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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) May 16, 1996
AmeriCredit Automobile Receivables Trust 1996-B
(Exact name of registrant as specified in its charter
United States 33-98620 88-0359494
(State or Other Jurisdiction (Commission (I.R.S. Employer
of Incorporation) File Number) Identification No.)
c/o AmeriCredit Financial 76107
Services, Inc. (Zip Code)
Attention: Chris A. Choate
200 Bailey Avenue
Fort Worth, Texas
(Address of Principal
Executive Offices)
Registrant's telephone number, including area code (817) 882-7000
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(Former name or former address, if changed since last report)
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Item 2. Acquisition or Disposition of Assets
Description of the Certificates and the Auto Loans
AmeriCredit Financial Services, Inc., as Sponsor, has
registered an issuance of $500,000,000 in principal amount of Certificates (the
"Certificates") on Form S-3. Pursuant to the Registration Statement, AmeriCredit
Automobile Receivables Trust 1996-B (the "Trust") issued $115,941,814.19 in
principal amount of its "Certificates", on May 16, 1996. This Current Report on
Form 8-K is being filed to satisfy an undertaking to file copies of certain
agreements executed in connection with the issuance of the Certificates, the
forms of which were filed as Exhibits to the Registration Statement.
The Certificates were issued pursuant to a Pooling and
Servicing Agreement attached hereto as Exhibit 4.1, dated as of April 30, 1996,
among AmeriCredit Financial Services, Inc., as Servicer, AFS Funding Corp., as
Seller, and LaSalle National Bank, as Trustee.
The Certificates will evidence fractional undivided ownership
interests in the Trust, the assets of which consist primarily of retail
installment sales contracts and installment loans (the "Receivables") secured by
new and used automobiles and light duty trucks financed thereby.
The original principal amount of the Certificates is equal to
$115,941,814.19 and the Pass-Through Rate is 6.50% per annum.
As of the Closing Date, the Receivables had the
characteristics described in the Prospectus dated May 9, 1996 filed pursuant to
Rule 424(b)(2) of the Act with the Commission.
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Item 7. Financial Statements, Pro Forma Financial
Information and Exhibits.
(a) Not applicable
(b) Not applicable
(c) Exhibits:
1.1 Underwriting Agreement, dated May 9, 1996, among
AmeriCredit Financial Services, Inc., as Servicer, AFS Funding Corp., as Seller,
and CS First Boston Corporation, as Representative of the Underwriters.
4.1 Pooling and Servicing Agreement, dated as of April 30,
1996, among AmeriCredit Financial Services, Inc., as Servicer, AFS Funding
Corp., as Seller, and LaSalle National Bank, as Trustee.
4.2 Certificate Guaranty Surety Bond, dated May 16, 1996 and
delivered by Financial Security Assurance Inc.
10.1 Receivables Purchase Agreement and Assignment, dated as
of April 30, 1996, among AmeriCredit Financial Services, Inc., as Seller, and
AFS Funding Corp., as Purchaser.
10.2 Indemnification Agreement, dated May 1, 1996, among
Financial Security Assurance Inc., as Certificate Insurer, AFS Funding Corp., as
Seller, and C.S. First Boston Corporation, as Representative of the
Underwriters.
23.1 Consent of Coopers & Lybrand L.L.P. regarding financial
statements of the Certificate Insurer and their report.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
AMERICREDIT AUTOMOBILE RECEIVABLES TRUST
1996-B
By: AmeriCredit Financial Services, Inc., as
Servicer
By: /s/ Daniel Berce
-----------------------------------
Name: Daniel Berce
Title: Senior Vice President,
Chief Financial Officer and
Treasurer
Dated: May 29, 1996
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EXHIBIT INDEX
Exhibit No. Description
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1.1 Underwriting Agreement, dated May 9, 1996, among
AmeriCredit Financial Services, Inc., as Servicer,
AFS Funding Corp., as Seller , and CS First Boston
Corporation, as Representative of the Underwriters.
4.1 Pooling and Servicing Agreement, dated as of April
30, 1996, among AmeriCredit Financial Services,
Inc., as Servicer, AFS Funding Corp., as Seller, and
LaSalle National Bank, as Trustee.
4.2 Certificate Guaranty Surety Bond, dated May 16, 1996
and delivered by Financial Security Assurance Inc.
10.1 Receivables Purchase Agreement and Assignment, dated
as of April 30, 1996, among AmeriCredit Financial
Services, Inc., as Seller, and AFS Funding Corp., as
Purchaser.
10.2 Indemnification Agreement, dated May 1, 1996, among
Financial Security Assurance Inc., as Certificate
Insurer, AFS Funding Corp., as Seller, and C.S.
First Boston Corporation, as Representative of the
Underwriters.
23.1 Consent of Coopers & Lybrand L.L.P. regarding
financial statements of the Certificate Insurer and
their report.
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EXHIBIT 1.1
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AMERICREDIT AUTOMOBILE RECEIVABLES TRUST 1996-B
6.50% Automobile Receivables-Backed Certificates, Class A
UNDERWRITING AGREEMENT
CS FIRST BOSTON CORPORATION
As Representative of the
Underwriters
Park Avenue Plaza
55 East 52nd Street
New York, New York 10055 May 9, 1996
Dear Sirs:
AmeriCredit Financial Services, Inc., a corporation organized
and existing under the laws of Delaware (the "Sponsor"), and AFS Funding Corp.,
a corporation organized and existing under the laws of Nevada (the "Seller")
(the Sponsor and the Seller, collectively, the "Companies"), agree with you as
follows:
Section 1. Issuance and Sale of Certificates. The Sponsor has
authorized the issuance and sale of Automobile Receivables-Backed Certificates,
Class A, in an aggregate principal amount of $115,941,814.19 (the "Offered
Certificates"). The Offered Certificates and the Class B Certificates (the Class
B Certificates, the "Non-Offered Certificates") (the Non-Offered Certificates
and the Offered Certificates, collectively, the "Certificates") are to be issued
by AmeriCredit Automobile Receivables Trust 1996-B (the "Trust") pursuant to a
Pooling and Servicing Agreement, to be dated as of April 30, 1996 (the "Pooling
Agreement"), among the Seller, the Sponsor and LaSalle National Bank, a national
banking association, as trustee (the "Trustee"). The Non-Offered Certificates
are not to be sold hereunder. The Certificates evidence all of the beneficial
ownership interests in the assets of the Trust consisting primarily of a pool of
retail installment contracts (the "Receivables") secured by new and used
automobiles and light trucks, all monies paid or payable thereunder after April
30, 1996, security interests in the vehicles financed thereby, certain bank
accounts and the proceeds thereof, and the right to receive certain insurance
proceeds and certain other property.
The Offered Certificates will have the benefit of a
certificate insurance policy (the "Certificate Insurance Policy") issued by
Financial Security Assurance Inc., a monoline insurance
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corporation organized under the laws of New York (the "Certificate
Insurer").
In connection with the issuance of the Certificate Insurance
Policy (i) the Companies and the Certificate Insurer will execute and deliver an
Insurance Agreement dated as of May 1, 1996 (the "Insurance Agreement") and (ii)
the Companies, the Underwriters and the Certificate Insurer will execute and
deliver an Indemnification Agreement dated as of May 1, 1996 (the
"Indemnification Agreement").
As used herein, the term "Sponsor Agreements" means the
Pooling Agreement, the Receivables Purchase Agreement and Assignment between the
Sponsor and the Seller dated as of April 30, 1996 (the "Purchase Agreement"),
the Insurance Agreement, the Indemnification Agreement and this Agreement; the
term "Seller Agreements" means the Pooling Agreement, the Purchase Agreement,
the Insurance Agreement, the Indemnification Agreement and this Agreement.
Only the Offered Certificates are being purchased by the
Underwriters named in Schedule A hereto, and the Underwriters are purchasing,
severally, only the Offered Certificates set forth opposite their names in
Schedule 1, except that the amounts purchased by the Underwriters may change in
accordance with Section 11 of this Agreement. CS First Boston Corporation is
acting as representative of the Underwriters and in such capacity, is
hereinafter referred to as the "Representative."
The offering of the Offered Certificates will be made by the
Underwriters and the Companies understand that the Underwriters propose to make
a public offering of the Offered Certificates for settlement on May 16, 1996, as
the Underwriters deem advisable.
Defined terms used herein shall have their respective meanings
as set forth in the Pooling Agreement.
Section 2. Representations and Warranties. A. The Sponsor
represents, warrants and agrees with the Underwriters, that:
(i) A Registration Statement on Form S-3 (No. 33-98620) has
(a) been prepared by the Sponsor on such Form in conformity with the
requirements of the Securities Act of 1933, as amended (the "Securities Act")
and the rules and regulations (the "Rules and Regulations") of the United States
Securities and Exchange Commission (the "Commission") thereunder, (b) been filed
with the Commission and (c) been declared effective by the Commission, and no
stop order suspending the effectiveness of the Registration Statement has been
issued, and no proceeding for that purpose has been initiated or threatened, by
the Commission. Copies of such Registration Statement have been delivered by the
Sponsor to the Underwriters. There are no contracts or documents of the Sponsor
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which are required to be filed as exhibits to the Registration Statement
pursuant to the Securities Act or the Rules and Regulations which have not been
so filed or incorporated by reference therein on or prior to the Effective Date
of the Registration Statement. The conditions for use of Form S-3, as set forth
in the General Instructions thereto, have been satisfied.
As used herein, the term "Effective Date" means the date on
and time at which the Registration Statement became effective, or the date on
and the time at which the most recent post-effective amendment to such
Registration Statement, if any, was declared effective by the Commission. The
term "Registration Statement" means (i) the registration statement referred to
in the preceding paragraph, including the exhibits thereto, (ii) all documents
incorporated by reference therein pursuant to Item 12 of Form S-3 and (iii) any
post-effective amendment filed and declared effective prior to the date of
issuance of the Certificates. The term "Base Prospectus" means the prospectus
included in the Registration Statement. The term "Prospectus Supplement " means
the preliminary prospectus supplement dated May 6, 1996 and the prospectus
supplement dated the date hereof, both specifically relating to the Offered
Certificates, as both were filed with the Commission pursuant to Rule 424 of the
Rules and Regulations (together the "Prospectus Supplement"). The term "Sponsor
Offering Materials" means, collectively, the Registration Statement, the Base
Prospectus and the Prospectus Supplement except for (x) the information set
forth under the caption "Financial Security Assurance Inc." and (y) the
Underwriter Information. The term "Seller Offering Materials" means the
Prospectus Supplement except for (x) the information set forth under the caption
"Financial Security Assurance Inc." and (y) the Underwriters Information. The
term "Underwriter Information" means the information set forth under the caption
"Underwriting" in the Prospectus Supplement and any information in the
Prospectus Supplement to any potential relating to market-making, over-allotment
or price stabilization activities of the Underwriters. The term "Prospectus"
means, together, the Base Prospectus and the Prospectus Supplement.
(ii) The Registration Statement and the Prospectus conform,
and any further amendments or supplements to the Registration Statement or the
Prospectus will, when they become effective or are filed with the Commission, as
the case may be, conform in all respects to the requirements of the Securities
Act and the Rules and Regulations. The Sponsor Offering Materials do not and
will not, as of the Effective Date or filing date thereof and of any amendment
thereto, as appropriate, contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading.
(iii) The documents incorporated by reference in the Sponsor
Offering Materials, when they were filed with the Commission conformed in all
material respects to the requirements
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of the Securities Act or the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), as applicable, and the Rules and Regulations of the Commission
thereunder, and none of such documents contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading; any further
documents so filed and incorporated by reference in the Sponsor Offering
Materials, when such documents are filed with the Commission will conform in all
material respects to the requirements of the Exchange Act and the Rules and
Regulations of the Commission thereunder and will not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading.
(iv) Since the respective dates as of which information is
given in the Sponsor Offering Materials, or the Sponsor Offering Materials as
amended and supplemented, (x) there has not been any material adverse change, or
any development involving a prospective material adverse change, in or affecting
the general affairs, business, management, financial condition, stockholders'
equity, results of operations, regulatory situation or business prospects of the
Sponsor and (y) the Sponsor has not entered into any transaction or agreement
(whether or not in the ordinary course of business) material to the Sponsor
that, in either case, would reasonably be expected to materially adversely
affect the interests of the holders of the Offered Certificates, otherwise than
as set forth or contemplated in the Sponsor Offering Materials, as so amended or
supplemented.
(v) The Sponsor is not aware of (x) any request by the
Commission for any further amendment of the Registration Statement or the
Prospectus or for any additional information, (y) the issuance by the Commission
of any stop order suspending the effectiveness of the Registration Statement or
the institution or threatening of any proceeding for that purpose or (z) any
notification with respect to the suspension of the qualification of the Offered
Certificates for the sale in any jurisdiction or the initiation or threatening
of any proceeding for such purpose.
(vi) The Sponsor has been duly incorporated and is validly
existing as a corporation in good standing under the laws of its jurisdiction of
incorporation, is duly qualified to do business and is in good standing as a
foreign corporation in each jurisdiction in which its ownership or lease of
property or the conduct of its business requires such qualification, except
where the failure to be so qualified would not have a material adverse effect on
the business or financial condition of the Sponsor and has all power and
authority necessary to own or hold its properties, to conduct the business in
which it is engaged and to enter into and perform its obligations under each
Sponsor Agreement and to cause the Certificates to be issued.
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(vii) There are no actions, proceedings or investigations
pending before or threatened by any court, administrative agency or other
tribunal to which the Sponsor is a party or of which any of its properties is
the subject (i) which if determined adversely to it is likely to have a material
adverse effect individually, or in the aggregate, on the business or financial
condition of the Sponsor, (ii) asserting the invalidity of any Sponsor
Agreement, in whole or in part or the Certificates, (iii) seeking to prevent the
issuance of the Certificates or the consummation by the Companies of any of the
transactions contemplated by any Sponsor Agreement, in whole or in part, or (iv)
which if determined adversely it is likely to materially and adversely affect
the performance by the Sponsor of its obligations under, or the validity or
enforceability of, any Sponsor Agreement, in whole or in part or the
Certificates.
(viii) Each Sponsor Agreement has been, or, when executed and
delivered will have been, duly authorized, validly executed and delivered by the
Sponsor and each Sponsor Agreement constitutes, a valid and binding agreement of
the Sponsor, enforceable against the Sponsor in accordance with their respective
terms, except to the extent that the enforceability hereof may be subject (x) to
insolvency, reorganization, moratorium, receivership, conservatorship, or other
similar laws, regulations or procedures of general applicability now or
hereafter in effect relating to or affecting creditors' rights generally, (y) to
general principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law), and (z) with respect to rights of indemnity
under this Agreement, to limitations of public policy under applicable
securities laws.
(ix) The issuance and delivery of the Certificates, and the
execution, delivery and performance of each Sponsor Agreement and the
consummation of the transactions contemplated hereby and thereby, do not and
will not conflict with or result in a breach of or violate any term or provision
of or constitute a default under, any indenture, mortgage, deed of trust, loan
agreement, or other agreement or instrument to which the Sponsor is a party, by
which the Sponsor may be bound or to which any of the property or assets of the
Sponsor or any of its subsidiaries may be subject, nor will such actions result
in any violation of the provisions of the articles of incorporation or by-laws
of the Sponsor or any law, statute or any order, rule or regulation of any court
or governmental agency or body having jurisdiction over the Sponsor or any of
its respective properties or assets.
(x) Coopers & Lybrand L.L.P. is an independent public
accountant with respect to the Sponsor as required by the Securities Act and the
Rules and Regulations.
(xi) The direction by the Sponsor to the Trustee to execute,
authenticate, countersign, issue and deliver the Certificates will be duly
authorized by the Sponsor, and, assuming
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the Trustee has been duly authorized to do so, when executed, authenticated,
countersigned, issued and delivered by the Trustee in accordance with the
Pooling Agreement, the Certificates will be validly issued and outstanding and
will be entitled to the benefits of the Pooling Agreement.
(xii) No consent, approval, authorization, order, registration
or qualification of or with any court or governmental agency or body of the
United States is required for the issuance and sale of the Certificates, or the
consummation by the Sponsor of the other transactions contemplated by this
Agreement, except the registration under the Securities Act of the Offered
Certificates and such consents, approvals, authorizations, registrations or
qualifications as may have been obtained or effected or as may be required under
securities or Blue Sky laws in connection with the purchase and distribution of
the Offered Certificates by the Underwriters.
(xiii) The Sponsor possesses all material licenses,
certificates, authorities or permits issued by the appropriate state, Federal or
foreign regulatory agencies or bodies necessary to conduct the business now
conducted by it and as described in the Sponsor Offering Materials (or is exempt
therefrom) and the Sponsor has not received notice of any proceedings relating
to the revocation or modification of such license, certificate, authority or
permit which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, is likely to materially and adversely affect the
conduct of its business, operations, financial condition or income.
(xiv) The Sponsor will not conduct its operations while any of
the Certificates are outstanding in a manner that would require the Sponsor or
the Trust to be registered as an "investment company" under the Investment
Company Act of 1940, as amended (the "1940 Act"), as in effect on the date
hereof.
(xv) Any taxes, fees and other governmental charges in
connection with the execution, delivery and issuance of any Sponsor Agreement,
the Certificate Insurance Policies and the Certificates that are required to be
paid by the Sponsor at or prior to the Closing Date have been paid or will be
paid at or prior to the Closing Date.
(xvi) At the Closing Date, each of the representations and
warranties of the Sponsor set forth in any Sponsor Agreement will be true and
correct in all material respects.
Any certificate signed by an officer of the Sponsor and
delivered to the Representative or the Representative's counsel in connection
with an offering of the Offered Certificates shall be deemed, and shall state
that it is, a representation and warranty as to the matters covered thereby to
each person to whom the representations and warranties in this Section 2A are
made.
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B. The Seller represents, warrants and agrees with the
Underwriters, that:
(i) The Seller Offering Materials do not and will not, as of
the applicable filing date therefor and any amendment or supplement thereto,
contain any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein not misleading.
(ii) The documents incorporated by reference in the Seller
Offering Materials, when they were filed with the Commission conformed in all
material respects to the requirements of the Securities Act or the Exchange Act
and the Rules and Regulations of the Commission thereunder, and none of such
documents contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading; any further documents so filed and incorporated by
reference in the Seller Offering Materials, when such documents are filed with
the Commission will conform in all material respects to the requirements of the
Exchange Act and the Rules and Regulations of the Commission thereunder and will
not contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading.
(iii) Since the respective dates as of which information is
given in the Seller Offering Materials, or the Seller Offering Materials as
amended and supplemented, (x) there has not been any material adverse change, or
any development involving a prospective material adverse change, in or affecting
the general affairs, business, management, financial condition, stockholders'
equity, results of operations, regulatory situation or business prospects of the
Seller and (y) the Seller has not entered into any transaction or agreement
(whether or not in the ordinary course of business) material to the Seller that,
in either case, would reasonably be expected to materially adversely affect the
interests of the holders of the Offered Certificates, otherwise than as set
forth or contemplated in the Seller Offering Materials, as so amended or
supplemented.
(iv) The Seller is not aware of (x) any request by the
Commission for any further amendment of the Registration Statement or the
Prospectus or for any additional information, (y) the issuance by the Commission
of any stop order suspending the effectiveness of the Registration Statement or
the institution or threatening of any proceeding for that purpose or (z) any
notification with respect to the suspension of the qualification of the Offered
Certificates for the sale in any jurisdiction or the initiation or threatening
of any proceeding for such purpose.
(v) The Seller has been duly incorporated and is validly
existing as a corporation in good standing under the laws of its jurisdiction of
incorporation, is duly qualified to do business and
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is in good standing as a foreign corporation in each jurisdiction in which its
ownership or lease of property or the conduct of its business requires such
qualification, except where the failure to be so qualified would not have a
material adverse effect on the business or financial condition of the Seller and
has all power and authority necessary to own or hold its properties, to conduct
the business in which it is engaged and to enter into and perform its
obligations under each Seller Agreement.
(vi) There are no actions, proceedings or investigations
pending before or threatened by any court, administrative agency or other
tribunal to which the Seller is a party or of which any of its properties is the
subject (i) which if determined adversely to it is likely to have a material
adverse effect individually, or in the aggregate, on the business or financial
condition of the Seller, (ii) asserting the invalidity of any Seller Agreement
in whole or in part, (iii) seeking to prevent the issuance of the Certificates
or the consummation by the Seller of any of the transactions contemplated by any
Seller Agreement in whole or in part, or (iv) which if determined adversely it
is likely to materially and adversely affect the performance by the Seller of
its obligations under, or the validity or enforceability of, any Seller
Agreement in whole or in part or the Certificates.
(vii) Each Seller Agreement has been, or, when executed and
delivered will have been, duly authorized, validly executed and delivered by the
Seller and each Seller Agreement constitutes, a valid and binding agreement of
the Seller, enforceable against the Seller in accordance with their respective
terms, except to the extent that the enforceability hereof may be subject (x) to
insolvency, reorganization, moratorium, receivership, conservatorship, or other
similar laws, regulations or procedures of general applicability now or
hereafter in effect relating to or affecting creditors' rights generally, (y) to
general principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law), and (z) with respect to rights of indemnity
under this Agreement, to limitations of public policy under applicable
securities laws.
(viii) The execution, delivery and performance of each Seller
Agreement by the Seller and the consummation of the transactions contemplated
hereby and thereby, do not and will not conflict with or result in a breach of
or violate any term or provision of or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement, or other agreement or
instrument to which the Seller is a party, by which the Seller may be bound or
to which any of the property or assets of the Seller or any of its subsidiaries
may be subject, nor will such actions result in any violation of the provisions
of the articles of incorporation or by-laws of the Seller or any law, statute or
any order, rule or regulation of any court or governmental agency or body having
jurisdiction over the Seller or any of their respective properties or assets.
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(ix) Coopers & Lybrand, L.L.P. is an independent public
accountant with respect to the Seller as required by the Securities Act and the
Rules and Regulations.
(x) No consent, approval, authorization, order, registration
or qualification of or with any court or governmental agency or body of the
United States is required for the issuance and sale of the Certificates, or the
consummation by the Seller of the transactions contemplated by each Seller
Agreement except the registration under the Securities Act of the Offered
Certificates and such consents, approvals, authorizations, registrations or
qualifications as may have been obtained or effected or as may be required under
securities or Blue Sky laws in connection with the purchase and distribution of
the Offered Certificates by the Underwriters.
(xi) The Seller possesses all material licenses, certificates,
authorities or permits issued by the appropriate state, Federal or foreign
regulatory agencies or bodies necessary to conduct the business now conducted by
it and as described in the Seller Offering Materials (or each is exempt
therefrom) and the Seller has not received notice of any proceedings relating to
the revocation or modification of such license, certificate, authority or permit
which, singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, is likely to materially and adversely affect the conduct of
its business, operations, financial condition or income.
(xii) (a) Following the conveyance of the Receivables to the
Trust pursuant to the Pooling Agreement, the Trust will own the Receivables free
and clear of any lien, mortgage, pledge, charge, encumbrance, adverse claim or
other security interest (collectively, "Liens") other than Liens created by the
Pooling Agreement, and (b) the Seller will have the power and authority to sell
such Receivables to the Trust.
(xiii) As of the Cut-off Date, each of the Receivables will
meet the eligibility criteria described in the Prospectus.
(xiv) Neither the Seller nor the Trust created by the Pooling
Agreement will conduct their operations while any of the Certificates are
outstanding in a manner that would require the Seller or the Trust to be
registered as an "investment company" under the Investment Company Act of 1940,
as amended (the "1940 Act"), as in effect on the date hereof.
(xv) Each of the Certificates, the Pooling Agreement, the
Purchase Agreement, the Indemnification Agreement and the Certificate Insurance
Policies conforms in all material respects to the descriptions thereof contained
in the Prospectus.
(xvi) Any taxes, fees and other governmental charges in
connection with the execution, delivery and issuance of any Seller
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Agreement, the Certificate Insurance Policies and the Certificates that are
required to be paid by either the Seller at or prior to the Closing Date have
been paid or will be paid at or prior to the Closing Date.
(xvii) At the Closing Date, each of the representations and
warranties of the Seller set forth in any Seller Agreement will be true and
correct in all material respects.
Any certificate signed by an officer of the Seller and
delivered to the Representative or the Representative's counsel in connection
with an offering of the Offered Certificates shall be deemed, and shall state
that it is, a representation and warranty as to the matters covered thereby to
each person to whom the representations and warranties in this Section 2B are
made.
Section 3. Purchase and Sale. The Underwriters's commitment to
purchase the Offered Certificates pursuant to this Agreement shall be deemed to
have been made on the basis of the representations and warranties of the Sponsor
and of the Seller herein contained and shall be subject to the terms and
conditions herein set forth. The Sponsor agrees to instruct the Trust to issue
the Offered Certificates to the Underwriters, and the Underwriters agrees to
purchase on the date of issuance thereof. The purchase prices for the Offered
Certificates shall be as the Offered Certificates set forth on Schedule 1
hereto.
Section 4. Delivery and Payment. Payment of the purchase price
for, and delivery of, any Offered Certificates to be purchased by the
Underwriters shall be made at the office of Dewey Ballantine, 1301 Avenue of the
Americas, New York, New York, or at such other place as shall be agreed upon by
the Representative and the Companies, at 10:00 a.m. New York City time on May
__, 1996 (the "Closing Date"), or at such other time or date as shall be agreed
upon in writing by the Representative and the Companies. Payment shall be made
by wire transfer of same day funds payable to the account designated by the
Sponsor. Each of the Offered Certificates so to be delivered shall be
represented by one or more global certificates registered in the name of Cede &
Co., as nominee for The Depository Trust Company.
The Companies agree to have the Offered Certificates available
for inspection, checking and packaging by the Representative in New York, New
York, not later than 12:00 P.M. New York City time on the business day prior to
the Closing Date.
Section 5. Offering by Underwriters. It is understood that the
Underwriters propose to offer the Offered Certificates for sale to the public as
set forth in the Prospectus.
Section 6. Covenants of the Seller. The Seller covenants with
the Underwriters as follows:
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A. To cause to be prepared a Prospectus in a form approved by
the Underwriters, to file such Prospectus pursuant to Rule 424(b) under the
Securities Act within the time period prescribed by Rule 424(b) and to provide
the Underwriters with evidence satisfactory to the Underwriters of such timely
filing; to cause to be made no further amendment or any supplement to the
Registration Statement or to the Prospectus prior to the 91st day following the
Closing Date except as permitted herein; to advise the Underwriters, promptly
after it receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective prior to the 91st day
following the Closing Date or any supplement to the Prospectus or any amended
Prospectus has been filed prior to the 91st day following the Closing Date and
to furnish the Underwriters with copies thereof; to file promptly all reports
and any global proxy or information statements required to be filed by the
Sponsor with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act subsequent to the date of the Prospectus and, until the 91st day
following the Closing Date; to promptly advise the Underwriters of its receipt
of notice of the issuance by the Commission of any stop order or of: (i) any
order preventing or suspending the use of the Prospectus; (ii) the suspension of
the qualification of the Offered Certificates for offering or sale in any
jurisdiction; (iii) the initiation of or threat of any proceeding for any such
purpose; (iv) any request by the Commission for the amending or supplementing of
the Registration Statement or the Prospectus or for additional information. In
the event of the issuance of any stop order or of any order preventing or
suspending the use of the Prospectus or suspending any such qualification, the
Sponsor promptly shall use its best efforts to obtain the withdrawal of such
order by the Commission.
B. To furnish promptly to the Underwriters and to counsel for
the Underwriters a signed copy of the Registration Statement as originally filed
with the Commission, and of each amendment thereto filed with the Commission,
including all consents and exhibits filed therewith.
C. To deliver promptly to the Underwriters such number of the
following documents as the Underwriters shall reasonably request: (i) conformed
copies of the Registration Statement as originally filed with the Commission and
each amendment thereto (in each case including exhibits); (ii) the Prospectus
and any amended or supplemented Prospectus; and (iii) any document incorporated
by reference in the Prospectus (including exhibits thereto). If the delivery of
a prospectus is required at any time in connection with the offering or sale of
the Offered Certificates and if at such time any events shall have occurred as a
result of which the Prospectus as then amended or supplemented would include any
untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances under
which they were made when such Prospectus is delivered, not misleading, or, if
for any other reason it shall
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be necessary during such same period to amend or supplement the Prospectus or to
file under the Exchange Act any document incorporated by reference in the
Prospectus in order to comply with the Securities Act or the Exchange Act, the
Sponsor shall notify the Underwriters and, upon the Underwriters's request based
upon the advice of counsel, shall file such document and prepare and furnish
without charge to the Underwriters and to any dealer in securities as many
copies as the Underwriters may from time to time reasonably request of an
amended Prospectus or a supplement to the Prospectus which corrects such
statement or omission or effects such compliance.
D. To cause to be filed promptly with the Commission any
amendment to the Registration Statement or the Prospectus or any supplement to
the Prospectus that may, in the judgment of the Seller or the Underwriters, be
required by the Securities Act or requested by the Commission. Neither the
Underwriters' consent to nor their delivery of any such amendment or supplement
shall constitute a waiver of any of the conditions set forth in Section 7
hereof.
E. To cause to be furnished to the Underwriters and counsel
for the Underwriters, prior to filing with the Commission, and to obtain the
consent of the Underwriters, which consent will not unreasonably be withheld,
for the filing of the following documents relating to the Certificates: (i) any
amendment to the Registration Statement or supplement to the Prospectus, or
document incorporated by reference in the Prospectus, or (ii) Prospectus
pursuant to Rule 424 of the Rules and Regulations.
F. To cause to be made generally available to holders of the
Offered Certificates as soon as practicable, but in any event not later than 90
days after the close of the period covered thereby, a statement of earnings of
the Trust (which need not be audited) complying with Section 11(a) of the
Securities Act and the Rules and Regulations (including Rule 158) and covering a
period of at least twelve consecutive months beginning not later than the first
day of the first fiscal quarter following the Closing Date.
G. To use its best efforts, in cooperating with the Sponsor
and the Underwriters, to qualify the Offered Certificates for offering and sale
under the applicable securities laws of such states and other jurisdictions of
the United States as the Underwriters may designate, and maintain or cause to be
maintained such qualifications in effect for as long as may be required for the
distribution of the Offered Certificates. The Seller will cause the filing of
such statements and reports as may be required by the laws of each jurisdiction
in which the Offered Certificates have been so qualified.
H. The Seller will not, without the prior written consent of
the Representative, contract to sell any automobile receivables-backed
certificates, automobile receivables-backed
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notes or other similar securities either directly or indirectly (as through the
Sponsor) for a period of five (5) business days after to the later of
termination of the syndicate or the Closing Date.
I. So long as the Offered Certificates shall be outstanding,
the Seller shall deliver to the Underwriters as soon as such statements are
furnished to the Trustee: (i) the annual statement as to compliance of the
Servicer delivered to the Trustee pursuant to Section 4.10(a) of the Pooling
Agreement; (ii) the annual statement of a firm of independent public accountants
furnished to the Trustee pursuant to Section 4.11(a) of the Pooling Agreement
with respect to the Servicer; and (iii) the monthly reports furnished to the
Owners pursuant to Section 5.7(a) of the Pooling Agreement.
J. So long as any of the Offered Certificates are outstanding,
the Seller will furnish to the Underwriters (i) as soon as practicable after the
end of the fiscal year of the Trust all documents required to be distributed to
Certificateholders and other filings with the Commission pursuant to the
Exchange Act, or any order of the Commission thereunder with respect to any
securities issued by the Sponsor or the Seller that are (A) nonstructured equity
or debt offering of the Sponsor or the Seller or (B) the Offered Certificates
and (ii) from time to time, any other information concerning the Sponsor or the
Seller filed with any government or regulatory authority which is otherwise
publicly available, as the Underwriters shall reasonably request in writing.
K. To apply the net proceeds from the sale of the Offered
Certificates in the manner set forth in the Prospectus.
L. If, between the date hereof or, if earlier, the dates as of
which information is given in the Prospectus and the Closing Date, to the
knowledge of the Seller, there shall have been any material change, or any
development involving a prospective material change in or affecting the general
affairs, management, financial position, shareholders' equity or results of
operations of the Sponsor or the Seller, the Seller will give prompt written
notice thereof to the Underwriters.
M. To the extent, if any, that the ratings provided with
respect to the Offered Certificates by the rating agency or agencies that
initially rate the Offered Certificates are conditional upon the furnishing of
documents or the taking of any other actions by the Sponsor or the Seller, the
Seller shall use its best efforts to furnish or cause to be furnished such
documents and take any such other actions.
Section 7. Conditions of the Obligations of the Underwriters.
