trustee shall cease to be eligible in
accordance with the provisions of Section 9.1 and shall fail to resign after
written request therefor by the Depositor, or if at any time the Owner Trustee
shall be legally unable to act, or shall be adjudged bankrupt or insolvent, or a
receiver of the Owner Trustee or of its property shall be appointed, or any
public officer shall take charge or control of the Owner Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation, then the Depositor with the consent of the Security Insurer (so
long as an Insurer Default shall not have occurred and be continuing) may remove
the Owner Trustee. If the Depositor shall remove the Owner Trustee under the
authority of the immediately preceding sentence, the Depositor shall promptly
appoint a successor Owner Trustee by written instrument, in duplicate, one copy
of which instrument shall be delivered to the outgoing Owner Trustee so removed,
one copy to the Security Insurer and one copy to the successor Owner Trustee and
payment of all fees owed to the outgoing Owner Trustee.
Any resignation or removal of the Owner Trustee and appointment of a
successor Owner Trustee pursuant to any of the provisions of this Section shall
not become effective until acceptance of appointment by the successor Owner
Trustee pursuant to Section 9.3 and payment of all fees and expenses owed to the
outgoing Owner Trustee. The Depositor shall provide notice of such resignation
or removal of the Owner Trustee to each of the Rating Agencies.
21
SECTION 9.3. Successor Owner Trustee. Any successor Owner Trustee
-----------------------
appointed pursuant to Section 9.2 shall execute, acknowledge and deliver to the
Depositor, the Servicer, the Security Insurer and to its predecessor Owner
Trustee an instrument accepting such appointment under this Agreement, and
thereupon the resignation or removal of the predecessor Owner Trustee shall
become effective and such successor Owner Trustee, without any further act, deed
or conveyance, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor under this Agreement, with like effect as if
originally named as Owner Trustee. The predecessor Owner Trustee shall upon
payment of its fees and expenses deliver to the successor Owner Trustee all
documents and statements and monies held by it under this Agreement; and the
Depositor and the predecessor Owner Trustee shall execute and deliver such
instruments and do such other things as may reasonably be required for fully and
certainly vesting and confirming in the successor Owner Trustee all such rights,
powers, duties and obligations.
No successor Owner Trustee shall accept appointment as provided in
this Section unless at the time of such acceptance such successor Owner Trustee
shall be eligible pursuant to Section 9.1.
Upon acceptance of appointment by a successor Owner Trustee pursuant
to this Section, the Servicer shall mail notice of the successor of such Owner
Trustee to the Certificateholder, the Trustee, the Noteholders and the Rating
Agencies. If the Servicer shall fail to mail such notice within 10 days after
acceptance of appointment by the successor Owner Trustee, the successor Owner
Trustee shall cause such notice to be mailed at the expense of the Servicer.
SECTION 9.4. Merger or Consolidation of Owner Trustee. Any
----------------------------------------
corporation into which the Owner Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Owner Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Owner Trustee, shall be the successor of the Owner Trustee
hereunder, provided such corporation shall be eligible pursuant to Section 9.1,
without the execution or filing of any instrument or any further act on the part
of any of the parties hereto, anything herein to the contrary notwithstanding;
provided further that the Owner Trustee shall mail notice of such merger or
consolidation to the Rating Agencies.
SECTION 9.5. Appointment of Co-Trustee or Separate Trustee.
---------------------------------------------
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Owner Trust Estate or any Financed Vehicle may at the time be located,
the Servicer and the Owner Trustee acting jointly shall have the power and shall
execute and deliver all instruments to appoint one or more Persons approved by
the Owner Trustee and the Security Insurer to act as co-trustee, jointly with
the Owner Trustee, or separate trustee or separate trustees, of all or any part
of the Owner Trust Estate, and to vest in such Person, in such capacity, such
title to the Trust, or any part thereof, and, subject to the other provisions of
this Section, such powers, duties, obligations, rights and trusts as the
Servicer and the
22
Owner Trustee may consider necessary or desirable. If the Servicer shall not
have joined in such appointment within 15 days after the receipt by it of a
request so to do, the Owner Trustee subject, unless an Insurer Default shall
have occurred and be continuing, to the approval of the Security Insurer (which
approval shall not be unreasonably withheld) shall have the power to make such
appointment. No co-trustee or separate trustee under this Agreement shall be
required to meet the terms of eligibility as a successor trustee pursuant to
Section 9.1 and no notice of the appointment of any co-trustee or separate
trustee shall be required pursuant to Section 9.3.
