POOLING AND SERVICING AGREEMENT
RELATING TO
AMERICREDIT AUTOMOBILE RECEIVABLES TRUST 1995-B
among
AMERICREDIT FINANCIAL SERVICES, INC.
as Seller and Servicer,
AMERICREDIT RECEIVABLES CORP.,
as Initial Class B Certificateholder
and
LASALLE NATIONAL BANK
as Trustee, Backup Servicer and Collateral Agent
______________________
Dated as of November 20, 1995
______________________
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TABLE OF CONTENTS
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ARTICLE I DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.1. Definitions. . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.2. Usage of Terms . . . . . . . . . . . . . . . . . . . . . . 17
Section 1.3. Calculations . . . . . . . . . . . . . . . . . . . . . . . 18
Section 1.4. Section References . . . . . . . . . . . . . . . . . . . . 18
Section 1.5. Action by or Consent of Certificateholders . . . . . . . . 18
Section 1.6. No Recourse. . . . . . . . . . . . . . . . . . . . . . . . 18
Section 1.7. Material Adverse Effect. . . . . . . . . . . . . . . . . . 18
ARTICLE II CREATION OF TRUST . . . . . . . . . . . . . . . . . . . . . 19
Section 2.1. Creation of Trust . . . . . . . . . . . . . . . . . . . . 19
ARTICLE III CONVEYANCE OF RECEIVABLES; ACCEPTANCE BY TRUSTEE; ORIGINAL
ISSUANCE OF CERTIFICATES . . . . . . . . . . . . . . . . . 19
Section 3.1. Conveyance of Receivables. . . . . . . . . . . . . . . . . 19
Section 3.2. Custody of Receivable Files. . . . . . . . . . . . . . . . 20
Section 3.3. Conditions to Issuance by Trust. . . . . . . . . . . . . . 21
Section 3.4. Representations and Warranties of Seller . . . . . . . . . 21
Section 3.5. Repurchase of Receivables Upon Breach of Warranty. . . . . 23
Section 3.6. [Reserved] . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 3.7. Collecting Lien Certificates Not Delivered on the
Closing Date . . . . . . . . . . . . . . . . . . . . . . 23
Section 3.8. Trustee's Assignment of Administrative Receivables and
Warranty Receivables . . . . . . . . . . . . . . . . . . 24
ARTICLE IV ADMINISTRATION AND SERVICING OF RECEIVABLES . . . . . . . . 24
Section 4.1. Duties of the Servicer. . . . . . . . . . . . . . . . . . 24
Section 4.2. Collection of Receivable Payments; Modifications of
Receivables; Lockbox Agreements . . . . . . . . . . . . 25
Section 4.3. Realization Upon Receivables . . . . . . . . . . . . . . . 28
Section 4.4. Insurance. . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 4.5. Maintenance of Security Interests in Vehicles. . . . . . . 31
Section 4.6. Covenants, Representations, and Warranties of Servicer . . 32
Section 4.7. Purchase of Receivables Upon Breach of Covenant. . . . . . 34
Section 4.8. Total Servicing Fee; Payment of Certain Expenses by
Servicer . . . . . . . . . . . . . . . . . . . . . . . . 35
Section 4.9. Servicer's Certificate . . . . . . . . . . . . . . . . . . 35
Section 4.10. Annual Statement as to Compliance, Notice of Servicer
Termination Event. . . . . . . . . . . . . . . . . . . . 36
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Section 4.11. Annual Independent Accountants' Report . . . . . . . . . . 36
Section 4.12. Access to Certain Documentation and Information
Regarding Receivables. . . . . . . . . . . . . . . . . . 37
Section 4.13. Monthly Tape . . . . . . . . . . . . . . . . . . . . . . . 37
Section 4.14. Retention and Termination of Servicer. . . . . . . . . . . 38
Section 4.15. Fidelity Bond and Errors and Omissions Policy. . . . . . . 38
ARTICLE V DISTRIBUTIONS; STATEMENTS TO CERTIFICATE HOLDERS. . . . . . 38
Section 5.1. Accounts . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 5.2. Collections. . . . . . . . . . . . . . . . . . . . . . . . 39
Section 5.3. Application of Collections . . . . . . . . . . . . . . . . 40
Section 5.4. Additional Deposits. . . . . . . . . . . . . . . . . . . . 41
Section 5.5. Distributions. . . . . . . . . . . . . . . . . . . . . . . 41
Section 5.6. Net Deposits . . . . . . . . . . . . . . . . . . . . . . . 42
Section 5.7. Statements to Certificateholders . . . . . . . . . . . . . 43
Section 5.8. Optional Deposits by the Security Insurer. . . . . . . . . 44
ARTICLE VI THE SPREAD ACCOUNT AND THE POLICY; COVENANTS OF THE
INITIAL CLASS B CERTIFICATEHOLDER . . . . . . . . . . . . 45
Section 6.1. Initial Purchase; Spread Account . . . . . . . . . . . . . 45
Section 6.2. Policy . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Section 6.3. Withdrawals from Spread Account. . . . . . . . . . . . . . 45
Section 6.4. Claims Under Policy. . . . . . . . . . . . . . . . . . . . 45
Section 6.5. Preference Claims; Direction of Proceedings. . . . . . . . 47
Section 6.6. Surrender of Policy. . . . . . . . . . . . . . . . . . . . 47
Section 6.7. Special Purpose Entity . . . . . . . . . . . . . . . . . . 48
Section 6.8. Restrictions on Liens. . . . . . . . . . . . . . . . . . . 49
Section 6.9. Creation of Indebtedness; Guarantees . . . . . . . . . . . 49
Section 6.10. Other Activities . . . . . . . . . . . . . . . . . . . . . 49
ARTICLE VII THE CERTIFICATES. . . . . . . . . . . . . . . . . . . . . . 50
Section 7.1. The Certificates . . . . . . . . . . . . . . . . . . . . . 50
Section 7.2. Authentication of Certificates . . . . . . . . . . . . . . 50
Section 7.3. Registration of Transfer and Exchange of Certificates. . . 50
Section 7.4. Mutilated, Destroyed, Lost or Stolen Certificates. . . . . 53
Section 7.5. Persons Deemed Owners. . . . . . . . . . . . . . . . . . . 53
Section 7.6. Access to List of Certificateholders' Names and Addresses. 53
Section 7.7. Maintenance of Office or Agency. . . . . . . . . . . . . . 54
Section 7.8. Affiliated Group May Own Certificates. . . . . . . . . . . 54
ARTICLE VIII THE SELLER. . . . . . . . . . . . . . . . . . . . . . . . . 54
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Section 8.1. Liability of Seller . . . . . . . . . . . . . . . . . . . 54
Section 8.2. Merger or Consolidation of, or Assumption of the
Obligations of Seller; Amendment of Certificate of
Incorporation . . . . . . . . . . . . . . . . . . . . . 55
Section 8.3. Limitation on Liability of Seller and Others . . . . . . 55
ARTICLE IX THE SERVICER . . . . . . . . . . . . . . . . . . . . . . . 56
Section 9.1. Liability of Servicer; Indemnities. . . . . . . . . . . . 56
Section 9.2. Merger or Consolidation of, or Assumption of the
Obligations of the Servicer or Backup Servicer. . . . . 57
Section 9.3. Limitation on Liability of Servicer, Backup Servicer and
Others. . . . . . . . . . . . . . . . . . . . . . . . . 58
Section 9.4. Delegation of Duties . . . . . . . . . . . . . . . . . . 58
Section 9.5. Servicer and Backup Servicer Not to Resign. . . . . . . . 59
ARTICLE X SERVICER TERMINATION EVENTS. . . . . . . . . . . . . . . . 59
Section 10.1. Servicer Termination Event. . . . . . . . . . . . . . . . 59
Section 10.2. Consequences of a Servicer Termination Event. . . . . . . 61
Section 10.3. Appointment of Successor. . . . . . . . . . . . . . . . . 62
Section 10.4. Notification to Certificateholders. . . . . . . . . . . . 63
Section 10.5. Waiver of Past Defaults . . . . . . . . . . . . . . . . . 63
ARTICLE XI THE TRUSTEE. . . . . . . . . . . . . . . . . . . . . . . . 64
Section 11.1. Duties of Trustee . . . . . . . . . . . . . . . . . . . . 64
Section 11.2. Trustee's Assignment of Administrative Receivables and
Warranty Receivables. . . . . . . . . . . . . . . . . . 65
Section 11.3. Certain Matters Affecting the Trustee . . . . . . . . . . 66
Section 11.4. Trustee Not Liable for Certificates or Receivables. . . . 67
Section 11.5. Trustee May Own Certificates. . . . . . . . . . . . . . . 68
Section 11.6. Trustee's Fees and Expenses; Indemnification. . . . . . . 68
Section 11.7. Eligibility Requirements for Trustee. . . . . . . . . . . 69
Section 11.8. Resignation or Removal of Trustee . . . . . . . . . . . . 69
Section 11.9. Successor Trustee . . . . . . . . . . . . . . . . . . . . 70
Section 11.10. Merger or Consolidation of Trustee. . . . . . . . . . . . 71
Section 11.11. Appointment of Co-Trustee or Separate Trustee . . . . . . 71
Section 11.12. Representations and Warranties of Trustee . . . . . . . . 72
Section 11.13. Tax Returns . . . . . . . . . . . . . . . . . . . . . . . 73
Section 11.14. Trustee May Enforce Claims Without Possession of
Certificates. . . . . . . . . . . . . . . . . . . . . . 73
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Section 11.15. Suit for Enforcement. . . . . . . . . . . . . . . . . . . 73
Section 11.16. Rights to Direct Trustee. . . . . . . . . . . . . . . . . 74
ARTICLE XII TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . 74
Section 12.1. Termination of the Trust. . . . . . . . . . . . . . . . . 74
Section 12.2. Optional Purchase of All Receivables. . . . . . . . . . . 75
ARTICLE XIII MISCELLANEOUS PROVISIONS. . . . . . . . . . . . . . . . . . 76
Section 13.1. Amendment . . . . . . . . . . . . . . . . . . . . . . . . 76
Section 13.2. Protection of Title to Trust. . . . . . . . . . . . . . . 77
Section 13.3. Limitation on Rights of Certificateholders. . . . . . . . 79
Section 13.4. Governing Law . . . . . . . . . . . . . . . . . . . . . . 80
Section 13.5. Severability of Provisions. . . . . . . . . . . . . . . . 80
Section 13.6. Assignment. . . . . . . . . . . . . . . . . . . . . . . . 80
Section 13.7. Certificates Nonassessable and Fully Paid . . . . . . . . 80
Section 13.8. Third-Party Beneficiaries . . . . . . . . . . . . . . . . 81
Section 13.9. Financial Security as Controlling Party . . . . . . . . . 81
Section 13.10. Counterparts. . . . . . . . . . . . . . . . . . . . . . . 81
Section 13.11. Notices . . . . . . . . . . . . . . . . . . . . . . . . . 81
Section 13.12. Successors and Assigns. . . . . . . . . . . . . . . . . . 82
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SCHEDULES
Schedule A -- Schedule of Receivables
Schedule B -- Representations and Warranties of Americredit
Schedule C -- Servicing Policies and Procedures
EXHIBITS
Exhibit A -- Form of Class A Certificate
Exhibit B -- Form of Class B Certificate
Exhibit C -- Form of Servicer's Certificate
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THIS POOLING AND SERVICING AGREEMENT ("this Agreement"),
dated as of November 20, 1995, is made with respect to the formation of the
AmeriCredit Automobile Receivables Trust 1995-B (the "Trust"), among
AmeriCredit Financial Services, Inc., a Delaware corporation, ("AmeriCredit")
(in its capacity as Servicer, the "Servicer" and in its capacity as Seller,
the "Seller"), AmeriCredit Receivables Corp. ("ARC") as the Initial Class B
Certificateholder and LaSalle National Bank, a national banking association,
as Trustee (in such capacity, the "Trustee"), as Backup Servicer (in such
capacity, the "Backup Servicer") and as Collateral Agent (in such capacity,
the "Collateral Agent").
WHEREAS, the Seller wishes to establish a trust and provide
for the allocation and sale of the beneficial interests therein and the
maintenance and distribution of the trust estate;
WHEREAS, the Servicer has agreed to service the Receivables,
which constitute the principal assets of the trust estate;
WHEREAS, all things necessary to make the Certificates, when
executed and authenticated by the Trustee, valid instruments, and to make
this Agreement a valid agreement, in accordance with their and its terms,
have been done; and
WHEREAS, LaSalle National Bank is willing to serve in the
capacity of Trustee and Backup Servicer hereunder.