The obligations of the Underwriters to purchase the Offered Certificates
pursuant to this Agreement are subject to (i) the accuracy on and as of the
Closing Date of the representations and warranties on the part of the Companies
herein contained, (ii)
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the accuracy of the statements of officers of the Companies made pursuant
hereto, (iii) the performance by the Companies of all of their respective
obligations hereunder, and the performance by the Companies of all of their
respective obligations under the Sponsor Agreements and the Seller Agreements
and (iv) the following conditions as of the Closing Date:
A. No stop order suspending the effectiveness of the
Registration Statement shall have been issued, and no proceeding for that
purpose shall have been initiated or threatened by the Commission. Any request
of the Commission for inclusion of additional information in the Registration
Statement or the Prospectus shall have been complied with.
B. The Underwriters shall have received the Pooling Agreement,
the Purchase Agreement, the Indemnification Agreement and the Offered
Certificates in form and substance satisfactory to the Underwriters and duly
executed by the signatories required pursuant to the respective terms thereof.
C. The Underwriters shall have received from Dewey Ballantine,
counsel for the Sponsor and the Seller, a favorable opinion, dated the Closing
Date and satisfactory in form and substance to the Underwriters and counsel for
the Underwriters to the effect that:
(i) The issuance and sale of the Offered Certificates have
been duly authorized and, when executed, authenticated, countersigned
and delivered by the Trustee in accordance with the Pooling Agreement
and delivered and paid for pursuant to this Agreement, will be validly
issued and outstanding and will be entitled to the benefits of the
Pooling Agreement.
(ii) No authorization, approval, consent or order of, or
filing with, any court or governmental agency or authority is necessary
under the federal law of the United States or the laws of the State of
New York in connection with the execution, delivery and performance by
the Sponsor of the Sponsor Agreements and by the Seller of the Seller
Agreements, except such as may be required under the Act or the Rules
and Regulations and blue sky or other state securities laws, filings
with respect to the transfer of the Receivables to the Trust pursuant
to the Pooling Agreement and such other approvals or consents as have
been obtained.
(iii) Each Sponsor Agreement and each Seller Agreement
constitutes the legal, valid and binding obligation of the Sponsor or
the Seller, as appropriate, enforceable against each of the Sponsor or
the Seller, as appropriate, in accordance with their respective terms,
except that as to enforceability such enforcement may (A) be subject to
applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting the rights of creditors
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generally, (B) be limited by general principles of equity (whether
considered in a proceeding at law or in equity) and (C) the
enforceability as to rights to indemnification may be subject to
limitations of public policy under applicable laws.
(iv) The Pooling Agreement is not required to be qualified
under the Trust Indenture Act of 1939, as amended.
(v) None of the Sponsor, the Seller nor the Trust is
required to be registered as an "investment company" under the
Investment Company Act of 1940, as amended.
(vi) The direction by the Sponsor to the Trustee to execute,
issue, countersign and deliver the Offered Certificates has been duly
authorized and, when the Offered Certificates are executed and
authenticated by the Trustee in accordance with the Pooling Agreement
and delivered and paid for pursuant to this Agreement, they will be
validly issued and outstanding and entitled to the benefits provided by
the Pooling Agreement.
(vii) Immediately prior to the transfer of the Receivables by
the Seller to the Trust pursuant to the Pooling Agreement, the Seller
was the sole owner of all right, title and interest in the Receivables
and other property to be transferred to the Trust.
(viii) The Seller has full power and authority to sell and
assign the property to be sold and assigned to and deposited with the
Trustee as part of the Trust Estate and has duly authorized such sale
and assignment to the Trustee by all necessary corporate action.
(ix) The Seller has directed the Trustee in its capacity as
Trustee of the AmeriCredit Automobile Receivables Trust 1996-B to
transfer, assign, set over and otherwise convey without recourse, to
the Trust, all right, title and interest of the Seller in and to each
Receivable listed on the Receivable Schedule delivered by the Seller on
the Closing Date, and all of its right, title and interest in and to
(A) scheduled payments of interest due on each Receivable after the
Cut-Off Date, (B) scheduled payments of principal due, and unscheduled
collections of principal received, on each Receivable on and after the
Cut-off Date and (C) the Certificate Insurance Policy; such transfer of
the Receivables set forth on the Receivable Schedule to the Trust will
be absolute and is intended by the Seller and all parties hereto to be
treated as a sale to the Trust.
(x) The Offered Certificates, the Pooling Agreement, the
Purchase Agreement and this Agreement each conform in all material
respects with the respective descriptions thereof contained in the
Registration Statement and the Prospectus.
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<PAGE> 17
(xi) The statements in the Base Prospectus under the
captions "Summary of Terms - Certain Tax Considerations", "Summary of
Terms - ERISA Considerations", "ERISA Considerations" and "Certain Tax
Considerations" and the statements in the Prospectus Supplement under
the captions "Summary - Tax Status", "Summary - ERISA Considerations",
"Certain Federal Income Tax Consequences" and "ERISA Considerations",
to the extent that they constitute matters of law or legal conclusions
with respect thereto, have been reviewed by such counsel and represent
a fair and accurate summary of the matters addressed therein, under
existing law and the assumptions stated therein.
(xii) The statements in the Base Prospectus under the caption
"Certain Legal Aspects of the Receivables" and the statements in the
Prospectus Supplement under the caption "Certain Legal Aspects of the
Receivables" to the extent they constitute matters of law or legal
conclusions, are correct in all material respects.
(xv) The Registration Statement is effective under the Act
and no stop order suspending the effectiveness of the Registration
Statement has been issued, and to the best of such counsel's knowledge
no proceeding for that purpose has been instituted or threatened by the
Commission under the Act.
(xvi) The conditions to the use by the Sponsor of a
registration statement on Form S-3 under the Act, as set forth in the
General Instructions to Form S-3, have been satisfied with respect to
the Registration Statement and the Prospectus. There are no contracts
or documents which are required to be filed as exhibits to the
Registration Statement pursuant to the Act or the Rules and Regulations
thereunder which have not been so filed.
(xvii) The Registration Statement at the time it became
effective, and any amendments thereto at the time such amendment
becomes effective (other than the information set forth in the
financial statements and other financial and statistical information
contained therein, as to which such counsel need express no opinion),
complied as to form in all material respects with the applicable
requirements of the Act and the Rules and Regulations thereunder.
(xviii) The execution, delivery and performance of each Sponsor
Agreement by the Sponsor will not conflict with or violate any federal
statute, rule, regulation or order of any federal governmental agency
or body, or any federal court having jurisdiction over the Sponsor or
its properties or assets.
(xix) The execution, delivery and performance of each
Seller Agreement by the Seller will not conflict with or
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violate any federal statute, rule, regulation or order of any federal
governmental agency or body, or any federal court having jurisdiction
over the Seller or its properties or assets.
In addition, such counsel shall state that such counsel has
participated in conferences with officers and other representatives of each of
the Seller, the Sponsor, the Servicer, the Certificate Insurer, the Trustee and
the Underwriters at which the contents of the Registration Statement and the
Prospectus and related matters were discussed and on the basis of the foregoing,
no facts have come to such counsel's attention that have led such counsel to
believe the Registration Statement, at the time it became effective and as of
the date of such counsel's opinion contained or contains an untrue statement of
a material fact or omitted or omits to state a material fact required to be
stated therein or necessary to make the statements therein not misleading, or
that the Prospectus, as of its date and as of the date of such counsel's
opinion, contained or contains an untrue statement of material fact or omitted
or omits to state a material fact necessary to make the statements therein not
misleading; it being understood that such counsel need express no belief with
respect to the financial statements, schedules and other financial and
statistical data included in the Registration Statement or the Prospectus.
D. The Sponsor shall have delivered to the Underwriters a
certificate, dated the Closing Date, of an authorized officer of the Sponsor to
the effect that the signer of such certificate has carefully examined this
Agreement and the Prospectus and that: (i) the representations and warranties of
the Sponsor in each Sponsor Agreement are true and correct in all material
respects at and as of the Closing Date with the same effect as if made on the
Closing Date, (ii) the Sponsor has complied in all material respects with all
the agreements and satisfied in all material respects all the conditions on its
part to be performed or satisfied at or prior to the Closing Date, (iii) no stop
order suspending the effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been instituted or, to such officer's
knowledge, threatened, (iv) there has been no material adverse change in the
condition (financial or other), earnings, business, properties or prospects of
the Sponsor, whether or not arising from transactions in the ordinary course of
business, except as set forth or contemplated in the Prospectus and (v) nothing
has come to such officer's attention that would lead such officer to believe
that the Sponsor Offering Materials contain any untrue statement of a material
fact or omits to state any material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
The Sponsor shall attach to such certificate a true and
correct copy of its certificate of incorporation, as appropriate,
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and bylaws which are in full force and effect on the date of such certificate
and a certified true copy of the resolutions of its Board of Directors with
respect to the transactions contemplated herein.
E. The Underwriters shall have received from the Seller a
certificate dated the Closing Date, of an authorized officer of the Seller to
the effect that the signer of such certificate has carefully examined this
Agreement and the Prospectus and that: (i) the representations and warranties of
the Seller in each Seller Agreement are true and correct in all material
respects at and as of the Closing Date with the same effect as if made on the
Closing Date, (ii) the Seller has complied in all material respects with all the
agreements and satisfied all the conditions on its part to be performed or
satisfied in all material respects at or prior to the Closing Date, (iii) there
has been no material adverse change in the condition (financial or other),
earnings, business, properties or prospects of the Seller whether or not arising
from transactions in the ordinary course of business, except as set forth or
contemplated in the Prospectus, and (iv) nothing has come to such officers'
attention that would lead such officer to believe that the Seller Offering
Materials contain any untrue statement of a material fact or omits to state any
material facts required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
The Seller shall attach to such certificate a true and correct
copy of its certificate of incorporation, as appropriate, and bylaws which are
in full force and effect on the date of such certificate and a certified true
copy of the resolutions of its Board of Directors with respect to the
transactions contemplated herein.
F. The Underwriters shall have received from Chris Choate,
Esq., in-house counsel of the Sponsor and the Seller, a favorable opinion, dated
the Closing Date and satisfactory in form and substance to the Underwriters and
counsel for the Underwriters to the effect that:
(i) The Sponsor has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware. The Seller has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Nevada. Each of the Sponsor and the Seller has full corporate power
to own its property or assets and to conduct its business as presently
conducted by it and as described in the Prospectus, and is in good
standing in each jurisdiction in which the conduct of its business or
the ownership of its property or assets requires such qualification or
where the failure to be so qualified would have a material adverse
effect on its condition (financial or otherwise).
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(ii) Each Sponsor Agreement and each Seller Agreement has
been duly authorized, executed and delivered by authorized officers or
signers of the Sponsor or the Seller, as appropriate.
(iii) The direction by the Sponsor to the Trustee to execute,
issue, countersign and deliver the Offered Certificates has been duly
authorized by the Sponsor.
(iv) The execution, delivery and performance of each Sponsor
Agreement by the Sponsor will not conflict with or result in a material
breach of any of the terms or provisions of, or constitute a material
default under, or result in the creation or imposition of any lien,
charge or encumbrance upon any of the property or assets of the Sponsor
pursuant to the terms of the certificate of incorporation or the
by-laws of the Sponsor or any statute, rule, regulation or order of any
governmental agency or body of the State of Delaware, or any Delaware
state court having jurisdiction over the Sponsor or its property or
assets or any material agreement or instrument known to such counsel to
which the Sponsor is a party or by which the Sponsor or any of its
property or assets is bound.
(v) The execution, delivery and performance of each Seller
Agreement by the Seller will not conflict with or result in a material
breach of any of the terms or provisions of, or constitute a material
default under, or result in the creation or imposition of any lien,
charge or encumbrance upon any of the property or assets of the Seller
pursuant to the terms of the certificate of incorporation or the
by-laws of the Seller or any statute, rule, regulation or order of any
governmental agency or body of the State of Nevada, or any Nevada state
court having jurisdiction over the Seller or its property or assets or
any material agreement or instrument known to such counsel, to which
the Seller is a party or by which the Seller or any of its property or
assets is bound.
(vi) No authorization, approval, consent or order of, or
filing with, any court or governmental agency or authority of the State
of Delaware is necessary in connection with the execution, delivery and
performance by the Sponsor of any Sponsor Agreement except such as may
be required under the Act or the Rules and Regulations and blue sky or
other state securities laws filings with respect to the transfer of the
Receivables to the Trust pursuant to the Pooling Agreement and such
other approvals or consents as have been obtained.
(vii) No authorization, approval, consent or order of, or
filing with, any court or governmental agency or authority of the State
of Nevada is necessary in connection with the execution, delivery and
performance by the Seller of any Seller Agreement, except such as may
be required under the Act or the Rules and Regulations and blue sky or
other state
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securities laws, filings with respect to the transfer of the
Receivables to the Trust pursuant to the Pooling Agreement and such
other approvals or consents as have been obtained.
(viii) To such counsel's knowledge, there are no legal or
governmental proceedings pending to which the Sponsor or the Seller is
a party or of which any property or assets of the Sponsor or the Seller
is the subject, and no such proceedings are to the best of such
counsel's knowledge threatened or contemplated by governmental
authorities against the Sponsor, the Seller or the Trust, that, (A) are
required to be disclosed in the Registration Statement or (B) (i)
assert the invalidity against the Sponsor of all or any part of any
Sponsor Agreement or against the Seller of all or any part of any
Seller Agreement, (ii) seek to prevent the issuance of the Offered
Certificates, (iii) could materially adversely affect the Sponsor's or
the Seller's obligations under any Sponsor Agreement or any Seller
Agreement, as appropriate, or (iv) seek to affect adversely the Federal
or state income tax attributes of the Offered Certificates.
G. The Underwriters shall have received from special counsel
to the Certificate Insurer, reasonably acceptable to the Underwriters, a
favorable opinion dated the Closing Date and satisfactory in form and substance
to the Underwriters and counsel for the Underwriters, to the effect that:
(i) The Certificate Insurer is a stock insurance company
licensed and authorized to transact insurance business and to issue,
deliver and perform its obligations under its surety bonds under the
laws of the State of New York. The Certificate Insurer (a) is a stock
insurance company validly existing and in good standing under the laws
of the State of New York, (b) has the corporate power and authority to
own its assets and to carry on the business in which it is currently
engaged, and (c) is duly qualified and in good standing as a foreign
corporation under the laws of each jurisdiction where failure so to
qualify or to be in good standing would have a material and adverse
effect on its business or operations.
(ii) No litigation or administrative proceedings of or
before any court, tribunal or governmental body are currently pending
or, to the best of such counsel's knowledge, threatened against the
Certificate Insurer, which, if adversely determined, would have a
material and adverse effect on the ability of the Certificate Insurer
to perform its obligations under the Certificate Insurance Policy.
(iii) The Certificate Insurance Policy and the
Indemnification Agreement constitute the irrevocable, valid, legal and
binding obligations of the Certificate Insurer in accordance with their
respective terms to the extent provided therein, enforceable against
the Certificate Insurer in
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accordance with their respective terms, except as the enforceability
thereof and the availability of particular remedies to enforce the
respective terms thereof against the Certificate Insurer may be limited
by applicable laws affecting the rights of creditors of the Certificate
Insurer and by the application of general principles of equity.
(iv) The Certificate Insurer, as an insurance company, is
not eligible for relief under the United States Bankruptcy Code. Any
proceedings for the liquidation, conservation or rehabilitation of the
Certificate Insurer would be governed by the provisions of the
Insurance Law of the State of New York.
(v) The statements set forth in the Prospectus Supplement
under the captions "Financial Security Assurance Inc." and "the Policy"
are true and correct, except that no opinion is expressed as to
financial statements or other financial information included in the
Prospectus relating to the Certificate Insurer and, insofar as such
statements constitute a summary of the Certificate Insurance Policy,
accurately and fairly summarize the terms of the Certificate Insurance
Policy.
(vi) The Certificate Insurance Policy constitutes an
insurance policy within the meaning of Section 3(a)(8) of the Act.
(vii) Neither the execution or delivery by the Certificate
Insurer of the Certificate Insurance Policy or the Indemnification
Agreement, nor the performance by the Certificate Insurer of its
obligations thereunder, will conflict with any provision of the
certificate of incorporation or the amended by-laws of the Certificate
Insurer nor, to the best of such counsel's knowledge, result in a
breach of, or constitute a default under, any agreement or other
instrument to which the Certificate Insurer is a party or by which any
of its property is bound nor, to the best of such counsel's knowledge,
violate any judgment, order or decree applicable to the Certificate
Insurer of any governmental regulatory body, administrative agency,
court or arbitrator located in any jurisdiction in which the
Certificate Insurer is licensed or authorized to do business.
H. The Underwriters shall have received from Dewey Ballantine,
counsel for the Underwriters, such opinion or opinions, dated the Closing Date,
with respect to the validity of the Offered Certificates and such other related
matters as the Underwriters may require.
I. The Underwriters shall have received from counsel to the
Trustee and the Back-Up Servicer, a favorable opinion dated the Closing Date and
satisfactory in form and substance to the Underwriters and counsel for the
Underwriters, to the effect that:
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(i) Each of the Trustee and the Back-Up Servicer has been
duly incorporated and is validly existing as a banking corporation in
good standing under the laws of the United States of America.
(ii) Each of the Trustee and the Back-Up Servicer has full
corporate trust power and authority to enter into and perform its
obligations under the Pooling Agreement, as the case may be, including,
but not limited to, its obligation to serve in the capacity of Trustee
and to execute, issue, countersign and deliver the Offered
Certificates.
(iii) The Pooling Agreement has been duly authorized,
executed and delivered by the Trustee and the Back-Up Servicer, as
applicable, and constitutes a legal, valid and binding obligation of
the Trustee and the Back-Up Servicer, as applicable, enforceable
against the Trustee and the Back-Up Servicer, as applicable, in
accordance with their terms, except that as to enforceability such
enforcement may (A) be subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the rights
of creditors generally and (B) be limited by general principles of
equity (whether considered in a proceeding at law or in equity).
(iv) The Certificates have been duly authorized, executed
and authenticated by the Trustee on the date hereof on behalf of the
Trust in accordance with the Pooling Agreement.
(v) The execution, delivery and performance of the Pooling
Agreement and the Certificates by the Trustee and the Back-Up Servicer,
as applicable, will not conflict with or result in a breach of any of
the terms or provisions of, or constitute a default under, or result in
the creation or imposition of any lien, charge or encumbrance upon any
of the property or assets of the Trustee or the Back-Up Servicer
pursuant to the terms of the articles of association or the by-laws of
the Trustee and the Back-Up Servicer or any statute, rule, regulation
or order of any governmental agency or body, or any court having
jurisdiction over the Trustee or the Back-Up Servicer or its property
or assets or any agreement or instrument known to such counsel, to
which the Trustee or the Back-Up Servicer is a party or by which the
Trustee or the Back-Up Servicer or any of its respective property or
assets is bound.
(vi) No authorization, approval, consent or order of, or
filing with, any state or federal court or governmental agency or
authority is necessary in connection with the execution, delivery and
performance by the Trustee or the Back-Up Servicer of the Pooling
Agreement and the Offered Certificates, as applicable.
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(vii) If the Trustee were acting as Servicer under the
Pooling Agreement on the date hereof, each of the Trustee and the
Back-Up Servicer would have the power and authority to perform the
obligations of the Servicer as provided in the Pooling Agreement.
J. LaSalle National Bank ("LaSalle") shall have furnished to
the Underwriters a certificate of LaSalle, signed by one or more duly authorized
officers of LaSalle, dated the Closing Date, as to the due authorization,
execution and delivery of the Pooling Agreement by LaSalle and the acceptance by
the Trustee of the trusts created thereby and the due execution and delivery of
the Certificates by the Trustee thereunder and such other matters as the
Underwriters shall reasonably request.
K. The Indemnification Agreement shall have been executed and
delivered, in which the Certificate Insurer shall represent, among other
representations, that (i) the information under the captions "Certificate
Insurer" and "Certificate Insurance Policy" in the section entitled "Summary"
and "The Certificate Insurance Policy and the Certificate Insurer" in the
Prospectus Supplement was approved by the Certificate Insurer and does not
contain any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading and (ii) there has been no change in
the financial condition of the Certificate Insurer since December 31, 1995,
which would have a material adverse effect on the Certificate Insurer's ability
to meet its obligations under the Certificate Insurance Policy.
L. The Certificate Insurance Policy shall have been issued by
the Certificate Insurer and shall have been duly countersigned by an authorized
agent of the Certificate Insurer, if so required under applicable state law or
regulation.
M. The Offered Certificates shall have been rated "AAA" by
Standard & Poor's Ratings Services ("S&P") and "Aaa" by Moody's Investors
Service, Inc. ("Moody's").
N. The Underwriters shall have received copies of letters
dated as of the Closing Date, from S&P and Moody's stating the current ratings
of the Offered Certificates as set forth in Section M above.
O. The Underwriters shall have received from Dewey Ballantine,
counsel to the Sponsor and the Seller, a favorable opinion, dated the Closing
Date and satisfactory in form and substance to the Underwriters and counsel for
the Underwriters, as to true sale matters relating to the transaction, and the
Underwriters shall be an addressees of any opinions of counsel supplied to the
rating organizations relating to the Certificates.
23
<PAGE> 25
P. All proceedings in connection with the transactions
contemplated by this Agreement, and all documents incident hereto, shall be
reasonably satisfactory in form and substance to the Underwriters and counsel
for the Underwriters, and the Underwriters and counsel for the Underwriters
shall have received such other information, opinions, certificates and documents
as they may reasonably request in writing.
Q. The Prospectus and any supplements thereto shall have been
filed (if required) with the Commission in accordance with the rules and
regulations under the Act and Section 2 hereof, and prior to the Closing Date,
no stop order suspending the effectiveness of the Registration Statement shall
have been issued and no proceedings for that purpose shall have been instituted
or shall be contemplated by the Commission or by any authority administering any
state securities or blue sky law.
If any condition specified in this Section 7 shall not have
been fulfilled when and as required to be fulfilled, (i) this Agreement may be
terminated by the Representative by notice to both of the Companies at any time
at or prior to the Closing Date, and such termination shall be without liability
of any party to any other party except as provided in Section 8 and (ii) the
provisions of Section 8, the indemnity set forth in Section 9, the contribution
provisions set forth in Section 10 and the provisions of Sections 13 and 16
shall remain in effect.
Section 8. Payment of Expenses. The Seller agrees to pay the
following expenses incident to the performance of the Companies' obligations
under this Agreement, (i) the filing of the Registration Statement and all
amendments thereto, (ii) the duplication and delivery to the Underwriters, in
such quantities as the Underwriters may reasonably request, of copies of this
Agreement, (iii) the preparation, issuance and delivery of the Certificates,
(iv) the fees and disbursements of Dewey Ballantine, counsel for the
Underwriters and special counsel to the Seller, (v) the fees and disbursements
of Coopers & Lybrand, L.L.P., accountants of the Companies, (vi) the
qualification of the Offered Certificates under securities and Blue Sky laws and
the determination of the eligibility of the Offered Certificates for investment
in accordance with the provisions hereof, including filing fees and the fees and
disbursements of Dewey Ballantine, counsel to the Underwriters, in connection
therewith and in connection with the preparation of any Blue Sky survey, (vii)
the printing and delivery to the Underwriters in such quantities as the
Underwriters may reasonably request, of copies of the Registration Statement and
Prospectus and all amendments and supplements thereto, and of any Blue Sky
survey, (viii) the duplication and delivery to the Underwriters, in such
quantities as the Underwriters may reasonably request, of copies of the Pooling
Agreement and the other transaction documents, (ix) the fees charged by
nationally recognized statistical rating agencies for rating the Offered
Certificates, (x) the fees and expenses of the
24
<PAGE> 26
Trustee and its counsel and (xi) the fees and expenses of the Certificate
Insurer and its counsel.
If this Agreement is terminated by the Representative in
accordance with the provisions of Section 7, the Companies shall reimburse the
Representative for all reasonable third-party out-of-pocket expenses, including
the reasonable fees and disbursements of Dewey Ballantine, the Representative's
counsel.
Section 9. Indemnification. A. (x) The Sponsor agrees to
indemnify and hold harmless the Underwriters and each person, if any, who
controls the Underwriters within the meaning of the Securities Act or the
Exchange Act, from and against any and all loss, claim, damage or liability,
joint or several, or any action in respect thereof (including, but not limited
to, any loss, claim, damage, liability or action relating to purchases and sales
of the Offered Certificates), to which the Underwriters or any such controlling
person may become subject, under the Securities Act or the Exchange Act or
otherwise, insofar as such loss, claim, damage, liability or action arises out
of, or is based upon, (i) any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or the Prospectus, (ii)
the omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, (iii)
any untrue statement or alleged untrue statement of a material fact contained in
the Sponsor Offering Materials (other than the Registration Statement) or (iv)
the omission or alleged omission to state therein a material fact required to be
stated or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading and shall reimburse the
Underwriters and each such controlling person promptly upon demand for any
documented legal or documented other expenses reasonably incurred by the
Underwriters or such controlling person in connection with investigating or
defending or preparing to defend against any such loss, claim, damage, liability
or action as such expenses are incurred; provided, however, that the foregoing
indemnity with respect to any untrue statement contained in or omission from the
Prospectus shall not inure to the benefit of the Underwriters if the Sponsor
shall sustain the burden of proving that the person asserting against the
Underwriters the loss, liability, claim, damage or expense purchased any of the
Offered Certificates which are the subject thereof and was not sent or given a
copy of the appropriate Prospectus (or the appropriate Prospectus as amended or
supplemented) (the term Prospectus as used in this clause shall not include
documents incorporated by reference thereto), if required by law, at or prior to
the written confirmation of the sale of such Offered Certificates to such person
and the untrue statement contained in or omission from such preliminary
prospectus was corrected in the appropriate Prospectus (or the appropriate
Prospectus as amended or supplemented).
(y) The Seller agrees to indemnify and hold harmless the
Underwriters and each person, if any, who controls the Underwriters
25
<PAGE> 27
within the meaning of the Securities Act or the Exchange Act, from and against
any and all loss, claim, damage or liability, joint or several, or any action in
respect thereof (including, but not limited to, any loss, claim, damage,
liability or action relating to purchases and sales of the Offered
Certificates), to which the Underwriters or any such controlling person may
become subject, under the Securities Act or the Exchange Act or otherwise,
insofar as such loss, claim, damage, liability or action arises out of, or is
based upon, (i) any untrue statement or alleged untrue statement of a material
fact contained in the Seller Offering Materials or (ii) the omission or alleged
omission to state therein a material fact required to be stated or necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading and shall reimburse the Underwriters and each such
controlling person promptly upon demand for any documented legal or documented
other expenses reasonably incurred by the Underwriters or such controlling
person in connection with investigating or defending or preparing to defend
against any such loss, claim, damage, liability or action as such expenses are
incurred; provided, however, that the foregoing indemnity with respect to any
untrue statement contained in or omission from a prospectus shall not inure to
the benefit of the Underwriters if the Seller shall sustain the burden of
proving that the person asserting against the Underwriters the loss, liability,
claim, damage or expense purchased any of the Offered Certificates which are the
subject thereof and was not sent or given a copy of the appropriate Prospectus
(or the appropriate Prospectus as amended or supplemented) (the term Prospectus
as used in this clause shall not include documents incorporated by reference
thereto), if required by law, at or prior to the written confirmation of the
sale of such Offered Certificates to such person and the untrue statement
contained in or omission from such preliminary prospectus was corrected in the
appropriate Prospectus (or the appropriate Prospectus as amended or
supplemented).
The foregoing indemnity agreement is in addition to any
liability which the Sponsor or the Seller may otherwise have to the Underwriters
or any controlling person of any of the Underwriters.
B. The Underwriters agrees to indemnify and hold harmless the
Sponsor and the Seller, the directors and the officers of the Sponsor who signed
the Registration Statement, and each person, if any, who controls the Sponsor or
the Seller within the meaning of the Securities Act or the Exchange Act against
any and all loss, claim, damage or liability, or any action in respect thereof,
to which the Sponsor, the Seller or any such director, officer or controlling
person may become subject, under the Securities Act or the Exchange Act or
otherwise, insofar as such loss, claim, damage, liability or action arises out
of, or is based upon, (i) any untrue statement or alleged untrue statement of a
material fact relating to such Underwriter contained in the Underwriter
Information or (ii) the omission or alleged omission to
26
<PAGE> 28
state therein a material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they were
made, not misleading, and shall reimburse the Sponsor or the Seller, as the case
may be, promptly on demand, and any such director, officer or controlling person
for any documented legal or other documented expenses reasonably incurred by the
Sponsor or the Seller, or any director, officer or controlling person in
connection with investigating or defending or preparing to defend against any
such loss, claim, damage, liability or action as such expenses are incurred.
The foregoing indemnity agreement is in addition to any
liability which the Underwriters may otherwise have to the Sponsor or the Seller
or any such director, officer or controlling person.
C. Promptly after receipt by any indemnified party under this
Section 9 of notice of any claim or the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against any
indemnifying party under this Section 9, promptly notify the indemnifying party
in writing of the claim or the commencement of that action; provided, however,
that the failure to notify an indemnifying party shall not relieve it from any
liability which it may have under this Section 9 except to the extent it has
been materially prejudiced by such failure; and provided, further, that the
failure to notify any indemnifying party shall not relieve it from any liability
which it may have to any indemnified party otherwise than under this Section 9.
If any such claim or action shall be brought against an
indemnified party, and it shall notify the indemnifying party thereof, the
indemnifying party shall be entitled to participate therein and, to the extent
that it wishes, jointly with any other similarly notified indemnifying party, to
assume the defense thereof with counsel reasonably satisfactory to the
indemnified party, unless such indemnified party reasonably objects to such
assumption on the ground that there may be legal defenses available to it which
are different from or in addition to those available to such indemnifying party.
After notice from the indemnifying party to the indemnified party of its
election to assume the defense of such claim or action, except to the extent
provided in the next following paragraph, the indemnifying party shall not be
liable to the indemnified party under this Section 9 for any fees and expenses
of counsel subsequently incurred by the indemnified party in connection with the
defense thereof other than reasonable costs of investigation.
Any indemnified party shall have the right to employ separate
counsel in any such action and to participate in the defense thereof, but the
fees and expenses of such counsel shall be at the expense of such indemnified
party unless: (i) the employment thereof has been specifically authorized by the
indemnifying party in writing; (ii) such indemnified party shall have been
advised by such counsel that there may be one or more
27
<PAGE> 29
legal defenses available to it which are different from or additional to those
available to the indemnifying party and in the reasonable judgment of such
counsel it is advisable for such indemnified party to employ separate counsel;
or (iii) the indemnifying party has failed to assume the defense of such action
and employ counsel reasonably satisfactory to the indemnified party, in which
case, if such indemnified party notifies the indemnifying party in writing that
it elects to employ separate counsel at the expense of the indemnifying party,
the indemnifying party shall not have the right to assume the defense of such
action on behalf of such indemnified party, it being understood, however, the
indemnifying party shall not, in connection with any one such action or separate
but substantially similar or related actions in the same jurisdiction arising
out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys (in
addition to local counsel) at any time for all such indemnified parties, which
firm shall be designated in writing by the Representative, if the indemnified
parties under this Section 9 consist of the Underwriters or any of their
controlling persons, or by the Companies, if the indemnified parties under this
Section 9 consist of either of the Companies or any of the Companies' directors,
officers or controlling persons, but in either case reasonably satisfactory to
the indemnified party.
Each indemnified party, as a condition of the indemnity
agreements contained in Sections 9A and B, shall use its best efforts to
cooperate with the indemnifying party in the defense of any such action or
claim. No indemnifying party shall be liable for any settlement of any such
action effected without its written consent (which consent shall not be
unreasonably withheld), but if settled with its written consent or if there be a
final judgment for the plaintiff in any such action, the indemnifying party
agrees to indemnify and hold harmless any indemnified party from and against any
loss or liability by reason of such settlement or judgment. No indemnifying
party shall, without prior written consent of the indemnified party, effect any
settlement of any pending or threatened action in respect of which such
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party unless such settlement includes an
unconditional release of such indemnified party from all liability on any claims
that are the subject matter of such action.
Notwithstanding the foregoing, if (x) the indemnified party
has made a proper request to the indemnifying party for the payment of the
indemnified party's legal fees and expenses, as permitted hereby, and (y) such
request for payment has not been honored within thirty days, then, for so long
as such request thereafter remains unhonored, the indemnifying party shall be
liable for any settlement entered into by the indemnified party whether or not
the indemnifying party consents thereto.