Each separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and conditions:
(i) all rights, powers, duties and obligations conferred or imposed
upon the Owner Trustee shall be conferred upon and exercised or performed by the
Owner Trustee and such separate trustee or co-trustee jointly (it being
understood that such separate trustee or co-trustee is not authorized to act
separately without the Owner Trustee joining in such act), except to the extent
that under any law of any jurisdiction in which any particular act or acts are
to be performed, the Owner Trustee shall be incompetent or unqualified to
perform such act or acts, in which event such rights, powers, duties and
obligations (including the holding of title to the Trust or any portion thereof
in any such jurisdiction) shall be exercised and performed singly by such
separate trustee or co-trustee, but solely at the direction of the Owner
Trustee;
(ii) no trustee under this Agreement shall be personally liable by
reason of any act or omission of any other trustee under this Agreement; and
(iii) the Servicer and the Owner Trustee acting jointly may at any time
accept the resignation of or remove any separate trustee or co-trustee.
Any notice, request or other writing given to the Owner Trustee shall
be deemed to have been given to each of the then separate trustees and co-
trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article. Each separate trustee and co-trustee, upon its
acceptance of the trusts conferred, shall be vested with the estates or property
specified in its instrument of appointment, either jointly with the Owner
Trustee or separately, as may be provided therein, subject to all the provisions
of this Agreement, specifically including every provision of this Agreement
relating to the conduct of, affecting the liability of, or affording protection
to, the Owner Trustee. Each such instrument shall be filed with the Owner
Trustee and a copy thereof given to the Servicer and the Security Insurer.
Any separate trustee or co-trustee may at any time appoint the Owner
Trustee, its agent or attorney-in-fact with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall
23
vest in and be exercised by the Owner Trustee, to the extent permitted by law,
without the appointment of a new or successor trustee.
ARTICLE X.
Miscellaneous
-------------
SECTION 10.1. Supplements and Amendments. (a) This Agreement may be
--------------------------
amended by the Depositor and the Owner Trustee, with the prior written consent
of the Security Insurer (so long as an Insurer Default shall not have occurred
and be continuing) and with prior written notice to the Rating Agencies, without
the consent of any of the Noteholders or the Certificateholder, (i) to cure any
ambiguity or defect or (ii) to correct, supplement or modify any provisions in
this Agreement; provided, however, that such action shall not, as evidenced by
-------- -------
an Opinion of Counsel which may be based upon a certificate of the Servicer,
adversely affect in any material respect the interests of any Noteholder or
Certificateholder.
(b) This Agreement may also be amended from time to time, with the
prior written consent of the Security Insurer (so long as an Insurer Default
shall not have occurred and be continuing) by the Depositor and the Owner
Trustee, with prior written notice to the Rating Agencies, to the extent such
amendment materially and adversely affects the interests of the Noteholders,
with the consent of the Noteholders evidencing not less than a majority of the
Outstanding Amount of the Notes and, the consent of the Certificateholder (which
consent of any Holder of a Certificate or Note given pursuant to this Section or
pursuant to any other provision of this Agreement shall be conclusive and
binding on such Holder) for the purpose of adding any provisions to or changing
in any manner or eliminating any of the provisions of this Agreement or of
modifying in any manner the rights of the Noteholders or the Certificateholder;
provided, however, that, subject to the express rights of the Security
-------- -------
Insurer under the Basic Documents, no such amendment shall (a) increase or
reduce in any manner the amount of, or accelerate or delay the timing of,
collections of payments on Receivables or distributions that shall be required
to be made for the benefit of the Noteholders or the Certificateholder or (b)
reduce the aforesaid percentage of the Outstanding Amount of the Notes and the
Certificate Balance required to consent to any such amendment, without the
consent of the Holders of all the outstanding Notes and the Certificateholder.
Promptly after the execution of any such amendment or consent, the
Owner Trustee shall furnish written notification of the substance of such
amendment or consent to the Certificateholder, the Trustee and each of the
Rating Agencies.