NOW, THEREFORE, in consideration of the premises and the
mutual agreements herein contained, the Seller, the Servicer, ARC, the
Trustee and the Backup Servicer hereby agree as follows:
I
DEFINITIONS
I.1. DEFINITIONS. All terms defined in the Spread Account
Agreement (as defined below) shall have the same meaning in this Agreement.
Whenever capitalized and used in this Agreement, the following words and
phrases, unless the context otherwise requires, shall have the following
meanings:
ACCOUNTANTS' REPORT: The report of a firm of nationally
recognized independent accountants described in Section 4.11.
ACCOUNTING DATE: With respect to a Distribution Date, the
last day of the Collection Period immediately preceding such Distribution
Date.
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ADMINISTRATIVE RECEIVABLE: With respect to any Collection
Period, a Receivable which the Servicer is required to purchase pursuant to
Section 4.7 or which the Servicer has elected to purchase pursuant to
Section 4.4(c) on the Deposit Date with respect to such Collection Period.
AFFILIATE: With respect to any Person, any other Person
directly or indirectly controlling, controlled by, or under direct or
indirect common control with such specified Person. For the purposes of this
definition, "control" when used with respect to any specified Person, means
the power to direct the management and voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
AGGREGATE PRINCIPAL BALANCE: With respect to any
Determination Date, the sum of the Principal Balances (computed as of the
related Accounting Date) for all Receivables (other than (i) any Receivable
that became a Liquidated Receivable during the related Collection Period and
(ii) any Receivable that became a Purchased Receivable on the immediately
preceding Deposit Date).
AGREEMENT: shall have the meaning set forth in the first
paragraph of this Agreement.
AMERICREDIT: shall have the meaning set forth in the first
paragraph of this Agreement.
AMOUNT AVAILABLE: With respect to any Distribution Date, the
sum of (i) the Available Funds for the immediately preceding Determination
Date, plus (ii) the Deficiency Claim Amount, if any, received by the Trustee
with respect to such Distribution Date, plus (iii) the Policy Claim Amount,
if any, received by the Trustee with respect to such Distribution Date.
AMOUNT FINANCED: With respect to a Receivable, the aggregate
amount advanced under such Receivable toward the purchase price of the
Financed Vehicle and related costs, including amounts advanced in respect of
accessories, insurance premiums, service and warranty contracts, other items
customarily financed as part of retail automobile installment sale contracts
or promissory notes, and related costs.
ANNUAL PERCENTAGE RATE OR APR: With respect to a Receivable,
the rate per annum of finance charges stated in such Receivable as the
"annual percentage rate" (within the meaning of the Federal Truth-in-Lending
Act). If after the Closing Date, the rate per annum with respect to a
Receivable as of the Closing Date is reduced as a result of (i) an insolvency
proceeding involving the Obligor or (ii) pursuant to the Soldiers' and
Sailors' Civil Relief Act of 1940, Annual Percentage Rate or APR shall refer
to such reduced rate.
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ANNUAL TRUSTEE'S FEE: Shall have the meaning set forth in
Section 11.6.
ARC: AmeriCredit Receivables Corp., a Delaware corporation.
AVAILABLE FUNDS: With respect to any Determination Date, the
sum of (i) the Collected Funds for such Determination Date, (ii) all Purchase
Amounts deposited in the Collection Account on the related Deposit Date and
(iii) all income from investments of funds in the Collection Account during
the prior Collection Period.
BACKUP SERVICER: LaSalle National Bank, or its successor in
interest pursuant to Section 10.2, or such Person as shall have been
appointed as Backup Servicer or successor Servicer pursuant to Section 10.3.
BASIC SERVICING FEE: With respect to any Collection Period,
the fee payable to the Servicer for services rendered during such Collection
Period, which shall be equal to one-twelfth of the Basic Servicing Fee Rate
multiplied by the Aggregate Principal Balance as of the first day of the
Collection Period.
BASIC SERVICING FEE RATE: 2.50% per annum, payable monthly
at one-twelfth of the annual rate.
BUSINESS DAY: Any day other than a Saturday, Sunday, legal
holiday or other day on which commercial banking institutions or trust
companies in Texas, New York, Illinois or any other location of any successor
Servicer, successor Trustee or successor Collateral Agent are authorized or
obligated by law, executive order or governmental decree to be closed.
CALENDAR QUARTER: The three-month period ending on the last
day of March, June, September or December.
CERTIFICATE: Any one of the Class A Certificates or Class B
Certificates executed by the Trustee on behalf of the Trust in substantially
the form set forth in Exhibit A or B, respectively.
CERTIFICATE MAJORITY: Holders of Class A Certificates and
Class B Certificates representing a majority of the sum of the Class A
Certificate Balance and the Class B Certificate Balance, or if there are no
Class A Certificates outstanding, holders of Class B Certificates
representing a majority of the Class B Certificate Balance, provided, that
for so long as the Class B Certificate is held by any Affiliate of
AmeriCredit or by AmeriCredit, it shall be disregarded for purposes of this
definition.
CERTIFICATEHOLDER OR HOLDER: The Person in whose name a
Certificate is registered in the Certificate Register.
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CERTIFICATE REGISTER AND CERTIFICATE REGISTRAR: The register
maintained and the registrar appointed pursuant to Section 7.3.
CLASS: A class of Certificates.
CLASS A CERTIFICATE: Any one of the Certificates executed by
the Trust and authenticated by the Trustee in substantially the form set
forth in Exhibit A hereto.
CLASS A CERTIFICATE BALANCE: Initially, the Class A
Percentage of the Cut-off Date Principal Balance and, thereafter, the initial
Class A Certificate Balance reduced by all amounts distributed to the Class A
Certificateholders and allocable to principal.
CLASS A CERTIFICATE FACTOR: As of any Distribution Date, a
seven-digit decimal figure equal to the Class A Certificate Balance as of the
close of business on such Distribution Date divided by the initial Class A
Certificate Balance as of the Cut-off Date.
CLASS A DISTRIBUTABLE AMOUNT: On any Distribution Date, the
sum of the Class A Principal Distributable Amount and the Class A Interest
Distributable Amount.
CLASS A INTEREST CARRYOVER SHORTFALL: As of the close of
business on any Distribution Date, the excess of the Class A Interest
Distributable Amount for such Distribution Date plus any outstanding Class A
Interest Carryover Shortfall from the preceding Distribution Date plus
interest on such outstanding Class A Interest Carryover Shortfall, to the
extent permitted by law, at the Class A Pass-Through Rate from such preceding
Distribution Date through the current Distribution Date, over the amount of
interest that the holders of the Class A Certificates actually received on
such current Distribution Date.
CLASS A INTEREST DISTRIBUTABLE AMOUNT: With respect to any
Distribution Date, the sum of (i) for the initial Distribution Date forty-one
(41) days of interest and for any Distribution Date thereafter, thirty (30)
days of interest, in any case calculated on the basis of a 360-day year
consisting of twelve 30-day months, at the Class A Pass-Through Rate on the
Class A Certificate Balance as of the close of business on the last day of
the preceding Collection Period and (ii) any outstanding Class A Interest
Carryover Shortfall with respect to the immediately preceding Distribution
Date.
CLASS A PASS-THROUGH RATE: 6.10% per annum, calculated on
the basis of a 360-day year consisting of twelve 30-day months.
CLASS A PERCENTAGE: 92%.
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CLASS A PRINCIPAL CARRYOVER SHORTFALL: As of the close of
business on any Distribution Date, the excess of the Class A Principal
Distributable Amount plus any outstanding Class A Principal Carryover
Shortfall from the preceding Distribution Date over the amount of principal
that the holders of the Class A Certificates actually received on such
current Distribution Date.
CLASS A PRINCIPAL DISTRIBUTABLE AMOUNT: With respect to any
Distribution Date, other than the Final Scheduled Maturity Date, without
duplication, the sum of (x) the Class A Percentage of the sum of (i) the
principal portion of all Collected Funds received during or with respect to
the immediately preceding Collection Period (other than Liquidated
Receivables and Purchased Receivables) including the principal portion of all
prepayments, (ii) the Principal Balance of all Receivables that became
Liquidated Receivables during the related Collection Period (other than
Purchased Receivables), (iii) the principal portion of the Purchase Amount of
all Receivables that became Purchased Receivables as of the immediately
preceding Accounting Date, plus, in the sole discretion of the Security
Insurer, provided no Insurer Default shall have occurred and be continuing,
all or any lesser portion (as the Security Issuer may determine) of the
Principal Balance as of the immediately preceding Accounting Date of all the
Receivables that were required to be purchased pursuant to Sections 3.5 or
4.7 as of the immediately preceding Accounting Date but were not so purchased
and (iv) the aggregate amount of Cram Down Losses that shall have occurred
during the related Collection Period, and (y) Class A Principal Carryover
Shortfall. On the Final Scheduled Distribution Date the Class A Principal
Distributable Amount shall be the Outstanding Class A Certificate Balance.
CLASS B CERTIFICATE: Any one of the Certificates executed by
the Trust and authenticated by the Trustee in substantially the form set
forth in Exhibit B hereto.
CLASS B CERTIFICATE BALANCE: Initially, the Class B
Percentage of the Cut-off Date Principal Balance and, thereafter, the initial
Class B Certificate Balance, reduced by (x) all amounts distributed (pursuant
to the provision set forth in Section 5.5(b) hereof) to Class B
Certificateholders and allocable to principal and (y) on any Distribution
Date on which (i) the sum of the Class A Certificate Balance and the Class B
Certificate Balance as of such Distribution Date and after taking into
account all distributions to be made on such Distribution Date exceeds (ii)
the Pool Balance with respect to the immediately preceding Collection Period,
the amount of such excess.
CLASS B CERTIFICATE FACTOR: As of any Distribution Date, a
seven-digit decimal figure equal to the Class B Certificate Balance as of the
close of business on such Distribution Date divided by the initial Class B
Certificate Balance as of the Cut-Off Date.
CLASS B COUPON INTEREST CARRYOVER SHORTFALL: As of the close
of business on any Distribution Date, the excess of the Class B Coupon
Interest Amount for such Distribution Date plus any outstanding Class B
Coupon Interest Carryover Shortfall from
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the preceding Distribution Date, over the amount of interest that the holders
of the Class B Certificates actually received on such current Distribution
Date.
CLASS B COUPON INTEREST AMOUNT: With respect to any
Distribution Date, the sum of (i) for the initial Distribution Date forty-one
(41) days of interest and for any Distribution Date thereafter, thirty (30)
days of interest, in any case calculated on the basis of a 360-day year
consisting of twelve 30-day months, at the rate of 6.10% per annum in the
Class B Certificate Balance as of the close of business on the last day of
the preceding Collection Period and (ii) any outstanding Class B Coupon
Interest Carryover Shortfall with respect to the immediately preceding
Distribution Date.
CLASS B EXCESS INTEREST AMOUNT: With respect to any
Distribution Date, an amount equal to the portion of Available Funds, if any,
remaining after the distribution of amounts required to be distributed on
such Distribution Date pursuant to clauses (i) through (vii) of Section
5.5(a).
CLASS B PERCENTAGE: 8%.
CLASS B PRINCIPAL CARRYOVER SHORTFALL: As of the close of
business on any Distribution Date, the excess of the Class B Principal
Distributable Amount plus any outstanding Class B Principal Carryover
Shortfall from the preceding Distribution Date over the amount of principal
that the holders of the Class B Certificates actually received on such
current Distribution Date.
CLASS B PRINCIPAL DISTRIBUTABLE AMOUNT: With respect to any
Distribution Date, without duplication, the Class B Percentage of the sum of:
(i) the principal portion of all Collected Funds received during or with
respect to the immediately preceding Collection Period (other than Liquidated
Receivables and Purchased Receivables) including the principal portion of all
prepayments, (ii) the Principal Balance of all Receivables that became
Liquidated Receivables during the related Collection Period (other than
Purchased Receivables), (iii) the principal portion of the Purchase Amount of
all Receivables that became Purchased Receivables as of the immediately
preceding Accounting Date, and (iv) the aggregate amount of Cram Down Losses
that shall have occurred during the related Collection Period.
CLOSING DATE: December 19, 1995.
COLLATERAL AGENT: The Collateral Agent named in the Spread
Account Agreement, and any successor thereto pursuant to the terms of the
Spread Account Agreement.