28
<PAGE> 30
Section 10. Contribution. In order to provide for just and
equitable contribution in circumstances in which the indemnity agreement
provided for in Section 9 is for any reason held to be unenforceable by the
indemnified parties although applicable in accordance with its terms, the
Sponsor, the Seller and the Underwriters (each, a "Contributing Party") shall
contribute to the aggregate losses, liabilities, claims, damages and expenses of
the nature contemplated by said indemnity agreement incurred by such
Contributing Party (i) in such proportion as is appropriate to reflect the
relative benefits received by such Contributing Party from the offering of the
Offered Certificates or (ii) if the allocation provided by clause (i) above is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of such Contributing Party in connection with the statements or
omissions which resulted in the losses, liabilities, claims, damages and
expenses as well as any other relevant equitable considerations; provided,
however, that no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
Relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Contributing Party and the Contributing Parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission and other equitable considerations.
Notwithstanding the provisions of Section 9 or of this Section
10, the Underwriters shall not be required to be responsible for any amount in
excess of the amount by which the total re-offering price at which the Offered
Certificates underwritten by it and distributed and offered to the public
exceeds the amount paid hereunder by the Underwriters for the Offered
Certificates. For purposes of this Section 10, each person, if any, who controls
each Underwriter within the meaning of the Securities Act or the Exchange Act
shall have the same rights to contribution as each of the Underwriters and each
director of the Sponsor and/or the Seller, each officer of the Sponsor who
signed the Registration Statement, and each person, if any, who controls the
Sponsor and/or the Seller within the meaning of the Securities Act or the
Exchange Act shall have the same rights to contribution as the Sponsor.
The Companies and the Underwriters agree that it would not be
just and equitable if contributions pursuant to this Section 10 were to be
determined by pro rata allocation or by any other method of allocation which
does not take into account the equitable considerations referred to herein. The
amount paid or payable by an indemnified party as a result of the loss, claim,
damage or
29
<PAGE> 31
liability, or action in respect thereof, referred to above in this Section 10
shall be deemed to include, for purposes of this Section 10, any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim.
Section 11. Default by One or More of the Underwriters. If one
or more of the Underwriters participating in the public offering of the Offered
Certificates shall fail at the Closing Date to purchase the Offered Certificates
which it is obligated to purchase hereunder (the "Defaulted Certificates"), then
the non-defaulting Underwriter shall have the right, within 24 hours thereafter,
to make arrangements to purchase all, but not less than all, of the Defaulted
Certificates in such amounts as may be agreed upon and upon the terms herein set
forth. If, however, the Underwriter have not completed such arrangements within
such 24- hour period, then:
(i) if the aggregate principal amount of Defaulted
Certificates does not exceed 10% of the aggregate principal amount of the
Offered Certificates to be purchased pursuant to this Agreement, the
non-defaulting Underwriter shall be obligated to purchase the full amount
thereof, or
(ii) if the aggregate principal amount of Defaulted
Certificates exceeds 10% of the aggregate principal amount of the Offered
certificates to be purchased pursuant to this Agreement, this Agreement shall
terminate, without any liability on the party of the non-defaulting Underwriter.
No action taken pursuant to this Section 11 shall relieve the
defaulting Underwriter form the liability with respect to any default of such
Underwriter under this Agreement.
In the event of a default by either Underwriter as set forth
in this Section 11, each of the Underwriters and the Depositor shall have the
right to postpone the Closing Date for a period not exceeding five Business Days
in order that any required changes in the Registration Statement or Prospectus
or in any other documents or arrangements may be effected.
Section 12. Termination. This Agreement shall be subject to
termination in the absolute discretion of the Representative, by notice given to
the Sponsor and the Seller prior to delivery of and payment for the Offered
Certificates if prior to such time (i) any change, or any development involving
a prospective change, in or affecting particularly the business or properties of
the Trust, the Sponsor or the Seller which, in the reasonable judgment of the
Representative, materially impairs the investment quality of the Certificates or
makes it impractical or inadvisable to market the Offered Certificates; (ii) the
Offered Certificates have been placed on credit watch by S&P or Moody's with
negative implications; (iii) trading in securities generally
30
<PAGE> 32
on the New York Stock Exchange or the National Association of Securities Dealers
National Market System shall have been suspended or limited, or minimum prices
shall have been established on such exchange or market system; (iv) a banking
moratorium shall have been declared by either Federal or New York State
authorities; or (v) there shall have occurred any outbreak or material
escalation of hostilities or other calamity or crisis, the effect of which makes
it, in the reasonable judgment of the Representative, impractical or inadvisable
to proceed with the completion of the sale and payment for the Offered
Certificates. Upon such notice being given, the parties to this Agreement shall
(except for any liability arising before or in relation to such termination) be
released and discharged from their respective obligations under this Agreement.
Section 13. Representations, Warranties and Agreements to
Survive Delivery. All representations, warranties and agreements contained in
this Agreement or contained in certificates of officers of the Companies
submitted pursuant hereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of the Representative or
controlling person of the Representative, or by or on behalf of the Companies or
any officers, directors or controlling persons and shall survive delivery of any
Offered Certificates to the Representative or any controlling person.
Section 14. Notices. All notices and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
mailed or transmitted by any standard form of telecommunication to:
The Underwriters: CS First Boston Corporation
Park Avenue Plaza
55 East 52nd Street
New York, New York 10055
Attention: Investment Banking
Department/Transactions
Advisory Group
Fax: (212) 318-0532
The Sponsor: AmeriCredit Financial Services, Inc.
200 Bailey Avenue
Fort Worth, TX 76107
Attention: Chief Financial Officer
Fax: (817) 336-9519
The Seller: AFS Funding Corp.
1325 Airmotive Way
Reno, Nevada 89502
Attention: Chief Financial Officer
Fax: (702) 322-8808
31
<PAGE> 33
Section 15. Parties. This Agreement shall inure to the benefit
of and be binding upon the Representative and the Companies, and their
respective successors or assigns. Nothing expressed or mentioned in this
Agreement is intended nor shall it be construed to give any person, firm or
corporation, other than the parties hereto or thereto and their respective
successors and the controlling persons and officers and directors referred to in
Sections 9 and 10 and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or with respect to this Agreement or any
provision herein contained. This Agreement and all conditions and provisions
hereof are intended to be for the sole and exclusive benefit of the parties and
their respective successors and said controlling persons and officers and
directors and their heirs and legal representatives (to the extent of their
rights as specified herein and therein) and except as provided above for the
benefit of no other person, firm or corporation. No purchaser of Offered
Certificates from the Representative shall be deemed to be a successor by reason
merely of such purchase.
SECTION 16. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK AND SHALL BE CONSTRUED IN
ACCORDANCE WITH SUCH LAWS WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS
THEREOF. SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
Section 17. Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original, but together they
shall constitute but one instrument.
Section 18. Headings. The headings herein are inserted for
convenience of reference only and are not intended to be part of or affect the
meaning or interpretation of, this Agreement.
32
<PAGE> 34
If the foregoing is in accordance with the Representative's
understanding of our agreement, please sign and return to us a counterpart
hereof, whereupon this instrument along with all counterparts will become a
binding agreement between the Representative, the Sponsor and the Seller in
accordance with its terms.
Very truly yours,
AMERICREDIT FINANCIAL SERVICES, INC.
By: /s/ Daniel Berce
---------------------------------
Name: Daniel Berce
Title: Executive Vice President,
Chief Financial Officer
and Treasurer
AFS FUNDING CORP.
By: /s/ Daniel Berce
---------------------------------
Name: Daniel Berce
Title: Executive Vice President,
Chief Financial Officer
and Treasurer
CONFIRMED AND ACCEPTED, as of the date first above written:
CS FIRST BOSTON CORPORATION Acting on its own behalf and as Representative of
the Underwriters referred to in the foregoing Agreement
By: /s/ John L. Reynen
----------------------------
Name: John L. Reynen
Title: Authorized Signatory
[Underwriting Agreement]
<PAGE> 35
Schedule 1
Underwriting
<TABLE>
<CAPTION>
Purchase
Price
Percentage Proceeds
(excluding (excluding
accrued Principal accrued
Underwriter interest) Amount interest)
----------- ---------- --------- ----------
<S> <C> <C> <C>
CS First Boston Corporation 99.475% $85,941,000 $85,489,809.75
Prudential Securities 99.475% $30,000,000 $29,842,500.00
Incorporated
</TABLE>
<PAGE> 1
EXHIBIT 4.1
<PAGE> 2
POOLING AND SERVICING AGREEMENT
RELATING TO
AMERICREDIT AUTOMOBILE RECEIVABLES TRUST 1996-B
among
AMERICREDIT FINANCIAL SERVICES, INC.
as Servicer,
AFS FUNDING CORP.
as Seller and Initial Class B Certificateholder
and
LASALLE NATIONAL BANK
as Trustee, Backup Servicer and Collateral Agent
----------------------
Dated as of April 30, 1996
----------------------
<PAGE> 3
<TABLE>
<CAPTION>
TABLE OF CONTENTS
Page
----
<S> <C> <C>
ARTICLE I DEFINITIONS...................................................................... 1
Section 1.1. Definitions............................................................. 1
Section 1.2. Usage of Terms.......................................................... 18
Section 1.3. Calculations............................................................ 18
Section 1.4. Section References...................................................... 19
Section 1.5. Action by or Consent of Certificateholders.............................. 19
Section 1.6. No Recourse............................................................. 19
Section 1.7. Material Adverse Effect................................................. 19
ARTICLE II CREATION OF TRUST................................................................ 19
Section 2.1. Creation of Trust....................................................... 19
ARTICLE III CONVEYANCE OF RECEIVABLES; ACCEPTANCE BY
TRUSTEE; ORIGINAL ISSUANCE OF CERTIFICATES....................................... 20
Section 3.1. Conveyance of Receivables............................................... 20
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................................ 22
Section 3.5. Repurchase of Receivables Upon Breach of
Warranty........................................................... 24
Section 3.6. [Reserved].............................................................. 24
Section 3.7. Collecting Lien Certificates Not Delivered
on the Closing Date................................................ 24
Section 3.8. Trustee's Assignment of Administrative
Receivables and Warranty Receivables............................... 25
ARTICLE IV ADMINISTRATION AND SERVICING OF
RECEIVABLES...................................................................... 25
Section 4.1. Duties of the Servicer. ............................................... 25
Section 4.2. Collection of Receivable Payments; Modifications of
Receivables; Lockbox Agreements.................................... 26
Section 4.3. Realization Upon Receivables............................................ 29
Section 4.4. Insurance............................................................... 30
Section 4.5. Maintenance of Security Interests in Vehicles........................... 32
Section 4.6. Covenants, Representations, and Warranties of
Servicer........................................................... 33
Section 4.7. Purchase of Receivables Upon Breach of Covenant......................... 35
Section 4.8. Total Servicing Fee; Payment of Certain Expenses by
Servicer; Compensating Interest.................................... 35
</TABLE>
-i-
<PAGE> 4
<TABLE>
Page
----
<S> <C> <C>
Section 4.9. Servicer's Certificate.................................................. 36
Section 4.10. Annual Statement as to Compliance, Notice of
Servicer Termination Event......................................... 37
Section 4.11. Annual Independent Accountants' Report.................................. 37
Section 4.12. Access to Certain Documentation and Information
Regarding Receivables.............................................. 38
Section 4.13. Monthly Tape............................................................ 38
Section 4.14. Retention and Termination of Servicer................................... 39
Section 4.15. Fidelity Bond and Errors and Omissions Policy........................... 39
ARTICLE V DISTRIBUTIONS; STATEMENTS TO CERTIFICATE-
HOLDERS.......................................................................... 40
Section 5.1. Accounts................................................................ 40
Section 5.2. Collections............................................................. 41
Section 5.3. Application of Collections.............................................. 41
Section 5.4. Additional Deposits..................................................... 42
Section 5.5. Distributions........................................................... 42
Section 5.6. Net Deposits............................................................ 44
Section 5.7. Statements to Certificateholders........................................ 44
Section 5.8. Optional Deposits by the Security Insurer............................... 45
ARTICLE VI THE SPREAD ACCOUNT AND THE POLICY;
COVENANTS OF THE INITIAL CLASS B
CERTIFICATEHOLDER................................................................ 46
Section 6.1. Initial Purchase; Spread Account........................................ 46
Section 6.2. Policy.................................................................. 46
Section 6.3. Withdrawals from Spread Account......................................... 46
Section 6.4. Claims Under Policy..................................................... 46
Section 6.5. Preference Claims; Direction of Proceedings............................. 48
Section 6.6. Surrender of Policy..................................................... 49
Section 6.7. Special Purpose Entity.................................................. 49
Section 6.8. Restrictions on Liens................................................... 50
Section 6.9. Creation of Indebtedness; Guarantees.................................... 50
Section 6.10. Other Activities........................................................ 50
ARTICLE VII THE CERTIFICATES................................................................. 51
Section 7.1. The Certificates........................................................ 51
Section 7.2. Authentication of Certificates.......................................... 51
Section 7.3. Registration of Transfer and Exchange of
Certificates............................................................ 51
Section 7.4. Mutilated, Destroyed, Lost or Stolen Certificates....................... 54
Section 7.5. Persons Deemed Owners................................................... 54
</TABLE>
-ii-
<PAGE> 5
<TABLE>
Page
----
<S> <C> <C>
Section 7.6. Access to List of Certificateholders' Names and
Addresses.......................................................... 55
Section 7.7. Maintenance of Office or Agency......................................... 55
Section 7.8. Affiliated Group May Own Certificates................................... 55
ARTICLE VIII THE SELLER....................................................................... 56
Section 8.1. Liability of Seller..................................................... 56
Section 8.2. Merger or Consolidation of, or Assumption of the
Obligations of Seller; Amendment of Certificate of
Incorporation........................................................... 56
Section 8.3. Limitation on Liability of Seller and Others............................ 56
ARTICLE IX THE SERVICER..................................................................... 57
Section 9.1. Liability of Servicer; Indemnities...................................... 57
Section 9.2. Merger or Consolidation of, or Assumption of the
Obligations of the Servicer or Backup Servicer.......................... 58
Section 9.3. Limitation on Liability of Servicer, Backup Servicer
and Others......................................................... 59
Section 9.4. Delegation of Duties.................................................... 60
Section 9.5. Servicer and Backup Servicer Not to Resign.............................. 60
ARTICLE X SERVICER TERMINATION EVENTS...................................................... 61
Section 10.1. Servicer Termination Event.............................................. 61
Section 10.2. Consequences of a Servicer Termination Event............................ 62
Section 10.3. Appointment of Successor................................................ 63
Section 10.4. Notification to Certificateholders...................................... 64
Section 10.5. Waiver of Past Defaults................................................. 64
ARTICLE XI THE TRUSTEE...................................................................... 65
Section 11.1. Duties of Trustee....................................................... 65
Section 11.2. Trustee's Assignment of Administrative Receivables
and Warranty Receivables........................................... 67
Section 11.3. Certain Matters Affecting the Trustee................................... 67
Section 11.4. Trustee Not Liable for Certificates or Receivables...................... 68
Section 11.5. Trustee May Own Certificates............................................ 69
Section 11.6. Trustee's Fees and Expenses; Indemnification............................ 69
Section 11.7. Subscription Agreement.................................................. 70
Section 11.8. Eligibility Requirements for Trustee.................................... 70
Section 11.9. Resignation or Removal of Trustee....................................... 70
Section 11.10. Successor Trustee....................................................... 71
Section 11.11. Merger or Consolidation of Trustee...................................... 72
</TABLE>
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<TABLE>
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<S> <C> <C>
Section 11.12. Appointment of Co-Trustee or Separate Trustee........................... 72
Section 11.13. Representations and Warranties of Trustee............................... 73
Section 11.14. Tax Returns............................................................. 74
Section 11.15. Trustee May Enforce Claims Without Possession of
Certificates....................................................... 74
Section 11.16. Suit for Enforcement.................................................... 75
Section 11.17. Rights to Direct Trustee................................................ 75
ARTICLE XII TERMINATION...................................................................... 75
Section 12.1. Termination of the Trust................................................ 75
Section 12.2. Optional Purchase of All Receivables.................................... 77
ARTICLE XIII MISCELLANEOUS PROVISIONS......................................................... 77
Section 13.1. Amendment............................................................... 77
Section 13.2. Protection of Title to Trust............................................ 78
Section 13.3. Limitation on Rights of Certificateholders.............................. 80
Section 13.4. Governing Law........................................................... 81
Section 13.5. Severability of Provisions.............................................. 81
Section 13.6. Assignment.............................................................. 81
Section 13.7. Certificates Nonassessable and Fully Paid............................... 82
Section 13.8. Third-Party Beneficiaries............................................... 82
Section 13.9. Financial Security as Controlling Party................................. 82
Section 13.10. Counterparts............................................................ 82
Section 13.11. Notices................................................................. 82
Section 13.12. Successors and Assigns.................................................. 83
</TABLE>
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SCHEDULES
Schedule A -- Schedule of Receivables
Schedule B -- Representations and Warranties of the Seller
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
April 30, 1996, is made with respect to the formation of the AmeriCredit
Automobile Receivables Trust 1996-B (the "Trust"), among AmeriCredit Financial
Services, Inc., a Delaware corporation, ("AmeriCredit") (in its capacity as
Servicer, the "Servicer", AFS Funding Corp., a Nevada corporation, as the
Initial Class B Certificateholder and as the Seller (the "Seller") 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, the Trustee and the
Backup Servicer hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1. Definitions. All terms defined in the Spread Account
Agreement (as defined below) shall have the same meaning in this Agreement.
Whenever capitalized and used in this Agreement, the following words and
phrases, unless the context otherwise requires, shall have the following
meanings:
Accountants' Report: The report of a firm of nationally recognized
independent accountants described in Section 4.11.
Accounting Date: With respect to a Distribution Date, the last day of
the Collection Period immediately preceding such Distribution Date.
Administrative Receivable: With respect to any Collection Period, a
Receivable which the Servicer is required to purchase pursuant to Section 4.7 or
which
<PAGE> 9
the Servicer has elected to purchase pursuant to Section 4.4(c) on the Deposit
Date with respect to such Collection Period.
Affiliate: With respect to any Person, any other Person directly or
indirectly controlling, controlled by, or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person, means the power to
direct the management and voting securities, by contract or otherwise; and the
terms "controlling" and "controlled" have meanings correlative to the foregoing.
Aggregate Principal Balance: With respect to any Determination Date,
the sum of the Principal Balances (computed as of the related Accounting Date)
for all Receivables (other than (i) any Receivable that became a Liquidated
Receivable during the related Collection Period and (ii) any Receivable that
became a Purchased Receivable on the immediately preceding Deposit Date).
Agreement: shall have the meaning set forth in the first paragraph of
this Agreement.
AmeriCredit: shall have the meaning set forth in the first paragraph of
this Agreement.
Amount Available: With respect to any Distribution Date, the sum of (i)
the Available Funds for the immediately preceding Determination Date, plus (ii)
the Deficiency Claim Amount, if any, received by the Trustee with respect to
such Distribution Date, plus (iii) the Policy Claim Amount, if any, received by
the Trustee with respect to such Distribution Date.
Amount Financed: With respect to a Receivable, the aggregate amount
advanced under such Receivable toward the purchase price of the Financed Vehicle
and related costs, including amounts advanced in respect of accessories,
insurance premiums, service and warranty contracts, other items customarily
financed as part of retail automobile installment sale contracts or promissory
notes, and related costs.
Annual Percentage Rate or APR: With respect to a Receivable, the rate
per annum of finance charges stated in such Receivable as the "annual percentage
rate" (within the meaning of the Federal Truth-in-Lending Act). If after the
Closing Date, the rate per annum with respect to a Receivable as of the Closing
Date is reduced as a result of (i) an insolvency proceeding involving the
Obligor or (ii) pursuant to the Soldiers' and Sailors' Civil Relief Act of 1940,
Annual Percentage Rate or APR shall refer to such reduced rate.
Annual Trustee's Fee: Shall have the meaning set forth in Section 11.6.
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<PAGE> 10
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.
Book-Entry Certificate: Any Certificate registered in the name of the
Depository or its nominee, ownership of which is reflected on the books of the
Depository or on the books of a person maintaining an account with such
Depository (directly or as an indirect participant in accordance with the rules
of such Depository).
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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<PAGE> 11
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
Cutoff 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: 6.50% per annum, calculated on the basis of
a 360-day year consisting of twelve 30-day months.
Class A Percentage: 92%.
Class A Principal Carryover Shortfall: As of the close of business on
any Distribution Date, the excess of the Class A Principal Distributable Amount
plus any outstanding Class A Principal Carryover Shortfall from the preceding
Distribution Date
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<PAGE> 12
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 Distribution 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 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 pass-through rate appropriate to 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.
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<PAGE> 13
Class B Coupon Interest Carryover Shortfall: As of the close of
business on any Distribution Date, the excess of the Class B Coupon Interest
Amount for such Distribution Date plus any outstanding Class B Coupon Interest
Carryover Shortfall from the preceding Distribution Date, over the amount of
interest that the holders of the Class B Certificates actually received on such
current Distribution Date.
Class B 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: May 16, 1996.
Collateral Agent: The Collateral Agent named in the Spread Account
Agreement, and any successor thereto pursuant to the terms of the Spread Account
Agreement.
Collateral Insurance: Shall have the meaning set forth in Section
4.4(a).
Collected Funds: With respect to any Determination Date, the amount of
funds in the Collection Account representing collections on the Receivables
during or with respect to the related Collection Period, including all
Liquidation Proceeds collected during the related Collection Period (but
excluding any Purchase Amounts).
Collection Account: The account designated as the Collection Account
in, and which is established and maintained pursuant to, Section 5.1.
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<PAGE> 14
Collection Period: With respect to the first Distribution Date, the
period beginning on the close of business on April 30, 1996 and ending on the
close of business on May 31, 1996. With respect to each subsequent Distribution
Date, the preceding calendar month. Any amount stated "as of the close of
business of the last day of a Collection Period" shall give effect to the
following calculations as determined as of the end of the day on such last day:
(i) all applications of collections, and (ii) all distributions.
Collection Records: All manually prepared or computer generated records
relating to collection efforts or payment histories with respect to the
Receivables.
Compensating Interest: Shall have the meaning set forth in Section
4.8(b) hereof.
Computer Tape or Listing: The computer tape or listing generated on
behalf of the Seller which provides information relating to the Receivables and
which was used by the Seller in selecting the Receivables conveyed to the Trust
hereunder.
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 1740, Chicago, Illinois 60603, Attention: Asset Backed Securities
Trust Administration. The telecopy number for the Corporate Trust Office on the
Closing Date is (312) 904-2084.
Cram Down Loss: With respect to a Receivable, if a court of appropriate
jurisdiction in an insolvency proceeding shall have issued an order reducing the
amount owed on a Receivable or otherwise modifying or restructuring the
scheduled payments to be made on a Receivable, an amount equal to the excess of
the principal balance of such Receivable immediately prior to such order over
the principal balance of such Receivable as so reduced or the net present value
(using as the discount rate the higher of the APR on such Receivable or the rate
of interest, if any, specified by the court in such order) of the scheduled
payments as so modified or restructured. A "Cram Down Loss" shall be deemed to
have occurred on the date of issuance of such order.
Cumulative Net Losses: The difference between (A) the sum of
(i) the aggregate Principal Balances (plus accrued and unpaid interest, at the
applicable APR) of all Receivables that became Liquidated Receivables through
the Accounting Date of the latest Collection Period, plus (ii) the Principal
Balance of all Receivables that became Purchased Receivables through the
Accounting Date of the latest Collection Period and that were delinquent with
respect to 5% or more of a Scheduled Payment more than 30 days through the
Accounting Date of the latest Collection Period, plus (iii) the aggregate
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<PAGE> 15
of all Cram Down Losses that occurred through the Accounting Date of the latest
Collection Period, and (B) the Liquidation Proceeds received by the Seller
through the Accounting Date of the latest Collection Period.
Custodian: AmeriCredit and any other Person named from time to time as
custodian in any Custodian Agreement acting as agent for the Trustee, which
Person must be acceptable to the Controlling Party (the Custodian as of the
Closing Date is acceptable to the Security Insurer as of the Closing Date).
Custodian Agreement: Any Custodian Agreement from time to time in
effect between the Custodian named therein and the Trustee, as the same may be
amended, supplemented or otherwise modified from time to time in accordance with
the terms thereof, which Custodian Agreement and any amendments, supplements or
modifications thereto shall be acceptable to the Controlling Party (the
Custodian Agreement which is effective on the Closing Date is acceptable to the
Controlling Party).
Cut-off Date: April 30, 1996.
Cut-off Date Principal Balance: $126,023,711.08.
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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<PAGE> 16
Depository: The Depository Trust Company, 7 Hanover Square, New York,
New York 10004 and any successor Depository hereafter named.
Depository Participant: A broker, dealer, bank or other financial
institution or other Person for whom from time to time a Depository effects
book-entry transfers and pledges of securities deposited from time to time.
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 June 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)
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<PAGE> 17
direct interest-bearing obligations of, and interest-bearing obligations
guaranteed as to timely payment of principal and interest by, the Federal
National Mortgage Association or the Federal Home Loan Mortgage
Corporation, but only if, at the time of investment, such obligations are
rated AAA by Standard & Poor's and Aaa by Moody's;
(ii) demand or time deposits in, certificates of deposit of, or
bankers' acceptances issued by any depository institution or trust company
organized under the laws of the United States or any State and subject to
supervision and examination by federal and/or State banking authorities
(including, if applicable, the Trustee or any agent of the Trustee acting
in their respective commercial capacities); provided that the short-term
unsecured debt obligations of such depository institution or trust company
at the time of such investment, or contractual commitment providing for
such investment, are rated A1+ by Standard & Poor's and P-1 by Moody's;
(iii) repurchase obligations pursuant to a written agreement (A)
with respect to any obligation described in clause (i) above, where the
Trustee has taken actual or constructive delivery of such obligation in
accordance with Section 5.1, and (B) entered into with a depository
institution or trust company organized under the laws of the United States
or any State thereof, the deposits of which are insured by the Federal
Deposit Insurance Corporation and the short-term unsecured debt obligations
of which are rated "A-1+" by Standard & Poor's and "P-1" by Moody's
(including, if applicable, the Trustee or any agent of the Trustee acting
in their respective commercial capacities);
(iv) securities bearing interest or sold at a discount issued by
any corporation incorporated under the laws of the United States or any
State whose long-term unsecured debt obligations are rated AAA by Standard
& Poor's and Aaa by Moody's at the time of such investment or contractual
commitment providing for such investment; provided however, that securities
issued by any particular corporation will not be Eligible Investments to
the extent that an investment therein will cause the then outstanding
principal amount of securities issued by such corporation and held as part
of the Collection Account to exceed 10% of the Eligible Investments held in
the Collection Account (with Eligible Investments held in the Collection
Account valued at par);
(v) commercial paper that (1) is payable in United States dollars
and (2) is rated A1+ by Standard & Poor's and P-1 by Moody's;
(vi) money market mutual funds registered under the Investment
Company Act of 1940, as amended, having a rating, at the time of such
investment, from each of the Rating Agencies in the highest investment
category granted thereby (in the case of Standard & Poor's AAAm-G or AAAm);
and
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<PAGE> 18
(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: January 12, 2002.
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,
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<PAGE> 19
credit disability, theft, mechanical breakdown or similar coverage with respect
to the Financed Vehicle or the Obligor.
Insurer Default: The occurrence and continuance of any of the following
events:
(A) the Security Insurer shall have failed to make a payment
required under the Policy in accordance with its terms;
(B) The Security Insurer shall have (i) filed a petition or
commenced any case or proceeding under any provision or chapter of the
United States Bankruptcy Code or any other similar federal or state law
relating to insolvency, bankruptcy, rehabilitation, liquidation or
reorganization, (ii) made a general assignment for the benefit of its
creditors, or (iii) had an order for relief entered against it under
the United States Bankruptcy Code or any other similar federal or state
law relating to insolvency, bankruptcy, rehabilitation, liquidation or
reorganization which is final and nonappealable; or
(C) a court of competent jurisdiction, the New York Department of
Insurance or other competent regulatory authority shall have entered a
final and nonappealable order, judgment or decree (i) appointing a
custodian, trustee, agent or receiver for the Security Insurer or for
all or any material portion of its property or (ii) authorizing the
taking of possession by a custodian, trustee, agent or receiver of the
Security Insurer (or the taking of possession of all or any material
portion of the property of the Security Insurer).
Lien: Any security interest, lien, charge, pledge, preference, equity
or encumbrance of any kind, including tax liens, mechanics' liens and any liens
that attach by operation of law.
Lien Certificate: With respect to a Financed Vehicle, an original
certificate of title, certificate of lien or other notification issued by the
Registrar of Titles of the applicable state to a secured party which indicates
that the lien of the secured party on the Financed Vehicle is recorded on the
original certificate of title. In any jurisdiction in which the original
certificate of title is required to be given to the Obligor, the term "Lien
Certificate" shall mean only a certificate or notification issued to a secured
party.
Liquidated Receivable: With respect to any Collection Period, a
Receivable as to which (i) 90 days have elapsed since the Servicer repossessed
the Financed Vehicle, (ii) the Servicer has determined in good faith that all
amounts it expects to recover have been received or (iii) 5% or more of a
Scheduled Payment shall have become 120 or more days delinquent, except in the
case of repossessed Financed Vehicles.
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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 April 30, 1996, by and among AmeriCredit, First Interstate Bank of Texas,
N.A., and the Trustee, as such agreement may be amended or supplemented from
time to time, unless the Trustee hereunder shall cease to be a party thereunder,
or such agreement shall be terminated in accordance with its terms, in which
event "Lockbox Agreement" shall mean such other agreement, in form and substance
acceptable to the Controlling Party, among the Servicer, the Trustee and the
Lockbox Bank.
Lockbox Bank: A depository institution named by the Servicer and
acceptable to the Controlling Party.
Monthly Records: All records and data maintained by the Servicer with
respect to the Receivables, including the following with respect to each
Receivable: the account number; the originating Dealer; Obligor name; Obligor
address; Obligor home phone number; Obligor business phone number; original
Principal Balance; original term; Annual Percentage Rate; current Principal
Balance; current remaining term; origination date; first payment date; final
scheduled payment date; next payment due date; date of most recent payment;
new/used classification; collateral description; days currently delinquent;
number of contract extensions (months) to date; amount of Scheduled Payment;
current Insurance Policy expiration date; and past due late charges.
Moody's: Moody's Investors Service, Inc., or any successor thereto.
Notice of Deficiency: A written or telecopied notice from the Trustee
to the Security Insurer, substantially in the form of Exhibit A to the Policy.
Obligor: The purchaser or the co-purchasers of the Financed Vehicle and
any other Person or Persons who are primarily or secondarily obligated to make
payments under a Receivable.
Officer's Certificate: A certificate signed by the chairman of the
board, the vice chairman, the president, the chief financial officer or any vice
president.
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Opinion of Counsel: A written opinion of counsel reasonably acceptable
to the Security Insurer, which opinion is acceptable in form and substance to
the Trustee and, if such opinion or a copy thereof is required by the provisions
of this Agreement to be delivered to the Security Insurer, to the Security
Insurer.
Other Conveyed Property: All property conveyed by the Seller to the
Trust pursuant to this Agreement other than the Receivables.
Person: Any legal person, including any individual, corporation,
partnership, joint venture, estate, association, joint stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof, or any other entity.
Prepayment: Any payment in full made by an Obligor of the principal of
a Receivable which is received by the Servicer in advance of the scheduled
maturity date for such Receivable.
Policy: The financial guaranty insurance policy number -N issued by the
Security Insurer to the Trustee for the benefit of the Class A
Certificateholders, including any endorsements thereto.
Policy Claim Amount: Shall have the meaning set forth in Section
6.4(a).
Policy Payments Account: The account designated as the Policy Payments
Account in, and which is established and maintained pursuant to, Section 5.1.
Pool Balance: As of the close of business on the last day of a
Collection Period, the aggregate Principal Balance of the Receivables (excluding
Purchased Receivables and Liquidated Receivables).
Pool Factor: With respect to any Distribution Date, a seven digit
decimal figure equal to, as applicable, the Class A Certificate Balance as of
such Distribution Date (after giving effect to distributions on such date)
divided by the Class A Certificate Balance as of the Closing Date, or, the Class
B Certificate Balance as of such Distribution Date (after giving effect to
distributions on such date) divided by the Class B Certificate Balance as of the
Closing Date.
Preference Claim: Shall have the meaning set forth in Section 6.5(b).
Principal Balance: With respect to any Receivable, as of any date, the
Amount Financed minus (i) that portion of all amounts received on or prior to
such date and allocable to principal in accordance with the terms of the
Receivable, and (ii) any Cram Down Loss in respect of such Receivable.
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Prospectus Supplement: The Prospectus Supplement, dated May __, 1996,
relating to the Class A Certificates.
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.
Receivables Purchase Agreement: The Receivables Purchase Agreement and
Assignment, dated as of April 30, 1996, between the Seller and the Servicer.
Receivable File: The documents, electronic entries, instruments and
writings listed in Section 3.2 pertaining to a particular Receivable.