It shall not be necessary for the consent of Certificateholder, the
Noteholders or the Trustee pursuant to this Section to approve the particular
form of any proposed amendment or consent, but it shall be sufficient if such
consent shall approve the substance thereof. The manner of obtaining such
consents (and any other consents of the Certificateholder provided for in this
Agreement or in any other Basic Document) and of evidencing the authorization of
the execution thereof by Certificateholder shall be subject to such reasonable
requirements as the Owner Trustee may prescribe. Promptly
24
after the execution of any amendment to the Certificate of Trust, the Owner
Trustee shall cause the filing of such amendment with the Secretary of State.
Prior to the execution of any amendment to this Agreement or the
Certificate of Trust, the Owner Trustee shall be entitled to receive and rely
upon an Opinion of Counsel stating that the execution of such amendment is
authorized or permitted by this Agreement and that all conditions precedent to
the execution and delivery of such amendment have been satisfied. The Owner
Trustee may, but shall not be obligated to, enter into any such amendment which
affects the Owner Trustee's own rights, duties or immunities under this
Agreement or otherwise.
SECTION 10.2. No Legal Title to Owner Trust Estate in
---------------------------------------
Certificateholder. The Certificateholder shall not have legal title to any part
-----------------
of the Owner Trust Estate. The Certificateholder shall be entitled to receive
distributions in accordance with Articles VIII. No transfer, by operation of law
or otherwise, of any right, title or interest of the Certificateholder to and in
its ownership interest in the Owner Trust Estate shall operate to terminate this
Agreement or the trusts hereunder or entitle any transferee to an accounting or
to the transfer to it of legal title to any part of the Owner Trust Estate.
SECTION 10.3. Limitations on Rights of Others. The provisions of this
-------------------------------
Agreement are solely for the benefit of the Owner Trustee, the Depositor, the
Certificateholder, the Servicer and, to the extent expressly provided herein,
the Security Insurer, the Trustee and the Noteholders, and nothing in this
Agreement, whether express or implied, shall be construed to give to any other
Person any legal or equitable right, remedy or claim in the Owner Trust Estate
or under or in respect of this Agreement or any covenants, conditions or
provisions contained herein.
SECTION 10.4. Notices. (a) Unless otherwise expressly specified or
-------
permitted by the terms hereof, all notices shall be in writing and shall be
deemed given upon receipt personally delivered, delivered by overnight courier
or mailed first class mail or certified mail, in each case return receipt
requested, and shall be deemed to have been duly given upon receipt, if to the
Owner Trustee, addressed to the Corporate Trust Office; if to the Depositor,
addressed to AFS Funding Corp., ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇; if to
the holder of the Security Insurer, addressed to Security Insurer, Financial
Security Assurance Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention:
Surveillance Department, Telex No.: (▇▇▇) ▇▇▇-▇▇▇▇, Confirmation: (212) 826-
0100, Telecopy Nos.: (▇▇▇) ▇▇▇-▇▇▇▇, (▇▇▇) ▇▇▇-▇▇▇▇ (in each case in which
notice or other communication to Financial Security refers to an Event of
Default, a claim on the Note Policy or with respect to which failure on the part
of Financial Security to respond shall be deemed to constitute consent or
acceptance, then a copy of such notice or other communication should also be
sent to the attention of the General Counsel and the Head-Financial Guaranty
Group "URGENT MATERIAL ENCLOSED"); or, as to each party, at such other address
------------------------
as shall be designated by such party in a written notice to each other party.
(b) Any notice required or permitted to be given to a Certificateholder
shall be given by first-class mail, postage prepaid, at the address of the
Holder. Any
25
notice so mailed within the time prescribed in this Agreement shall be
conclusively presumed to have been duly given, whether or not the
Certificateholder receives such notice.
SECTION 10.5. Severability. Any provision of this Agreement that is
------------
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
SECTION 10.6. Separate Counterparts. This Agreement may be executed by
---------------------
the parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
SECTION 10.7. Assignments; Security Insurer. This Agreement shall inure
-----------------------------
to the benefit of and be binding upon the parties hereto and their respective
successors and permitted assigns.