COLLATERAL INSURANCE: Shall have the meaning set forth in
Section 4.4(a).
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COLLECTED FUNDS: With respect to any Determination Date, the
amount of funds in the Collection Account representing collections on the
Receivables during or with respect to the related Collection Period,
including all Liquidation Proceeds collected during the related Collection
Period (but excluding any Purchase Amounts).
COLLECTION ACCOUNT: The account designated as the Collection
Account in, and which is established and maintained pursuant to, Section 5.1.
COLLECTION PERIOD: With respect to the first Distribution
Date, the period beginning on the close of business on November 20, 1995 and
ending on the close of business on December 31, 1995. With respect to each
subsequent Distribution Date, the preceding calendar month. Any amount
stated "as of the close of business of the last day of a Collection Period"
shall give effect to the following calculations as determined as of the end
of the day on such last day: (i) all applications of collections, and (ii)
all distributions.
COLLECTION RECORDS: All manually prepared or computer
generated records relating to collection efforts or payment histories with
respect to the Receivables.
COMPUTER TAPE OR LISTING: The computer tape or listing
generated on behalf of the Seller which provides information relating to the
Receivables and which was used by the Seller in selecting the Receivables
conveyed to the Trust hereunder.
CONFIDENTIAL OFFERING CIRCULAR: The Offering Circular, dated
December 7, 1995, relating to the Class A Certificates.
CONTROLLING PARTY: The Security Insurer, so long as no
Insurer Default shall have occurred and be continuing and the Trustee for the
benefit of the Certificateholders, for so long as the Insurer Default shall
have occurred and be continuing.
CORPORATE TRUST OFFICE: The principal office of the Trustee
at which at any particular time its corporate trust business shall be
administered, which office at the Closing Date is located at LaSalle National
Bank, 135 S. LaSalle Street , Suite 200, Chicago, Illinois 60603, Attention:
Asset Backed Securities Trust Administration. The telecopy number for the
Corporate Trust Office on the Closing Date is (312) 904-2084.
CRAM DOWN LOSS: With respect to a Receivable, if a court of
appropriate jurisdiction in an insolvency proceeding shall have issued an
order reducing the amount owed on a Receivable or otherwise modifying or
restructuring the scheduled payments to be made on a Receivable, an amount
equal to the excess of the principal balance of such Receivable immediately
prior to such order over the principal balance of such Receivable as so
reduced or the net present value (using as the discount rate the higher of
the APR on such Receivable or the rate of interest, if any, specified by the
court in such order) of the
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scheduled payments as so modified or restructured. A "Cram Down Loss" shall
be deemed to have occurred on the date of issuance of such order.
CUSTODIAN: AmeriCredit and any other Person named from time
to time as custodian in any Custodian Agreement acting as agent for the
Trustee, which Person must be acceptable to the Controlling Party (the
Custodian as of the Closing Date is acceptable to the Security Insurer as of
the Closing Date).
CUSTODIAN AGREEMENT: Any Custodian Agreement from time to
time in effect between the Custodian named therein and the Trustee, as the
same may be amended, supplemented or otherwise modified from time to time in
accordance with the terms thereof, which Custodian Agreement and any
amendments, supplements or modifications thereto shall be acceptable to the
Controlling Party (the Custodian Agreement which is effective on the Closing
Date is acceptable to the Controlling Party).
CUT-OFF DATE: November 20, 1995.
CUT-OFF DATE PRINCIPAL BALANCE: $70,633,054.08
DEALER: A seller of new or used automobiles or light trucks
that originated one or more of the Receivables and sold the respective
Receivable, directly or indirectly, to AmeriCredit.
DEALER AGREEMENT: An agreement by and among AmeriCredit and
a Dealer relating to the sale of retail installment sale contracts and
installment notes to AmeriCredit and all documents and instruments relating
thereto.
DEALER ASSIGNMENT: With respect to a Receivable, the
executed assignment executed by a Dealer conveying such Receivable to
AmeriCredit.
DEALER UNDERWRITING GUIDE: means the underwriting manual used
by AmeriCredit in the purchase of Receivables as amended from time to time.
DEFICIENCY CLAIM AMOUNT: Shall have the meaning set forth in
Section 6.3(a).
DEFICIENCY CLAIM DATE: With respect to any Distribution
Date, the fourth Business Day immediately preceding such Distribution Date.
DEFICIENCY NOTICE: Shall have the meaning set forth in
Section 6.3(a).
DEPOSIT DATE: With respect to any Collection Period, the
Business Day immediately preceding the related Determination Date.
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DETERMINATION DATE: With respect to a Collection Period, the
earlier of (i) the fourth Business Day preceding the Distribution Date in the
next calendar month, and (ii) the 5th day of the next calendar month, or if
such 5th day is not a Business Day, the next succeeding Business Day.
DISTRIBUTION AMOUNT: With respect to a Distribution Date,
the sum of (i) the Available Funds for such Distribution Date, plus (ii) the
Deficiency Claim Amount, if any, received by the Trustee with respect to such
Distribution Date.
DISTRIBUTION DATE: The 12th day of each calendar month, or
if such 12th day is not a Business Day, the next succeeding Business Day,
commencing January 12, 1996 and including the Final Scheduled Distribution
Date.
DRAW DATE: With respect to any Distribution Date, the third
Business Day immediately preceding such Distribution Date.
ELECTRONIC LEDGER: The electronic master record of the
retail installment sales contracts or installment loans of the Servicer.
ELIGIBLE ACCOUNT: (i) A segregated trust account that is
maintained with a depository institution acceptable to the Security Insurer
(so long as an Insurer Default shall not have occurred and be continuing), or
(ii) a demand deposit account maintained with a depository institution or
trust company organized under the laws of the United States of America, or
any of the States thereof, or the District of Columbia, having a certificate
of deposit, short term deposit or commercial paper rating of at least A-1+ by
Standard & Poor's and P-1 by Moody's and (so long as an Insurer Default shall
not have occurred and be continuing) acceptable to the Security Insurer. In
either case, such depository institution or trust company shall have been
approved by the Controlling Party (as defined in the Spread Account
Agreement), acting in its discretion, by written notice to the Collateral
Agent.
ELIGIBLE INVESTMENTS: Any one or more of the following types
of investments:
(i)(A) direct interest-bearing obligations of, and
interest-bearing obligations guaranteed as to timely payment of
principal and interest by, the United States or any agency or
instrumentality of the United States the obligations of which are
backed by the full faith and credit of the United States; and (B)
direct interest-bearing obligations of, and interest-bearing
obligations guaranteed as to timely payment of principal and interest
by, the Federal National Mortgage Association or the Federal Home
Loan Mortgage Corporation, but only if, at the time of
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investment, such obligations are rated AAA by Standard & Poor's and
Aaa by Moody's;
(ii) demand or time deposits in, certificates of
deposit of, or bankers' acceptances issued by any depository
institution or trust company organized under the laws of the United
States or any State and subject to supervision and examination by
federal and/or State banking authorities (including, if applicable,
the Trustee or any agent of the Trustee acting in their respective
commercial capacities); provided that the short-term unsecured debt
obligations of such depository institution or trust company at the
time of such investment, or contractual commitment providing for such
investment, are rated A1+ by Standard & Poor's and P-1 by Moody's;
(iii) repurchase obligations pursuant to a written
agreement (A) with respect to any obligation described in clause (i)
above, where the Trustee has taken actual or constructive delivery of
such obligation in accordance with Section 5.1, and (B) entered into
with a depository institution or trust company organized under the
laws of the United States or any State thereof, the deposits of which
are insured by the Federal Deposit Insurance Corporation and the
short-term unsecured debt obligations of which are rated "A-1+" by
Standard & Poor's and "P-1" by Moody's (including, if applicable, the
Trustee or any agent of the Trustee acting in their respective
commercial capacities);
(iv) securities bearing interest or sold at a
discount issued by any corporation incorporated under the laws of the
United States or any State whose long-term unsecured debt obligations
are rated AAA by Standard & Poor's and Aaa by Moody's at the time of
such investment or contractual commitment providing for such
investment; PROVIDED HOWEVER, that securities issued by any
particular corporation will not be Eligible Investments to the extent
that an investment therein will cause the then outstanding principal
amount of securities issued by such corporation and held as part of
the Collection Account to exceed 10% of the Eligible Investments held
in the Collection Account (with Eligible Investments held in the
Collection Account valued at par);
(v) commercial paper that (1) is payable in United
States dollars and (2) is rated A1+ by Standard & Poor's and P-1 by
Moody's;
(vi) money market mutual funds registered under the
Investment Company Act of 1940, as amended, having a rating, at the
time of such investment, from each of the Rating Agencies in the
highest investment category granted thereby (in the case of Standard
& Poor's AAAm-G or AAAm); and
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(vii) any other demand or time deposit, obligation,
security or investment as may be acceptable to the Rating Agencies
and the Security Insurer, as evidenced by the prior written consent
of the Rating Agencies and the Security Insurer, as may from time to
time be confirmed in writing to the Trustee by the Security Insurer.
ELIGIBLE SERVICER: AmeriCredit, the Backup Servicer or
another Person which at the time of its appointment as Servicer, (i) is
servicing a portfolio of motor vehicle retail installment sales contracts
and/or motor vehicle installment loans, (ii) is legally qualified and has the
capacity to service the Receivables, (iii) has demonstrated the ability
professionally and competently to service a portfolio of motor vehicle retail
installment sales contracts and/or motor vehicle installment loans similar to
the Receivables with reasonable skill and care, (iv) is qualified and
entitled to use, pursuant to a license or other written agreement, and agrees
to maintain the confidentiality of, the software which the Servicer uses in
connection with performing its duties and responsibilities under this
Agreement or otherwise has available software which is adequate to perform
its duties and responsibilities under this Agreement and (v) has a minimum
net worth of $50,000,000.
FINAL SCHEDULED DISTRIBUTION DATE: May 12, 2001.
FINANCED VEHICLE: A new or used automobile or light truck,
van or mini-van together with all accessories thereto, securing or purporting
to secure an Obligor's indebtedness under a Receivable.
FORCE-PLACED INSURANCE: The meaning set forth in Section
4.4(b).
FRACTIONAL UNDIVIDED INTEREST: The fractional undivided
interest in the Trust that is evidenced by a Certificate.
INDEPENDENT ACCOUNTANTS: Shall have the meaning set forth in
Section 4.11(a).
INSURANCE ADD-ON AMOUNT: The premium charged to the Obligor
in the event that the Servicer obtains Force-Placed Insurance pursuant to
Section 4.4.
INSURANCE AGREEMENT: The Insurance and Indemnity Agreement
between the Security Insurer and AmeriCredit.
INSURANCE AGREEMENT EVENT OF DEFAULT: An "Event of Default"
as defined in the Insurance Agreement.
INSURANCE POLICY: With respect to a Receivable, any
insurance policy benefiting the holder of the Receivable providing loss or
physical damage, credit life, credit
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disability, theft, mechanical breakdown or similar coverage with respect to
the Financed Vehicle or the Obligor.
INSURER DEFAULT: The occurrence and continuance of any of
the following events:
(A) the Security Insurer shall have failed to make
a payment required under the Policy in accordance with its
terms;
(B) The Security Insurer shall have (i) filed a
petition or commenced any case or proceeding under any
provision or chapter of the United States Bankruptcy Code or
any other similar federal or state law relating to
insolvency, bankruptcy, rehabilitation, liquidation or
reorganization, (ii) made a general assignment for the
benefit of its creditors, or (iii) had an order for relief
entered against it under the United States Bankruptcy Code or
any other similar federal or state law relating to
insolvency, bankruptcy, rehabilitation, liquidation or
reorganization which is final and nonappealable; or
(C) a court of competent jurisdiction, the New York
Department of Insurance or other competent regulatory
authority shall have entered a final and nonappealable order,
judgment or decree (i) appointing a custodian, trustee, agent
or receiver for the Security Insurer or for all or any
material portion of its property or (ii) authorizing the
taking of possession by a custodian, trustee, agent or
receiver of the Security Insurer (or the taking of possession
of all or any material portion of the property of the
Security Insurer).
LIEN: Any security interest, lien, charge, pledge,
preference, equity or encumbrance of any kind, including tax liens,
mechanics' liens and any liens that attach by operation of law.