Record Date: The last Business Day of the month immediately preceding
the month in which the related Distribution Date occurs.
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, the
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Custodian Agreement, the Receivables Purchase Agreement and the Underwriting
Agreement dated May 9, 1996 between the Seller and the initial purchaser of the
Class A Certificates. The Related Documents to be executed by any party are
referred to herein as "such party's Related Documents," "its Related Documents"
or by a similar expression.
Repurchase Events: The occurrence of a breach of any of the Seller's or
the Servicer's representations and warranties in this Agreement which requires
the repurchase of a Receivable by the Seller or the Servicer pursuant hereto.
Required Deposit Rating: A rating on short-term unsecured debt
obligations of "P-1" by Moody's and at least "A-1+" by Standard & Poor's (or
such other rating as may be acceptable to the Rating Agencies and, so long as an
Insurer Default shall not have occurred and be continuing, the Security Insurer)
so as to not affect the rating on the Certificates.
Responsible Officer: When used with respect to the Trustee, any officer
of the Trustee assigned by the Trustee to administer its corporate trust affairs
relating to the Trust. When used with respect to any other Person that is not an
individual, the President, any Vice-President or Assistant Vice-President or the
Controller of such Person, or any other officer or employee having similar
functions.
Schedule of Receivables: The schedule of all retail installment sales
contracts and promissory notes originally held as part of the Trust which is
attached as Schedule A.
Schedule of Representations: The Schedule of Representations and
Warranties attached hereto as Schedule B.
Scheduled Payment: With respect to any Collection Period for any
Receivable, the amount set forth in such Receivable as required to be paid by
the Obligor in such Collection Period. If after the Closing Date, the Obligor's
obligation under a Receivable with respect to a Collection Period has been
modified so as to differ from the amount specified in such Receivable as a
result of (i) the order of a court in an insolvency proceeding involving the
Obligor, (ii) pursuant to the Soldiers' and Sailors' Civil Relief Act of 1940 or
(iii) modifications or extensions of the Receivable permitted by Section 4.2(b),
the Scheduled Payment with respect to such Collection Period shall refer to the
Obligor's payment obligation with respect to such Collection Period as so
modified.
Security Insurer: Financial Security Assurance Inc., a monoline
insurance company incorporated under the laws of the State of New York, or any
successor thereto, as issuer of the Policy.
Seller: shall have the meaning set forth in the first paragraph of this
Agreement.
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Series: The Certificates issued pursuant to this Agreement.
Servicer: AmeriCredit Financial Services, Inc., a Delaware corporation,
its successor in interest pursuant to Section 9.2 or, after any termination of
the Servicer upon a Servicer Termination Event, the Backup Servicer or any other
successor Servicer.
Servicer Extension Notice: The notice delivered pursuant to Section
4.14.
Servicer Termination Event: An event described in Section 10.1.
Servicer's Certificate: With respect to each Determination Date, a
certificate, completed by and executed on behalf of the Servicer, in accordance
with Section 4.9, substantially in the form attached hereto as Exhibit C.
Simple Interest Method: The method of allocating a fixed level payment
on an obligation between principal and interest, pursuant to which the portion
of such payment that is allocated to interest is equal to the product of the
fixed rate of interest on such obligation multiplied by the period of time
(expressed as a fraction of a year, based on the actual number of days in the
calendar month and 365 days in the calendar year) elapsed since the preceding
payment under the obligation was made.
Simple Interest Receivable: A Receivable under which the portion of the
payment allocable to interest and the portion allocable to principal is
determined in accordance with the Simple Interest Method.
Spread Account: The Series 1996-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 the
Seller, 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).
Subscription Agreement: The Subscription Agreement among the Seller,
and the Trustee on behalf of the Trust, dated as of the date hereof, as the same
may be amended, supplemented or otherwise modified in accordance with the terms
thereof.
Supplemental Servicing Fee: With respect to any Collection Period all
administrative fees, expenses and charges paid by or on behalf of Obligors,
including late
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fees, prepayment fees and liquidation fees collected on the Receivables during
such Collection Period.
Total Servicing Fee: The sum of the Basic Servicing Fee and the
Supplemental Servicing Fee.
Trigger Event: shall have the meaning set forth in the Spread Account
Agreement.
Trust: shall have the meaning set forth in Section 2.1.
Trust Property: The property and proceeds conveyed pursuant to Section
3.1, together with certain monies paid on or after the Cut-off Date, the Policy,
the Collection Account (including all Eligible Investments therein and all
proceeds therefrom), the Lockbox Account, the Subcollection Account and certain
other rights under this Agreement. Although the Seller has pledged the Spread
Account to the Trustee and the Security Insurer pursuant to the Spread Account
Agreement, the Spread Account shall not under any circumstances be deemed to be
a part of or otherwise includable in the Trust or the Trust Property.
Trustee: The Person acting as Trustee under this Agreement, its
successors in interest and any successor Trustee under this Agreement.
UCC: The Uniform Commercial Code as in effect in the relevant
jurisdiction.
Warranty Receivable: With respect to any Collection Period, a
Receivable which the Seller has become obligated to repurchase pursuant to
Section 3.5.
Section 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."
Section 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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Section 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.
Section 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 Certificateholders, any Certificate registered in the name of
AmeriCredit or any Affiliate thereof shall be deemed not to be outstanding and
the Fractional Undivided Interest evidenced thereby shall not be taken into
account in determining whether the requisite Fractional Undivided Interest
necessary to effect any such action or consent has been obtained; provided
however, that, solely for the purpose of determining whether the Trustee is
entitled to rely upon any such action or consent, only Certificates which the
Trustee knows to be so owned shall be so disregarded.
Section 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, the Servicer or the Trustee or of any
predecessor or successor of the Seller, the Servicer or the Trustee.
Section 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.
ARTICLE II
CREATION OF TRUST
Section 2.1. Creation of Trust. The Seller does hereby create and
establish, pursuant to the laws of the State of New York and this Agreement a
trust (the "Trust"), which for convenience shall be known as "AmeriCredit
Automobile Receivables Trust 1996-B."
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ARTICLE III
CONVEYANCE OF RECEIVABLES; ACCEPTANCE BY TRUSTEE;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 3.1. 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 chooses 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.
Section 3.2. 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
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with the execution and delivery of this Agreement, the Trustee shall enter into
the Custodian Agreement with the Custodian, dated as of April 30, 1996, pursuant
to which the Trustee shall revocably appoint the Custodian, and the Custodian
shall accept such appointment, to act as the agent of the Trustee as custodian
of the following documents or instruments in its possession which shall be
delivered to the Custodian as agent of the Trustee on or before the Closing Date
(with respect to each Receivable):
(i) The fully executed original of the Receivable (together with
any agreements modifying the Receivable, including without limitation
any extension agreements);
(ii) The original credit application, or a copy thereof, of each
Obligor, fully executed by each such Obligor on AmeriCredit's customary
form, or on a form approved by AmeriCredit, for such application, and
(iii) The original certificate of title (when received) and
otherwise such documents, if any, that AmeriCredit keeps on file in
accordance with its customary procedures indicating that the Financed
Vehicle is owned by the Obligor and subject to the interest of
AmeriCredit as first lienholder or secured party (including any Lien
Certificate received by AmeriCredit), or, if such original certificate
of title has not yet been received, a copy of the application therefor,
showing AmeriCredit as secured party.
The Trustee may act as the Custodian, in which case the Trustee shall
be deemed to have assumed the obligations of the Custodian specified in the
Custodian Agreement.
(b) Upon payment in full of any Receivable, the Servicer will notify
the Custodian pursuant to a certificate of an officer of the Servicer (which
certificate shall include a statement to the effect that all amounts received in
connection with such payments which are required to be deposited in the
Collection Account pursuant to Section 4.1 have been so deposited) and shall
request delivery of the Receivable and Receivable File to the Servicer. From
time to time as appropriate for servicing and enforcing any Receivable, the
Custodian shall, upon written request of an officer of the Servicer and delivery
to the Custodian of a receipt signed by such officer, cause the original
Receivable and the related Receivable File to be released to the Servicer. The
Servicer's receipt of a Receivable and/or Receivable File shall obligate the
Servicer to return the original Receivable and the related Receivable File to
the Custodian when its need by the Servicer has ceased unless the Receivable is
repurchased as described in Section 3.5 or 4.7.
Section 3.3. 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:
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(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.
Section 3.4. 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 Nevada, with power and authority to own its properties and to conduct
its business as such properties are currently owned and such business is
currently conducted, and had at all relevant times, and now has, power,
authority and legal right to acquire, own and sell the Receivables and the Other
Conveyed Property transferred to the Trust.
(c) Due Qualification. The Seller is duly qualified to do business as a
foreign corporation in good standing and has obtained all necessary licenses and
approvals in all jurisdictions where the failure to do so would materially and
adversely affect Seller's ability to transfer the Receivables and the Other
Conveyed Property to the Trust pursuant
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to this Agreement, or the validity or enforceability of the Receivables and the
Other Conveyed Property or to perform Seller's obligations hereunder and under
the Seller's Related Documents.
(d) Power and Authority. The Seller has the power and authority to
execute and deliver this Agreement and its Related Documents and to carry out
its terms and their terms, respectively; the Seller has full power and authority
to sell and assign the Receivables and the Other Conveyed Property to be sold
and assigned to and deposited with the Trust by it and has duly authorized such
sale and assignment to the Trust by all necessary corporate action; and the
execution, delivery and performance of this Agreement and the Seller's Related
Documents have been duly authorized by the Seller by all necessary corporate
action.
(e) Valid Sale, Binding Obligations. This Agreement effects a valid
sale, transfer and assignment of the Receivables and the Other Conveyed
Property, enforceable against the Seller and creditors of and purchasers from
the Seller; and this Agreement and the Seller's Related Documents, when duly
executed and delivered, shall constitute legal, valid and binding obligations of
the Seller enforceable in accordance with their respective terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization or other
similar laws affecting the enforcement of creditors' rights generally and by
equitable limitations on the availability of specific remedies, regardless of
whether such enforceability is considered in a proceeding in equity or at law.
(f) No Violation. The consummation of the transactions contemplated by
this Agreement and the Related Documents and the fulfillment of the terms of
this Agreement and the Related Documents shall not conflict with, result in any
breach of any of the terms and provisions of or constitute (with or without
notice, lapse of time or both) a default under the certificate of incorporation
or by-laws of the Seller, or any indenture, agreement, mortgage, deed of trust
or other instrument to which the Seller is a party or by which it is bound, or
result in the creation or imposition of any Lien upon any of its properties
pursuant to the terms of any such indenture, agreement, mortgage, deed of trust
or other instrument, other than this Agreement, or violate any law, order, rule
or regulation applicable to the Seller of any court or of any federal or state
regulatory body, administrative agency or other governmental instrumentality
having jurisdiction over the Seller or any of its properties.
(g) No Proceedings. There are no proceedings or investigations pending
or, to the Seller's knowledge, threatened against the Seller, before any court,
regulatory body, administrative agency or other tribunal or governmental
instrumentality having jurisdiction over the Seller or its properties (A)
asserting the invalidity of this Agreement or any of the Related Documents, (B)
seeking to prevent the issuance of the Certificates or the consummation of any
of the transactions contemplated by this Agreement or any of the Related
Documents, (C) seeking any determination or ruling that might materially and
adversely affect the performance by the Seller of its obligations under, or the
validity or enforceability of, this Agreement or any of the Related Documents,
or (D) seeking to
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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 1325 Airmotive Way, Reno, Nevada 89502.
Section 3.5. 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, 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.
Section 3.6. [Reserved].
Section 3.7. 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.
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Section 3.8. 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.
ARTICLE IV
ADMINISTRATION AND SERVICING OF RECEIVABLES
Section 4.1. 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
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authorized and empowered by the Trust to execute and deliver, on behalf of the
Trust, any and all instruments of satisfaction or cancellation, or of partial or
full release or discharge, and all other comparable instruments, with respect to
the Receivables and with respect to the Financed Vehicles; provided, however,
that notwithstanding the foregoing, the Servicer shall not, except pursuant to
an order from a court of competent jurisdiction, release an Obligor from payment
of any unpaid amount under any Receivable or waive the right to collect the
unpaid balance of any Receivable from the Obligor. The Servicer is hereby
authorized to commence, in its own name or in the name of the Trust (provided
the Servicer has obtained the Trustee's consent, which consent shall not be
unreasonably withheld), a legal proceeding to enforce a Receivable pursuant to
Section 4.3 or to commence or participate in any other legal proceeding
(including, without limitation, a bankruptcy proceeding) relating to or
involving a Receivable, an Obligor or a Financed Vehicle. If the Servicer
commences or participates in such a legal proceeding in its own name, the Trust
shall thereupon be deemed to have automatically assigned such Receivable to the
Servicer solely for purposes of commencing or participating in any such
proceeding as a party or claimant, and the Servicer is authorized and empowered
by the Trust to execute and deliver in the Servicer's name any notices, demands,
claims, complaints, responses, affidavits or other documents or instruments in
connection with any such proceeding. The Trustee shall furnish the Servicer with
any powers of attorney and other documents which the Servicer may reasonably
request and which the Servicer deems necessary or appropriate and take any other
steps which the Servicer may deem necessary or appropriate to enable the
Servicer to carry out its servicing and administrative duties under this
Agreement.
Section 4.2. 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.
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(c) The Servicer may grant payment extensions on, or other
modifications or amendments to, a Receivable (in addition to those modifications
permitted by Section 4.2(b)) in accordance with its customary procedures if the
Servicer believes in good faith that such extension, modification or amendment
is necessary to avoid a default on such Receivable, will maximize the amount to
be received by the Trust with respect to such Receivable, and is otherwise in
the best interests of the Trust; provided, however, that:
(i) The aggregate period of all extensions on a Receivable shall
not exceed six months;
(ii) In no event may a Receivable be extended beyond the Collection
Period immediately preceding the Final Scheduled Distribution Date;
(iii) So long as an Insurer Default shall not have occurred and be
continuing, the Servicer shall not amend or modify a Receivable (except
as provided in Section 4.2(b) and this Section 4.2(c)) without the
consent of the Security Insurer or a Certificate Majority (if an
Insurer Default shall have occurred and be continuing);
(iv) The aggregate Principal Balance of Receivables which may be
extended during any Calendar Quarter shall not exceed 7.0% 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
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payments to the Lockbox Bank), and shall have provided each such Obligor with
remittance invoices in order to enable such Obligors to make such payments
directly to the Lockbox Bank for deposit into the Lockbox Account, and the
Servicer will continue, not less often than every three months, to so notify
those Obligors who have failed to make payments to the Lockbox Bank. If and to
the extent requested by the Controlling Party, the Servicer shall request each
Obligor that makes payment on the Receivables by direct debit of such Obligor's
bank account, to execute a new authorization for automatic payment which in the
judgment of the Controlling Party is sufficient to authorize direct debit by the
Lockbox Bank on behalf of the Trust. If at any time, the Lockbox Bank is unable
to directly debit an Obligor's bank account that makes payment on the
Receivables by direct debit and if such inability is not cured within 15 days or
cannot be cured by execution by the Obligor of a new authorization for automatic
payment, the Servicer shall notify such Obligor that it cannot make payment by
direct debit and must thereafter make payment by check.
Notwithstanding any Lockbox Agreement, or any of the provisions of this
Agreement relating to the Lockbox Agreement, the Servicer shall remain obligated
and liable to the Trust, Trustee and Certificateholders for servicing and
administering the Receivables and the Other Conveyed Property in accordance with
the provisions of this Agreement without diminution of such obligation or
liability by virtue thereof, provided, however, that the foregoing shall not
apply to any Backup Servicer for so long as a Lockbox Bank is performing its
obligations pursuant to the terms of a Lockbox Agreement.
In the event of a termination of the Servicer, the successor Servicer
shall assume all of the rights and obligations of the outgoing Servicer under
the Lockbox Agreement. In such event, the successor Servicer shall be deemed to
have assumed all of the outgoing Servicer's interest therein and to have
replaced the outgoing Servicer as a party to each such Lockbox Agreement to the
same extent as if such Lockbox Agreement had been assigned to the successor
Servicer, except that the outgoing Servicer shall not thereby be relieved of any
liability or obligations on the part of the outgoing Servicer to the Lockbox
Bank under such Lockbox Agreement. The outgoing Servicer shall, upon request of
the Trustee, but at the expense of the outgoing Servicer, deliver to the
successor Servicer all documents and records relating to each such Lockbox
Agreement and an accounting of amounts collected and held by the Lockbox Bank
and otherwise use its best efforts to effect the orderly and efficient transfer
of any Lockbox Agreement to the successor Servicer. In the event that the
Security Insurer (so long as an Insurer Default shall not have occurred and be
continuing) or a Certificate Majority (if an Insurer Default shall have occurred
and be continuing) elects to change the identity of the Lockbox Bank, the
outgoing Servicer, at its expense, shall cause the Lockbox Bank to deliver, at
the direction of the Security Insurer (so long as an Insurer Default shall not
have occurred and be continuing) or a Certificate Majority (if an Insurer
Default shall have occurred and be continuing) to the Trustee or a successor
Lockbox Bank, all documents and records relating to the Receivables and all
amounts held (or thereafter received) by the Lockbox Bank (together with an
accounting of such amounts) and shall otherwise use its best
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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.
Section 4.3. 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.
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(b) If the Servicer elects to commence a legal proceeding to enforce a
Dealer Agreement or Dealer Assignment, the act of commencement shall be deemed
to be an automatic assignment from the Trust to the Servicer of the rights under
such Dealer Agreement and Dealer Assignment for purposes of collection only. If,
however, in any enforcement suit or legal proceeding it is held that the
Servicer may not enforce a Dealer Agreement or Dealer Assignment on the grounds
that it is not a real party in interest or a Person entitled to enforce the
Dealer Agreement or Dealer Assignment, the Trustee, at the Servicer's expense,
or the Seller, at the Seller's expense, shall take such steps as the Servicer
deems necessary to enforce the Dealer Agreement or Dealer Assignment, including
bringing suit in its name or the name of the Seller or of the Trust and the
Trustee for the benefit of the Certificateholders. All amounts recovered shall
be remitted directly by the Servicer as provided in Section 4.2(e).
Section 4.4. 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
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paid by the Obligors or Liquidation Proceeds with respect to the Receivable, as
provided in Section 4.4(c).
(c) In connection with any Force-Placed Insurance obtained hereunder,
the Servicer may, in the manner and to the extent permitted by applicable law,
require the Obligors to repay the entire premium to the Servicer. In no event
shall the Servicer include the amount of the premium in the Amount Financed
under the Receivable. For all purposes of this Agreement, the Insurance Add-On
Amount with respect to any Receivable having Force-Placed Insurance will be
treated as a separate obligation of the Obligor and will not be added to the
Principal Balance of such Receivable, and amounts allocable thereto will not be
available for distribution on the Certificates. The Servicer shall retain and
separately administer the right to receive payments from Obligors with respect
to Insurance Add-On Amounts or rebates of Forced-Placed Insurance premiums. If
an Obligor makes a payment with respect to a Receivable having Force-Placed
Insurance, but the Servicer is unable to determine whether the payment is
allocable to the Receivable or to the Insurance Add-On Amount, the payment shall
be applied first to any unpaid Scheduled Payments and then to the Insurance
Add-On Amount. Liquidation Proceeds on any Receivable will be used first to pay
the Principal Balance and accrued interest on such Receivable and then to pay
the related Insurance Add-On Amount. If an Obligor under a Receivable with
respect to which the Servicer has placed Force-Placed Insurance fails to make
scheduled payments of such Insurance Add-On Amount as due, and the Servicer has
determined that eventual payment of the Insurance Add-On Amount is unlikely, the
Servicer may, but shall not be required to, purchase such Receivable from the
Trust for the Purchase Amount on any subsequent Deposit Date. Any such
Receivable, and any Receivable with respect to which the Servicer has placed
Force-Placed Insurance which has been paid in full (excluding any Insurance
Add-On Amounts) will be assigned to the Servicer.
(d) The Servicer may sue to enforce or collect upon the Insurance
Policies, in its own name, if possible, or as agent of the Trust. If the
Servicer elects to commence a legal proceeding to enforce an Insurance Policy,
the act of commencement shall be deemed to be an automatic assignment of the
rights of the Trust under such Insurance Policy to the Servicer for purposes of
collection only. If, however, in any enforcement suit or legal proceeding it is
held that the Servicer may not enforce an Insurance Policy on the grounds that
it is not a real party in interest or a holder entitled to enforce the Insurance
Policy, the Trustee, at the Servicer's expense, or the Seller, at the Seller's
expense, shall take such steps as the Servicer deems necessary to enforce such
Insurance Policy, including bringing suit in its name or the name of the Trust
and the Trustee for the benefit of the Certificateholders.
(e) The Servicer will cause itself and may cause the Trustee to be
named as named insured under all policies of Collateral Insurance.
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Section 4.5. Maintenance of Security Interests in Vehicles.
(a) Consistent with the policies and procedures required by this
Agreement, the Servicer shall take such steps on behalf of the Trust as are
necessary to maintain perfection of the security interest created by each
Receivable in the related Financed Vehicle, including but not limited to
obtaining the execution by the Obligors and the recording, registering, filing,
re-recording, re-filing, and re-registering of all security agreements,
financing statements and continuation statements as are necessary to maintain
the security interest granted by the Obligors under the respective Receivables.
The Trustee hereby authorizes the Servicer, and the Servicer agrees, to take any
and all steps necessary to re-perfect such security interest on behalf of the
Trust as necessary because of the relocation of a Financed Vehicle or for any
other reason. In the event that the assignment of a Receivable to the Trust is
insufficient, without a notation on the related Financed Vehicle's certificate
of title, or without fulfilling any additional administrative requirements under
the laws of the state in which the Financed Vehicle is located, to perfect a
security interest in the related Financed Vehicle in favor of the Trustee, the
Servicer hereby agrees that AmeriCredit's designation as the secured party on
the certificate of title is in its capacity as agent of the Trustee.
(b) Upon the occurrence of an Insurance Agreement Event of Default, the
Security Insurer may (so long as an Insurer Default shall not have occurred and
be continuing) instruct the Trustee and the Servicer to take or cause to be
taken, or, if an Insurer Default shall have occurred, upon the occurrence of a
Servicer Termination Event, the Trustee and the Servicer shall take or cause to
be taken such action as may, in the opinion of counsel to the Controlling Party,
be necessary to perfect or re-perfect the security interests in the Financed
Vehicles securing the Receivables in the name of the Trustee by amending the
title documents of such Financed Vehicles or by such other reasonable means as
may, in the opinion of counsel to the Controlling Party, be necessary or
prudent. AmeriCredit hereby agrees to pay all expenses related to such
perfection or reperfection and to take all action necessary therefor. In
addition, prior to the occurrence of an Insurance Agreement Event of Default,
the Controlling Party may instruct the Trustee and the Servicer to take or cause
to be taken such action as may, in the opinion of counsel to the Controlling
Party, be necessary to perfect or re-perfect the security interest in the
Financed Vehicles underlying the Receivables in the name of the Trustee,
including by amending the title documents of such Financed Vehicles or by such
other reasonable means as may, in the opinion of counsel to the Controlling
Party, be necessary or prudent; provided, however, that if the Controlling Party
requests that the title documents be amended prior to the occurrence of an
Insurance Agreement Event of Default, the out-of-pocket expenses of the Servicer
or the Trustee in connection with such action shall be reimbursed to the
Servicer or the Trustee, as applicable, by the Controlling Party. AmeriCredit
hereby appoints the Trustee as its attorney-in-fact to take any and all steps
required to be performed by AmeriCredit pursuant to this Section 4.5(b),
including execution of certificates of title or any other documents in the name
and stead of AmeriCredit, and the Trustee hereby accepts such appointment.
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Section 4.6. Covenants, Representations, and Warranties of Servicer. By
its execution and delivery of this Agreement, the Servicer makes the following
representations, warranties and covenants on which the Trustee relies in
accepting the Receivables and issuing the Certificates, on which the Trustee
relies in authenticating the Certificates and on which the Security Insurer
relies in issuing the Policy.
(a) The Servicer covenants as follows:
(i) Liens in Force. The Financed Vehicle securing each Receivable
shall not be released in whole or in part from the security interest
granted by the Receivable, except upon payment in full of the
Receivable or as otherwise contemplated herein;
(ii) No Impairment. The Servicer shall do nothing to impair the
rights of the Trust or the Certificateholders in the Receivables, the
Dealer Agreements, the Dealer Assignments, the Insurance Policies or
the Other Conveyed Property;
(iii) No Amendments. The Servicer shall not extend or otherwise
amend the terms of any Receivable, except in accordance with Section
4.2; and
(iv) Restrictions on Liens. The Servicer shall not (i) create,
incur or suffer to exist, or agree to create, incur or suffer to exist,
or consent to cause or permit in the future (upon the happening of a
contingency or otherwise) the creation, incurrence or existence of any
Lien or restriction on transferability of the Receivables except for
the Lien in favor of the Trustee for the benefit of the
Certificateholders and Security Insurer, the Lien imposed by the Spread
Account Agreement in favor of the Trustee for the benefit of the
Trustee and Security Insurer, and the restrictions on transferability
imposed by this Agreement or (ii) sign or file under the Uniform
Commercial Code of any jurisdiction any financing statement which names
AmeriCredit or the Servicer as a debtor, or sign any security agreement
authorizing any secured party thereunder to file such financing
statement, with respect to the Receivables, except in each case any
such instrument solely securing the rights and preserving the Lien of
the Trustee, for the benefit of the Certificateholders and the Security
Insurer.
(b) The Servicer represents, warrants and covenants as of the Closing
Date as to itself:
(i) Representations and Warranties. The representations and
warranties set forth on the Schedule of Representations attached hereto
as Schedule B are true and correct, provided that such representations
and warranties contained therein and herein shall not apply to any
entity other than AmeriCredit;
(ii) Organization and Good Standing. The Servicer has been duly
organized and is validly existing and in good standing under the laws
of its
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jurisdiction of organization, with power, authority and legal right to
own its properties and to conduct its business as such properties are
currently owned and such business is currently conducted, and had at
all relevant times, and now has, power, authority and legal right to
enter into and perform its obligations under this Agreement;
(iii) Due Qualification. The Servicer is duly qualified to do
business as a foreign corporation in good standing and has obtained all
necessary licenses and approvals, in all jurisdictions in which the
ownership or lease of property or the conduct of its business
(including the servicing of the Receivables as required by this
Agreement) requires or shall require such qualification;
(iv) Power and Authority. The Servicer has the power and authority
to execute and deliver this Agreement and its Related Documents and to
carry out its terms and their terms, respectively, and the execution,
delivery and performance of this Agreement and the Servicer's Related
Documents have been duly authorized by the Servicer by all necessary
corporate action;
(v) Binding Obligation. This Agreement and the Servicer's Related
Documents shall constitute legal, valid and binding obligations of the
Servicer enforceable in accordance with their respective terms, except
as enforceability may be limited by bankruptcy, insolvency,
reorganization, or other similar laws affecting the enforcement of
creditors' rights generally and by equitable limitations on the
availability of specific remedies, regardless of whether such
enforceability is considered in a proceeding in equity or at law;
(vi) No Violation. The consummation of the transactions
contemplated by this Agreement and the Servicer's Related Documents,
and the fulfillment of the terms of this Agreement and the Servicer's
Related Documents, shall not conflict with, result in any breach of any
of the terms and provisions of, or constitute (with or without notice
or lapse of time) a default under, the articles of incorporation or
bylaws of the Servicer, or any indenture, agreement, mortgage, deed of
trust or other instrument to which the Servicer is a party or by which
it is bound, or result in the creation or imposition of any Lien upon
any of its properties pursuant to the terms of any such indenture,
agreement, mortgage, deed of trust or other instrument, other than this
Agreement, or violate any law, order, rule or regulation applicable to
the Servicer of any court or of any federal or state regulatory body,
administrative agency or other governmental instrumentality having
jurisdiction over the Servicer or any of its properties;
(vii) No Proceedings. There are no proceedings or investigations
pending or, to the Servicer's knowledge, threatened against the
Servicer, before any court, regulatory body, administrative agency or
other tribunal or governmental instrumentality having jurisdiction over
the Servicer or its properties (A) asserting the invalidity of this
Agreement or any of the Related Documents,
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(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.
Section 4.7. 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) or the related
Financed Vehicle, AmeriCredit shall, unless such breach shall have been cured in
all material respects, purchase from the Trust the Receivable affected by such
breach and, on the related Deposit Date, AmeriCredit shall pay the related
Purchase Amount. It is understood and agreed that the obligation of AmeriCredit
to purchase any Receivable (including any Liquidated Receivable) with respect to
which such a breach has occurred and is continuing shall, if such obligation is
fulfilled, constitute the sole remedy against AmeriCredit for such breach
available to the Security Insurer, the Certificateholders or the Trustee on
behalf of Certificateholders; provided, however, that AmeriCredit shall
indemnify the Trust, the Backup Servicer, the Collateral Agent, the Security
Insurer, the Trustee and the Certificateholders against all costs, expenses,
losses, damages, claims and liabilities, including reasonable fees and expenses
of counsel, which may be asserted against or incurred by any of them as a result
of third party claims arising out of the events or facts giving rise to such
breach.
Section 4.8. Total Servicing Fee; Payment of Certain Expenses by
Servicer; Compensating Interest. (a) On each Distribution Date, the Servicer
shall be entitled to receive out of the Collection Account the Basic Servicing
Fee and any Supplemental Servicing Fee for the related Collection Period
pursuant to Section 5.5. The Servicer shall be required to pay all expenses
incurred by it in connection with its activities under this Agreement (including
taxes imposed on the Servicer, expenses incurred in connection with
distributions and reports made by the Servicer to Certificateholders or the
Security Insurer and all other fees and expenses of the Trustee, except taxes
levied or assessed against the
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Trust, and claims against the Trust in respect of indemnification, which taxes
and claims in respect of indemnification against the Trust are expressly stated
to be for the account of AmeriCredit). The Servicer shall be liable for the fees
and expenses of the Trustee, the Custodian, the Backup Servicer, the Collateral
Agent, the Lockbox Bank (and any fees under the Lockbox Agreement) and the
Independent Accountants. Notwithstanding the foregoing if the Servicer shall not
be AmeriCredit, a successor to AmeriCredit as Servicer permitted by Section 9.2
shall not be liable for taxes levied or assessed against the Trust or claims
against the Trust in respect of indemnification.
(b) On or prior to each Determination Date, the Servicer shall
deposit in the Collection Account with respect to any Prepayment received on a
Receivable during the related Collection Period, out of its own funds without
any right of reimbursement therefor, an amount equal to the difference between
(x) 30 days' interest at an interest rate equal to the weighted average of the
Class A Pass-Through Rate and the Class B Pass-Through Rate on the Principal
Balance of such Receivable as of the first day of the related Collection Period
and (y) the interest actually paid by the Obligor with respect to the Receivable
during such Collection Period (any such amount paid by the Servicer,
"Compensating Interest"). The Servicer shall in no event be required to pay
Compensating Interest with respect to any Collection Period in an amount in
excess of the aggregate Servicing Fee received by the Servicer with respect to
all Receivables for the related Collection Period.
Section 4.9. 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
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has occurred as of such Determination Date; (c) whether any Trigger Event that
may have occurred as of a prior Determination Date is Deemed Cured as of such
Determination Date; and (d) whether to the knowledge of the Servicer an
Insurance Agreement Event of Default has occurred.
Section 4.10. 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, 1997, an officer's
certificate signed by any Responsible Officer of the Servicer, dated as of June
30 (or other applicable date) of such year, stating that (i) a review of the
activities of the Servicer during the preceding 12-month period (or such other
period as shall have elapsed from the Closing Date to the date of the first such
certificate) and of its performance under this Agreement has been made under
such officer's supervision, and (ii) to such officer's knowledge, based on such
review, the Servicer has fulfilled all its obligations under this Agreement
throughout such period, or, if there has been a default in the fulfillment of
any such obligation, specifying each such default known to such officer and the
nature and status thereof.
(b) The Servicer shall deliver to the Trustee, the Backup Servicer, the
Security Insurer, the Certificateholders, the Collateral Agent, and each Rating
Agency, promptly after having obtained knowledge thereof, but in no event later
than two (2) Business Days thereafter, written notice in an officer's
certificate of any event which with the giving of notice or lapse of time, or
both, would become a Servicer Termination Event under Section 10.1(a). The
Seller or the Servicer shall deliver to the Trustee, the Backup Servicer, the
Security Insurer, the Collateral Agent, the Servicer or the Seller (as
applicable) and each Rating Agency promptly after having obtained knowledge
thereof, but in no event later than two (2) Business Days thereafter, written
notice in an officer's certificate of any event which with the giving of notice
or lapse of time, or both, would become a Servicer Termination Event under any
other clause of Section 10.1.