SECTION 10.8. No Recourse. The Certificateholder by accepting a
-----------
Certificate acknowledges that the Certificate represents a beneficial interest
in the Trust only and do not represent interests in or obligations of the
Seller, the Servicer, the Owner Trustee, the Trustee, the Security Insurer or
any Affiliate thereof and no recourse may be had against such parties or their
assets, except as may be expressly set forth or contemplated in this Agreement,
the Certificate or the Basic Documents.
SECTION 10.9. Headings. The headings of the various Articles and
--------
Sections herein are for convenience of reference only and shall not define or
limit any of the terms or provisions hereof.
SECTION 10.10. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
-------------
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 10.11. Servicer. The Servicer is authorized to prepare, or
--------
cause to be prepared, execute and deliver on behalf of the Trust all such
documents, reports, filings, instruments, certificates and opinions as it shall
be the duty of the Trust or Owner Trustee to prepare, file or deliver pursuant
to the Basic Documents. Upon written request, the Owner Trustee shall execute
and deliver to the Servicer a limited power of attorney appointing the Servicer
the Trust's agent and attorney-in-fact to prepare, or cause to be prepared,
execute and deliver all such documents, reports, filings, instruments,
certificates and opinions.
26
IN WITNESS WHEREOF, the parties hereto have caused this Trust
Agreement to be duly executed by their respective officers hereunto duly
authorized as of the day and year first above written.
BANKERS TRUST (DELAWARE)
Owner Trustee
By:/s/ ▇▇▇▇▇ ▇▇▇▇
-----------------------
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Vice President
AFS FUNDING CORP.
Depositor
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President and
Treasurer
[TRUST AGREEMENT]
EXHIBIT A
NUMBER
R-
SEE REVERSE FOR CERTAIN DEFINITIONS
THIS CERTIFICATE IS NOT TRANSFERABLE,
EXCEPT UNDER THE LIMITED CONDITIONS
SPECIFIED IN THE TRUST AGREEMENT
_________________________________
ASSET BACKED CERTIFICATE
evidencing a beneficial ownership interest in certain distributions of the
Trust, as defined below, the property of which includes a pool of retail
installment sale contracts secured by new or used automobiles, vans or light
duty trucks and sold to the Trust by AFS Funding Corp.
(THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF AFS FUNDING
CORP. OR ANY OF ITS AFFILIATES, EXCEPT TO THE EXTENT DESCRIBED BELOW.)
THIS CERTIFIES THAT AFS Funding Corp. is the registered owner of a
nonassessable, fully-paid, beneficial ownership interest in certain
distributions of AmeriCredit Automobile Receivables Trust 1998-A (the "Trust")
formed by AFS Funding Corp., a Nevada corporation (the "Seller").
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is the Certificate referred to in the within-mentioned Trust
Agreement.
BANKERS TRUST (DELAWARE) BANKERS TRUST (DELAWARE)
not in its individual not in its individual
capacity but solely as capacity but solely as
Owner Trustee or Owner Trustee
By BANKERS TRUST COMPANY,
by:_________________________ Authenticating Agent
by:___________________________
A-1
The Trust was created pursuant to a Trust Agreement dated as of February
17, 1998 (the "Trust Agreement"), between the Seller and Bankers Trust
(Delaware), as owner trustee (the "Owner Trustee"), a summary of certain of the
pertinent provisions of which is set forth below. To the extent not otherwise
defined herein, the capitalized terms used herein have the meanings assigned to
them in the Trust Agreement.