LIEN CERTIFICATE: With respect to a Financed Vehicle, an
original certificate of title, certificate of lien or other notification
issued by the Registrar of Titles of the applicable state to a secured party
which indicates that the lien of the secured party on the Financed Vehicle is
recorded on the original certificate of title. In any jurisdiction in which
the original certificate of title is required to be given to the Obligor, the
term "Lien Certificate" shall mean only a certificate or notification issued
to a secured party.
LIQUIDATED RECEIVABLE: With respect to any Collection
Period, a Receivable as to which (i) 90 days have elapsed since the Servicer
repossessed the Financed Vehicle, (ii) the Servicer has determined in good
faith that all amounts it expects to recover have
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been received or (iii) 5% or more of a Scheduled Payment shall have become
120 or more days delinquent, except in the case of repossessed Financed
Vehicles.
LIQUIDATION PROCEEDS: With respect to a Liquidated
Receivable, all amounts realized with respect to such Receivable (other than
amounts withdrawn from the Spread Account and drawings under the Policy) net
of (i) reasonable expenses incurred by the Servicer in connection with the
collection of such Receivable and the repossession and disposition of the
Financed Vehicle and (ii) amounts that are required to be refunded to the
Obligor on such Receivable; PROVIDED HOWEVER, that the Liquidation Proceeds
with respect to any Receivable shall in no event be less than zero.
LOCKBOX ACCOUNT: An account maintained on behalf of the
Trustee by the Lockbox Bank pursuant to Section 4.2(d).
LOCKBOX AGREEMENT: The Tri-Party Remittance Processing
Agreement, dated as of November 20, 1995, by and among AmeriCredit, First
Interstate Bank of Texas, N.A., and the Trustee, as such agreement may be
amended or supplemented from time to time, unless the Trustee hereunder shall
cease to be a party thereunder, or such agreement shall be terminated in
accordance with its terms, in which event "Lockbox Agreement" shall mean such
other agreement, in form and substance acceptable to the Controlling Party,
among the Servicer, the Trustee and the Lockbox Bank.
LOCKBOX BANK: A depository institution named by the Servicer
and acceptable to the Controlling Party.
MONTHLY RECORDS: All records and data maintained by the
Servicer with respect to the Receivables, including the following with
respect to each Receivable: the account number; the originating Dealer;
Obligor name; Obligor address; Obligor home phone number; Obligor business
phone number; original Principal Balance; original term; Annual Percentage
Rate; current Principal Balance; current remaining term; origination date;
first payment date; final scheduled payment date; next payment due date; date
of most recent payment; new/used classification; collateral description; days
currently delinquent; number of contract extensions (months) to date; amount
of Scheduled Payment; current Insurance Policy expiration date; and past due
late charges.
MOODY'S: Moody's Investors Service, Inc., or any successor
thereto.
NOTICE OF DEFICIENCY: A written or telecopied notice from
the Trustee to the Security Insurer, substantially in the form of Exhibit A
to the Policy.
OBLIGOR: The purchaser or the co-purchasers of the Financed
Vehicle and any other Person or Persons who are primarily or secondarily
obligated to make payments under a Receivable.
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OFFICER'S CERTIFICATE: A certificate signed by the chairman
of the board, the vice chairman, the president, the chief financial officer
or any vice president.
OPINION OF COUNSEL: A written opinion of counsel reasonably
acceptable to the Security Insurer, which opinion is acceptable in form and
substance to the Trustee and, if such opinion or a copy thereof is required
by the provisions of this Agreement to be delivered to the Security Insurer,
to the Security Insurer.
OTHER CONVEYED PROPERTY: All property conveyed by the Seller
to the Trust pursuant to this Agreement other than the Receivables.
PERSON: Any legal person, including any individual,
corporation, partnership, joint venture, estate, association, joint stock
company, trust, unincorporated organization or government or any agency or
political subdivision thereof, or any other entity.
POLICY: The financial guaranty insurance policy number
______-N issued by the Security Insurer to the Trustee for the benefit of the
Class A Certificateholders, including any endorsements thereto.
POLICY CLAIM AMOUNT: Shall have the meaning set forth in
Section 6.4(a).
POLICY PAYMENTS ACCOUNT: The account designated as the
Policy Payments Account in, and which is established and maintained pursuant
to, Section 5.1.
POOL BALANCE: As of the close of business on the last day of
a Collection Period, the aggregate Principal Balance of the Receivables
(excluding Purchased Receivables and Liquidated Receivables).
POOL FACTOR: With respect to any Distribution Date, a seven
digit decimal figure equal to, as applicable, the Class A Certificate Balance
as of such Distribution Date (after giving effect to distributions on such
date) divided by the Class A Certificate Balance as of the Closing Date, or,
the Class B Certificate Balance as of such Distribution Date (after giving
effect to distributions on such date) divided by the Class B Certificate
Balance as of the Closing Date.
PREFERENCE CLAIM: Shall have the meaning set forth in
Section 6.5(b).
PRINCIPAL BALANCE: With respect to any Receivable, as of any
date, the Amount Financed minus (i) that portion of all amounts received on
or prior to such date and allocable to principal in accordance with the terms
of the Receivable, and (ii) any Cram Down Loss in respect of such Receivable.
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PURCHASE AMOUNT: With respect to a Receivable, the Principal
Balance and all accrued and unpaid interest on the Receivable as of the date
of purchase.
PURCHASED RECEIVABLE: As of any Accounting Date, any
Receivable that became a Warranty Receivable or Administrative Receivable as
of such Accounting Date (or which the Seller or the Servicer has elected to
purchase as of an earlier Accounting Date, as permitted hereunder) and as to
which the Purchase Amount has been deposited in the Collection Account by the
Seller or the Servicer, as applicable, on or before the related Deposit Date.
RATING AGENCY: Each of Moody's and Standard & Poor's, so
long as such Persons maintain a rating on the Certificates; and if either
Moody's or Standard & Poor's no longer maintains a rating on the
Certificates, such other nationally recognized statistical rating
organization selected by the Certificate Majority, AmeriCredit and (so long
as an Insurer Default shall not have occurred and be continuing) acceptable
to the Security Insurer.
RECEIVABLE: A retail installment sale contract or promissory
note (and related security agreement) for a new or used automobile or light
truck, vans or mini-vans (and all accessories thereto) that is included in
the Schedule of Receivables, and all rights and obligations under such a
contract, but not including (i) any Liquidated Receivable (other than for
purposes of calculating, as applicable, the Class A Principal Distributable
Amount and the Class B Principal Distributable Amount hereunder), or (ii) any
Purchased Receivable on or after the Accounting Date immediately preceding
the Deposit Date on which payment of the Purchase Amount is made in
connection therewith pursuant to Section 5.4.
RECEIVABLE FILE: The documents, electronic entries,
instruments and writings listed in Section 3.2 pertaining to a particular
Receivable.
REGISTRAR OF TITLES: With respect to any state, the
governmental agency or body responsible for the registration of, and the
issuance of certificates of title relating to, motor vehicles and liens
thereon.
RELATED DOCUMENTS: The Certificates, the Indemnification
Agreement, the Spread Account Agreement, the Insurance Agreement, the Lockbox
Agreement, and the Initial Purchaser Agreement dated December 7, 1995 between
the Seller and the initial purchaser of the Certificates. The Related
Documents to be executed by any party are referred to herein as "such party's
Related Documents," "its Related Documents" or by a similar expression.
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REPURCHASE EVENTS: The occurrence of a breach of any of the Seller's or
the Servicer's representations and warranties in this Agreement which requires
the repurchase of a Receivable by the Seller or the Servicer pursuant hereto.
REQUIRED DEPOSIT RATING: A rating on short-term unsecured debt
obligations of "P-1" by Moody's and at least "A-1+" by Standard & Poor's (or
such other rating as may be acceptable to the Rating Agencies and, so long as
an Insurer Default shall not have occurred and be continuing, the Security
Insurer) so as to not affect the rating on the Certificates.
RESPONSIBLE OFFICER: When used with respect to the Trustee, any officer
of the Trustee assigned by the Trustee to administer its corporate trust
affairs relating to the Trust. When used with respect to any other Person
that is not an individual, the President, any Vice-President or Assistant
Vice-President or the Controller of such Person, or any other officer or
employee having similar functions.
SCHEDULE OF RECEIVABLES: The schedule of all retail installment sales
contracts and promissory notes originally held as part of the Trust which is
attached as Schedule A.
SCHEDULE OF REPRESENTATIONS: The Schedule of Representations and
Warranties attached hereto as Schedule B.
SCHEDULED PAYMENT: With respect to any Collection Period for any
Receivable, the amount set forth in such Receivable as required to be paid by
the Obligor in such Collection Period. If after the Closing Date, the
Obligor's obligation under a Receivable with respect to a Collection Period
has been modified so as to differ from the amount specified in such
Receivable as a result of (i) the order of a court in an insolvency
proceeding involving the Obligor, (ii) pursuant to the Soldiers' and Sailors'
Civil Relief Act of 1940 or (iii) modifications or extensions of the
Receivable permitted by Section 4.2(b), the Scheduled Payment with respect to
such Collection Period shall refer to the Obligor's payment obligation with
respect to such Collection Period as so modified.
SECURITY INSURER: Financial Security Assurance Inc., a monoline
insurance company incorporated under the laws of the State of New York, or
any successor thereto, as issuer of the Policy.
SELLER: shall have the meaning set forth in the first paragraph of this
Agreement.
SERIES: The Certificates issued pursuant to this Agreement.
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SERVICER: AmeriCredit Financial Services, Inc., a Delaware corporation,
its successor in interest pursuant to Section 9.2 or, after any termination
of the Servicer upon a Servicer Termination Event, the Backup Servicer or any
other successor Servicer.
SERVICER EXTENSION NOTICE: The notice delivered pursuant to Section 4.14.
SERVICER TERMINATION EVENT: An event described in Section 10.1.
SERVICER'S CERTIFICATE: With respect to each Determination Date, a
certificate, completed by and executed on behalf of the Servicer, in
accordance with Section 4.9, substantially in the form attached hereto as
Exhibit C.
SIMPLE INTEREST METHOD: The method of allocating a fixed level payment
on an obligation between principal and interest, pursuant to which the
portion of such payment that is allocated to interest is equal to the product
of the fixed rate of interest on such obligation multiplied by the period of
time (expressed as a fraction of a year, based on the actual number of days
in the calendar month and 365 days in the calendar year) elapsed since the
preceding payment under the obligation was made.
SIMPLE INTEREST RECEIVABLE: A Receivable under which the portion of the
payment allocable to interest and the portion allocable to principal is
determined in accordance with the Simple Interest Method.
SPREAD ACCOUNT: The Series 1995-B Spread Account established and
maintained pursuant to the Spread Account Agreement. The Spread Account
shall in no event be deemed part of the Trust Property.
SPREAD ACCOUNT AGREEMENT: The Spread Account Agreement among ARC, the
Security Insurer, the Collateral Agent and the Trustee as the same may be
amended, supplemented or otherwise modified in accordance with the terms
thereof.
STANDARD & POOR'S: Standard & Poor's Ratings Service, or any successor
thereto.
SUBCOLLECTION ACCOUNT: The account designated as the Subcollection
Account in, and which is established and maintained pursuant to Section 5.2(a).
SUPPLEMENTAL SERVICING FEE: With respect to any Collection Period all
administrative fees, expenses and charges paid by or on behalf of Obligors,
including late fees, prepayment fees and liquidation fees collected on the
Receivables during such Collection Period.
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TOTAL SERVICING FEE: The sum of the Basic Servicing Fee and the
Supplemental Servicing Fee.
TRIGGER EVENT: shall have the meaning set forth in the Spread Account
Agreement.
TRUST: shall have the meaning set forth in Section 2.1.
TRUST PROPERTY: The property and proceeds conveyed pursuant to Section
3.1, together with certain monies paid on or after the Cut-off Date, the
Policy, the Collection Account (including all Eligible Investments therein
and all proceeds therefrom), the Lockbox Account, the Subcollection Account
and certain other rights under this Agreement. Although the Seller has
pledged the Spread Account to the Trustee and the Security Insurer pursuant
to the Spread Account Agreement, the Spread Account shall not under any
circumstances be deemed to be a part of or otherwise includable in the Trust
or the Trust Property.
TRUSTEE: The Person acting as Trustee under this Agreement, its
successors in interest and any successor Trustee under this Agreement.
UCC: The Uniform Commercial Code as in effect in the relevant
jurisdiction.
WARRANTY RECEIVABLE: With respect to any Collection Period, a
Receivable which the Seller has become obligated to repurchase pursuant to
Section 3.5.