Section 4.11. Annual Independent Accountants' Report.
(a) The Servicer shall cause a firm of nationally recognized
independent certified public accountants (the "Independent Accountants"), who
may also render other services to the Servicer or to the Seller, to deliver to
the Trustee, the Backup Servicer, the Security Insurer and each Rating Agency,
on or before October 31 (or 120 days after the end of the Servicer's fiscal
year, if other than June 30) of each year, beginning on October 31, 1997, with
respect to the twelve months ended the immediately preceding June 30 (or other
applicable date) (or such other period as shall have elapsed from the Closing
Date to the date of such certificate), a statement (the "Accountants' Report")
addressed to the Board of Directors of the Servicer, to the Trustee, the Backup
Servicer and to the Security Insurer, to the effect that such firm has audited
the books and records
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of AmeriCredit Corp., in which the Servicer is included as a consolidated
subsidiary, and issued its report thereon in connection with the audit report on
the consolidated financial statements of AmeriCredit Corp. and that (1) such
audit was made in accordance with generally accepted auditing standards, and
accordingly included such tests of the accounting records and such other
auditing procedures as such firm considered necessary in the circumstances; (2)
the firm is independent of the Seller and the Servicer within the meaning of the
Code of Professional Ethics of the American Institute of Certified Public
Accountants, and (3) includes a report on the application of agreed upon
procedures to three randomly selected Servicer's Certificates including the
delinquency, default and loss statistics required to be specified therein noting
whether any exceptions or errors in the Servicer's Certificates were found.
(b) A copy of the Accountants' Report may be obtained by any
Certificateholder by a request in writing to the Trustee addressed to the
Corporate Trust Office.
Section 4.12. Access to Certain Documentation and Information Regarding
Receivables. The Servicer shall provide to representatives of the Trustee, the
Backup Servicer, the Certificateholders and the Security Insurer reasonable
access to the documentation regarding the Receivables. In each case, such access
shall be afforded without charge but only upon reasonable request and during
normal business hours. Nothing in this Section shall derogate from the
obligation of the Servicer to observe any applicable law prohibiting disclosure
of information regarding the Obligors, and the failure of the Servicer to
provide access as provided in this Section as a result of such obligation shall
not constitute a breach of this Section.
Section 4.13. Monthly Tape. On or before the fifth Business Day, but in
no event later than the seventh calendar day, of each month, the Servicer will
deliver to the Trustee and the Backup Servicer a computer tape and a diskette
(or any other electronic transmission acceptable to the Trustee and the Backup
Servicer) in a format acceptable to the Trustee and the Backup Servicer
containing the information with respect to the Receivables as of the preceding
Accounting Date necessary for preparation of the Servicer's Certificate relating
to the immediately succeeding Determination Date and necessary to determine the
application of collections as provided in Section 5.3. The Backup Servicer shall
use such tape or diskette (or other electronic transmission acceptable to the
Trustee and the Backup Servicer) to verify the Servicer's Certificate delivered
by the Servicer, and the Backup Servicer shall certify to the Controlling Party
that it has verified the Servicer's Certificate in accordance with this Section
4.13 and shall notify the Servicer and the Controlling Party of any
discrepancies, in each case, on or before the second Business Day following the
Determination Date. In the event that the Backup Servicer reports any
discrepancies, the Servicer and the Backup Servicer shall attempt to reconcile
such discrepancies prior to the related Distribution Date, but in the absence of
a reconciliation, the Servicer's Certificate shall control for the purpose of
calculations and distributions with respect to the related Distribution Date. In
the event that the Backup Servicer and the Servicer are unable to reconcile
discrepancies with
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respect to a Servicer's Certificate by the related Distribution Date, the
Servicer shall cause the Independent Accountants, at the Servicer's expense, to
audit the Servicer's Certificate and, prior to the third Business Day, but in no
event later than the fifth calendar day, of the following month, reconcile the
discrepancies. The effect, if any, of such reconciliation shall be reflected in
the Servicer's Certificate for such next succeeding Determination Date. In
addition, upon the occurrence of a Servicer Termination Event the Servicer
shall, if so requested by the Controlling Party deliver to the Backup Servicer
its Collection Records and its Monthly Records within 15 days after demand
therefor and a computer tape containing as of the close of business on the date
of demand all of the data maintained by the Servicer in computer format in
connection with servicing the Receivables. Other than the duties specifically
set forth in this Agreement, the Backup Servicer shall have no obligations
hereunder, including, without limitation, to supervise, verify, monitor or
administer the performance of the Servicer. The Backup Servicer shall have no
liability for any actions taken or omitted by the Servicer.
Section 4.14. Retention and Termination of Servicer. The Servicer
hereby covenants and agrees to act as such under this Agreement for an initial
term, commencing on the Closing Date and ending on September 30, 1996, which
term shall be extendible by the Controlling Party for successive quarterly terms
ending on each successive December 31, March 31 and June 30 (or, pursuant to
revocable written standing instructions from time to time to the Servicer and
the Trustee for any specified number of terms greater than one), until the
Certificates are paid in full. Each such notice (including each notice pursuant
to standing instructions, which shall be deemed delivered at the end of
successive quarterly terms for so long as such instructions are in effect) (a
"Servicer Extension Notice") shall be delivered by the Security Insurer to the
Trustee and the Servicer. The Servicer hereby agrees that, as of the date hereof
and upon its receipt of any such Servicer Extension Notice, the Servicer shall
become bound, for the initial term beginning on the Closing Date and for the
duration of the term covered by such Servicer Extension Notice, to continue as
the Servicer subject to and in accordance with the other provisions of this
Agreement. Until such time as an Insurer Default shall have occurred and be
continuing the Trustee agrees that if as of the fifteenth day prior to the last
day of any term of the Servicer the Trustee shall not have received any Servicer
Extension Notice from the Security Insurer, the Trustee will, within five days
thereafter, give written notice of such non-receipt to the Security Insurer and
the Servicer.
Section 4.15. Fidelity Bond and Errors and Omissions Policy. The
Servicer has obtained, and shall continue to maintain in full force and effect,
a Fidelity Bond and Errors and Omissions Policy of a type and in such amount as
is customary for servicers engaged in the business of servicing automobile
receivables.
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ARTICLE V
DISTRIBUTIONS; STATEMENTS TO CERTIFICATEHOLDERS
Section 5.1. Accounts. The Servicer or the Trustee on behalf of and at
the direction of the Servicer shall establish the Collection Account in the name
of the Trustee for the benefit of the Certificateholders. The Servicer shall
also establish the Policy Payments Account in the name of the Trustee for the
benefit of the Class A Certificateholders. Each of the Collection Account and
the Policy Payments Account shall be an Eligible Account and initially shall be
a segregated trust account established with the Trustee and maintained with the
Trustee. All amounts held in the Collection Account shall, to the extent
permitted by applicable laws, rules and regulations, be invested by the Trustee,
as directed in writing by the Servicer, in Eligible Investments that mature not
later than one Business Day prior to the Distribution Date for the Collection
Period to which such amounts relate. Any such written direction shall certify
that any such investment is authorized by this Section 5.1. Investments in
Eligible Investments shall be made in the name of the Trustee on behalf of the
Certificateholders, and such investments shall not be sold or disposed of prior
to their maturity. The Trustee may trade with itself or an Affiliate in the
purchase or sale of Eligible Investments. Any investment of funds in the
Collection Account shall be made in Eligible Investments held by a financial
institution with respect to which (a) such institution has noted the Trustee's
interest therein by book entry or otherwise and (b) a confirmation of the
Trustee's interest has been sent to the Trustee by such institution, provided
that such Eligible Investments are (i) specific certificated securities (as such
term is used in the Texas UCC, and (ii) either (A) in the possession of such
institution or (B) in the possession of a clearing corporation as such term is
used in the New York UCC and the Texas UCC, registered in the name of such
clearing corporation, not endorsed for collection or surrender or any other
purpose not involving transfer, not containing any evidence of a right or
interest inconsistent with the Trustee's security interest therein, and held by
such clearing corporation in an account of such institution. Subject to the
other provisions hereof, the Trustee shall have sole control over each such
investment and the income thereon, and any certificate or other instrument
evidencing any such investment, if any, shall be delivered directly to the
Trustee or its agent, together with each document of transfer, if any, necessary
to transfer title to such investment to the Trustee in a manner which complies
with this Section 5.1. All interest, dividends, gains upon sale and other income
from, or earnings on, investments of funds in the Collection Account shall be
deposited in the Collection Account, and, in the case of the Collection Account,
distributed on the next Distribution Date pursuant to Section 5.5. The Seller
shall deposit in the Collection Account an amount equal to any net loss on such
investments immediately as realized. Amounts in Policy Payments Account shall
not be invested. On the Closing Date, the Servicer shall deposit in the
Collection Account (i) all Scheduled Payments and prepayments of Receivables
received by the Lockbox Bank after the Cut-off Date and prior to the Closing
Date or received by the Lockbox Bank after the Cut-off Date and at least two
Business Days prior to the Closing Date and (ii) all Liquidation Proceeds and
proceeds of Insurance Policies realized in respect of a Financed Vehicle and
applied by the Servicer after the Cut-off Date.
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Section 5.2. Collections. (a) The Servicer shall establish the
Subcollection Account in the name of the Trustee for the benefit of the
Certificateholders. The Subcollection Account shall be an Eligible Account
satisfying clause (i) of the definition of "Eligible Account," and shall
initially be established with First Interstate Bank, N.A. The Servicer shall
remit directly to the Subcollection Account without deposit into any intervening
account (i) all payments by or on behalf of the Obligors on the Receivables,
(ii) all Liquidation Proceeds received by the Servicer and (iii) any
Compensating Interest, in each case, as soon as practicable, but in no event
later than the Business Day after receipt thereof. Within two days of deposit of
payments into the Subcollection Account, the Servicer shall cause all amounts
credited to the Subcollection Account to be transferred to the Collection
Account. Amounts in the Subcollection Account shall not be invested.
(b) Notwithstanding the provisions of subsection (a) hereof, the
Servicer will be entitled to be reimbursed from amounts on deposit in the
Collection Account with respect to a Collection Period for amounts previously
deposited in the Collection Account but later determined by the Servicer or the
Lockbox Bank to have resulted from mistaken deposits or postings or checks
returned for insufficient funds. The amount to be reimbursed hereunder shall be
paid to the Servicer on the related Distribution Date pursuant to Section
5.5(a)(i) upon certification by the Servicer of such amounts and the provision
of such information to the Trustee and the Security Insurer as may be necessary
in the opinion of the Trustee and the Security Insurer to verify the accuracy of
such certification. In the event that the Security Insurer has not received
evidence satisfactory to it of the Servicer's entitlement to reimbursement
pursuant to this Section, the Security Insurer shall (unless an Insurer Default
shall have occurred and be continuing) give the Trustee notice to such effect,
following receipt of which the Trustee shall not make a distribution to the
Servicer in respect of such amount pursuant to Section 5.5, or if the Servicer
prior thereto has been reimbursed pursuant to Section 5.5 or Section 5.6, the
Trustee shall withhold such amounts from amounts otherwise distributable to the
Servicer on the next succeeding Distribution Date.
Section 5.3. Application of Collections. For the purposes of this
Agreement, all collections for a Collection Period shall be applied by the
Servicer as follows:
(a) With respect to each Receivable (other than a Purchased
Receivable), payments by or on behalf of the Obligor (other than of
Supplemental Servicing Fees with respect to such Receivable, to the extent
collected) shall be applied to interest and principal in accordance with
the Simple Interest Method. With respect to each Liquidated Receivable,
Liquidation Proceeds shall be applied to interest and principal with
respect to such Receivable in accordance with the Simple Interest Method.
Any prepayment of principal during each Collection Period shall be
immediately applied to reduce the principal balance of the Receivable
during such Collection Period.
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(b) With respect to each Receivable that has become a Purchased
Receivable on any Deposit Date, the Purchase Amount shall be applied, for
purposes of this Agreement only, to interest and principal on the
Receivable in accordance with the terms of the Receivable as if the
Purchase Amount had been paid by the Obligor on the Accounting Date. The
Servicer shall not be entitled to any Supplemental Servicing Fees with
respect to such a Receivable. Nothing contained herein shall relieve any
Obligor of any obligation relating to any Receivable.
(c) All amounts collected that are payable to the Servicer as
Supplemental Servicing Fees hereunder shall be deposited in the Collection
Account and paid to the Servicer in accordance with Section 5.5(a)(i).
(d) All payments by or on behalf of an Obligor received with respect to
any Purchased Receivable after the Accounting Date immediately preceding
the Deposit Date on which the Purchase Amount was paid by the Seller or the
Servicer shall be paid to the Seller or the Servicer, respectively, and
shall not be included in the Available Funds.
Section 5.4. Additional Deposits. On or before each Deposit Date, the
Servicer or the Seller shall deposit into the Collection Account the aggregate
Purchase Amounts with respect to Administrative Receivables and Warranty
Receivables, respectively. All such deposits of Purchase Amounts shall be made
in immediately available funds. On or before each Draw Date, the Trustee shall
remit to the Collection Account any amounts delivered to the Trustee by the
Collateral Agent.
Section 5.5. Distributions. (a) From the Collection Account, on each
Distribution Date, the Trustee shall (x) distribute all amounts deposited by the
Security Insurer under Section 5.8 as directed by the Security Insurer, and (y)
(based solely on the information contained in the Servicer's Certificate
delivered with respect to the related Determination Date) distribute the
following amounts to the holders of record on the Record Date and in the
following order of priority:
(i) first, from the Distribution Amount, to the Servicer, the Basic
Servicing Fee for the related Collection Period, any Supplemental Servicing
Fees for the related Collection Period, and any amounts specified in
Section 5.2(b), to the extent the Servicer has not reimbursed itself in
respect of such amounts pursuant to Section 5.6;
(ii) second, from the Distribution Amount, to any Lockbox Bank,
Trustee, Backup Servicer or Collateral Agent (including the Trustee if
acting in any such additional capacity), any accrued and unpaid fees and,
in the case of the Lockbox Bank, amounts related to insufficient funds
checks (in each case, to the extent such Person has not previously received
such amount from the Servicer or AmeriCredit);
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(iii) third, from the Amount Available to the Class A
Certificateholders, the Class A Interest Distributable Amount for such
Distribution Date;
(iv) fourth, from the Amount Available to the Class A
Certificateholders, the Class A Principal Distributable Amount for such
Distribution Date;
(v) fifth, from the Distribution Amount to the Security Insurer, to
the extent of any amounts owing to the Security Insurer under the Insurance
Agreement and not paid, whether or not AmeriCredit is also obligated to pay
such amounts;
(vi) sixth, from Available Funds, to the Class B
Certificateholders, the Class B Coupon Interest Distributable Amount for
such Distribution Date;
(vii) seventh, from Available Funds, to the Class B
Certificateholders, the Class B Principal Distributable Amount for such
Distribution Date; and
(viii) eighth, from Available Funds, to the Class B
Certificateholders, the Class B Excess Interest Amount for such
Distribution Date;
provided, however, that the Seller as the Class B Certificateholder hereby
irrevocably pledges the Class B Certificates to the Collateral Agent pursuant to
the Spread Account Agreement and hereby irrevocably agrees that amounts
otherwise distributable to the Class B Certificateholder pursuant to the
foregoing shall instead be delivered by the Trustee to the Collateral Agent for
the deposit in the Spread Account, and the Trustee hereby agrees to deliver such
amounts to the Collateral Agent pursuant to the Spread Account Agreement.
(b) Subject to Section 12.1 respecting the final payment upon
retirement of each Certificate, and provided that the Trustee has received the
applicable Servicer's Certificate, on each Distribution Date the Trustee shall
distribute to each Certificateholder of record on the preceding Accounting Date
either (i) by wire transfer, in immediately available funds to the account of
such holder at a bank or other entity having appropriate facilities therefor, if
such Certificateholder holds Certificates representing at least $5 million in
Class A Certificate Balance or Class B Certificate Balance as of the Cut-off
Date, and if such Certificateholder shall have provided to the Trustee
appropriate instructions not later than 15 days prior to such Distribution Date,
or (ii) by check mailed to such Certificateholder at the address of such Holder
appearing in the Certificate Register, such Holder's Fractional Undivided
Interest of either the Class A Distributable Amount or the Class B Distributable
Amount, as applicable, to the extent funds therefore are distributed under
Section 5.5(a).
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Section 5.6. Net Deposits. The Servicer may make the remittances to be
made by it pursuant to Sections 5.2 and 5.4 net of amounts (which amounts may be
netted prior to any such remittance for a Collection Period) to be distributed
to it pursuant to Sections 4.8 and 5.2(b) and (subject to payment by the
Servicer of amounts otherwise payable pursuant to Sections 4.8, 5.2, 5.5(a)(i)
and 5.5(a)(ii), for so long as no Servicer Termination Event has occurred and is
continuing; provided however, that the Servicer shall account for all of such
amounts in the related Servicer's Certificate as if such amounts were deposited
and distributed separately; and, provided, further, that if an error is made by
the Servicer in calculating the amount to be deposited or retained by it, with
the result that an amount less than required is deposited in the Collection
Account, the Servicer shall make a payment of the deficiency to the Collection
Account, immediately upon becoming aware, or receiving notice from the Trustee,
of such error.
Section 5.7. Statements to Certificateholders. (a) On each Distribution
Date, the Trustee shall include with each distribution to each
Certificateholder, a statement (which statement shall also be provided to the
Security Insurer and to each Rating Agency) based on information in the
Servicer's Certificate delivered on the related Determination Date pursuant to
Section 4.9, setting forth for the Collection Period relating to such
Distribution Date the following information:
(i) in the case of the Class A and Class B Certificateholders, the
amount of such distribution allocable to principal;
(ii) in the case of the Class A and Class B Certificateholders, the
amount of such distribution allocable to interest;
(iii) the amount of such distribution payable out of amounts
withdrawn from the Spread Account or pursuant to a claim on the Policy;
(iv) the Class A Certificate Balance and the Class B Certificate
Balance, as applicable, (after giving effect to distributions made on such
Distribution Date);
(v) the amount of fees paid by the Trust with respect to such
Collection Period;
(vi) the amount of the Class A Interest Carryover Shortfall, Class
A Principal Carryover Shortfall, Class B Interest Carryover Shortfall and
Class B Principal Carryover Shortfall, if any, on such Distribution Date
and the change in such amounts from those of the prior Distribution Date;
(vii) the Class A Certificate Factor and the Class B Certificate
Factor as of such Distribution Date;
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(viii) the Delinquency Ratio, Average Delinquency Ratio, Default
Ratio, Average Default Ratio, Net Loss Ratio and Average Net Loss Ratio for
such Determination Date;
(ix) whether any Trigger Event has occurred as of such
Determination Date;
(x) whether any Trigger Event that may have occurred as of a prior
Determination Date is Deemed Cured (as defined in the Spread Account
Agreement), as of such Determination Date;
(xi) whether an Insurance Agreement Event of Default has occurred;
(xii) the Pool Factor (after giving effect to distributions made on
such Distribution Date); and
(xiii) Cumulative Net Losses.
Each amount set forth pursuant to subclauses (i) (such amounts broken down by
Class of Certificate), (ii) (such amounts broken down by Class of Certificate),
(iv) and (vi) above shall be expressed as a dollar amount per $1,000 of original
principal balance of a Certificate of the related Class.
(b) Within the prescribed period of time for tax reporting purposes
after the end of each calendar year during the term of this Agreement, the
Trustee shall mail, to each Person who at any time during such calendar year
shall have been a Holder of a Certificate, a statement containing the sum of the
amounts set forth in clauses (i), (ii), and (v) (separately indicating amounts
in respect of the Class A Certificates and the Class B Certificates in the case
of (i) and (ii)) and such other information, requested in writing by the
Servicer, if any, as the Servicer determines is necessary to permit the
Certificateholder to ascertain its share of the gross income and deductions of
the Trust (exclusive of the Supplemental Servicing Fee), for such calendar year
or, in the event such Person shall have been a Holder of a Certificate during a
portion of such calendar year, for the applicable portion of such year, for the
purposes of such Certificateholder's preparation of federal income tax returns.
Section 5.8. Optional Deposits by the Security Insurer. The Security
Insurer shall at any time, and from time to time have the option (but shall not
be required, except as provided in Section 6.4 and in accordance with the terms
of the Policy) to deliver amounts to the Trustee for deposit into the Collection
Account for any of the following purposes: (i) to provide funds in respect of
the payment of fees or expenses of any provider of services to the Trust with
respect to such Distribution Date, (ii) to distribute as a component of the
Class A Principal Distributable Amount to the extent that the Class A
Certificate Balance as of the Determination Date preceding such Distribution
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Date exceeds the Class A Percentage of the Aggregate Principal Balance as of
such Determination Date, or (iii) to include such amount as part of the Class A
Distributable Amount for such Distribution Date to the extent that without such
amount a draw would be required to be made on the Policy.
ARTICLE VI
THE SPREAD ACCOUNT AND THE POLICY; COVENANTS
OF THE INITIAL CLASS B CERTIFICATEHOLDER
Section 6.1. Initial Purchase; Spread Account. (a) AmeriCredit hereby
agrees to make a capital contribution to the Seller on the Closing Date to
enable the Seller to purchase the Class B Certificates and make the initial
Spread Account deposit.
(b) The Seller, as the initial Class B Certificateholder agrees,
simultaneously with the execution and delivery of this Agreement, to execute and
deliver the Spread Account Agreement and, pursuant to the terms thereof, to
deposit $1,260,237.11 in the Spread Account.
Section 6.2. Policy. The Servicer and the Seller agree, simultaneously
with the execution and delivery of this Agreement, to cause the Security Insurer
to issue the Policy for the benefit of the Trust in accordance with the terms
thereof.
Section 6.3. Withdrawals from Spread Account. (a) In the event that the
Servicer's Certificate with respect to any Determination Date shall state that
the amount of the Available Funds with respect to such Determination Date is
less than the sum of the amounts payable on the related Distribution Date
pursuant to clauses (i) through (v) of Subsection 5.5(a) (such deficiency being
a "Deficiency Claim Amount") then on the Deficiency Claim Date immediately
preceding such Distribution Date, the Trustee shall deliver to the Collateral
Agent, the Security Insurer, and the Servicer, by hand delivery, telex or
facsimile transmission, a written notice (a "Deficiency Notice") specifying the
Deficiency Claim Amount for such Distribution Date. Such Deficiency Notice shall
direct the Collateral Agent to remit such Deficiency Claim Amount (to the extent
of the funds available to be distributed pursuant to the Spread Account
Agreement) to the Trustee for deposit in the Collection Account.
(b) Any Deficiency Notice shall be delivered by 3:00 p.m., New York
City time, on the fourth Business Day preceding such Distribution Date. The
amounts distributed by the Collateral Agent to the Trustee pursuant to a
Deficiency Notice shall be deposited by the Trustee into the Collection Account
pursuant to Section 5.4.
Section 6.4. Claims Under Policy. (a) In the event that the Trustee has
delivered a Deficiency Notice with respect to any Determination Date, the
Trustee shall determine on the related Draw Date whether the sum of (i) the
amount of Available Funds with respect to such Determination Date (as stated in
the Servicer's Certificate with
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respect to such Determination Date) plus (ii) the amount of the Deficiency Claim
Amount, if any, to be delivered by the Collateral Agent to the Trustee pursuant
to a Deficiency Notice delivered with respect to such Distribution Date (as
stated in the certificate delivered on the immediately preceding Deficiency
Claim Date by the Collateral Agent pursuant to Section 3.03(a) of the Spread
Account Agreement) would be insufficient, after giving effect to the
distributions required by Section 5.5(a)(i)-(ii), to pay the sum of the Class A
Interest Distributable Amount and the Class A Principal Distributable Amount for
the related Distribution Date, then in such event the Trustee shall furnish to
the Security Insurer no later than 12:00 noon New York City time on the related
Draw Date a completed Notice of Claim in the amount of the shortfall in amounts
so available to pay the Class A Interest Distributable Amount and the Class A
Principal Distributable Amount with respect to such Distribution Date (the
amount of any such shortfall being hereinafter referred to as the "Policy Claim
Amount"). Amounts paid by the Security Insurer under the Policy shall be
deposited by the Trustee into the Policy Payments Account and thereafter into
the Collection Account for payment to Class A Certificateholders on the related
Distribution Date (or promptly following payment on a later date as set forth in
the Policy).
(b) Any notice delivered by the Trustee to the Security Insurer
pursuant to subsection 6.4(a) shall specify the Policy Claim Amount claimed
under the Policy and shall constitute a "Notice of Claim" under the Policy. In
accordance with the provisions of the Policy, the Security Insurer is required
to pay to the Trustee the Policy Claim Amount properly claimed thereunder by
12:00 noon, New York City time, on the later of (i) the third Business Day
following receipt on a Business Day of the Notice of Claim, and (ii) the
applicable Distribution Date. Any payment made by the Security Insurer under the
Policy shall be applied solely to the payment of the Class A Certificates, and
for no other purpose.
(c) The Trustee shall (i) receive as attorney-in-fact of each
Certificateholder any Policy Claim Amount from the Security Insurer and (ii)
deposit the same in the Collection Account for disbursement to the Class A
Certificateholders as set forth in clauses (iii) and (iv) of subsection 5.5(a).
Any and all Policy Claim Amounts disbursed by the Trustee from claims made under
the Policy shall not be considered payment by the Trust or from the Spread
Account with respect to such Class A Certificates, and shall not discharge the
obligations of the Trust with respect thereto. The Security Insurer shall, to
the extent it makes any payment with respect to the Class A Certificates, become
subrogated to the rights of the recipients of such payments to the extent of
such payments. Subject to and conditioned upon any payment with respect to the
Class A Certificates by or on behalf of the Security Insurer, the Trustee shall
assign to the Security Insurer all rights to the payment of interest or
principal with respect to the Class A Certificates which are then due for
payment to the extent of all payments made by the Security Insurer and the
Security Insurer may exercise any option, vote, right, power or the like with
respect to the Class A Certificates to the extent that it has made payment
pursuant to the Policy. To evidence such subrogation, the Certificate Registrar
shall note the Security Insurer's rights as subrogee upon the register of Class
A Certificateholders upon
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receipt from the Security Insurer of proof of payment by the Security Insurer of
any Class A Interest Distributable Amount or Class A Principal Distributable
Amount.
(d) The Trustee shall be entitled to enforce on behalf of the Class A
Certificateholders the obligations of the Security Insurer under the Policy.
Notwithstanding any other provision of this Agreement, the Class A
Certificateholders are not entitled to institute proceedings directly against
the Security Insurer.
Section 6.5. Preference Claims; Direction of Proceedings. (a) In the
event that the Trustee has received a certified copy of an order of the
appropriate court that any Class A Interest Distributable Amount or Class A
Principal Distributable Amount paid on a Class A Certificate has been avoided in
whole or in part as a preference payment under applicable bankruptcy law, the
Trustee shall so notify the Security Insurer, shall comply with the provisions
of the Policy to obtain payment by the Security Insurer of such avoided payment,
and shall, at the time it provides notice to the Security Insurer, notify
Holders of the Class A Certificates by mail that, in the event that any Class A
Certificateholder's payment is so recoverable, such Class A Certificateholder
will be entitled to payment pursuant to the terms of the Policy. Pursuant to the
terms of the Policy, the Security Insurer will make such payment on behalf of
the Class A Certificateholder to the receiver, conservator, debtor-in-possession
or trustee in bankruptcy named in the Order (as defined in the Policy) and not
to the Trustee or any Class A Certificateholder directly (unless a Class A
Certificateholder has previously paid such payment to the receiver, conservator,
debtor-in-possession or trustee in bankruptcy, in which case the Security
Insurer will make such payment to the Trustee for distribution to such Class A
Certificateholder upon proof of such payment reasonably satisfactory to the
Security Insurer).
(b) The Trustee shall promptly notify the Security Insurer of any
proceeding or the institution of any action (of which the Trustee has actual
knowledge) seeking the avoidance as a preferential transfer under applicable
bankruptcy, insolvency, receivership, rehabilitation or similar law (a
"Preference Claim") of any distribution made with respect to the Class A
Certificates. Each Holder, by its purchase of Class A Certificates, and the
Trustee hereby agrees that so long as an Insurer Default shall not have occurred
and be continuing, the Security Insurer may at any time during the continuation
of any proceeding relating to a Preference Claim direct all matters relating to
such Preference Claim including, without limitation, (i) the direction of any
appeal of any order relating to any Preference Claim and (ii) the posting of any
surety, supersedeas or performance bond pending any such appeal at the expense
of the Security Insurer, but subject to reimbursement as provided in the
Insurance Agreement. In addition, and without limitation of the foregoing, as
set forth in Section 6.4(c), the Security Insurer shall be subrogated to, and
each Class A Certificateholder and the Trustee hereby delegate and assign, to
the fullest extent permitted by law, the rights of the Trustee and each Class A
Certificateholder in the conduct of any proceeding with respect to a Preference
Claim, including, without limitation, all rights of any party to an adversary
proceeding action with respect to any court order issued in connection with any
such Preference Claim.
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Section 6.6. Surrender of Policy. The Trustee shall surrender the
Policy to the Security Insurer for cancellation upon its expiration in
accordance with the terms thereof.
Section 6.7. Special Purpose Entity.
(a) The Seller shall conduct its business solely in its own name
through its duly authorized officers or agents so as not to mislead others as to
the identity of the entity with which those others are concerned, and
particularly will use its best efforts to avoid the appearance of conducting
business on behalf of any affiliate thereof or that the assets of the Seller are
available to pay the creditors of AmeriCredit or AmeriCredit Corp. or any
affiliate thereof. Without limiting the generality of the foregoing, all oral
and written communications, including, without limitation, letters, invoices,
purchase orders, contracts, statements and loan applications, will be made
solely in the name of the Seller.
(b) The Seller shall maintain corporate records and books of account
separate from those of AmeriCredit and AmeriCredit Corp., and the affiliates
thereof.
(c) The Seller shall obtain proper authorization from its Board of
Directors of all corporate action requiring such authorization, meetings of the
Board of Directors of the Seller shall be held not less frequently than one time
per annum.
(d) The Seller shall obtain proper authorization from its shareholders
of all corporate action requiring shareholder approval, meetings of the
shareholders of the Seller shall be held not less frequently than one time per
annum.
(e) Although the organizational expenses of the Seller have been paid
by AmeriCredit, the Seller shall pay its own operating expenses and liabilities
from its own funds.
(f) The annual financial statements of the Seller shall disclose the
effects of the Seller's transactions in accordance with generally accepted
accounting principles and shall disclose that the assets of the Seller are not
available to pay creditors of AmeriCredit Corp., AmeriCredit or any affiliate
thereof.
(g) The resolutions, agreements and other instruments of the Seller
underlying the transactions described in the Insurance Agreement and in the
other Transaction Documents shall be continuously maintained by the Seller as
official records of the Seller, separately identified and held apart from the
records of AmeriCredit Corp. and AmeriCredit and each affiliate thereof.
(h) The Seller shall maintain an arm's-length relationship with
AmeriCredit Corp. and AmeriCredit and the affiliates thereof, and will not hold
itself out as being liable for the debts of AmeriCredit Corp. or AmeriCredit or
any affiliate thereof.
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(i) The Seller shall keep its assets and liabilities wholly separate
from those of all other entities, including, but not limited to AmeriCredit
Corp., AmeriCredit and the affiliates thereof.
(j) The books and records of the Seller will be maintained at the
address designated herein for receipt of notices, unless the Seller shall
otherwise advise the parties hereto in writing.
Section 6.8. Restrictions on Liens. The Seller shall not (i) create,
incur or suffer to exist, or agree to create, incur or suffer to exist, or
consent to cause or permit in the future (upon the happening of a contingency or
otherwise) the creation, incurrence or existence of any Lien or restriction on
transferability of the Receivables except for the Lien in favor of the Trustee
for the benefit of the Certificateholders and the Security Insurer, the Lien
imposed by the Spread Account Agreement in favor of the Trustee for the benefit
of the Certificateholders and the Security Insurer, and the restrictions on
transferability imposed by this Agreement or (ii) sign or file under the Uniform
Commercial Code of any jurisdiction any financing statement which names
AmeriCredit or the Seller 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.
Section 6.9. Creation of Indebtedness; Guarantees. The Seller shall not
create, incur, assume or suffer to exist any indebtedness other than
indebtedness guaranteed or approved in writing by the Security Insurer other
than the Transaction Documents. Without the prior written consent in writing of
the Security Insurer, the Seller shall not assume guarantee, endorse or
otherwise be or become directly or contingently liable for the obligations of
any Person by, among other things, agreeing to purchase any obligation of
another Person, agreeing to advance funds to such Person or causing or assisting
such Person to maintain any amount of capital.