This is the duly authorized Certificate designated as "Asset Backed
Certificate" (herein called the "Certificate"). Also issued under the Indenture
dated as of February 17, 1998, among the Trust, ▇▇▇▇▇▇ Trust and Savings Bank,
as trustee and indenture collateral agent, are three classes of Notes designated
as "Class A-1 5.56% Asset Backed Notes" (the "Class A-1 Notes"), "Class A-2
Floating Rate Asset Backed Notes" (the "Class A-2 Notes") and "Class A-3 5.88%
Asset Backed Notes" (the "Class A-3 Notes", together with the Class A-2 Notes
and the Class A-1 Notes, the "Notes"). This Certificate is issued under and is
subject to the terms, provisions and conditions of the Trust Agreement, to which
Trust Agreement the holder of this Certificate by virtue of the acceptance
hereof assents and by which such holder is bound. The property of the Trust
includes a pool of retail installment sale contracts secured by new and used
automobiles, vans or light duty trucks (the "Receivables"), all monies due
thereunder on or after Initial Cutoff Date, security interests in the vehicles
financed thereby, certain bank accounts and the proceeds thereof, proceeds from
claims on certain insurance policies and certain other rights under the Trust
Agreement and the Sale and Servicing Agreement, all right, to and interest of
the Seller in and to the Purchase Agreement dated as of February 17, 1998 among
AmeriCredit Financial Services, Inc., CP Funding Corp. and the Seller and all
proceeds of the foregoing.
Under the Trust Agreement, there will be distributed on the 5th day of each
month or, if such 5th day is not a Business Day, the next Business Day (the
"Distribution Date"), provided, that such day for payment shall in no event be
earlier than the third Business Day of such month, commencing on March 5, 1998,
to the Person in whose name is on this Certificate the amount to be distributed
to the Certificateholder on such Distribution Date. No principal will be paid
on the Certificate until the Class A-3 Notes have been paid in full.
The holder of this Certificate acknowledges and agrees that its rights to
receive distributions in respect of this Certificate are subordinated to the
rights of the Noteholders as described in the Sale and Servicing Agreement, the
Indenture and the Trust Agreement, as applicable.
Distributions on this Certificate will be made as provided in the Trust
Agreement by the Owner Trustee by wire transfer or check mailed to the
Certificateholder without the presentation or surrender of this Certificate or
the making of any notation hereon. Except as otherwise provided in the Trust
Agreement and notwithstanding the above, the final distribution on this
Certificate will be made after due notice by the Owner Trustee of the pendency
of such distribution and only upon presentation and surrender of this
Certificate at the office or agency maintained for the purpose by the Owner
Trustee in the Borough of Manhattan, The City of New York.
A-2
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon shall have been executed by
an authorized officer of the Owner Trustee, by manual signature, this
Certificate shall not entitle the holder hereof to any benefit under the Trust
Agreement or the Sale and Servicing Agreement or be valid for any purpose.
THIS CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
A-3
IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust and not in
its individual capacity, has caused this Certificate to be duly executed.
AMERICREDIT AUTOMOBILE
RECEIVABLES TRUST 1998-A
By: BANKERS TRUST (DELAWARE)
not in its individual capacity but
solely as Owner Trustee
Dated: By:___________________________
A-4
(Reverse of Certificate)
The Certificate does not represent an obligation of, or an interest in, the
Seller, the Servicer, the Owner Trustee or any Affiliates of any of them and no
recourse may be had against such parties or their assets, except as may be
expressly set forth or contemplated herein or in the Trust Agreement, the
Indenture or the Basic Documents. In addition, this Certificate is not
guaranteed by any governmental agency or instrumentality and is limited in right
of payment to certain collections with respect to the Receivables, all as more
specifically set forth herein and in the Sale and Servicing Agreement. A copy
of each of the Sale and Servicing Agreement and the Trust Agreement may be
examined during normal business hours at the principal office of the Seller, and
at such other places, if any, designated by the Seller, by any Certificateholder
upon written request.
The Trust Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Seller under the Trust Agreement at any time by the Seller and the Owner Trustee
with the consent of the Note Majority and the Certificateholder. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and on all future Holders of this Certificate and of any Certificate
issued upon the transfer hereof or in exchange hereof or in lieu hereof whether
or not notation of such consent is made upon this Certificate. The Trust
Agreement also permits the amendment thereof, in certain limited circumstances,
without the consent of the Certificateholder.
As provided in the Trust Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registerable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices or agencies of the Certificate Registrar maintained by
the Owner Trustee in the Borough of Manhattan, The City of New York, accompanied
by a written instrument of transfer in form satisfactory to the Owner Trustee
and the Certificate Registrar duly executed by the holder hereof or such
holder's attorney duly authorized in writing, and thereupon a new Certificate
evidencing the same aggregate interest in the Trust will be issued to the
designated transferee. The initial Certificate Registrar appointed under the
Trust Agreement is Bankers Trust Company. No service charge will be made for
any such registration of transfer or exchange, but the Owner Trustee or the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or governmental charge payable in connection therewith.