1.2. USAGE OF TERMS. With respect to all terms used in this Agreement,
the singular includes the plural and the plural the singular; words importing
any gender include the other genders; references to "writing" include
printing, typing, lithography, and other means of reproducing words in a
visible form; references to agreements and other contractual instruments
include all subsequent amendments thereto or changes therein entered into in
accordance with their respective terms and not prohibited by this Agreement;
references to Persons include their permitted successors and assigns; and the
terms "include" or "including" mean "include without limitation" or
"including without limitation."
1.3. CALCULATIONS. All calculations of the amount of interest accrued
on the Certificates and all calculations of the amount of the Basic Servicing
Fee shall be made on the basis of a 360-day year consisting of twelve 30-day
months. All references to the Principal Balance of a Receivable as of a
Accounting Date shall refer to the close of business on such day.
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1.4. SECTION REFERENCES. All references to Articles, Sections,
paragraphs, subsections, exhibits and schedules shall be to such portions of
this Agreement unless otherwise specified.
1.5. ACTION BY OR CONSENT OF CERTIFICATEHOLDERS. Whenever any
provision of this Agreement refers to action to be taken, or consented to, by
Certificateholders, such provision shall be deemed to refer to
Certificateholders of record as of the Accounting Date immediately preceding
the date on which such action is to be taken, or consent given, by
Certificateholders. Solely for the purposes of any action to be taken, or
consented to, by Certifi-cateholders, any Certificate registered in the name
of AmeriCredit or any Affiliate thereof shall be deemed not to be outstanding
and the Fractional Undivided Interest evidenced thereby shall not be taken
into account in determining whether the requisite Fractional Undivided
Interest necessary to effect any such action or consent has been obtained;
PROVIDED HOWEVER, that, solely for the purpose of determining whether the
Trustee is entitled to rely upon any such action or consent, only
Certificates which the Trustee knows to be so owned shall be so disregarded.
1.6. NO RECOURSE. No recourse may be taken, directly or indirectly,
under this Agreement or any certificate or other writing delivered in
connection herewith or therewith, against any stockholder, officer, or
director, as such, of the Seller, AmeriCredit, the Servicer or the Trustee or
of any predecessor or successor of the Seller, AmeriCredit, the Servicer or
the Trustee.
1.7. MATERIAL ADVERSE EFFECT. Whenever a determination is to be made
under this Agreement as to whether a given event, action, course of conduct
or set of facts or circumstances could or would have a material adverse
effect on the Trust or the Certificateholders (or any similar or analogous
determination), such determination shall be made without taking into account
the insurance provided by the Policy.
II
CREATION OF TRUST
II.1 CREATION OF TRUST. The Seller does hereby create and establish,
pursuant to the laws of the State of New York and this Agreement a trust (the
"Trust"), which for convenience shall be known as "AmeriCredit Automobile
Receivables Trust 1995-B."
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III
CONVEYANCE OF RECEIVABLES; ACCEPTANCE BY TRUSTEE;
ORIGINAL ISSUANCE OF CERTIFICATES
III.1. CONVEYANCE OF RECEIVABLES. Subject to the terms and conditions
of this Agreement, the Seller, pursuant to the mutually agreed upon terms
contained herein, hereby sells, transfers, assigns, and otherwise conveys to
the Trust, without recourse (but without limitation of its obligations in
this Agreement), all of the right, title and interest of the Seller in and to
the Receivables, all monies payable thereon or in respect thereof after the
Cutoff Date, the security interests of the Seller in the related Financed
Vehicles, the Insurance Policies and any proceeds from any Insurance Policies
relating to the Receivables, the Obligors or the related Financed Vehicles,
including rebates of premiums, all Collateral Insurance and any Force-Placed
Insurance relating to the Receivables, rights of the Seller against Dealers
with respect to the Receivables under the Dealer Agreements and the Dealer
Assignments, all items contained in the related Receivable Files, any and all
other documents that the Seller or the Servicer keeps on file in accordance
with its customary procedures relating to the Receivables, the Obligors or
the related Financed Vehicles, property (including the right to receive
future Liquidation Proceeds) that secures a Receivable and that has been
acquired by or on behalf of the Seller or the Trust pursuant to liquidation
of such Receivable, all funds on deposit from time to time in the Collection
Account (including all income thereon and all amounts deposited in respect of
Administrative Receivables and Warranty Receivables) and all investments
therein and proceeds thereof, all proceeds and investments of any of the
foregoing, all present and future claims, demands, causes and choses in
action in respect of any or all of the foregoing and all payments on or under
and all proceeds of every kind and nature whatsoever in respect of any or in
lieu of the foregoing, including all proceeds of the conversion, voluntary or
involuntary, into cash or other liquid property, all cash proceeds, accounts,
accounts receivable, notes, drafts, acceptances, chattel paper, checks,
deposit accounts, insurance proceeds, condemnation awards, rights to payment
of any and every kind and other forms of obligations and receivables,
instruments and other property which at any time constitute all or part of or
are included in the proceeds of any of the foregoing. It is the intention of
the Seller that the transfer and assignment contemplated by this Agreement
shall constitute a sale of the Receivables and Other Conveyed Property from
the Seller to the Trust and the beneficial interest in and title to the
Receivables and the Other Conveyed Property shall not be part of the Seller's
estate in the event of the filing of a bankruptcy petition by or against the
Seller under any bankruptcy law. In the event that, notwithstanding the
intent of the Seller, the transfer and assignment contemplated hereby is held
not to be a sale, this Agreement shall constitute a grant of a first priority
security interest to the Trust in the property referred to in this Section
3.1 for the benefit of the Certificateholders.
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III.2. CUSTODY OF RECEIVABLE FILES.
(a) In connection with the sale, transfer and assignment of the
Receivables and the Other Conveyed Property to the Trust pursuant to this
Agreement and simultaneously with the execution and delivery of this
Agreement, the Trustee shall enter into the Custodian Agreement with the
Custodian, dated as of November 20, 1995, pursuant to which the Trustee shall
revocably appoint the Custodian, and the Custodian shall accept such
appointment, to act as the agent of the Trustee as custodian of the following
documents or instruments in its possession which shall be delivered to the
Custodian as agent of the Trustee on or before the Closing Date (with respect
to each Receivable):
(i) The fully executed original of the Receivable (together with
any agreements modifying the Receivable, including without limitation any
extension agreements);
(ii) The original credit application, or a copy thereof, of each
Obligor, fully executed by each such Obligor on AmeriCredit's customary
form, or on a form approved by AmeriCredit, for such application, and
(iii) The original certificate of title (when received) and otherwise
such documents, if any, that AmeriCredit keeps on file in accordance with
its customary procedures indicating that the Financed Vehicle is owned by
the Obligor and subject to the interest of AmeriCredit as first lienholder
or secured party (including any Lien Certificate received by AmeriCredit),
or, if such original certificate of title has not yet been received, a copy
of the application therefor, showing AmeriCredit as secured party.
The Trustee may act as the Custodian, in which case the Trustee shall be
deemed to have assumed the obligations of the Custodian specified in the
Custodian Agreement.
(b) Upon payment in full of any Receivable, the Servicer will notify
the Custodian pursuant to a certificate of an officer of the Servicer (which
certificate shall include a statement to the effect that all amounts received
in connection with such payments which are required to be deposited in the
Collection Account pursuant to Section 4.1 have been so deposited) and shall
request delivery of the Receivable and Receivable File to the Servicer. From
time to time as appropriate for servicing and enforcing any Receivable, the
Custodian shall, upon written request of an officer of the Servicer and
delivery to the Custodian of a receipt signed by such officer, cause the
original Receivable and the related Receivable File to be released to the
Servicer. The Servicer's receipt of a Receivable and/or Receivable File
shall obligate the Servicer to return the original Receivable and the related
Receivable File to the Custodian when its need by the Servicer has ceased
unless the Receivable is repurchased as described in Section 3.5 or 4.7.
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III.3 CONDITIONS TO ISSUANCE BY TRUST. As conditions to the Trustee's
execution and delivery of the Certificates on the Closing Date, the Trustee
shall have received the following on or before the Closing Date:
(a) The Schedule of Receivables certified by the President,
Controller or Treasurer of the Seller;
(b) The acknowledgement of the Custodian that it holds the
Receivable File relating to each Receivable;
(c) Copies of resolutions of the Board of Directors of the Seller
approving the execution, delivery and performance of this Agreement, the
Related Documents and the transactions contemplated hereby and thereby,
certified by a Secretary or an Assistant Secretary of the Seller;
(d) Copies of resolutions of the Board of Directors of
AmeriCredit approving the execution, delivery and performance of this
Agreement, the Related Documents and the transactions contemplated hereby
and thereby, certified by a Secretary or an Assistant Secretary of
AmeriCredit;
(e) Evidence that all filings (including, without limitation,
UCC filings) required to be made by any Person and actions required to be
taken or performed by any Person in any jurisdiction to give the Trustee a
first priority perfected lien on, or ownership interest in, the Receivables
and the Other Conveyed Property have been made, taken or performed; and
(f) An executed copy of the Policy and Spread Account Agreement.
III .4. REPRESENTATIONS AND WARRANTIES OF SELLER. By its execution of
this Agreement, the Seller makes the following representations and warranties
on which the Trust relies in accepting the Receivables and the Other Conveyed
Property and in issuing the Certificates and upon which the Security Insurer
relies in issuing the Policy. Unless otherwise specified, such representations
and warranties speak as of the Closing Date, but shall survive the sale,
transfer, and assignment of the Receivables to the Trust.
(a) SCHEDULE OF REPRESENTATIONS. The representations and warranties
set forth on the Schedule of Representations attached hereto as Schedule B
are true and correct.
(b) ORGANIZATION AND GOOD STANDING. The Seller has been duly organized
and is validly existing as a corporation in good standing under the laws of
the State of Delaware, with power and authority to own its properties and to
conduct its business as such properties are currently owned and such business
is currently conducted, and had at all relevant times,
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and now has, power, authority and legal right to acquire, own and sell the
Receivables and the Other Conveyed Property transferred to the Trust.
(c) DUE QUALIFICATION. The Seller is duly qualified to do business as
a foreign corporation in good standing and has obtained all necessary
licenses and approvals in all jurisdictions where the failure to do so would
materially and adversely affect Seller's ability to transfer the Receivables
and the Other Conveyed Property to the Trust pursuant to this Agreement, or
the validity or enforceability of the Receivables and the Other Conveyed
Property or to perform Seller's obligations hereunder and under the Seller's
Related Documents.
(d) POWER AND AUTHORITY. The Seller has the power and authority to
execute and deliver this Agreement and its Related Documents and to carry out
its terms and their terms, respectively; the Seller has full power and
authority to sell and assign the Receivables and the Other Conveyed Property
to be sold and assigned to and deposited with the Trust by it and has duly
authorized such sale and assignment to the Trust by all necessary corporate
action; and the execution, delivery and performance of this Agreement and the
Seller's Related Documents have been duly authorized by the Seller by all
necessary corporate action.
(e) VALID SALE, BINDING OBLIGATIONS. This Agreement effects a valid
sale, transfer and assignment of the Receivables and the Other Conveyed
Property, enforceable against the Seller and creditors of and purchasers from
the Seller; and this Agreement and the Seller's Related Documents, when duly
executed and delivered, shall constitute legal, valid and binding obligations
of the Seller enforceable in accordance with their respective terms, except
as enforceability may be limited by bankruptcy, insolvency, reorganization or
other similar laws affecting the enforcement of creditors' rights generally
and by equitable limitations on the availability of specific remedies,
regardless of whether such enforceability is considered in a proceeding in
equity or at law.
(f) NO VIOLATION. The consummation of the transactions contemplated by
this Agreement and the Related Documents and the fulfillment of the terms of
this Agreement and the Related Documents shall not conflict with, result in
any breach of any of the terms and provisions of or constitute (with or
without notice, lapse of time or both) a default under the certificate of
incorporation or by-laws of the Seller, or any indenture, agreement,
mortgage, deed of trust or other instrument to which the Seller is a party or
by which it is bound, or result in the creation or imposition of any Lien
upon any of its properties pursuant to the terms of any such indenture,
agreement, mortgage, deed of trust or other instrument, other than this
Agreement, or violate any law, order, rule or regulation applicable to the
Seller of any court or of any federal or state regulatory body,
administrative agency or other governmental instrumentality having
jurisdiction over the Seller or any of its properties.