Section 6.10. Other Activities. The Seller shall not:
(a) sell, transfer, exchange or otherwise dispose of any of its assets
except as permitted under the Transaction Documents; or
(b) engage in any business or activity other than in connection with
this Agreement, the Spread Account Agreement and as permitted by its certificate
of incorporation.
(c) (i) take any action prohibited by Article XV of its certificate of
incorporation or (ii) without the prior written consent of the Trustee and the
Controlling Party and without giving prior written notice to the Rating
Agencies, amend Article III, Article IX, Article XIII, Article XIV or Article XV
of its certificate of incorporation.
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ARTICLE VII
THE CERTIFICATES
Section 7.1. The Certificates. (a) The Class A Certificates
and the Class B Certificates shall be issued in denominations of $1,000 initial
principal amount and integral multiples thereof, except that one Class A
Certificate and one Class B Certificate shall be issued in a denomination that
includes any residual amount. The Certificates shall be executed on behalf of
the Trustee by manual or facsimile signature of any Responsible Officer of the
Trustee having such authority under the Trustee's seal imprinted or otherwise
affixed thereon and attested on behalf of the Trustee by the manual or facsimile
signature of any other Responsible Officer of the Trustee. Certificates bearing
the manual or facsimile signatures of individuals who were, at the time when
such signatures were affixed, authorized to sign on behalf of the Trustee shall
be valid and binding obligations of the Trust, notwithstanding that such
individuals or any of them have ceased to be so authorized prior to the
execution and delivery of such Certificates. All Certificates shall be dated the
date of their execution.
Section 7.2. Authentication of Certificates. The Trustee shall
cause the Certificates to be executed on behalf of the Trust, authenticated, and
delivered to or upon the order of the Seller (or in the case of the Class B
Certificates, the Seller hereby authorizes the Trustee to execute such
Certificates on behalf of the Trust), signed by its chairman of the board, its
vice chairman, its chief financial officer, its president, any vice president,
its treasurer, or any assistant treasurer, its secretary or any assistant
secretary, without further corporate action by the Seller, in exchange for the
Receivables and the other Trust Property, simultaneously with the sale,
assignment and transfer to the Trustee of the Receivables, and the delivery to
the Trustee of the Receivable Files and the other Trust Property. Such
Certificates shall be duly executed by the Trustee, in authorized denominations
equaling in the aggregate the Cut-off Date Principal Balance and evidencing the
entire ownership of the Trust. No Certificate shall entitle its holder to any
benefit under the Agreement, or shall be valid for any purpose, unless there
shall appear on such Certificate a certificate of authentication substantially
in the form set forth in Exhibit A or Exhibit B hereto executed by the Trustee
by manual signature of an authorized signatory; such authentication shall
constitute conclusive evidence that such Certificate shall have been duly
authenticated and delivered hereunder. All Certificates shall be dated the date
of their authentication and shall be numbered in the manner determined by the
Trustee.
Section 7.3. Registration of Transfer and Exchange of
Certificates. (a) The Certificate Registrar shall keep or cause to be kept, at
the office or agency maintained pursuant to Section 7.7, a Certificate Register
in which, subject to such reasonable regulations as it may prescribe, the
Trustee shall provide for the registration of Certificates and of transfers and
exchanges of Certificates as herein provided. The Trustee shall be the initial
Certificate Registrar. In the event that, subsequent to the Cut-off Date, the
Trustee notifies the Servicer that it is unable to act as Certificate Registrar,
the Servicer shall appoint another bank or trust company, agreeing to act in
accordance with the
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provisions of this Agreement applicable to it, and otherwise acceptable to the
Trustee, to act as successor Certificate Registrar under this Agreement.
(b) At the option of a Certificateholder, Certificates may be
exchanged for other Certificates of the same Class, in authorized denominations
of a like aggregate original denomination, upon surrender of such Certificates
to be exchanged at such office. Whenever any Certificates are so surrendered for
exchange, the Trustee shall execute and deliver the Certificates which the
Certificateholder making the exchange is entitled to receive. Every Certificate
presented or surrendered for transfer or exchange shall be duly endorsed by, or
shall be accompanied by a written instrument of transfer in form satisfactory to
the Trustee and the Certificate Registrar duly executed by the holder thereof or
his or her attorney duly authorized in writing.
(c) Except as provided in paragraph (d) below the Book-Entry
Certificates shall at all times remain registered in the name of the Depository
or its nominee and at all times: (i) registration of the Class A Certificates
may not be transferred by the Trustee except to another Depository; (ii) the
Depository shall maintain book-entry records with respect to the
Certificateholders and with respect to ownership and transfers of such Class A
Certificates; (iii) ownership and transfers of registration of the Class A
Certificates on the books of the Depository shall be governed by applicable
rules established by the Depository; (iv) the Depository may collect its usual
and customary fees, charges and expenses from its Depository Participants; (v)
the Trustee shall deal with the Depository, Depository Participants and indirect
participating firms as representatives of the Certificateholders of the Class A
Certificates for purposes of exercising the rights of Holders under this
Agreement, and requests and directions for and votes of such representatives
shall not be deemed to be inconsistent if they are made with respect to
different Certificateholders; and (vi) the Trustee may rely and shall be fully
protected in relying upon information furnished by the Depository with respect
to its Depository Participants and furnished by the Depository Participants with
respect to indirect participating firms and persons shown on the books of such
indirect participating firms as direct or indirect Certificateholders.
All transfers by Certificateholders of Book-Entry Certificates
shall be made in accordance with the procedures established by the Depository
Participant or brokerage firm representing such Certificateholder. Each
Depository Participant shall only transfer Book-Entry Certificates of
Certificateholders it represents or of brokerage firms for which it acts as
agent in accordance with the Depository's normal procedures.
(d) If (x) (i) the Company or the Depository advises the
Trustee in writing that the Depository is no longer willing or able properly to
discharge its responsibilities as Depository and (ii) the Trustee or Company is
unable to locate a qualified successor or (y) the Company at its sole option
advises the Trustee in writing that it elects to terminate the book-entry system
through the Depository, the Trustee shall notify all Certificateholders, through
the Depository, of the occurrence of any such event and of the availability of
definitive, fully registered Class A Certificates (the "Definitive
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Certificates") to Certificateholders requesting the same. Upon surrender to the
Trustee of the Class A Certificates by the Depository, accompanied by
registration instructions from the Depository for registration, the Trustee
shall issue the Definitive Certificates. Neither the Company nor the Trustee
shall be liable for any delay in delivery of such instructions and may
conclusively rely on, and shall be protected in relying on, such instructions.
Upon the issuance of Definitive Certificates all references herein to
obligations imposed upon or to be performed by the Depository shall be deemed to
be imposed upon and performed by the Trustee, to the extent applicable with
respect to such Definitive Certificates and the Trustee shall recognize the
Holders of the Definitive Certificates as Certificateholders hereunder.
(e) On or prior to the Closing Date, there shall be delivered
to the Depository one Class A Certificate, in registered form registered in the
name of the Depository's nominee, Cede & Co., the total face amount of which
represents 100% of the Original Class A Principal Balance. Each such Class A
Certificate registered in the name of the Depositary's nominee shall bear the
following legend:
"Unless this Certificate is presented by an authorized
representative of The Depository Trust Company, a New York corporation ("DTC")
to Issuer or its agent for registration of transfer, exchange or payment, and
any certificate issued is registered in the name of Cede & Co. or in such other
name as requested by an authorized representative of DTC (and any payment is
made to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein."
(f) No service charge shall be made for any registration of
transfer or exchange of Certificates, but the Trustee may require payment of a
sum sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Certificates.
(g) No Certificate shall be registered or transferred to
AmeriCredit or any Affiliate thereof other than the Seller without the prior
consent of the Security Insurer. Notice of any such transfer shall be given to
each Rating Agency.
(h) The Class B Certificates shall initially be retained by
the Seller. No sale, assignment, pledge, encumbrance or transfer of any interest
in any Class B Certificate shall be made or permitted without the prior written
consent of the Certificate Insurer and prior notice to the Rating Agencies until
the Class A Certificate Balance is reduced to zero, all payments in respect of
interest on the Class A Certificates have been made in full and the Final
Termination Date (as defined in the Spread Account Agreement) with respect to
the Series 1996-B Certificates (as defined in the Series 1996-B Supplement)
shall have occurred. The Class B Certificates shall be subject to the same
restrictions on transfer that the Class A Certificates are subject to in Section
7.3 hereof.
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For purposes of the restrictions on transfer of Class B Certificates, the Seller
shall be treated as the initial purchaser. No transfer of a Class B Certificate
or any interest therein shall be made unless prior to such transfer the Holder
of such Class B Certificates delivers to the Seller, the Certificate Insurer and
the Trustee either a ruling of the Internal Revenue Service or an Opinion of
Counsel, which shall be independent outside counsel, satisfactory to the
Certificate Insurer, the Trustee and the Rating Agencies in either case, to the
effect that the proposed transfer (x) will not result in the arrangement
contemplated by this Agreement being treated as an association taxable as a
corporation under either (I) the Code, as from time to time in force or (II) the
tax laws of the State of Texas and (y) will not have any adverse effect on the
Federal income taxation of the Trust or the Certificateholders.
The Certificate Registrar shall not register the transfer of
any Class B Certificate unless it shall have received a representation letter
that (a) the transferee will not acquire the Class B Certificate with the assets
of any "employee benefit plan" as defined in Section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), or a "plan" as
defined in Section 4975(e)(l) of the Internal Revenue Code of 1986, as amended
(the "Code"), or (b) in the case of a transfer to an insurance company general
account, either (a) above or pursuant to Section I of Prohibited Transaction
Class Exemption 95-60 ("PTCE 95-60"), the acquisition and holding of the
certificate and, pursuant to Section III of PTCE 95-60, the servicing,
management and operation of the trust are, with respect to such transferee,
exempt from the "prohibited transaction" provisions of ERISA and the Code.
Section 7.4. Mutilated, Destroyed, Lost or Stolen
Certificates. If (a) any mutilated Certificate is surrendered to the Certificate
Registrar, or the Certificate Registrar receives evidence to its satisfaction of
the destruction, loss or theft of any Certificate, and (b) there is delivered to
the Certificate Registrar, the Trustee and (unless an Insurer Default shall have
occurred and be continuing) the Security Insurer such security or indemnity as
may be required by them to save each of them harmless, then, in the absence of
notice to the Certificate Registrar or the Trustee that such Certificate has
been acquired by a bona fide purchaser, the Trustee on behalf of the Trust shall
execute and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of like tenor and
Fractional Undivided Interest. In connection with the issuance of any new
Certificate under this Section 7.4, the Trustee may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and expenses of the
Trustee and the Certificate Registrar) connected therewith. Any duplicate
Certificate issued pursuant to this Section 7.4 shall constitute complete and
indefeasible evidence of ownership in the Trust, as if originally issued,
whether or not the lost, stolen or destroyed Certificate shall be found at any
time.
Section 7.5. Persons Deemed Owners. Prior to due presentation
of a Certificate for registration of transfer, the Trustee, the Certificate
Registrar and any agent of the Trustee or the Certificate Registrar may treat
the person in whose name any
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Certificate is registered as the owner of such Certificate for the purpose of
receiving distributions pursuant to Section 5.5 and for all other purposes
whatsoever, and neither the Trustee, the Certificate Registrar, the Security
Insurer nor any agent of the Trustee, the Certificate Registrar or the Security
Insurer shall be affected by any notice to the contrary.
Section 7.6. Access to List of Certificateholders' Names and
Addresses. The Trustee shall furnish or cause to be furnished to the Servicer or
(unless an Insurer Default shall have occurred and be continuing) the Security
Insurer, within 10 days after receipt by the Trustee of a written request
therefor from such party, a list, in such form as such party may reasonably
require, of the names and addresses of the Certificateholders as of the most
recent Accounting Date for payment of distributions to Certificateholders. If
three or more Certificateholders, or one or more Certificateholders evidencing
not less than 25% of the Class A Certificate Balance and the Class B Certificate
Balance (disregarding any Class B Certificate held by AmeriCredit or any
Affiliate thereof) (hereinafter referred to as "Applicants"), apply in writing
to the Trustee, and such application states that the Applicants desire to
communicate with other Certificateholders of such Class with respect to their
rights under this Agreement or under the Certificates and is accompanied by a
copy of the communication that such Applicants propose to transmit, then the
Trustee shall, within five Business Days after the receipt of such application,
afford such Applicants access, during normal business hours, to the current list
of Certificateholders. Every Certificateholder, by receiving and holding a
Certificate, agrees with the Servicer and the Trustee that neither the Servicer
nor the Trustee shall be held accountable by reason of the disclosure of any
such information as to the names and addresses of the Certificateholders under
this Agreement, regardless of the source from which such information was
derived.
Section 7.7. Maintenance of Office or Agency. The Trustee
shall maintain in Chicago, Illinois, an office or offices or agency or agencies
where Certificates may be surrendered for registration of transfer or exchange
and an office in Chicago, Illinois where notices and demands to or upon the
Trustee in respect of the Certificates and this Agreement may be served. The
Trustee initially designates the Corporate Trust Office as specified in this
Agreement as its office for such purposes. The Trustee shall give prompt written
notice to the Servicer and to Certificateholders of any change in the location
of the Certificate Register or any such office or agency.
Section 7.8. Affiliated Group May Own Certificates. To the extent that
the Seller or any Affiliate of the Seller becomes the owner or pledgee of any
Certificate pursuant to Section 7.3(g) hereof, during the time such Certificate
is owned by it, such Certificate shall be without voting rights for any purpose
set forth in this Agreement or any Related Document. The Seller shall notify the
Trustee and the Security Insurer promptly after it or any of its Affiliates
become the owner or pledgee of a Certificate.
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ARTICLE VIII
THE SELLER
Section 8.1. Liability of Seller.
(a) The Seller shall be liable hereunder only to the extent of the
obligations in this Agreement specifically undertaken by the Seller and the
representations made by the Seller.
Section 8.2. Merger or Consolidation of, or Assumption of the
Obligations of Seller; Amendment of Certificate of Incorporation.
(i) The Seller shall not merge or consolidate with any other Person or
permit any other Person to become the successor to the Seller's business without
the prior written consent of the Controlling Party. Any such successor
corporation shall execute an agreement of assumption of every obligation of the
Seller under this Agreement and each Related Document and, whether or not such
assumption agreement is executed, shall be the successor to the Seller under
this Agreement without the execution or filing of any document or any further
act on the part of any of the parties to this Agreement. The Seller shall
provide prompt notice of any merger, consolidation or succession pursuant to
this Section 8.2 to the Trustee, the Security Insurer, the Certificateholders
and the Rating Agencies. Notwithstanding the foregoing, the Seller shall not
merge or consolidate with any other Person or permit any other Person to become
a successor to the Seller's business, unless (x) immediately after giving effect
to such transaction, no representation or warranty made pursuant to Section 3.4
shall have been breached (for purposes hereof, such representations and
warranties shall speak as of the date of the consummation of such transaction)
and no event that, after notice or lapse of time, or both, would become a
Servicer Termination Event shall have occurred and be continuing, (y) the Seller
shall have delivered to the Trustee, the Rating Agencies and the Security
Insurer an officer's certificate and an Opinion of Counsel each stating that
such consolidation, merger or succession and such agreement of assumption comply
with this Section 8.2 and that all conditions precedent, if any, provided for in
this Agreement relating to such transaction have been complied with, and (z) the
Seller shall have delivered to the Trustee, the Rating Agencies and the Security
Insurer an Opinion of Counsel, stating, in the opinion of such counsel, either
(A) all financing statements and continuation statements and amendments thereto
have been executed and filed that are necessary to preserve and protect the
interest of the Trust in the Receivables and the Other Conveyed Property and
reciting the details of the filings or (B) no such action shall be necessary to
preserve and protect such interest.
Section 8.3. Limitation on Liability of Seller and Others. The Seller
and any director or officer or employee or agent of the Seller may rely in good
faith on the advice of counsel or on any document of any kind prima facie
properly executed and submitted by any Person respecting any matters arising
under this Agreement. The Seller shall not be under any obligation to appear in,
prosecute or defend any legal action that is not
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incidental to its obligations as Seller of the Receivables under this Agreement
and that in its opinion may involve it in any expense or liability.
ARTICLE IX
THE SERVICER
Section 9.1. Liability of Servicer; Indemnities.
(a) The Servicer (in its capacity as such) shall be liable hereunder
only to the extent of the obligations in this Agreement specifically undertaken
by the Servicer and the representations made by the Servicer.
(b) The Servicer shall defend, indemnify and hold harmless the Trust,
the Trustee, the Backup Servicer, the Security Insurer, their respective
officers, directors, agents and employees, and the Certificateholders from and
against any and all costs, expenses, losses, damages, claims and liabilities,
including reasonable fees and expenses of counsel and expenses of litigation
arising out of or resulting from the use, ownership or operation by the Servicer
or any Affiliate thereof of any Financed Vehicle;
(c) The Servicer shall indemnify, defend and hold harmless the Trust,
the Trustee, the Backup Servicer, the Security Insurer, their respective
officers, directors, agents and employees and the Certificateholders from and
against any taxes that may at any time be asserted against any of such parties
with respect to the transactions contemplated in this Agreement, including,
without limitation, any sales, gross receipts, tangible or intangible personal
property, privilege or license taxes (but not including any federal or other
income taxes, including franchise taxes asserted with respect to, and as of the
date of, the sale of the Receivables and the Other Conveyed Property to the
Trust or the issuance and original sale of the Certificates) and costs and
expenses in defending against the same; and
(d) The Servicer shall indemnify, defend and hold harmless the Trust,
the Trustee, the Backup Servicer, the Security Insurer, their respective
officers, directors, agents and employees and the Certificateholders from and
against any and all costs, expenses, losses, claims, damages, and liabilities to
the extent that such cost, expense, loss, claim, damage, or liability arose out
of, or was imposed upon the Trust, the Trustee, the Backup Servicer, the
Security Insurer or the Certificateholders by reason of the breach of this
Agreement by the Servicer, the negligence, misfeasance, or bad faith of the
Servicer in the performance of its duties under this Agreement or by reason of
reckless disregard of its obligations and duties under this Agreement.
(e) The Servicer shall indemnify, defend and hold harmless the Trust,
the Trustee, the Backup Servicer, the Security Insurer, their respective
officers, directors, agents and employees and the Certificateholders from and
against any loss, liability or
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expense incurred by reason of the violation by Servicer or Seller of federal or
state securities laws in connection with the registration or the sale of the
Certificates.
(f) Indemnification under this Article shall include, without
limitation, reasonable fees and expenses of counsel and expenses of litigation.
If the Servicer has made any indemnity payments pursuant to this Article and the
recipient thereafter collects any of such amounts from others, the recipient
shall promptly repay such amounts collected to the Servicer, without interest.
Section 9.2. Merger or Consolidation of, or Assumption of the
Obligations of the Servicer or Backup Servicer.
(a) AmeriCredit shall not merge or consolidate with any other person,
convey, transfer or lease substantially all its assets as an entirety to another
Person, or permit any other Person to become the successor to AmeriCredit's
business unless, after the merger, consolidation, conveyance, transfer, lease or
succession, the successor or surviving entity shall be capable of fulfilling the
duties of AmeriCredit contained in this Agreement and shall be acceptable to the
Controlling Party, and, if an Insurer Default shall have occurred and be
continuing, shall be an Eligible Servicer. Any corporation (i) into which
AmeriCredit may be merged or consolidated, (ii) resulting from any merger or
consolidation to which AmeriCredit shall be a party, (iii) which acquires by
conveyance, transfer, or lease substantially all of the assets of AmeriCredit,
or (iv) succeeding to the business of AmeriCredit, in any of the foregoing cases
shall execute an agreement of assumption to perform every obligation of
AmeriCredit under this Agreement and, whether or not such assumption agreement
is executed, shall be the successor to AmeriCredit under this Agreement without
the execution or filing of any paper or any further act on the part of any of
the parties to this Agreement, anything in this Agreement to the contrary
notwithstanding; provided, however, that nothing contained herein shall be
deemed to release AmeriCredit from any obligation. AmeriCredit shall provide
notice of any merger, consolidation or succession pursuant to this Section
9.2(a) to the Trustee, the Certificateholders, the Security Insurer and each
Rating Agency. Notwithstanding the foregoing, AmeriCredit shall not merge or
consolidate with any other Person or permit any other Person to become a
successor to AmeriCredit's business, unless (x) immediately after giving effect
to such transaction, no representation or warranty made pursuant to Section 4.6
shall have been breached (for purposes hereof, such representations and
warranties shall speak as of the date of the consummation of such transaction)
and no event that, after notice or lapse of time, or both, would become an
Insurance Agreement Event of Default shall have occurred and be continuing, (y)
AmeriCredit shall have delivered to the Trustee, the Rating Agencies and the
Security Insurer an Officer's Certificate and an Opinion of Counsel each stating
that such consolidation, merger or succession and such agreement of assumption
comply with this Section 9.2(a) and that all conditions precedent, if any,
provided for in this Agreement relating to such transaction have been complied
with, and (z) AmeriCredit shall have delivered to the Trustee, the Rating
Agencies and the Security Insurer an Opinion of Counsel, stating in the opinion
of such counsel, either (A) all financing statements and continuation statements
and
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amendments thereto have been executed and filed that are necessary to preserve
and protect the interest of the Trust in the Receivables and the Other Conveyed
Property and reciting the details of the filings or (B) no such action shall be
necessary to preserve and protect such interest.
(b) Any corporation (i) into which the Backup Servicer may be merged or
consolidated, (ii) resulting from any merger or consolidation to which the
Backup Servicer shall be a party, (iii) which acquires by conveyance, transfer
or lease substantially all of the assets of the Backup Servicer, or (iv)
succeeding to the business of the Backup Servicer, in any of the foregoing cases
shall execute an agreement of assumption to perform every obligation of the
Backup Servicer under this Agreement and, whether or not such assumption
agreement is executed, shall be the successor to the Backup Servicer under this
Agreement without the execution or filing of any paper or any further act on the
part of any of the parties to this Agreement, anything in this Agreement to the
contrary notwithstanding; provided, however, that nothing contained herein shall
be deemed to release the Backup Servicer from any obligation.
Section 9.3. Limitation on Liability of Servicer, Backup Servicer and
Others.
(a) Neither AmeriCredit, the Backup Servicer nor any of the directors
or officers or employees or agents of AmeriCredit or Backup Servicer shall be
under any liability to the Trust or the Certificateholders, except as provided
in this Agreement, for any action taken or for refraining from the taking of any
action pursuant to this Agreement; provided, however, that this provision shall
not protect AmeriCredit, the Backup Servicer or any such person against any
liability that would otherwise be imposed by reason of a breach of this
Agreement or willful misfeasance, bad faith or negligence (excluding errors in
judgment) in the performance of duties; provided further that this provision
shall not affect any liability to indemnify the Trustee for costs, taxes,
expenses, claims, liabilities, losses or damages paid by the Trustee, in its
individual capacity. AmeriCredit, the Backup Servicer and any director, officer,
employee or agent of AmeriCredit or Backup Servicer may rely in good faith on
the written advice of counsel or on any document of any kind prima facie
properly executed and submitted by any Person respecting any matters arising
under this Agreement.
(b) The Backup Servicer shall not be liable for any obligation of the
Servicer contained in this Agreement, and the Trustee, the Seller, the Security
Insurer and the Certificateholders shall look only to the Servicer to perform
such obligations.
(c) The parties expressly acknowledge and consent to LaSalle National
Bank acting in the possible dual capacity of Backup Servicer or successor
Servicer and in the capacity as Trustee. LaSalle National Bank may, in such dual
capacity, discharge its separate functions fully, without hinderance or regard
to conflict of interest principles, duty of loyalty principles or other breach
of fiduciary duties to the extent that any such conflict or breach arises from
the performance by LaSalle of express duties set forth in the this Agreement in
any of such capacities, all of which defenses, claims or assertions
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are hereby expressly waived by the other parties hereto except in the case of
gross negligence and willful misconduct by LaSalle National Bank .
Section 9.4. Delegation of Duties. The Servicer may delegate duties
under this Agreement to an Affiliate of AmeriCredit with the prior written
consent of the Security Insurer (unless an Insurer Default shall have occurred
and be continuing), the Trustee and the Backup Servicer. The Servicer also may
at any time perform through sub-contractors the specific duties of (i)
repossession of Financed Vehicles, (ii) tracking Financed Vehicles' insurance
and (iii) pursuing the collection of deficiency balances on certain Defaulted
Receivables, in each case, without the consent of the Security Insurer and may
perform other specific duties through such sub-contractors in accordance with
Servicer's customary servicing policies and procedures, with the prior consent
of the Security Insurer; provided, however, that no such delegation or
sub-contracting duties by the Servicer shall relieve the Servicer of its
responsibility with respect to such duties. So long as no Insurer Default shall
have occurred and be continuing neither AmeriCredit or any party acting as
Servicer hereunder shall appoint any subservicer hereunder without the prior
written consent of the Security Insurer, the Trustee and the Backup Servicer.
Section 9.5. Servicer and Backup Servicer Not to Resign. Subject to the
provisions of Section 9.2, neither the Servicer nor the Backup Servicer shall
resign from the obligations and duties imposed on it by this Agreement as
Servicer or Backup Servicer except upon a determination that by reason of a
change in legal requirements the performance of its duties under this Agreement
would cause it to be in violation of such legal requirements in a manner which
would have a material adverse effect on the Servicer or the Backup Servicer, as
the case may be, and the Security Insurer (so long as an Insurer Default shall
not have occurred and be continuing) or a Certificate Majority (if an Insurer
Default shall have occurred and be continuing) does not elect to waive the
obligations of the Servicer or the Backup Servicer, as the case may be, to
perform the duties which render it legally unable to act or to delegate those
duties to another Person. Any such determination permitting the resignation of
the Servicer or Backup Servicer shall be evidenced by an Opinion of Counsel to
such effect delivered and acceptable to the Trustee and the Security Insurer
(unless an Insurer Default shall have occurred and be continuing). No
resignation of the Servicer shall become effective until, so long as no Insurer
Default shall have occurred and be continuing the Backup Servicer or an entity
acceptable to the Security Insurer shall have assumed the responsibilities and
obligations of the Servicer or, if an Insurer Default shall have occurred and be
continuing, the Backup Servicer or a successor Servicer that is an Eligible
Servicer shall have assumed the responsibilities and obligations of the
Servicer. No resignation of the Backup Servicer shall become effective until, so
long as no Insurer Default shall have occurred and be continuing, an entity
acceptable to the Security Insurer shall have assumed the responsibilities and
obligations of the Backup Servicer or, if an Insurer Default shall have occurred
and be continuing a Person that is an Eligible Servicer shall have assumed the
responsibilities and obligations of the Backup Servicer; provided, however, that
in the event a successor Backup Servicer is not appointed within 60 days after
the Backup
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Servicer has given notice of its resignation and has provided the Opinion of
Counsel required by this Section 9.5, the Backup Servicer may petition a court
for its removal.
ARTICLE X
SERVICER TERMINATION EVENTS
Section 10.1. Servicer Termination Event. For purposes of this
Agreement, each of the following shall constitute a "Servicer Termination
Event":
(a) Any failure by the Servicer to deliver to the Trustee for
distribution to Certificateholders any proceeds or payment required to be so
delivered under the terms of this Agreement that continues unremedied for a
period of two Business Days (one Business Day with respect to payment of
Purchase Amounts) after written notice is received by the Servicer from the
Trustee or (unless an Insurer Default shall have occurred and be continuing) the
Security Insurer or after discovery of such failure by a Responsible Officer of
the Servicer;
(b) Failure by the Servicer to deliver to the Trustee and (so long as
an Insurer Default shall not have occurred and be continuing) the Security
Insurer the Servicer's Certificate by the fourth Business Day prior to the
Distribution Date, or failure on the part of the Servicer to observe its
covenants and agreements set forth in Section 9.2(a);
(c) Failure on the part of the Servicer duly to observe or perform any
other covenants or agreements of the Servicer set forth in this Agreement, which
failure (i) materially and adversely affects the rights of Certificateholders
(determined without regard to the availability of funds under the Policy), or of
the Security Insurer (unless an Insurer Default shall have occurred and be
continuing), and (ii) continues unremedied for a period of 30 days after
knowledge thereof by the Servicer or after the date on which written notice of
such failure, requiring the same to be remedied, shall have been given to the
Servicer by the Trustee or the Security Insurer (or, if an Insurer Default shall
have occurred and be continuing any Certificateholder);
(d) The entry of a decree or order for relief by a court or regulatory
authority having jurisdiction in respect of the Servicer in an involuntary case
under the federal bankruptcy laws, as now or hereafter in effect, or another
present or future, federal bankruptcy, insolvency or similar law, or appointing
a receiver, liquidator, assignee, trustee, custodian, sequestrator or other
similar official of the Servicer or of any substantial part of its property or
ordering the winding up or liquidation of the affairs of the Servicer and the
continuance of any such decree or order unstayed and in effect for a period of
60 consecutive days or the commencement of an involuntary case under the federal
bankruptcy laws, as now or hereinafter in effect, or another present or future
federal or state bankruptcy, insolvency or similar law and such case is not
dismissed within 60 days; or
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(e) The commencement by the Servicer of a voluntary case under the
federal bankruptcy laws, as now or hereafter in effect, or any other present or
future, federal or state, bankruptcy, insolvency or similar law, or the consent
by the Servicer to the appointment of or taking possession by a receiver,
liquidator, assignee, trustee, custodian, sequestrator or other similar official
of the Servicer or of any substantial part of its property or the making by the
Servicer of an assignment for the benefit of creditors or the failure by the
Servicer generally to pay its debts as such debts become due or the taking of
corporate action by the Servicer in furtherance of any of the foregoing; or
(f) Any representation, warranty or statement of the Servicer made in
this Agreement or any certificate, report or other writing delivered pursuant
hereto shall prove to be incorrect in any material respect as of the time when
the same shall have been made (excluding, however, any representation or
warranty set forth in Section 3.4(a)), and the incorrectness of such
representation, warranty or statement has a material adverse effect on the Trust
or the Certificateholders and, within 30 days after knowledge thereof by the
Servicer or after written notice thereof shall have been given to the Servicer
by the Trustee or the Security Insurer (or, if an Insurer Default shall have
occurred and be continuing, a Certificateholder), the circumstances or condition
in respect of which such representation, warranty or statement was incorrect
shall not have been eliminated or otherwise cured; or
(g) So long as an Insurer Default shall not have occurred and be
continuing, the Security Insurer shall not have delivered a Servicer Extension
Notice pursuant to Section 4.14; or
(h) So long as an Insurer Default shall not have occurred and be
continuing, an Insurance Agreement Event of Default or under any other Insurance
and Indemnity Agreement relating to any Series an Event of Default thereunder
shall have occurred; or
(i) A claim is made under the Policy.
Section 10.2. Consequences of a Servicer Termination Event. If a
Servicer Termination Event shall occur and be continuing, the Security Insurer
(or, if an Insurer Default shall have occurred and be continuing either the
Trustee, (to the extent it has knowledge thereof) a Certificate Majority), by
notice given in writing to the Servicer (and to the Trustee if given by the
Security Insurer or the Certificateholders) or by nonextension of the term of
the Servicer as referred to in Section 4.14 may terminate all of the rights and
obligations of the Servicer under this Agreement. On or after the receipt by the
Servicer of such written notice or upon termination of the term of the Servicer,
all authority, power, obligations and responsibilities of the Servicer under
this Agreement, whether with respect to the Certificates or the Other Conveyed
Property or otherwise, automatically shall pass to, be vested in and become
obligations and responsibilities of the Backup Servicer (or such other successor
Servicer appointed by the Controlling Party); provided, however, that the
successor Servicer shall have no liability with respect to any obligation which
was required to be performed by the terminated Servicer prior to the
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date that the successor Servicer becomes the Servicer or any claim of a third
party based on any alleged action or inaction of the terminated Servicer. The
successor Servicer is authorized and empowered by this Agreement to execute and
deliver, on behalf of the terminated Servicer, as attorney-in-fact or otherwise,
any and all documents and other instruments and to do or accomplish all other
acts or things necessary or appropriate to effect the purposes of such notice of
termination, whether to complete the transfer and endorsement of the Receivables
and the Other Conveyed Property and related documents to show the Trust as
lienholder or secured party on the related Lien Certificates, or otherwise. The
terminated Servicer agrees to cooperate with the successor Servicer in effecting
the termination of the responsibilities and rights of the terminated Servicer
under this Agreement, including, without limitation, the transfer to the
successor Servicer for administration by it of all cash amounts that shall at
the time be held by the terminated Servicer for deposit, or have been deposited
by the terminated Servicer, in the Collection Account or thereafter received
with respect to the Receivables and the delivery to the successor Servicer of
all Receivable Files, Monthly Records and Collection Records and a computer tape
in readable form as of the most recent Business Day containing all information
necessary to enable the successor Servicer or a successor Servicer to service
the Receivables and the Other Conveyed Property. If requested by the Controlling
Party, the successor Servicer shall terminate the Lockbox Agreement and direct
the Obligors to make all payments under the Receivables directly to the
successor Servicer (in which event the successor Servicer shall process such
payments in accordance with Section 4.2(e)), or to a lockbox established by the
successor Servicer at the direction of the Controlling Party, at the successor
Servicer's expense. The terminated Servicer shall grant the Trustee, the
successor Servicer and the Controlling Party reasonable access to the terminated
Servicer's premises at the terminated Servicer's expense.