The Owner Trustee, the Security Insurer and any agent of the Owner Trustee
or the Security Insurer may treat the person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Owner Trustee,
the Security Insurer nor any such agent shall be affected by any notice to the
contrary.
The obligations and responsibilities created by the Trust Agreement and the
Trust created thereby shall terminate upon the payment to the Certificateholder
of all amounts required to be paid to it pursuant to the Trust Agreement and the
Sale and Servicing Agreement and the disposition of all property held as part of
the Trust. The Servicer of the Receivables may at its option purchase the
corpus of the Trust at a price specified in
A-5
the Sale and Servicing Agreement, and such purchase of the Receivables and other
property of the Trust will effect early retirement of the Certificate; however,
such right of purchase is exercisable, subject to certain restrictions, only as
of the last day of any Monthly Period as of which the Pool Balance is 10% or
less of the Original Pool Balance. The Certificate is also subject to mandatory
prepayment, pro rata on the basis of the initial Certificate Balance, on the
Distribution Date on or immediately following the last day of the Funding Period
in the event that any portion of the Pre-Funded Amount remains on deposit in the
Pre-Funding Account after giving effect to the purchase of all Subsequent
Receivables, including any purchase of Subsequent Receivables on such date. The
aggregate principal amount of the Certificate to be prepaid will be an amount
equal to the Certificate Prepayment Amount.
The Certificate may not be acquired by (a) an employee benefit plan (as
defined in Section 3(3) of ERISA) that is subject to the provisions of Title I
of ERISA, (b) a plan described in Section 4975(e) (1) of the Code or (c) any
entity whose underlying assets include plan assets by reason of a plan's
investment in the entity (each, a "Benefit Plan"). By accepting and holding
this Certificate, the Holder hereof shall be deemed to have represented and
warranted that it is not a Benefit Plan.
The recitals contained herein shall be taken as the statements of the
Depositor or the Servicer, as the case may be, and the Owner Trustee assumes no
responsibility for the correctness thereof. The Owner Trustee makes no
representations as to the validity or sufficiency of this Certificate or of any
Receivable or related document.
Unless the certificate of authentication hereon shall have been executed by
an authorized officer of the Owner Trustee, by manual or facsimile signature,
this Certificate shall not entitle the Holder hereof to any benefit under the
Trust Agreement or the Sale and Servicing Agreement or be valid for any purpose.
A-6
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
--------------------------------------------------------------------------------
(Please print or type name and address, including postal zip code, of assignee)
--------------------------------------------------------------------------------
the within Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
______________________________ Attorney to transfer said Certificate on the
books of the Certificate Registrar, with full power of substitution in the
premises.
Dated: __________________________________*
Signature
Guaranteed: __________________________________*
_________________________
* NOTICE: The signature to this assignment must correspond with the name of
the registered owner as it appears on the face of the within Certificate in
every particular, without alteration, enlargement or any change whatever.
Such signature must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Certificate Registrar, which requirements
include membership or participation in STAMP or such other "signature
guarantee program" as may be determined by the Certificate Registrar in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
A-7
EXHIBIT B
[FORM OF]
CERTIFICATE OF TRUST OF
AMERICREDIT AUTOMOBILE RECEIVABLES TRUST 1998-A
This Certificate of Trust of AmeriCredit Automobile Receivables Trust 1998-
A (the "Trust"), dated as of ______ ___, 199_, is being duly executed and filed
by _________________________________________, a ____________, and
________________, an individual, as trustees, to form a business trust under the
Delaware Business Trust Act (12 Del. Code, (S) 3801 et. seq.).
--------- -- ---
1. Name. The name of the business trust formed hereby is AmeriCredit
----
Automobile Receivables Trust 1998-A.
2. This Certificate of Trust will be effective _____________, _____,
199__.
IN WITNESS WHEREOF, the undersigned, being the sole trustees of the Trust,
have executed this Certificate of Trust as of the date first above written.
BANKERS TRUST (DELAWARE),
not in its individual capacity but solely as owner
trustee of the Trust.
By:_________________________________
Name:
Title:
A-1