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(g) NO PROCEEDINGS. There are no proceedings or investigations
pending or, to the Seller's knowledge, threatened against the Seller, before
any court, regulatory body, administrative agency or other tribunal or
governmental instrumentality having jurisdiction over the Seller or its
properties (A) asserting the invalidity of this Agreement or any of the
Related Documents, (B) seeking to prevent the issuance of the Certificates or
the consummation of any of the transactions contemplated by this Agreement or
any of the Related Documents, (C) seeking any determination or ruling that
might materially and adversely affect the performance by the Seller of its
obligations under, or the validity or enforceability of, this Agreement or
any of the Related Documents, or (D) seeking to adversely affect the federal
income tax or other federal, state or local tax attributes of the
Certificates.
(h) CHIEF EXECUTIVE OFFICE. The chief executive office of the Seller
is at 200 Bailey Avenue, Fort Worth, Texas 76107-1220.
III.5 REPURCHASE OF RECEIVABLES UPON BREACH OF WARRANTY. Upon
discovery by any of the Seller, the Servicer, the Security Insurer or the
Trustee of a breach of any of the representations and warranties of the
Seller contained in Section 3.4, the party discovering such breach shall give
prompt written notice to the others; PROVIDED, HOWEVER, that the failure to
give any such notice shall not affect any obligation of the Seller. As of
the second Accounting Date (or, at the Seller's election, the first
Accounting Date) following its discovery or its receipt of notice of any
breach of the representations and warranties set forth on the Schedule of
Representations which materially and adversely affects the interests of the
Certificateholders, the Security Insurer or the Trust in any Receivable
(including any Liquidated Receivable) the Seller shall, unless such breach
shall have been cured in all material respects, purchase such Receivable from
the Trust and, on or before the related Deposit Date, the Seller shall pay
the Purchase Amount to the Trust pursuant to Section 5.4. It is understood
and agreed that, except as set forth in this Section 3.5, the obligation of
the Seller to repurchase any Receivable as to which a breach has occurred and
is continuing shall, if such obligation is fulfilled, constitute the sole
remedy against the Seller for such breach available to the Security Insurer,
the Trustee on behalf of the Certificateholders or the Trust.
In addition to the foregoing and notwithstanding whether the related
Receivable shall have been purchased by the Seller, the Seller shall
indemnify the Trust, the Trustee, the Backup Servicer, the Collateral Agent,
the Security Insurer, the Trust and the Certificateholders against all costs,
expenses, losses, damages, claims and liabilities, including reasonable fees
and expenses of counsel, which may be asserted against or incurred by any of
them as a result of third party claims arising out of the events or facts
giving rise to such breach.
III.6 [Reserved].
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III.7. COLLECTING LIEN CERTIFICATES NOT DELIVERED ON THE CLOSING DATE.
In the case of any Receivable in respect of which written evidence from the
Dealer selling the related Financed Vehicle that the Lien Certificate for
such Financed Vehicle showing AmeriCredit as first lienholder has been
applied for from the Registrar of Titles was delivered to the Custodian on
the Closing Date in lieu of a Lien Certificate, the Servicer shall use its
best efforts to collect such Lien Certificate from the Registrar of Titles as
promptly as practicable. If such Lien Certificate showing AmeriCredit as
first lienholder is not received by the Custodian within 180 days after the
Closing Date then the representation and warranty in paragraph 5 of the
Schedule of Representations in respect of such Receivable shall be deemed to
have been incorrect in a manner that materially and adversely affects the
Certificateholders, the Security Insurer and the Trust.
III.8. TRUSTEE'S ASSIGNMENT OF ADMINISTRATIVE RECEIVABLES AND WARRANTY
RECEIVABLES. With respect to all Administrative Receivables and all Warranty
Receivables purchased by the Servicer or the Seller, the Trustee shall take
any and all actions reasonably requested by the Seller or the Servicer, at
the expense of the requesting party, to assign, without recourse,
representation or warranty, to the Seller, or the Servicer, as applicable,
all the Trust's right, title and interest in and to such Purchased
Receivable, all monies due thereon, the security interests in the related
Financed Vehicles, proceeds from any Insurance Policies, proceeds from
recourse against Dealers on such Receivables and the interests of the Trust
in certain rebates of premiums and other amounts relating to the Insurance
Policies and any documents relating thereto, such assignment being an
assignment outright and not for security; and the Seller or the Servicer, as
applicable, shall thereupon own such Receivable, and all such security and
documents, free of any further obligation to the Trust, the Trustee, the
Security Insurer, the Certificateholders or the Trust with respect thereto.
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IV
ADMINISTRATION AND SERVICING OF RECEIVABLES
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IV.1. DUTIES OF THE SERVICER. The Servicer is hereby authorized to
act as agent for the Trust and in such capacity shall manage, service,
administer and make collections on the Receivables, and perform the other
actions required by the Servicer under this Agreement. The Servicer agrees
that its servicing of the Receivables shall be carried out in accordance with
customary and usual procedures of institutions which service motor vehicle
retail installment sales contracts and, to the extent more exacting, the
degree of skill and attention that the Servicer exercises from time to time
with respect to all comparable motor vehicle receivables that it services for
itself or others. In performing such duties, so long as AmeriCredit is the
Servicer, it shall comply with the policies and procedures attached hereto as
Schedule C. The Servicer's duties shall include, without limitation,
collection and posting of all payments, responding to inquiries of Obligors
on the Receivables, investigating delinquencies, sending payment coupons to
Obligors, reporting any required tax information to Obligors, monitoring the
collateral, complying with the terms of the Lockbox Agreement, accounting for
collections and furnishing monthly and annual statements to the Trustee and
the Security Insurer with respect to distributions, monitoring the status of
Insurance Policies with respect to the Financed Vehicles and performing the
other duties specified herein. The Servicer shall also administer and
enforce all rights and responsibilities of the holder of the Receivables
provided for in the Dealer Agreements (and shall maintain possession of the
Dealer Agreements, to the extent it is necessary to do so), the Dealer
Assignments and the Insurance Policies, to the extent that such Dealer
Agreements, Dealer Assignments and Insurance Policies relate to the
Receivables, the Financed Vehicles or the Obligors. To the extent consistent
with the standards, policies and procedures otherwise required hereby, the
Servicer shall follow its customary standards, policies, and procedures and
shall have full power and authority, acting alone, to do any and all things
in connection with such managing, servicing, administration and collection
that it may deem necessary or desirable. Without limiting the generality of
the foregoing, the Servicer is hereby authorized and empowered by the Trust
to execute and deliver, on behalf of the Trust, any and all instruments of
satisfaction or cancellation, or of partial or full release or discharge, and
all other comparable instruments, with respect to the Receivables and with
respect to the Financed Vehicles; PROVIDED, HOWEVER, that notwithstanding the
foregoing, the Servicer shall not, except pursuant to an order from a court
of competent jurisdiction, release an Obligor from payment of any unpaid
amount under any Receivable or waive the right to collect the unpaid balance
of any Receivable from the Obligor. The Servicer is hereby authorized to
commence, in its own name or in the name of the Trust (provided the Servicer
has obtained the Trustee's consent, which consent shall not be unreasonably
withheld), a legal proceeding to enforce a Receivable pursuant to Section 4.3
or to commence or participate in any other legal proceeding (including,
without limitation, a bankruptcy proceeding) relating to or involving a
Receivable, an Obligor or a Financed Vehicle. If the Servicer commences or
participates in such a legal proceeding in its own name, the Trust shall
thereupon be deemed to have automatically assigned such Receivable to the
Servicer solely for purposes of commencing or participating in any such
proceeding as a party or claimant, and the Servicer is authorized and
empowered by the Trust to execute and deliver in the Servicer's name any
notices,
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demands, claims, complaints, responses, affidavits or other documents or
instruments in connection with any such proceeding. The Trustee shall
furnish the Servicer with any powers of attorney and other documents which
the Servicer may reasonably request and which the Servicer deems necessary or
appropriate and take any other steps which the Servicer may deem necessary or
appropriate to enable the Servicer to carry out its servicing and
administrative duties under this Agreement.
IV.2. COLLECTION OF RECEIVABLE PAYMENTS; MODIFICATIONS OF RECEIVABLES;
LOCKBOX AGREEMENTS.
(a) Consistent with the standards, policies and procedures required
by this Agreement, the Servicer shall make reasonable efforts to collect all
payments called for under the terms and provisions of the Receivables as and
when the same shall become due, and shall follow such collection procedures
as it follows with respect to all comparable automobile receivables that it
services for itself or others and otherwise act with respect to the
Receivables, the Dealer Agreements, the Dealer Assignments, the Insurance
Policies and the Other Conveyed Property in such manner as will, in the
reasonable judgment of the Servicer, maximize the amount to be received by
the Trust with respect thereto. The Servicer is authorized in its discretion
to waive any prepayment charge, late payment charge or any other similar fees
that may be collected in the ordinary course of servicing any Receivable.
(b) The Servicer may at any time agree to a modification or
amendment of a Receivable in order to (i) change the Obligor's regular due
date to a date within the Collection Period in which such due date occurs or
(ii) re-amortize the scheduled payments on the Receivable following a partial
prepayment of principal.
(c) The Servicer may grant payment extensions on, or other
modifications or amendments to, a Receivable (in addition to those
modifications permitted by Section 4.2(b)) in accordance with its customary
procedures if the Servicer believes in good faith that such extension,
modification or amendment is necessary to avoid a default on such Receivable,
will maximize the amount to be received by the Trust with respect to such
Receivable, and is otherwise in the best interests of the Trust; PROVIDED,
HOWEVER, that:
(i) The aggregate period of all extensions on a Receivable shall
not exceed six months;
(ii) In no event may a Receivable be extended beyond the
Collection Period immediately preceding the Final Scheduled Distribution
Date;
(iii) So long as an Insurer Default shall not have occurred and be
continuing, the Servicer shall not amend or modify a Receivable (except as
provided in Section 4.2(b) and this Section 4.2(c)) without the consent
of the Security Insurer
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or a Certificate Majority (if an Insurer Default shall have occurred and
be continuing);
(iv) The aggregate Principal Balance of Receivables which may be
extended during any Calendar Quarter shall not exceed 6.0% of the aggregate
Principal Balance of Receivables as of the Accounting Date immediately
prior to the first day of such Calendar Quarter; and
(v) No such extension, modification or amendment shall be granted
more than 90 days after the Closing Date if such action would have the
effect of causing such Receivable to be deemed to have been exchanged for
another Receivable within the meaning of Section 1001 of the Internal
Revenue Code of 1986, as amended, or any proposed, temporary or final
Treasury Regulations issued thereunder.
(d) The Servicer shall use its best efforts to cause Obligors to make
all payments on the Receivables, whether by check or by direct debit of the
Obligor's bank account, to be made directly to one or more Lockbox Banks,
acting as agent for the Trust pursuant to a Lockbox Agreement. The Servicer
shall use its best efforts to cause any Lockbox Bank to deposit all payments
on the Receivables in the Lockbox Account no later than the Business Day
after receipt, and to cause all amounts credited to the Lockbox Account on
account of such payments to be transferred to the Collection Account no later
than the second Business Day after receipt of such payments. The Lockbox
Account shall be a demand deposit account held by the Lockbox Bank, or at the
request of the Controlling Party, an Eligible Account.
Prior to the Closing Date, the Servicer shall have notified each Obligor
that makes its payments on the Receivables by check to make such payments
thereafter directly to the Lockbox Bank (except in the case of Obligors that
have already been making such payments to the Lockbox Bank), and shall have
provided each such Obligor with remittance invoices in order to enable such
Obligors to make such payments directly to the Lockbox Bank for deposit into
the Lockbox Account, and the Servicer will continue, not less often than
every three months, to so notify those Obligors who have failed to make
payments to the Lockbox Bank. If and to the extent requested by the
Controlling Party, the Servicer shall request each Obligor that makes payment
on the Receivables by direct debit of such Obligor's bank account, to execute
a new authorization for automatic payment which in the judgment of the
Controlling Party is sufficient to authorize direct debit by the Lockbox Bank
on behalf of the Trust. If at any time, the Lockbox Bank is unable to
directly debit an Obligor's bank account that makes payment on the
Receivables by direct debit and if such inability is not cured within 15 days
or cannot be cured by execution by the Obligor of a new authorization for
automatic payment, the Servicer shall notify such Obligor that it cannot make
payment by direct debit and must thereafter make payment by check.