Section 10.3. Appointment of Successor.
(a) On and after the time the Servicer receives a notice of termination
pursuant to Section 10.2, upon non-extension of the servicing term as referred
to in Section 4.14, or upon the resignation of the Servicer pursuant to Section
9.5, the Backup Servicer (unless the Security Insurer shall have exercised its
option pursuant to Section 10.3(b) to appoint an alternate successor Servicer)
shall be the successor in all respects to the Servicer in its capacity as
servicer under this Agreement and the transactions set forth or provided for in
this Agreement, and shall be subject to all the rights, responsibilities,
restrictions, duties, liabilities and termination provisions relating thereto
placed on the Servicer by the terms and provisions of this Agreement except as
otherwise stated herein. The Trustee and such successor shall take such action,
consistent with this Agreement, as shall be necessary to effectuate any such
succession. If a successor Servicer is acting as Servicer hereunder, it shall be
subject to term-to-term servicing as referred to in Section 4.14 and to
termination under Section 10.2 upon the occurrence of any Servicer Termination
Event applicable to it as Servicer.
(b) The Controlling Party may exercise at any time its right to appoint
as Backup Servicer or as successor to the Servicer a Person other than the
Person serving
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as Backup Servicer at the time, and (without limiting its obligations under the
Policies) shall have no liability to the Trustee, AmeriCredit, the Seller, the
Person then serving as Backup Servicer, any Certificateholders or any other
Person if it does so. Notwithstanding the above, if the Backup Servicer shall be
legally unable or unwilling to act as Servicer, and an Insurer Default shall
have occurred and be continuing, the Backup Servicer, the Trustee or a
Certificate Majority may petition a court of competent jurisdiction to appoint
any Eligible Servicer as the successor to the Servicer. Pending appointment
pursuant to the preceding sentence, the Backup Servicer shall act as successor
Servicer unless it is legally unable to do so, in which event the outgoing
Servicer shall continue to act as Servicer until a successor has been appointed
and accepted such appointment. Subject to Section 9.5, no provision of this
Agreement shall be construed as relieving the Backup Servicer of its obligation
to succeed as successor Servicer upon the termination of the Servicer pursuant
to Section 10.2, the resignation of the Servicer pursuant to Section 9.5 or the
non-extension of the servicing term of the Servicer, as referred to in Section
4.14. If upon the termination of the Servicer pursuant to Section 10.2 or the
resignation of the Servicer pursuant to Section 9.5, the Controlling Party
appoints a successor Servicer other than the Backup Servicer, the Backup
Servicer shall not be relieved of its duties as Backup Servicer hereunder.
(c) Any successor Servicer shall be entitled to such compensation
(whether payable out of the Collection Account or otherwise) as the Servicer
would have been entitled to under this Agreement if the Servicer had not
resigned or been terminated hereunder. If any successor Servicer is appointed as
a result of the Backup Servicer's refusal (in breach of the terms of this
Agreement) to act as Servicer although it is legally able to do so, the Security
Insurer and such successor Servicer may agree on reasonable additional
compensation to be paid to such successor Servicer by the Backup Servicer, which
additional compensation shall be paid by such breaching Backup Servicer in its
individual capacity and solely out of its own funds. If any successor Servicer
is appointed for any reason other than the Backup Servicer's refusal to act as
Servicer although legally able to do so, the Security Insurer and such successor
Servicer may agree on additional compensation to be paid to such successor
Servicer, which additional compensation shall be payable as provided in the
Spread Account Agreement and shall in no event exceed $150,000. In addition, any
successor Servicer shall be entitled, as provided in the Spread Account
Agreement, to reasonable transition expenses incurred in acting as successor
Servicer.
Section 10.4. Notification to Certificateholders. Upon any termination
of, or appointment of a successor to, the Servicer pursuant to this Article X,
the Trust shall give prompt written notice thereof to each Rating Agency to the
Certificateholders at their respective addresses appearing in the Certificate
Register.
Section 10.5. Waiver of Past Defaults. The Security Insurer or (if an
Insurer Default shall have occurred and be continuing) a Certificate Majority
may, on behalf of all Holders of Certificates, waive any default by the Servicer
in the performance of its obligations hereunder and its consequences. Upon any
such waiver of a past default, such
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default shall cease to exist, and any Servicer Termination Event arising
therefrom shall be deemed to have been remedied for every purpose of this
Agreement. No such waiver shall extend to any subsequent or other default or
impair any right consequent thereon.
ARTICLE XI
THE TRUSTEE
Section 11.1. Duties of Trustee. (a) Subject to paragraph (c)
of this Section 11.1, the Trustee, both prior to and after the occurrence of a
Servicer Termination Event, undertakes to perform as Trustee such duties and
only such duties as are specifically set forth in this Agreement.
(b) The Trustee, upon receipt of any resolutions,
certificates, statements, opinions, reports, documents, orders or other
instruments furnished to the Trustee that are specifically required to be
furnished pursuant to any provisions of this Agreement, shall examine them to
determine whether they conform on their face to the requirements of this
Agreement.
(c) No provision of this Agreement shall be construed to
relieve the Trustee from liability for its own negligent action, its own
negligent failure to act (other than errors in judgment) or its own bad faith or
willful misfeasance; provided however, that:
(i) the duties and obligations of the Trustee shall be
determined solely by the express provisions of this Agreement, the
Trustee shall not be liable except for the performance of such duties
and obligations as are specifically set forth in this Agreement, no
implied covenants or obligations shall be read into this Agreement
against the Trustee and, in the absence of bad faith on the part of the
Trustee, the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon
any certificates or opinions furnished to the Trustee and conforming to
the requirements of this Agreement;
(ii) the Trustee shall not be liable for an error of judgment
made in good faith by a Responsible Officer of the Trustee, unless it
shall be proven that the Trustee was negligent in performing its duties
in accordance with the terms of this Agreement;
(iii) the Trustee shall not be liable for any action taken,
suffered or omitted to be taken by it in good faith and reasonably
believed by it to be authorized or within the discretion or rights or
powers conferred upon it by this Agreement; and
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(iv) the Trustee shall not be liable for any action it takes
or omits to take in good faith at the direction of the Security Insurer
(or, after an Insurer Default shall have occurred and be continuing, a
Certificate Majority).
(d) Notwithstanding any other provision of this Agreement, the
Trustee shall not be required to expend or risk its own funds or otherwise incur
financial liability in the performance of any of its duties under this
Agreement, or in the exercise of any of its rights or powers, if there is
reasonable ground for believing that the repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it, and
none of the provisions contained in this Agreement shall in any event require
the Trustee to perform, or be responsible for the manner of performance of, any
of the obligations of the Servicer under this Agreement except during such time,
if any, as the Backup Servicer shall be the successor to, and be vested with the
rights, duties, powers and privileges of, the Servicer in accordance with the
terms of this Agreement.
(e) The Trustee shall not be charged with knowledge of any
failure by the Servicer to comply with the obligations of the Servicer referred
to in this Agreement, or of any failure by the Seller to comply with the
obligations of the Seller referred to in this Agreement, unless a Trustee
officer obtains actual knowledge of such failure (it being understood that
knowledge of the Servicer is not attributable to the Trustee) or the Trustee
receives written notice of such failure from the Servicer or the Seller, as the
case may be, or the Security Insurer (or, if an Insurer Default shall have
occurred and be continuing) the Holders of Certificates evidencing not less than
25% of the sum of the Class A Certificate Balance and the Class B Certificate
Balance, or, if there are no Class A Certificates then outstanding, by Holders
of Class B Certificates evidencing not less than 25% of the Class B Certificate
Balance;
(f) Except for actions expressly authorized by this Agreement,
the Trustee shall take no action reasonably likely to impair the security
interests created or existing under any Receivable or Financed Vehicle or to
impair the value of any Receivable or Financed Vehicle; and
(g) Without limiting the generality of this Section 11.1, the
Trustee, in its capacity as Trustee, shall have no duty (i) to see to any
recording, filing or depositing of this Pooling and Servicing Agreement or any
agreement referred to herein or any financing statement evidencing a security
interest in the Financed Vehicles, or to see to the maintenance of any such
recording or filing or depositing or to any recording, refiling or redepositing
of any thereof, (ii) to see to any insurance of the Financed Vehicles or
Obligors or to effect or maintain any such insurance, (iii) to see to the
payment or discharge of any tax, assessment or other governmental charge or any
Lien or encumbrance of any kind owing with respect to, assessed or levied
against any part of the Trust, (iv) to confirm or verify the contents of any
reports or certificates delivered to the Trustee pursuant to this Pooling and
Servicing Agreement believed by the Trustee to be genuine and to have been
signed or presented by the proper party or parties, or (v) to inspect the
Financed Vehicles at any time or ascertain or inquire as to the performance
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or observance of any of the Seller's or the Servicer's representations,
warranties or covenants or the Servicer's duties and obligations as Servicer and
as custodian of the Receivable Files under the Custodian Agreement.
Section 11.2. Trustee's Assignment of Administrative
Receivables and Warranty Receivables. With respect to all Administrative
Receivables and all Warranty Receivables purchased by the Servicer or the
Seller, the Trustee shall take any and all actions reasonably requested by the
Seller or the Servicer, at the expense of the Person whose obligation was to
repurchase the Administrative Receivable or the Warranty Receivable, to assign,
without recourse, representation or warranty, to the Seller or the Servicer, as
applicable, including, without limitation, all the items conveyed to the Trustee
pursuant to Section 3.1(a) with respect to such Purchased Receivable, all monies
due thereon, the security interests in the related Financed Vehicles, proceeds
from any Insurance Policies, proceeds from recourse against Dealers on such
Receivables and the interests of the Trust in certain rebates of premiums and
other amounts relating to the Insurance Policies and any documents relating
thereto, such assignment being an assignment outright and not for security; and
the Seller or the Servicer, as applicable, shall thereupon own such Receivable,
and all such security and documents, free of any further obligation to the
Trustee or the Certificateholders with respect thereto. Each of the Servicer,
the Trustee and the Seller shall cooperate with respect to the orderly transfer
of the servicing to the party purchasing the Administrative Receivable
hereunder, and each of the Servicer, the Trustee and the Seller shall cooperate
with such party to ensure that the purchasing party is subrogated to the rights
of each such Person with respect to such Receivable.
Section 11.3. Certain Matters Affecting the Trustee. Except as
otherwise provided in Section 11.1(c):
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, Officer's Certificate,
certificate of auditors or any other certificate, statement,
instrument, opinion, report, notice, request, consent, order,
appraisal, bond or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(b) the Trustee may consult with counsel and any Opinion of
Counsel shall be full and complete authorization and protection in
respect of any action taken or suffered or omitted by it under this
Agreement in good faith and in accordance with such Opinion of Counsel;
(c) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Agreement, or to
institute, conduct or defend any litigation under this Agreement or in
relation to this Agreement, at the request, order or direction of any
of the Certificateholders or the Security Insurer, pursuant to the
provisions of this Agreement, unless such Certificateholders or the
Security Insurer shall have offered to the Trustee reasonable security
or indemnity against
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the costs, expenses and liabilities that may be incurred therein or
thereby; provided however, that the Trustee shall, upon the occurrence
of a Servicer Termination Event (that has not been cured), exercise the
rights and powers vested in it by this Agreement with reasonable care
and skill;
(d) the Trustee shall not be bound to make any investigation
into the facts of matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent,
order, approval, bond or other paper or document, unless requested in
writing to do so by the Security Insurer or by Holders of Certificates
evidencing not less than 25% of the sum of the Class A Certificate
Balance and the Class B Certificate Balance, or, if there are no Class
A Certificates then outstanding, by Holders of Class B Certificates
evidencing not less than 25% of the Class B Certificate Balance;
provided however, that if the payment within a reasonable time to the
Trustee of the costs, expenses or liabilities likely to be incurred by
it in the making of such investigation is, in the opinion of the
Trustee, not reasonably assured to the Trustee by the security afforded
to it by the terms of this Agreement, the Trustee may require
reasonable indemnity against such cost, expense or liability as a
condition to so proceeding; the reasonable expense of every such
examination shall be paid by the Person making such request or, if paid
by the Trustee, shall be reimbursed by the Person making such request
upon demand;
(e) The Trustee may execute any of the trusts or powers under
this Agreement or perform any duties under this Agreement ether
directly or by or through agents or attorneys or custodians. The
Trustee shall not be responsible for any misconduct or negligence on
the part of any agent or attorney appointed with due care by the
Trustee. The Trustee shall not be responsible for any misconduct or
negligence attributable to the acts or omissions of the Servicer;
(f) The Trustee may rely, as to factual matters relating to
the Seller or the Servicer, on an Officer's Certificate of a
Responsible Officer of the Seller or Servicer, respectively; and
(g) The Trustee shall not be required to take any action or
refrain from taking any action under this Agreement, or any Related
Document referred to herein, nor shall any provision of this Agreement,
or any such Related Document be deemed to impose a duty on the Trustee
to take action, if the Trustee shall have been advised by counsel that
such action is contrary to the terms of this Agreement, or any Related
Document or is contrary to law.
Section 11.4. Trustee Not Liable for Certificates or
Receivables. The Trustee makes no representations as to the validity or
sufficiency of this Agreement or of the Certificates (other than the execution
of the Certificates) or of any Receivable or Related Document, except to the
extent otherwise expressly provided herein. The Trustee shall at no time (except
during such time, if any, as it is acting as successor Servicer)
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have any responsibility or liability for or with respect to the legality,
validity and enforceability of any security interest in any Financed Vehicle or
any Receivable, or the perfection and priority of such a security interest or
the maintenance of any such perfection and priority, or for or with respect to
the efficiency of the Trust or its ability to generate the payments to be
distributed to Certificateholders under this Agreement, including, without
limitation, the existence, condition, location and ownership of any Financed
Vehicle; the existence and enforceability of any insurance thereon; the
existence of any Receivable or any computer or other record thereof (it being
understood that the Trustee has not reviewed and does not intend to review such
matters, the sole responsibility for such review being vested in the Seller and
the Servicer as applicable); the completeness of any Receivable; the receipt by
the Servicer of any Receivable; the performance or enforcement of any
Receivable; the compliance by the Seller and the Servicer with any covenant or
the breach by the Seller and the Servicer of any warranty or representation made
under this Agreement or in any Related Document and the accuracy of any such
warranty or representation prior to the Trustee's receipt of notice or other
discovery of any noncompliance therewith or any breach thereof, any investment
of monies by or at the direction of the Servicer or any loss resulting therefrom
(it being understood, however, that the Trustee shall remain responsible for any
Trust Property that it may hold directly); the acts or omissions of the Seller,
the Servicer or any Obligor; any action of the Servicer taken in the name of the
Trustee; the accuracy, content or completeness of any offering documents used in
connection with the sale of the Certificates or any action by the Trustee taken
at the instruction of the Servicer, the Seller, the Security Insurer or the
Certificateholders holding the requisite percentage of Certificates; provided
however, that the foregoing shall not relieve the Trustee of its obligation to
perform its duties under this Agreement, whether as Trustee or as Backup
Servicer. The Trustee shall not be accountable for the use or application by the
Seller of any of the Certificates or of the proceeds of such Certificates, or
for the use or application of any funds paid to the Servicer in respect of the
Receivables prior to the time such funds are deposited in the Collection
Account.
Section 11.5. Trustee May Own Certificates. The Trustee in its
individual or any other capacity may become the owner or pledgee of Certificates
with the same rights as it would have if it were not Trustee and may deal with
the Seller and the Servicer in banking transactions with the same rights as it
would have if it were not Trustee.
Section 11.6. Trustee's Fees and Expenses; Indemnification.
The Servicer in a separate agreement (the "Fee Letter") has covenanted and
agreed to pay to the Trustee, and the Trustee shall be entitled to, certain
annual fees (the "Annual Trustee's Fee") (which shall not be limited by any
provision of law in regard to the compensation of a trustee of an express trust)
for all services, including services as Backup Servicer, rendered by it in the
execution of the trusts created by this Agreement and in the exercise and
performance of any of the powers and duties under this Agreement of the Trustee.
To the extent not covered by Article IX, the Seller and the Servicer shall
indemnify, defend, and hold harmless the Trustee and the Backup Servicer from
and against all costs,
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expenses, losses, claims, damages and liabilities arising out of or incurred in
connection with the acceptance of the performance of the trusts and duties
contained in this Agreement, except to the extent that such cost, expense, loss,
claim, damage or liability is due to the bad faith or gross negligence (except
for errors in judgment) of the Trustee or the Backup Servicer, respectively. In
addition, the Servicer in Section 9.1 has agreed to indemnify the Trustee with
respect to certain matters, and the Certificateholders in their individual
capacity under Section 11.3(c) or (d) may agree to indemnify the Trustee under
certain circumstances. The provisions of this Section 11.6 shall (i) not be in
limitation of the Fee Letter entered into in connection with this Agreement
between the Servicer and the Trustee (ii) shall not terminate or be deemed
released upon the resignation or termination of AmeriCredit as the Servicer and
(iii) shall survive any termination of this Agreement.
Section 11.7. Subscription Agreement. The Trustee is hereby
authorized and directed to execute and deliver the Subscription Agreement on
behalf of the Trust.
Section 11.8. Eligibility Requirements for Trustee. The
Trustee under this Agreement shall at all times be a corporation duly organized
and validly existing under the laws of its jurisdiction of incorporation
authorized under such laws to exercise corporate trust powers, having a combined
capital and surplus of at least $50,000,000 and subject to supervision or
examination by federal or state authority, satisfactory to AmeriCredit and (so
long as an Insurer Default shall not have occurred and be continuing)
satisfactory to the Security Insurer, and (if Moody's then has a rating
outstanding on the Certificates) with a long-term debt rating from Moody's of
"Baa3" or higher or otherwise acceptable to Moody's. If such corporation
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purpose of this Section 11.7, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. In case at any time the
Trustee shall cease to be eligible in accordance with the provisions of this
Section 11.7, the Trustee shall resign immediately in the manner and with the
effect specified in Section 11.8.
Section 11.9. Resignation or Removal of Trustee. (a) Subject
to the provisions of subsection (c) of this Section 11.8, the Trustee may at any
time resign and be discharged from the trusts created by this Agreement by
giving written notice thereof to the Servicer. Upon receiving such notice of
resignation, the Servicer, with the consent of the Security Insurer (unless an
Insurer Default shall have occurred and be continuing), shall promptly appoint a
successor Trustee by written instrument, in duplicate, one copy of which
instrument shall be delivered to the resigning Trustee and one copy to the
successor Trustee. If no successor Trustee shall have been so appointed and have
accepted appointment within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
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(b) If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section 11.8 and shall fail to resign
after written request therefor by the Servicer, or if at any time the Trustee
shall be legally unable to act, or shall be adjudged a bankrupt or insolvent or
a receiver of the Trustee or of its property shall be appointed or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, then the
Servicer or (so long as an Insurer Default shall not have occurred and be
continuing) the Security Insurer shall remove the Trustee. If the Trustee is
removed under the authority of the immediately preceding sentence, the Servicer
or the Security Insurer, as the case may be, shall promptly appoint a successor
Trustee by written instrument, in duplicate, one copy of which instrument shall
be delivered to the Trustee so removed and one copy to the successor trustee.
The Servicer shall also pay all fees due and owing to the outgoing Trustee. Any
successor trustee shall (so long as an Insurer Default shall not have occurred
and be continuing) be acceptable to the Security Insurer.
(c) Any resignation or removal of the Trustee and appointment
of a successor Trustee pursuant to any of the provisions of this Section 11.8
shall not become effective until acceptance of appointment by the successor
Trustee as provided in Section 11.9.
(d) If the Trustee and the Backup Servicer shall be the same
Person and the rights and obligations of the Backup Servicer shall have been
terminated pursuant to Section 10.2, then the Security Insurer (or, if an
Insurer Default shall have occurred and be continuing, a Certificate Majority)
shall have the option, by 60 days' prior notice in writing to the Seller, the
Servicer and the Trustee, to remove the Trustee, and the Security Insurer shall
not have any liability to the Trustee, AmeriCredit, the Seller, the Servicer or
any Certificateholder in connection with such removal.
Section 11.10. Successor Trustee. (a) Any successor Trustee
appointed as provided in Section 11.8 shall execute, acknowledge and deliver to
the Servicer and the Security Insurer, and to its predecessor Trustee an
instrument accepting such appointment under this Agreement, and thereupon the
resignation or removal of the predecessor Trustee shall become effective and
such successor trustee, without any further act, deed or conveyance (except as
provided below), shall become fully vested with all the rights, powers, duties
and obligations of its predecessor under this Agreement, with like effect as if
originally named as Trustee; but, on request of the Servicer and the Security
Insurer, or the successor trustee, such predecessor Trustee shall, upon payment
of its charges then unpaid, execute and deliver an instrument transferring to
such successor trustee all of the rights, powers and trusts of the Trustee so
ceasing to act, and shall duly assign, transfer and deliver to such successor
trustee all property and money held by such trustee so ceasing to act hereunder.
Upon request of any such successor trustee, the Seller, on behalf of the Trust,
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor trustee all such rights, powers and trusts. The
predecessor Trustee shall deliver to the successor Trustee all documents and
statements held by it under this Agreement or any Related Document; and
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the predecessor Trustee and the other parties to the Related Documents shall
amend any Related Document to make the successor Trustee the successor to the
predecessor Trustee thereunder; and the Servicer and the predecessor Trustee
shall execute and deliver such instruments and do such other things as may
reasonably be required for fully and certainly vesting and confirming in the
successor Trustee all such rights, powers, duties and obligations. No successor
Trustee shall accept appointment as provided in this Section 11.9 unless at the
time of such acceptance such successor Trustee shall be eligible under the
provisions of Section 11.7. Upon acceptance of appointment by a successor
Trustee as provided in this Section 11.9, the Seller shall mail notice by
first-class mail of the successor of such Trustee and the address of the
successor Trustee's corporate trust office under this Agreement to each Rating
Agency, the Security Insurer and all Holders of Certificates at their addresses
as shown in the Certificate Register. If the Seller fails to mail such notice
within 10 days after acceptance of appointment by the successor Trustee, the
successor Trustee shall cause such notice to be mailed at the expense of the
Seller.
Section 11.11. Merger or Consolidation of Trustee. Any
corporation into which the Trustee may be merged or with which it may be
consolidated, or any corporation resulting from any merger or consolidation to
which the Trustee shall be a party, or any corporation succeeding to the
business of the Trustee, shall be the successor of the Trustee under this
Agreement, provided such corporation shall be eligible under the provisions of
Section 11.7, without the execution or filing of any instrument or any further
act on the part of any of the parties to this Agreement, anything in this
Agreement to the contrary notwithstanding. The Trustee or its successor
hereunder shall provide the Servicer and the Security Insurer with prompt notice
of any such transaction.
Section 11.12. Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust Property or any Financed Vehicle may at the time be located, the
Trustee, with the consent of the Servicer and (so long as an Insurer Default
shall not have occurred and be continuing) the Security Insurer, shall have the
power and may execute and deliver all instruments to appoint one or more Persons
approved by the Trustee to act as co-trustee or co-trustees, jointly with the
Trustee, or separate trustee or separate trustees, of all or any part of the
Trust Property, and to vest in such Person or Persons, in such capacity and for
the benefit of the Certificateholders, such title to the Trust Property, or any
part thereof, and, subject to the other provisions of this Section 11.11, such
powers, duties, obligations, rights and trusts as the Servicer, the Trustee and
(so long as an Insurer Default shall not have occurred and be continuing) the
Security Insurer may consider necessary or desirable. If the Servicer shall not
have consented to such appointment within 15 days after the receipt by it of a
request to do so, or if a Servicer Termination Event shall have occurred and be
continuing, the consent of the Servicer shall not be required. No co-Trustee or
separate Trustee under this Agreement shall be required to meet the terms of
eligibility as a successor trustee under Section 11.7 and no notice to
Certificateholders of the appointment of any co-trustee or separate trustee
shall be required
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under Section 11.9. Every separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(i) All rights, powers, duties and obligations conferred or
imposed upon the Trustee shall be conferred or imposed upon and
exercised or performed by the Trustee and such separate trustee or
cotrustee jointly (it being understood that such separate trustee or
cotrustee is not authorized to act separately without the Trustee
joining in such act), except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be performed by
the Trustee, the Trustee shall be incompetent or unqualified to perform
such act or acts, in which event such rights, powers, duties and
obligations (including the holding of title to the Trust Property or
any portion thereof in any such jurisdiction) shall be exercised and
performed singly by such separate trustee or co-trustee, but solely at
the direction of the Trustee;
(ii) No trustee under this Agreement shall be personally
liable by reason of any act or omission of any other trustee under this
Agreement; and
(iii) The Servicer, the Trustee and provided no Insurer
Default shall have occurred and be continuing, the Security Insurer
acting jointly may at any time accept the resignation of or remove any
separate trustee or co-trustee.
(b) Any notice, request or other writing given to the Trustee
shall be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article XI. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Trustee or separately, as may be provided therein, subject to all the provisions
of this Agreement, specifically including every provision of this Agreement
relating to the conduct of, affecting the liability of, or affording protection
to, the Trustee. Every such instrument shall be filed with the Trustee and a
copy thereof given to the Servicer.
(c) Any separate trustee or co-trustee may at any time
constitute the Trustee, its agent or attorney-in-fact, with full power and
authority, to the extent not prohibited by law, to do any lawful act under or in
respect of this Agreement on its behalf and in its name. If any separate trustee
or co-trustee shall die, become incapable of acting, resign or be removed, all
of its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
Section 11.13. Representations and Warranties of Trustee. Each
of the Trustee and Backup Servicer represents and warrants as of the date of
this Agreement that:
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(a) it is either (i) a banking corporation duly organized,
validly existing and in good standing under the laws of the state of
its incorporation or (ii) a national banking association duly
organized, validly existing and in good standing under the laws of the
United States of America;
(b) it has full power, authority and legal right to execute,
deliver and perform this Agreement, and has taken all necessary action
to authorize the execution, delivery and performance by it of this
Agreement;
(c) the execution, delivery and performance by it of this
Agreement (a) do not violate any provision of any law or regulation
governing the banking and trust powers of it or any order, writ,
judgment, or decree of any court, arbitrator, or governmental authority
applicable to it or any of its assets, (b) do not violate any provision
of its corporate charter or by-laws, or (c) to the best of its
knowledge do not violate any provision of, or constitute, with or
without notice or lapse of time, a default under, or result in the
creation or imposition of any lien on any of the Trust Property
pursuant to the provisions of any mortgage, indenture, contract,
agreement or other undertaking other than this Agreement to which it is
a party;
(d) the execution, delivery and performance by it of this
Agreement do not require the authorization, consent or approval of, the
giving of notice to, the filing or registration with, or the taking of
any other action in respect of, any governmental authority or agency
regulating its banking and corporate trust activities; and
(e) this Agreement has been duly executed and delivered by it
and constitutes the legal, valid and binding agreement of it,
enforceable in accordance with its terms, except as enforceability may
be limited by bankruptcy, insolvency, reorganization or other similar
laws affecting the enforcement of creditors' rights generally and by
equitable limitations on the availability of specific remedies,
regardless of whether such enforceability is considered in a proceeding
in equity or at law.
Section 11.14. Tax Returns. In the event the Trust shall be
required to file tax returns, the Servicer shall prepare or shall cause to be
prepared any tax returns required to be filed by the Trust and shall remit such
returns to the Trustee for signature at least five Business Days before such
returns are due to be filed. The Trustee, upon request, shall furnish the
Servicer with all such information known to the Trustee as may be reasonably
required in connection with the preparation of all tax returns of the Trust, and
shall execute such returns and cause such returns to be filed on or prior to the
date on which such returns are due; provided, that such returns have been
provided to the Trustee by the Servicer as described in the previous sentence.
Section 11.15. Trustee May Enforce Claims Without Possession
of Certificates. All rights of action and claims under this Agreement or the
Certificates may
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be prosecuted and enforced by the Trustee without the possession of any of the
Certificates or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
as trustee. Any recovery of judgment shall, after provision for the payment of
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, be for the ratable benefit of the
Certificateholders in respect of which such judgment has been obtained.
Section 11.16. Suit for Enforcement. If a Servicer Termination
Event shall occur and be continuing, the Trustee, in its discretion may (but
shall have no duty or obligation so to proceed), subject to the provisions of
Section 11.1, proceed to protect and enforce its rights and the rights of the
Certificateholders under this Agreement by a suit, action or proceeding in
equity or at law or otherwise, whether for the specific performance of any
covenant or agreement contained in this Agreement or in aid of the execution of
any power granted in this Agreement or for the enforcement of any other legal,
equitable or other remedy as the Trustee, being advised by counsel, shall deem
most effectual to protect and enforce any of the rights of the Trustee or the
Certificateholders.
Section 11.17. Rights to Direct Trustee. Subject to Section
11.3(c), the Security Insurer (or, if an Insurer Default shall have occurred and
be continuing, a Certificate Majority) shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred on the Trustee; provided
however, that subject to Section 11.1, the Trustee shall have the right to
decline to follow any such direction if the Trustee being advised by counsel
determines that the action so directed may not lawfully be taken, or if the
Trustee in good faith shall, by a Responsible Officer, determine that the
proceedings so directed would be in violation of this Agreement or any of the
Related Documents or would subject it to personal liability against which it has
not been provided reasonable indemnity or (in the case of directions provided by
a Certificate Majority) be unduly prejudicial to the rights of
Certificateholders not parties to such direction; and provided further that
nothing in this Agreement shall impair the right of the Trustee to take any
action deemed proper by the Trustee and which is not inconsistent with such
direction by the Security Insurer or the Certificateholders.
ARTICLE XII
TERMINATION
Section 12.1. Termination of the Trust. (a) The respective
obligations and responsibilities of the Seller, the Servicer, the Security
Insurer and the Trustee created by this Agreement and the Trust created by this
Agreement shall terminate upon the latest of (i) the maturity or other
liquidation of the last Receivable (including the purchase as of any Accounting
Date by the Seller or the Servicer at its option of the corpus of the Trust as
described in Section 12.2) and the subsequent distribution to Certificateholders
pursuant to Section 5.5 of the amount required to be deposited pursuant to
Section 12.2
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or (ii) the payment to Certificateholders of all amounts required to be paid to
them pursuant to this Agreement and the payment to the Security Insurer of all
amounts payable or reimbursable to it pursuant to this Agreement and the
Insurance Agreement. In either case, there shall be delivered to the Trustee and
the Security Insurer an Opinion of Counsel that all applicable preference
periods under federal, state and local bankruptcy insolvency and similar laws
have expired with respect to the payments pursuant to clause (ii); provided
however, that in no event shall the trust created by this Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants living on the date of this Agreement of Rose Kennedy of the
Commonwealth of Massachusetts; and provided, further, that the rights to
indemnification under Sections 9.1 and 11.6 shall survive the termination of the
Trust. The Servicer shall promptly notify the Trustee, the Rating Agencies and
the Security Insurer of any prospective termination pursuant to this Section
12.1.
(b) Notice of any final distribution, specifying the
Distribution Date upon which the Certificateholders may surrender their
Certificates to the Trustee for payment of the final distribution and retirement
of the Certificates, shall be given promptly by the Trustee by letter to
Certificateholders mailed not earlier than the 1st day and not later than the
10th day of the month of such final distribution specifying (i) the Distribution
Date upon which final payment of the Certificates shall be made upon
presentation and surrender of Certificates at the office of the Trustee therein
specified, (ii) the amount of any such final payment, and (iii) that the
Accounting Date otherwise applicable to such Distribution Date is not
applicable, payments being made only upon presentation and surrender of the
Certificates at the office of the Trustee therein specified. The Trustee shall
give such notice to the Certificate Registrar at the time such notice is given
to Certificateholders. In the event such notice is given, the Servicer or the
Trustee, as the case may be, shall make deposits into the Collection Account in
accordance with Section 5.4, or, in the case of an optional purchase of
Receivables pursuant to Section 12.2, shall deposit the amount specified in
Section 12.2. Upon presentation and surrender of the Certificates, the Trustee
shall cause to be distributed to Certificateholders amounts distributable on
such Distribution Date pursuant to Section 5.5.