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Notwithstanding any Lockbox Agreement, or any of the provisions of this
Agreement relating to the Lockbox Agreement, the Servicer shall remain
obligated and liable to the Trust, Trustee and Certificateholders for
servicing and administering the Receivables and the Other Conveyed Property
in accordance with the provisions of this Agreement without diminution of
such obligation or liability by virtue thereof, PROVIDED, HOWEVER, that the
foregoing shall not apply to any Backup Servicer for so long as a Lockbox
Bank is performing its obligations pursuant to the terms of a Lockbox
Agreement.
In the event of a termination of the Servicer, the successor Servicer
shall assume all of the rights and obligations of the outgoing Servicer under
the Lockbox Agreement. In such event, the successor Servicer shall be deemed
to have assumed all of the outgoing Servicer's interest therein and to have
replaced the outgoing Servicer as a party to each such Lockbox Agreement to
the same extent as if such Lockbox Agreement had been assigned to the
successor Servicer, except that the outgoing Servicer shall not thereby be
relieved of any liability or obligations on the part of the outgoing Servicer
to the Lockbox Bank under such Lockbox Agreement. The outgoing Servicer
shall, upon request of the Trustee, but at the expense of the outgoing
Servicer, deliver to the successor Servicer all documents and records
relating to each such Lockbox Agreement and an accounting of amounts
collected and held by the Lockbox Bank and otherwise use its best efforts to
effect the orderly and efficient transfer of any Lockbox Agreement to the
successor Servicer. In the event that the Security Insurer (so long as an
Insurer Default shall not have occurred and be continuing) or a Certificate
Majority (if an Insurer Default shall have occurred and be continuing) elects
to change the identity of the Lockbox Bank, the outgoing Servicer, at its
expense, shall cause the Lockbox Bank to deliver, at the direction of the
Security Insurer (so long as an Insurer Default shall not have occurred and
be continuing) or a Certificate Majority (if an Insurer Default shall have
occurred and be continuing) to the Trustee or a successor Lockbox Bank, all
documents and records relating to the Receivables and all amounts held (or
thereafter received) by the Lockbox Bank (together with an accounting of such
amounts) and shall otherwise use its best efforts to effect the orderly and
efficient transfer of the lockbox arrangements and the Servicer shall notify
the Obligors to make payments to the Lockbox established by the successor.
(e) The Servicer shall remit all payments by or on behalf of the
Obligors received directly by the Servicer to the Subcollection Account or to
the Lockbox Bank for deposit into the Collection Account, in either case,
without deposit into any intervening account and as soon as practicable, but
in no event later than the Business Day after receipt thereof.
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IV.3. REALIZATION UPON RECEIVABLES.
(a) Consistent with the standards, policies and procedures
required by this Agreement, the Servicer shall use its best efforts to
repossess (or otherwise comparably convert the ownership of) and liquidate
any Financed Vehicle securing a Receivable with respect to which the Servicer
has determined that payments thereunder are not likely to be resumed, as soon
as is practicable after default on such Receivable but in no event later than
the date on which all or any portion of a Scheduled Payment has become 91
days delinquent; provided, however, that the Servicer may elect not to
repossess a Financed Vehicle within such time period if in its good faith
judgment it determines that the proceeds ultimately recoverable with respect
to such Receivable would be increased by forbearance. The Servicer is
authorized to follow such customary practices and procedures as it shall deem
necessary or advisable, consistent with the standard of care required by
Section 4.1, which practices and procedures may include reasonable efforts to
realize upon any recourse to Dealers, the sale of the related Financed
Vehicle at public or private sale, the submission of claims under an
Insurance Policy and other actions by the Servicer in order to realize upon
such a Receivable. The foregoing is subject to the provision that, in any
case in which the Financed Vehicle shall have suffered damage, the Servicer
shall not expend funds in connection with any repair or towards the
repossession of such Financed Vehicle unless it shall determine in its
discretion that such repair and/or repossession shall increase the proceeds
of liquidation of the related Receivable by an amount greater than the amount
of such expenses. All amounts received upon liquidation of a Financed
Vehicle shall be remitted directly by the Servicer to the Subcollection
Account without deposit into any intervening account as soon as practicable,
but in no event later than the Business Day after receipt thereof. The
Servicer shall be entitled to recover all reasonable expenses incurred by it
in the course of repossessing and liquidating a Financed Vehicle into cash
proceeds, but only out of the cash proceeds of such Financed Vehicle, any
deficiency obtained from the Obligor or any amounts received from the related
Dealer, which amounts in reimbursement may be retained by the Servicer (and
shall not be required to be deposited as provided in Section 4.2(e)) to the
extent of such expenses. The Servicer shall pay on behalf of the Trust any
personal property taxes assessed on repossessed Financed Vehicles. The
Servicer shall be entitled to reimbursement of any such tax from Liquidation
Proceeds with respect to such Receivable.
(b) If the Servicer elects to commence a legal proceeding to
enforce a Dealer Agreement or Dealer Assignment, the act of commencement
shall be deemed to be an automatic assignment from the Trust to the Servicer
of the rights under such Dealer Agreement and Dealer Assignment for purposes
of collection only. If, however, in any enforcement suit or legal proceeding
it is held that the Servicer may not enforce a Dealer Agreement or Dealer
Assignment on the grounds that it is not a real party in interest or a Person
entitled to enforce the Dealer Agreement or Dealer Assignment, the Trustee,
at the Servicer's expense, or the Seller, at the Seller's expense, shall take
such steps as the Servicer
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deems necessary to enforce the Dealer Agreement or Dealer Assignment, including
bringing suit in its name or the name of the Seller or of the Trust and the
Trustee for the benefit of the Certificateholders. All amounts recovered shall
be remitted directly by the Servicer as provided in Section 4.2(e).
IV.4. INSURANCE.
(a) The Servicer shall require, in accordance with its customary
servicing policies and procedures, that each Financed Vehicle be insured by
the related Obligor under the Insurance Policies referred to in Paragraph 24
of the Schedule of Representations and Warranties and shall monitor the
status of such physical loss and damage insurance coverage thereafter, in
accordance with its customary servicing procedures. Each Receivable requires
the Obligor to maintain such physical loss and damage insurance, naming
AmeriCredit and its successors and assigns as additional insureds, and
permits the holder of such Receivable to obtain physical loss and damage
insurance at the expense of the Obligor if the Obligor fails to maintain such
insurance. If the Servicer shall determine that an Obligor has failed to
obtain or maintain a physical loss and damage Insurance Policy covering the
related Financed Vehicle which satisfies the conditions set forth in clause
(i)(a) of such Paragraph 24 (including, without limitation, during the
repossession of such Financed Vehicle) the Servicer may enforce the rights of
the holder of the Receivable under the Receivable to require the Obligor to
obtain such physical loss and damage insurance in accordance with its
customary servicing policies and procedures. The Servicer may maintain a
vendor's single interest or other collateral protection insurance policy with
respect to all Financed Vehicles ("Collateral Insurance") which policy shall
by its terms insure against physical loss and damage in the event any Obligor
fails to maintain physical loss and damage insurance with respect to the
related Financed Vehicle. All policies of Collateral Insurance shall be
endorsed with clauses providing for loss payable to the Servicer. Costs
incurred by the Servicer in maintaining such Collateral Insurance shall be
paid by the Servicer.
(b) The Servicer may, if an Obligor fails to obtain or maintain a
physical loss and damage Insurance Policy, obtain insurance with respect to
the related Financed Vehicle and advance on behalf of such Obligor, as
required under the terms of the insurance policy, the premiums for such
insurance (such insurance being referred to herein as "Force-Placed
Insurance"). All policies of Force-Placed Insurance shall be endorsed with
clauses providing for loss payable to the Servicer. Any cost incurred by the
Servicer in maintaining such Force-Placed Insurance shall only be recoverable
out of premiums paid by the Obligors or Liquidation Proceeds with respect to
the Receivable, as provided in Section 4.4(c).
(c) In connection with any Force-Placed Insurance obtained
hereunder, the Servicer may, in the manner and to the extent permitted by
applicable law, require the Obligors to repay the entire premium to the
Servicer. In no event shall the Servicer include
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the amount of the premium in the Amount Financed under the Receivable. For
all purposes of this Agreement, the Insurance Add-On Amount with respect to
any Receivable having Force-Placed Insurance will be treated as a separate
obligation of the Obligor and will not be added to the Principal Balance of
such Receivable, and amounts allocable thereto will not be available for
distribution on the Certificates. The Servicer shall retain and separately
administer the right to receive payments from Obligors with respect to
Insurance Add-On Amounts or rebates of Forced-Placed Insurance premiums. If
an Obligor makes a payment with respect to a Receivable having Force-Placed
Insurance, but the Servicer is unable to determine whether the payment is
allocable to the Receivable or to the Insurance Add-On Amount, the payment
shall be applied first to any unpaid Scheduled Payments and then to the
Insurance Add-On Amount. Liquidation Proceeds on any Receivable will be used
first to pay the Principal Balance and accrued interest on such Receivable
and then to pay the related Insurance Add-On Amount. If an Obligor under a
Receivable with respect to which the Servicer has placed Force-Placed
Insurance fails to make scheduled payments of such Insurance Add-On Amount as
due, and the Servicer has determined that eventual payment of the Insurance
Add-On Amount is unlikely, the Servicer may, but shall not be required to,
purchase such Receivable from the Trust for the Purchase Amount on any
subsequent Deposit Date. Any such Receivable, and any Receivable with
respect to which the Servicer has placed Force-Placed Insurance which has
been paid in full (excluding any Insurance Add-On Amounts) will be assigned
to the Servicer.
(d) The Servicer may sue to enforce or collect upon the Insurance
Policies, in its own name, if possible, or as agent of the Trust. If the
Servicer elects to commence a legal proceeding to enforce an Insurance Policy,
the act of commencement shall be deemed to be an automatic assignment of the
rights of the Trust under such Insurance Policy to the Servicer for purposes of
collection only. If, however, in any enforcement suit or legal proceeding it is
held that the Servicer may not enforce an Insurance Policy on the grounds that
it is not a real party in interest or a holder entitled to enforce the Insurance
Policy, the Trustee, at the Servicer's expense, or the Seller, at the Seller's
expense, shall take such steps as the Servicer deems necessary to enforce such
Insurance Policy, including bringing suit in its name or the name of the Trust
and the Trustee for the benefit of the Certificateholders.
(e) The Servicer will cause itself and may cause the Trustee to
be named as named insured under all policies of Collateral Insurance.
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IV.5. MAINTENANCE OF SECURITY INTERESTS IN VEHICLES.
(a) Consistent with the policies and procedures required by this
Agreement, the Servicer shall take such steps on behalf of the Trust as are
necessary to maintain perfection of the security interest created by each
Receivable in the related Financed Vehicle, including but not limited to
obtaining the execution by the Obligors and the recording, registering, filing,
re-recording, re-filing, and re-registering of all security agreements,
financing statements and continuation statements as are necessary to maintain
the security interest granted by the Obligors under the respective Receivables.
The Trustee hereby authorizes the Servicer, and the Servicer agrees, to take any
and all steps necessary to re-perfect such security interest on behalf of the
Trust as necessary because of the relocation of a Financed Vehicle or for any
other reason. In the event that the assignment of a Receivable to the Trust is
insufficient, without a notation on the related Financed Vehicle's certificate
of title, or without fulfilling any additional administrative requirements under
the laws of the state in which the Financed Vehicle is located, to perfect a
security interest in the related Financed Vehicle in favor of the Trustee, the
Servicer hereby agrees that AmeriCredit's designation as the secured party on
the certificate of title is in its capacity as agent of the Trustee.
(b) Upon the occurrence of an Insurance Agreement Event of
Default, the Security Insurer may (so long as an Insurer Default shall not
have occurred and be continuing) instruct the Trustee and the Servicer to
take or cause to be taken, or, if an Insurer Default shall have occurred,
upon the occurrence of a Servicer Termination Event, the Trustee and the
Servicer shall take or cause to be taken such action as may, in the opinion
of counsel to the Controlling Party, be necessary to perfect or re-perfect
the security interests in the Financed Vehicles securing the Receivables in
the name of the Trustee by amending the title documents of such Financed
Vehicles or by such other reasonable means as may, in the opinion of counsel
to the Controlling Party, be necessary or prudent. AmeriCredit hereby agrees
to pay all expenses related to such perfection or reperfection and to take
all action necessary therefor. In addition, prior to the occurrence of an
Insurance Agreement Event of Default, the Controlling Party may instruct the
Trustee and the Servicer to take or cause to be taken such action as may, in
the opinion of counsel to the Controlling Party, be necessary to perfect or
re-perfect the security interest in the Financed Vehicles underlying the
Receivables in the name of the Trustee, including by amending the title
documents of such Financed Vehicles or by such other reasonable means as may,
in the opinion of counsel to the Controlling Party, be necessary or prudent;
PROVIDED, HOWEVER, that if the Controlling Party requests that the title
documents be amended prior to the occurrence of an Insurance Agreement Event
of Default, the out-of-pocket expenses of the Servicer or the Trustee in
connection with such action shall be reimbursed to the Servicer or the
Trustee, as applicable, by the Controlling Party. AmeriCredit hereby
appoints the Trustee as its attorney-in-fact to take any and all steps
required to be performed by AmeriCredit pursuant to this Section 4.5(b),
including execution of certificates of title or
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any other documents in the name and stead of AmeriCredit, and the Trustee
hereby accepts such appointment.
IV.6. COVENANTS, REPRESENTATIONS, AND WARRANTIES OF SERVICER. By its
execution and delivery of this Agreement, the Servicer makes the following
representations, warranties and covenants on which the Trustee relies in
accepting the Receivables and issuing the Certificates, on which the Trustee
relies in authenticating the Certificates and on which the Security Insurer
relies in issuing the Policy.
(a) The Servicer covenants as follows:
(i) LIENS IN FORCE. The Financed Vehicle securing each
Receivable shall not be released in whole or in part from the
security interest granted by the Receivable, except upon payment in
full of the Receivable or as otherwise contemplated herein;
(ii) NO IMPAIRMENT. The Servicer shall do nothing to
impair the rights of the Trust or the Certificateholders in the
Receivables, the Dealer Agreements, the Dealer Assignments, the
Insurance Policies or the Other Conveyed Property;
(iii) NO AMENDMENTS. The Servicer shall not extend or
otherwise amend the terms of any Receivable, except in accordance
with Section 4.2; and
(iv) RESTRICTIONS ON LIENS. The Servicer shall not (i)
create, incur or suffer to exist, or agree to create, incur or suffer
to exist, or consent to cause or permit in the future (upon the
happening of a contingency or otherwise) the creation, incurrence or
existence of any Lien or restriction on transferability of the
Receivables except for the Lien in favor of the Trustee for the
benefit of the Certificateholders and Security Insurer, the Lien
imposed by the Spread Account Agreement in favor of the Trustee for
the benefit of the Trustee and Security Insurer, and the restrictions
on transferability imposed by this Agreement or (ii) sign or file
under the Uniform Commercial Code of any jurisdiction any financing
statement which names AmeriCredit or the Servicer as a debtor, or
sign any security agreement authorizing any secured party thereunder
to file such financing statement, with respect to the Receivables,
except in each case any such instrument solely securing the rights
and preserving the Lien of the Trustee, for the benefit of the
Certificateholders and the Security Insurer.
(b) The Servicer represents, warrants and covenants as of the
Closing Date as to itself:
(i) REPRESENTATIONS AND WARRANTIES. The
representations and warranties set forth on the Schedule of
Representations attached hereto as Schedule B are true
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and correct, provided that such representations and warranties
contained therein and herein shall not apply to any entity other than
AmeriCredit;
(ii) ORGANIZATION AND GOOD STANDING. The Servicer has
been duly organized and is validly existing and in good standing
under the laws of its jurisdiction of organization, with power,
authority and legal right to own its properties and to conduct its
business as such properties are currently owned and such business is
currently conducted, and had at all relevant times, and now has,
power, authority and legal right to enter into and perform its
obligations under this Agreement;
(iii) DUE QUALIFICATION. The Servicer is duly qualified
to do business as a foreign corporation in good standing and has
obtained all necessary licenses and approvals, in all jurisdictions
in which the ownership or lease of property or the conduct of its
business (including the servicing of the Receivables as required by
this Agreement) requires or shall require such qualification;
(iv) POWER AND AUTHORITY. The Servicer has the power and
authority to execute and deliver this Agreement and its Related
Documents and to carry out its terms and their terms, respectively,
and the execution, delivery and performance of this Agreement and the
Servicer's Related Documents have been duly authorized by the
Servicer by all necessary corporate action;
(v) BINDING OBLIGATION. This Agreement and the
Servicer's Related Documents shall constitute legal, valid and
binding obligations of the Servicer enforceable in accordance with
their respective terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization, or other similar laws
affecting the enforcement of creditors' rights generally and by
equitable limitations on the availability of specific remedies,
regardless of whether such enforceability is considered in a
proceeding in equity or at law;
(vi) NO VIOLATION. The consummation of the transactions
contemplated by this Agreement and the Servicer's Related Documents,
and the fulfillment of the terms of this Agreement and the Servicer's
Related Documents, shall not conflict with, result in any breach of
any of the terms and provisions of, or constitute (with or without
notice or lapse of time) a default under, the articles of
incorporation or bylaws of the Servicer, or any indenture, agreement,
mortgage, deed of trust or other instrument to which the Servicer is
a party or by which it is bound, or result in the creation or
imposition of any Lien upon any of its properties pursuant to the
terms of any such indenture, agreement, mortgage, deed of trust or
other instrument, other than this Agreement, or violate any law,
order, rule or regulation applicable to the Servicer of any court or
of any federal or state regulatory body, administrative
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agency or other governmental instrumentality having jurisdiction over
the Servicer or any of its properties;
(vii) NO PROCEEDINGS. There are no proceedings or
investigations pending or, to the Servicer's knowledge, threatened
against the Servicer, before any court, regulatory body,
administrative agency or other tribunal or governmental
instrumentality having jurisdiction over the Servicer or its
properties (A) asserting the invalidity of this Agreement or any of
the Related Documents, (B) seeking to prevent the issuance of the
Certificates or the consummation of any of the transactions
contemplated by this Agreement or any of the Related Documents, or
(C) seeking any determination or ruling that might materially and
adversely affect the performance by the Servicer of its obligations
under, or the validity or enforceability of, this Agreement or any of
the Related Documents or (D) seeking to adversely affect the federal
income tax or other federal, state or local tax attributes of the
Certificates;
(viii) NO CONSENTS. The Servicer is not required to obtain
the consent of any other party or any consent, license, approval or
authorization, or registration or declaration with, any governmental
authority, bureau or agency in connection with the execution,
delivery, performance, validity or enforceability of this Agreement
which has not already been obtained.
IV.7. PURCHASE OF RECEIVABLES UPON BREACH OF COVENANT. Upon
discovery by any of the Servicer, the Security Insurer or the Trustee of a
breach of any of the covenants set forth in Sections 4.5(a) or 4.6(a), the
party discovering such breach shall give prompt written notice to the others;
PROVIDED, HOWEVER, that the failure to give any such notice shall not affect
any obligation of AmeriCredit as Servicer under this Section 4.7. As of the
second Accounting Date following its discovery or receipt of notice of any
breach of any covenant set forth in Sections 4.5(a) or 4.6(a) which
materially and adversely affects the interests of the Certificateholders or
the Security Insurer in any Receivable (including any Liquidated Receivable)
(or, at AmeriCredit's election, the first Accounting Date so following),
AmeriCredit shall, unless such breach shall have been cured in all material
respects, purchase from the Trust the Receivable affected by such breach and,
on the related Deposit Date, AmeriCredit shall pay the related Purchase
Amount. It is understood and agreed that the obligation of AmeriCredit to
purchase any Receivable (including any Liquidated Receivable) with respect to
which such a breach has occurred and is continuing shall, if such obligation
is fulfilled, constitute the sole remedy against AmeriCredit for such breach
available to the Security Insurer, the Certificateholders or the Trustee on
behalf of Certificateholders; PROVIDED, HOWEVER, that AmeriCredit shall
indemnify the Trust, the Backup Servicer, the Collateral Agent, the Security
Insurer, the Trustee and the Certificateholders against all costs, expenses,
losses, damages, claims and liabilities, including reasonable fees and
expenses of counsel, which may be asserted against or
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incurred by any of them as a result of third party claims arising out of the
events or facts giving rise to such breach.
IV.8. TOTAL SERVICING FEE; PAYMENT OF CERTAIN EXPENSES BY
SERVICER. On each Distribution Date, the Servicer shall be entitled to
receive out of the Collection Account the Basic Servicing Fee and any
Supplemental Servicing Fee for the related Collection Period pursuant to
Section 5.5. The Servicer shall be required to pay all expenses incurred by
it in connection with its activities under this Agreement (including taxes
imposed on the Servicer, expenses incurred in connection with distributions
and reports made by the Servicer to Certificateholders or the Security
Insurer and all other fees and expenses of the Trustee, except taxes levied
or assessed against the Trust, and claims against the Trust in respect of
indemnification, which taxes and claims in respect of indemnification against
the Trust are expressly stated to be for the account of AmeriCredit). The
Servicer shall be liable for the fees and expenses of the Trustee, the
Custodian, the Backup Servicer, the Collateral Agent, the Lockbox Bank (and
any fees under the Lockbox Agreement) and the Independent Accountants.
Notwithstanding the foregoing if the Servicer shall not be AmeriCredit, a
successor to AmeriCredit as Servicer permitted by Section 9.2 shall not be
liable for taxes levied or assessed against the Trust or claims against the
Trust in respect of indemnification.
IV.9. SERVICER'S CERTIFICATE. No later than 10:00 am. New York
City time on each Determination Date, the Servicer shall deliver to the
Trustee, the Backup Servicer, the Security Insurer, the Collateral Agent and
each Rating Agency a Servicer's Certificate executed by a Responsible Officer
of the Servicer containing among other things, (i) all information necessary
to enable the Trustee to make any withdrawal and deposit required by Section
6.3, to give any notice required by Section 6.3(b) and to make the
distributions required by Sections 5.5, (ii) all information necessary to
enable the Trustee to send the statements to Certificateholders and the
Security Insurer required by Section 5.7, (iii) a listing of all Warranty
Receivables and Administrative Receivables purchased as of the related
Deposit Date, identifying the Receivables so purchased and (iv) all
information necessary to enable the Trustee to reconcile all deposits to, and
withdrawals from, the Collection Account for the related Collection Period
and Distribution Date, including the accounting required by Section 5.7.
Receivables purchased by the Servicer or by the Seller on the related Deposit
Date and each Receivable which became a Liquidated Receivable or which was
paid in full during the related Collection Period shall be identified by
account number (as set forth in the Schedule of Receivables). A copy of such
certificate may be obtained by any Certificateholder by a request in writing
to the Trustee addressed to the Corporate Trust Office. In addition to the
information set forth in the preceding sentence, the Servicer's Certificate
delivered to the Security Insurer, the Collateral Agent and the Trustee on
the Determination Date shall also contain the following information: (a) the
Delinquency Ratio, Average Delinquency Ratio, Default Ratio, Average Default
Ratio, Net Loss Ratio and Average Net Loss Ratio for such Determination Date;
(b) whether any Trigger Event has occurred as of such Determination Date; (c)
whether any Trigger Event
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that may have occurred as of a prior Determination Date is Deemed Cured as of
such Determination Date; and (d) whether to the knowledge of the Servicer an
Insurance Agreement Event of Default has occurred.
IV.10. ANNUAL STATEMENT AS TO COMPLIANCE, NOTICE OF SERVICER
TERMINATION EVENT.
(a) The Servicer shall deliver to the Trustee, the Backup
Servicer, the Security Insurer, the Certificateholders and each Rating
Agency, on or before October 31 (or 120 days after the end of the Servicer's
fiscal year, if other than June 30) of each year, beginning on October 31,
1996, an officer's certificate signed by any Responsible Officer of the
Servicer, dated as of June 30 (or other applicable date) of such year,
stating that (i) a review of the activities of the Servicer during the
preceding 12-month period (or such other period as shall have elapsed from
the Closing Date to the date of the first such certificate) and of its
performance under this Agreement has been made under such officer's
supervision, and (ii) to such officer's knowledge, based on such review, the
Servicer has fulfilled all its obligations under this Agreement throughout
such period, or, if there has been a default in the fulfillment of any such
obligation, specifying each such default known to such officer and the nature
and status thereof.
(b) The Servicer shall deliver to the Trustee, the Backup
Servicer, the Security Insurer, the Certificateholders, the Collateral Agent,
and each Rating Agency, promptly after having obtained knowledge thereof, but
in no event later than two (2) Business Days thereafter, written notice in an
officer's certificate of any event which with the giving of notice or lapse
of time, or both, would become a Service