(c) In the event that all of the Certificateholders shall not
surrender their Certificates for retirement within six months after the date
specified in the above-mentioned written notice, the Trustee shall have a second
written notice to the remaining Certificateholders to surrender their
Certificates for retirement and receive the final distribution with respect
thereto. If within one year after the second notice all the Certificates shall
not have been surrendered for retirement, the Trustee may take appropriate
steps, or may appoint an agent to take appropriate steps, to contact the
remaining Certificateholders concerning surrender of their Certificates, and the
cost thereof shall be paid out of the funds and other assets that remain subject
to this Agreement. As soon as practicable after the termination of the Trust,
the Trustee shall surrender the Policy to the Security Insurer for cancellation.
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Section 12.2. Optional Purchase of All Receivables. On each
Determination Date as of which the Class A Certificate Balance is less than 10%
of the Cut-Off Date Class A Certificate Balance, the Servicer and the Seller
each shall have the option to purchase the corpus of the Trust (with the consent
of the Security Insurer, if such purchase would result in a claim on the Policy
or would result in any amount owing to the Security Insurer remaining unpaid).
To exercise such option, the Servicer or the Seller, as the case may be, shall
pay the aggregate Purchase Amounts for the Receivables, plus the appraised value
of any other property (including the right to receive any future recoveries)
held as part of the Trust, such appraisal to be conducted by an appraiser
mutually agreed upon by the Servicer or the Seller, as the case may be, and the
Security Insurer (or the Trustee, if an Insurer Default shall have accrued and
be continuing), and shall succeed to all interests in and to the Trust Property.
The Servicer or Seller shall promptly notify the Rating Agencies of any proposed
exercise of such option. The fees and expenses related to such appraisal shall
be paid by the party exercising the option to purchase.
ARTICLE XIII
MISCELLANEOUS PROVISIONS
Section 13.1. Amendment. (a) This Agreement may be amended by
the Seller, the Servicer and the Trustee, with the prior written consent of the
Security Insurer (so long as an Insurer Default shall not have occurred and be
continuing) but without the consent of any of the Certificateholders, (i) to
cure any ambiguity, or (ii) to correct or supplement any provisions in this
Agreement; provided however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interests of
the Certificateholders, provided, further, that if an Insurer Default has
occurred and is continuing, such action shall not amend, modify or limit the
Security Insurer's rights under (i) Section 5.5(a), (ii) any rights to
indemnification to which the Security Insurer is entitled hereunder or (iii) any
defined terms used in preceding clauses (i) or (ii).
(b) This Agreement may also be amended from time to time by
the Seller, the Servicer and the Trustee with the prior written consent of the
Security Insurer (so long as an Insurer Default shall not have occurred and be
continuing) and with the consent of a Certificate Majority (which consent of any
Holder of a Certificate given pursuant to this Section 13.1(b) or pursuant to
any other provision of this Agreement shall be conclusive and binding on such
Holder and on all future Holders of such Certificate and of any Certificate
issued upon the transfer thereof or in exchange thereof or in lieu thereof
whether or not notation of such consent is made upon the Certificate) for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Agreement, or of modifying in any manner the rights of
the Holders of Certificates; provided however, that no such amendment shall (a)
increase or reduce in any manner the amount of, or accelerate or delay the
timing of, collections of payments on Receivables or distributions that shall be
required to be made on any Certificate or the Class A Pass-Through Rate or the
Class B Pass-Through Rate or (b) reduce the aforesaid
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percentage required to consent to any such amendment or any waiver hereunder,
without the consent of the Holders of all Certificates then outstanding,
provided, further, that if an Insurer Default has occurred and is continuing,
such action shall not amend, modify or limit the Security Insurer's rights under
(i) Section 5.5(a), (ii) any rights to indemnification to which the Security
Insurer is entitled hereunder or (iii) any defined terms used in preceding
clauses (i) or (ii).
(c) Prior to the execution of any such amendment or consent,
the Trustee shall furnish written notification of the substance of such
amendment or consent to each Rating Agency.
(d) Promptly after the execution of any such amendment or
consent, the Trustee shall furnish written notification of the substance of such
amendment or consent to each Certificateholder.
(e) It shall not be necessary for the consent of
Certificateholders pursuant to Section 13.1(b) to approve the particular form of
any proposed amendment or consent, but it shall be sufficient if such consent
shall approve the substance thereof. The manner of obtaining such consents (and
any other consents of Certificateholders provided for in this Agreement) and of
evidencing the authorization of the execution thereof by Certificateholders
shall be subject to such reasonable requirements as the Trustee may prescribe,
including the establishment of record dates.
(f) Prior to the execution of any amendment to this Agreement,
the Trustee shall be entitled to receive and rely upon an Opinion of Counsel
stating that the execution of such amendment is authorized or permitted by this
Agreement, in addition to the Opinion of Counsel referred to in Section 13.2(i).
The Trustee may, but shall not be obligated to, enter into any such amendment
which affects the Trustee's own rights, duties or immunities under this
Agreement or otherwise.
Section 13.2. Protection of Title to Trust. (a) The Seller or
the Servicer or both shall execute and file such financing statements and cause
to be executed and filed such continuation and other statements, all in such
manner and in such places as may be required by law fully to preserve, maintain
and protect the interest of the Trust, the Trustee and the Security Insurer
under this Agreement in the Trust Property and in the proceeds thereof. The
Seller or the Servicer or both shall deliver (or cause to be delivered) to the
Trustee and the Security Insurer file-stamped copies of, or filing receipts for,
any document filed as provided above, as soon as available following such
filing.
(b) Neither the Seller nor the Servicer shall change its name,
identity or corporate structure in any manner that would, could or might make
any financing statement or continuation statement filed by the Seller in
accordance with paragraph (a) above seriously misleading within the meaning of
Section 9-402(7) of the UCC, unless it shall have given the Trustee and the
Security Insurer (so long as an Insurer Default shall not have occurred and be
continuing) at least 60 days prior written notice thereof,
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and shall promptly file appropriate amendments to all previously filed financing
statements and continuation statements.
(c) Each of the Seller and the Servicer shall give the Trustee
and the Security Insurer at least 60 days prior written notice of any relocation
of its principal executive office if, as a result of such relocation, the
applicable provisions of the UCC would require the filing of any amendment of
any previously filed financing or continuation statement or of any new financing
statement. The Servicer shall at all times maintain each office from which it
services Receivables and its principal executive office within the United States
of America.
(d) The Servicer shall maintain accounts and records as to
each Receivable accurately and in sufficient detail to permit (i) the reader
thereof to know at any time the status of such Receivable, including payments
and recoveries made and payments owing (and the nature of each) and (ii)
reconciliation between payments or recoveries on (or with respect to) each
Receivable and the amounts from time to time deposited in the Collection Account
in respect of such Receivable.
(e) The Servicer shall maintain its computer systems so that,
from and after the time of sale under this Agreement of the Receivables to the
Trustee, the Servicer's master computer records (including any backup archives)
that refer to any Receivable indicate clearly (with reference to the particular
grantor trust) that the Receivable is owned by the Trust. Indication of the
Trust's ownership of a Receivable shall be deleted from or modified on the
Servicer's computer systems when, and only when, the Receivable has been paid in
full or repurchased by the Seller or the Servicer.
(f) If at any time the Seller or the Servicer proposes to
sell, grant a security interest in, or otherwise transfer any interest in
automotive receivables to any prospective purchaser, lender or other transferee,
the Servicer shall give to such prospective purchaser, lender or other
transferee computer tapes, records or printouts (including any restored from
backup archives) that, if they refer in any manner whatsoever to any Receivable,
indicate clearly that such Receivable has been sold and is owned by the Trust
unless such Receivable has been paid in full or repurchased by the Seller or the
Servicer.
(g) The Servicer shall permit the Trustee, the Backup
Servicer, the Security Insurer, the Seller and their respective agents, at any
time to inspect, audit and make copies of and abstracts from the Servicer's
records regarding any Receivables or any other portion of the Trust Property.
(h) The Servicer shall furnish to the Trustee, the Backup
Servicer, the Seller and the Security Insurer at any time upon request a list of
all Receivables then held as part of the Trust, together with a reconciliation
of such list to the Schedule of Receivables and to each of the Servicer's
Certificates furnished before such request indicating removal of Receivables
from the Trust. The Trustee shall hold any such list
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and Schedule of Receivables for examination by interested parties during normal
business hours at the Corporate Trust Office upon reasonable notice by such
Persons of their desire to conduct an examination.
(i) The Seller and the Servicer shall deliver to the Trustee
and the Security Insurer simultaneously with the execution and delivery of this
Agreement and of each amendment thereto and upon the occurrence of the events
giving rise to an obligation to give notice pursuant to Section 13.2(b) or (c),
an Opinion of Counsel (a) stating that, in the opinion of such Counsel, all
financing statements and continuation statements have been executed and filed
that are necessary fully to preserve and protect the interest of the Trustee in
the Receivables and the other Trust Property, and reciting the details of such
filing or referring to prior Opinions of Counsel in which such details are
given, (b) stating that, in the opinion of such counsel, no such action is
necessary to preserve and protect such interest, or (c) stating in the opinion
of such counsel, any action which is necessary to preserve and protect such
interest during the following 12-month period.
(j) The Servicer shall deliver to the Trustee and the Security
Insurer, within 90 days after June 1, 1997, an Opinion of Counsel, either (a)
stating that, in the opinion of such counsel, all financing statements and
continuation statements have been executed and filed that are necessary fully to
preserve and protect the interest of the Trustee in the Receivables, and
reciting the details of such filings or referring to prior Opinions of Counsel
in which such details are given, or (b) stating that, in the opinion of such
counsel, no action shall be necessary to preserve and protect such interest.
Section 13.3. Limitation on Rights of Certificateholders. (a)
The death or incapacity of any Certificateholder shall not operate to terminate
this Agreement or the Trust, nor entitle such Certificateholder's legal
representatives or heirs to claim an accounting or to take any action or
commence any proceeding in any court for a partition or winding up of the Trust,
nor otherwise affect the rights, obligations and liabilities of the parties to
this Agreement or any of them.
(b) No Certificateholder shall have any right to vote (except
as provided in this Section 13.3 or Sections 10.2, 10.5 or 13.1) or in any
manner otherwise control the operation and management of the Trust, or the
obligations of the parties to this Agreement, nor shall anything set forth in
this Agreement, or contained in the terms of the Certificates, be construed so
as to constitute the Certificateholders from time to time as partners or members
of an association; nor shall any Certificateholder be under any liability to any
third person by reason of any action taken by the parties to this Agreement
pursuant to any provision of this Agreement or any Related Document.
(c) So long as no Insurer Default has occurred and is
continuing, except as otherwise specifically provided herein, whenever Class A
Certificateholder action, consent or approval is required under this Agreement,
such action, consent or approval shall be deemed to have been taken or given on
behalf of, and shall be binding upon, all Class A Certificateholders if the
Security Insurer agrees to take such action or give such
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consent or approval. If an Insurer Default shall have occurred and is
continuing, no Certificateholder shall have any right by virtue or by availing
itself of any provisions of this Agreement to institute any suit, action, or
proceeding in equity or at law upon or under or with respect to this Agreement,
unless such Holder previously shall have given to the Trustee a written notice
of default and of the continuance thereof, as provided in this Agreement and
unless also the Holders of Certificates evidencing not less than 25% of the sum
of the Class A Certificate Balance and the Class B Certificate Balance, or, if
there are no Class A Certificates then outstanding, by Holders of Class B
Certificates evidencing not less than 25% of the Class B Certificate Balance
shall have made written request upon the Trustee to institute such action, suit
or proceeding in its own name as Trustee under this Agreement and shall have
offered to the Trustee such reasonable indemnity as it may require against the
costs, expenses and liabilities to be incurred therein or thereby, and the
Trustee, for 30 days after its receipt of such notice, request, and offer of
indemnity, shall have neglected or refused to institute any such action, suit,
or proceeding and during such 30-day period, no request or waiver inconsistent
with such written request has been given to the Trustee pursuant to and in
compliance with this Section 13.3 or Section 10.5; it being understood and
intended, and being expressly covenanted by each Certificateholder with every
other Certificateholder and the Trustee, that no one or more Holders of
Certificates shall have any right in any manner whatever by virtue or by
availing itself or themselves of any provisions of this Agreement to affect,
disturb, or prejudice the rights of the Holders of any other of the
Certificates, or to obtain or seek to obtain priority over or preference to any
other such Holder, or to enforce any right under this Agreement, except in the
manner provided in this Agreement and for the equal, ratable, and common benefit
of all Certificateholders. For the protection and enforcement of the provisions
of this Section 13.3, each and every Certificateholder and the Trustee shall be
entitled to such relief as can be given either at law or in equity. Nothing in
this Agreement shall be construed as giving the Certificateholders any right to
make a claim under the Policy.
Section 13.4. Governing Law. This Agreement shall be governed
by and construed in accordance with the laws of the State of New York without
regard to the principles of conflicts of laws thereof and the obligations,
rights and remedies of the parties under this Agreement shall be determined in
accordance with such laws.
Section 13.5. Severability of Provisions. If any one or more
of the covenants, agreements, provisions or terms of this Agreement shall be for
any reason whatsoever held invalid, then such covenants, agreements, provisions
or terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificates
or the rights of the Holders thereof.
Section 13.6. Assignment. Notwithstanding anything to the
contrary contained in this Agreement, except as provided in Section 8.2 or
Section 9.2 and as provided in the provisions of the Agreement concerning the
resignation of the Servicer and the Backup Servicer, this Agreement may not be
assigned by the Seller or the
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Servicer without the prior written consent of the Trustee and the Security
Insurer (or, if an Insurer Default shall have occurred and be continuing the
Trustee and a Certificate Majority).
Section 13.7. Certificates Nonassessable and Fully Paid.
Certificateholders shall not be personally liable for obligations of the Trust,
the Fractional Undivided Interests represented by the Certificates shall be
nonassessable for any losses or expenses of the Trust or for any reason
whatsoever, and Certificates upon authentication thereof by the Trustee pursuant
to Section 7.2 are and shall be deemed fully paid.
Section 13.8. Third-Party Beneficiaries. This Agreement shall
inure to the benefit of and be binding upon the parties hereto and their
respective successors and permitted assigns. Except as otherwise provided in
this Article XIII, no other Person shall have any right or obligation hereunder.
The Security Insurer and its successors and assigns shall be a third-party
beneficiary to the provisions of this Agreement, and shall be entitled to rely
upon and directly enforce such provisions of this Agreement so long as no
Insurer Default shall have occurred and be continuing. Except as expressly
stated otherwise herein or in the Related Documents, any right of the Security
Insurer to direct, appoint, consent to, approve of, or take any action under
this Agreement, shall be a right exercised by the Security Insurer in its sole
and absolute discretion. The Security Insurer may disclaim any of its rights and
powers under this Agreement (but not its duties and obligations under the
Policy) upon delivery of a written notice to the Trustee.
Section 13.9. Financial Security as Controlling Party. Each
Certificateholder by purchase of the Certificates held by it acknowledges that
the Trustee on behalf of the Trust, as partial consideration of the issuance of
the Policy, has agreed that the Security Insurer shall have certain rights
hereunder for so long as no Insurer Default shall have occurred and be
continuing. So long as an Insurer Default has occurred and is continuing, any
provision giving the Security Insurer the right to direct, appoint or consent
to, approve of, or take any action under this Agreement shall be inoperative
during the period of such Insurer Default and such right shall instead vest in
the Trustee acting at the direction of the Holders of Certificates. The Security
Insurer may disclaim any of its rights and powers under this Agreement (but not
its duties and obligations under the Policy) upon delivery of a written notice
to the Trustee. The Security Insurer may give or withhold any consent hereunder
in its sole and absolute discretion.
Section 13.10. Counterparts. This Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and all of which counterparts shall constitute but
one and the same instrument.
Section 13.11. Notices. All demands, notices and
communications under this Agreement shall be in writing, personally delivered or
mailed by certified mail-return receipt requested, and shall be deemed to have
been duly given upon receipt (a) in the
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case of the Seller, the Seller, at the following address: 1325 Airmotive Way,
Reno, Nevada 89502, (b) in the case of the Servicer, and, for so long as
AmeriCredit is the Servicer, the Servicer, at the following address: AmeriCredit
Financial Services, Inc., 200 Bailey Avenue, Fort Worth, Texas 76107-1220,
Attention: Chief Financial Officer, (c) in the case of the Trustee, and, for so
long as the Trustee is the Backup Servicer, the Trustee, at the Corporate Trust
Office, (d) in the case of each Rating Agency, 99 Church Street, New York, New
York 10007 (for Moody's) and 26 Broadway, New York, New York 10004 (for Standard
& Poor's), and (e) in the case of the Security Insurer, Financial Security
Assurance, Inc., 350 Park Avenue, New York, New York 10022, Attention:
Surveillance Department, Re: AmeriCredit Automobile Receivables Trust 1996-B, or
at such other address as shall be designated by any such party in a written
notice to the other parties. Any notice required or permitted to be mailed to a
Certificateholder shall be given by first class mail, postage prepaid, at the
address of such Holder as shown in the Certificate Register, and any notice so
mailed within the time prescribed in this Agreement shall be conclusively
presumed to have been duly given, whether or not the Certificateholder receives
such notice.
Section 13.12. Successors and Assigns. This Agreement shall be
binding upon the parties hereof and their respective successors and assigns, and
shall inure to the benefit of and be enforceable by the parties hereof and their
respective successors and assigns permitted hereunder. All covenants and
agreements contained herein shall be binding upon, and inure to the benefit of,
the Trustee and the Certificateholders and their respective permitted successors
and assigns, if any. Any request, notice, direction, consent, waiver or other
instrument or action by any Certificateholder shall bind its successors and
assigns.
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IN WITNESS WHEREOF, the Seller, the Servicer and the Trustee
have caused this Pooling and Servicing Agreement to be duly executed by their
respective officers, effective as of the day and year first above written.
AMERICREDIT FINANCIAL SERVICES,
INC., as Seller and Servicer
By /s/ Daniel Berce
--------------------------------------
Name: Daniel Berce
Title: Executive Vice President,
Chief Financial Officer and
Treasurer
LASALLE NATIONAL BANK,
as Trustee and as Backup Servicer
By /s/ Shashank Mishra
--------------------------------------
Name: Shashank Mishra
Title: Vice President
AFS FUNDING CORP.
By /s/ Daniel Berce
--------------------------------------
Name: Daniel Berce
Title: Executive Vice President,
Chief Financial Officer and
Treasurer
<PAGE> 92
SCHEDULE A
SCHEDULE OF RECEIVABLES
<PAGE> 93
SCHEDULE B
REPRESENTATIONS AND WARRANTIES OF THE SELLER
1. Characteristics of Receivables. Each Receivable (A) was originated
by a Dealer for the retail sale of a Financed Vehicle in the ordinary course of
such Dealer's business in accordance with AmeriCredit's credit policies and such
Dealer had all necessary licenses and permits to originate Receivables in the
state where such Dealer was located, was fully and properly executed by the
parties thereto, was purchased by AmeriCredit from such Dealer under an existing
Dealer Agreement or pursuant to a Dealer Assignment with AmeriCredit and was
validly assigned by such Dealer to AmeriCredit pursuant to a Dealer Assignment,
(B) contains customary and enforceable provisions such as to render the rights
and remedies of the holder thereof adequate for realization against the
collateral security, (C) is a Receivable which provides for level monthly
payments (provided that the period in the first Monthly Period and the payment
in the final Monthly Period of the Receivable may be minimally different from
the normal period and level payment) which, if made when due, shall fully
amortize the Amount Financed over the original term and (D) has not been amended
or collections with respect to which waived, other than as evidenced in the
Receivable File relating thereto.
2. No Fraud or Misrepresentation. Each Receivable was originated by a
Dealer and was sold by the Dealer to AmeriCredit and by AmeriCredit to the
Seller without any fraud or misrepresentation on the part of such Dealer in any
case.
3. Compliance with Law. All requirements of applicable federal, state
and local laws, and regulations thereunder (including, without limitation, usury
laws, the Federal Truth-in-Lending Act, the Equal Credit Opportunity Act, the
Fair Credit Billing Act, the Fair Credit Reporting Act, the Fair Debt Collection
Practices Act, the Federal Trade Commission Act, the Moss-Magnuson Warranty Act,
the Federal Reserve Board's Regulations "B" and "Z", the Soldiers' and Sailors'
Civil Relief Act of 1940, each applicable state Motor Vehicle Retail Installment
Sales Act, and state adaptations of the National Consumer Act and of the Uniform
Consumer Credit Code and other consumer credit laws and equal credit opportunity
and disclosure laws) in respect of the Receivables and the Financed Vehicles,
have been complied with in all material respects, and each Receivable and the
sale of the Financed Vehicle evidenced by each Receivable complied at the time
it was originated or made and now complies in all material respects with all
applicable legal requirements.
4. Origination. Each Receivable was originated in the United States.
5. Binding Obligation. Each Receivable represents the genuine, legal,
valid and binding payment obligation of the Obligor thereon, enforceable by the
holder thereof in accordance with its terms, except (A) as enforceability may be
limited by bankruptcy, insolvency, reorganization or similar laws affecting the
enforcement of creditors' rights generally and by equitable limitations on the
availability of specific remedies, regardless of whether such enforceability is
considered in a proceeding in equity or at law and (B) as such Receivable may be
modified by the application after the Cutoff Date of the
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Soldiers' and Sailors' Civil Relief Act of 1940, as amended; and all parties to
each Receivable had full legal capacity to execute and deliver such Receivable
and all other documents related thereto and to grant the security interest
purported to be granted thereby.
6. No Government Obligor. No Obligor is the United States of America
or any State or any agency, department, subdivision or instrumentality thereof.
7. Obligor Bankruptcy. At the Cutoff Date no Obligor had been
identified on the records of AmeriCredit as being the subject of a current
bankruptcy proceeding.
8. Schedule of Receivables. The information set forth in the Schedule
of Receivables has been produced from the Electronic Ledger and was true and
correct in all material respects as of the close of business on the Cutoff Date.
9. Marking Records. By the Closing Date, the Seller will have caused
the portions of the Electronic Ledger relating to the Receivables to be clearly
and unambiguously marked to show that the Receivables have been sold to the
Seller by the Servicer and resold by the Seller to the Trust in accordance with
the terms of the Pooling and Servicing Agreement.
10. Computer Tape. The Computer Tape made available by the Seller to
the Trust on the Closing Date was complete and accurate as of the Cutoff Date
and includes a description of the same Receivables that are described in the
Schedule of Receivables.
11. Adverse Selection. No selection procedures adverse to the
Certificateholders were utilized in selecting the Receivables from those
receivables owned by the Seller which met the selection criteria contained in
the Pooling and Servicing Agreement.
12. Chattel Paper. The Receivables constitute chattel paper within the
meaning of the UCC as in effect in the States of Texas and New York.
13. One Original. There is only one original executed copy of each
Receivable.
14. Receivable Files Complete. There exists a Receivable File
pertaining to each Receivable and such Receivable File contains (a) a fully
executed original of the Receivable, (b) the original executed credit
application, or a copy thereof and (c) the original Lien Certificate or
application therefor. Each of such documents which is required to be signed by
the Obligor has been signed by the Obligor in the appropriate spaces. All blanks
on any form have been properly filled in and each form has otherwise been
correctly prepared. The complete Receivable File for each Receivable currently
is in the possession of the Custodian.
15. Receivables in Force. No Receivable has been satisfied,
subordinated or rescinded, and the Financed Vehicle securing each such
Receivable has not been released
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from the lien of the related Receivable in whole or in part. No terms of any
Receivable have been waived, altered or modified in any respect since its
origination, except by instruments or documents identified in the Receivable
File. No Receivable has been modified as a result of application of the
Soldiers' and Sailors' Civil Relief Act of 1940, as amended.
16. Lawful Assignment. No Receivable was originated in, or is subject
to the laws of, any jurisdiction the laws of which would make unlawful, void or
voidable the sale, transfer and assignment of such Receivable under this
Agreement or pursuant to transfers of the Certificates.
17. Good Title. Immediately prior to the conveyance of the Receivables
to the Trust pursuant to this Agreement, the Seller was the sole owner thereof
and had good and indefeasible title thereto, free of any Lien and, upon
execution and delivery of this Agreement by the Seller, the Trustee shall have
good and indefeasible title to and will be the sole owner of such Receivables,
free of any Lien. No Dealer has a participation in, or other right to receive,
proceeds of any Receivable. The Seller has not taken any action to convey any
right to any Person that would result in such Person having a right to payments
received under the related Insurance Policies or the related Dealer Agreements
or Dealer Assignments or to payments due under such Receivables.
18. Security Interest in Financed Vehicle. Each Receivable created or
shall create a valid, binding and enforceable first priority security interest
in favor of the Seller in the Financed Vehicle. The Lien Certificate and
original certificate of title for each Financed Vehicle show, or if a new or
replacement Lien Certificate is being applied for with respect to such Financed
Vehicle the Lien Certificate will be received within 180 days of the Closing
Date and will show the Seller named as the original secured party under each
Receivable as the holder of a first priority security interest in such Financed
Vehicle. With respect to each Receivable for which the Lien Certificate has not
yet been returned from the Registrar of Titles, the Seller has received written
evidence from the related Dealer that such Lien Certificate showing the Seller
as first lienholder has been applied for the Seller's security interest has been
validly assigned by the Seller to the Trust pursuant to this Agreement.
Immediately after the sale, transfer and assignment thereof by the Seller to the
Trust, each Receivable will be secured by an enforceable and perfected first
priority security interest in the Financed Vehicle in favor of the Trustee as
secured party, which security interest is prior to all other Liens upon and
security interests in such Financed Vehicle which now exist or may hereafter
arise or be created (except, as to priority, for any lien for taxes, labor or
materials affecting a Financed Vehicle). As of the Cutoff Date there were no
Liens or claims for taxes, work, labor or materials affecting a Financed Vehicle
which are or may be Liens prior or equal to the Liens of the related Receivable.
19. All Filings Made. All filings (including, without limitation, UCC
filings) required to be made by any Person and actions required to be taken or
performed by any Person in any jurisdiction to give the Trustee a first priority
perfected lien on, or ownership interest in, the Receivables and the proceeds
thereof and the Other Conveyed Property have been made, taken or performed.
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20. No Impairment. The Seller has not done anything to convey any right
to any Person that would result in such Person having a right to payments due
under the Receivable or otherwise to impair the rights of the Trust, the
Security Insurer, the Trustee and the Certificateholders in any Receivable or
the proceeds thereof.
21. Receivable Not Assumable. No Receivable is assumable by another
Person in a manner which would release the Obligor thereof from such Obligor's
obligations to AmeriCredit with respect to such Receivable.
22. No Defenses. No Receivable is subject to any right of rescission,
setoff, counterclaim or defense and no such right has been asserted or
threatened with respect to any Receivable.
23. No Default. There has been no default, breach, violation or event
permitting acceleration under the terms of any Receivable (other than payment
delinquencies of not more than 30 days), and no condition exists or event has
occurred and is continuing that with notice, the lapse of time or both would
constitute a default, breach, violation or event permitting acceleration under
the terms of any Receivable, and there has been no waiver of any of the
foregoing. As of the Cutoff Date no Financed Vehicle had been repossessed.
24. Insurance. At the time of a purchase of a Receivable by AmeriCredit
from a Dealer, each Financed Vehicle is required to be covered by a
comprehensive and collision insurance policy (i) in an amount at least equal to
the lesser of (a) its maximum insurable value or (b) the principal amount due
from the Obligor under the related Receivable, (ii) naming AmeriCredit as loss
payee and (iii) insuring against loss and damage due to fire, theft,
transportation, collision and other risks generally covered by comprehensive and
collision coverage. Each Receivable requires the Obligor to maintain physical
loss and damage insurance, naming AmeriCredit and its successors and assigns as
additional insured parties, and each Receivable permits the holder thereof to
obtain physical loss and damage insurance at the expense of the Obligor if the
Obligor fails to do so. No Financed Vehicle is insured under a policy of
Force-Placed Insurance on the Cutoff Date.
25. Past Due. At the Cutoff Date no Receivable was more than 30 days
past due.
26. Remaining Principal Balance. At the Cutoff Date each Receivable had
a remaining principal balance equal to or greater than $567.36 and the Principal
Balance of each Receivable set forth in the Schedule of Receivables is true and
accurate in all material respects.
27. Final Scheduled Payment Date. No Receivable has a final scheduled
payment date after April 30, 2001.
28. Certain Characteristics. (A) Each Receivable had a remaining
maturity, as of the Cutoff Date, of not more than 59 months; (B) each Receivable
had an original
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maturity of not more than 60 months; (C) each Receivable had a remaining
Principal Balance as of the Cutoff Date of at least $567.36 and not more than
$29,789.59; (D) each Receivable has an Annual Percentage Rate of at least 14.38%
and not more than 30.08%; (E) no Receivable was more than 30 days past due as of
the Cutoff Date and (F) no funds have been advanced by AmeriCredit, any Dealer,
or anyone acting on behalf of any of them in order to cause any Receivable to
qualify under clause (E) above.
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SCHEDULE C
SERVICING POLICIES AND PROCEDURES
Note: Applicable Time Periods Will Vary by State
COMPLIANCE WITH STATE COLLECTION LAWS IS REQUIRED OF ALL AMERICREDIT COLLECTION
PERSONNEL. ADDITIONALLY, AMERICREDIT HAS CHOSEN TO FOLLOW THE GUIDELINES OF THE
FEDERAL FAIR DEBT COLLECTION PRACTICES ACT (FDCPA).
The Collection Process
Customer is issued a monthly billing statement 16 to 20 days before payment is
due.
A. All accounts are issued to the Computer Assisted Collection System
(CACS) at 5 days delinquent or at such other dates of delinquency as
determined by historical payment patterns of the account.
B. Accounts are then segregated into two groups, those less than 30 days
delinquent and those over 30 days delinquent.
C. Accounts less than 30 days delinquent are further segregated into
accounts that have good residential and business phone numbers and
those that do not.
D. For those that have good phone numbers, they are assigned to the Melita
Group.
E. For those without good phone numbers, they are assigned to the
front-end collector.
F. In both groups, all reasonable collection efforts are made to avoid the
account rolling over 30 days delinquent, including the use of
collection letters. Collection letters may be utilized between 15 and
25 days delinquent.
G. At the time the account reaches 31 days delinquent, it is assigned to a
mid-range collector. At this time the collector identifies the
necessity of any default notification required by state law.
H. Once the account exceeds 60 days in delinquency, it is assigned to a
hard-core collector. The hard-core collector then continues the
collection effort. If the account cannot be resolved through normal
collection efforts, i.e. satisfactory payment arrangements, then the
account may be submitted for repossession approval, either voluntary or
by an approved outside contractor or if necessary for sequestration
approval. All repossessions and sequestrations must be approved by the
Vice President, Director of Collections or an Assistant Vice President.
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I. CACS allows the individual collector to accurately document and update
each account pertaining to telephone calls and correspondence created
as a result of contact with the customer.
Repossessions
If repossession of the collateral occurs, whether voluntary or involuntary, the
following steps are taken:
A. Notification of repossession to proper authorities when necessary.
B. Inventory of all personal property is taken and a condition report is
done on the vehicle. Pictures are also taken of the vehicle.
C. Written notification, as required by state law, to customer(s)
concerning their rights of redemption or reinstatement along with
information on how to obtain any personal property that was in the
vehicle at the time of repossession.
D. Written request to the originating dealer for all refunds due for
dealer adds.
E. Collateral disposition through public or private sale, (dictated by
state law), in a commercially reasonable manner, whenever possible
through a Manheim or Adessa Auto Auction.
F. After the collateral is liquidated, the debtor(s) is notified in
writing of the deficiency balance owed, if any.
Use of Due Date Changes
Due dates may be changed subject to the following conditions:
A. The account is contractually current or will be brought current with
the due date change.
B. Due date changes cannot exceed the total of 15 days over the life of
the contract.
C. The first installment payment has been paid in full.
D. Only one date change in a twelve month period.
E. Any exceptions to the above stated policy must be approved by the Vice
President, Director of Collections or an Assistant Vice President.
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Use of Payment Deferments
A payment deferral is offered to customers who have encountered temporary
financial difficulties.
A. Minimum of six payments have been made on the account.
B. The account will be brought current with the deferment, but not paid
ahead.
C. A deferment fee is collected on all transactions.
D. Only one deferment transaction can be performed in a twelve month
period.
E. No more than two payments may be deferred in a twelve month period, and
no more than eight total payments may be deferred over the life of the
loan.
F. Any exceptions to the above stated policy must be approved by the Vice
President, Director of Collections or Assistant Vice President.
Charge-Offs
A. When a Post Repossession Notice is generated on an account, the account
may be partially charged-off on the date that the notice legally
expires. The partial charge-off calculation is based on the expected
residual value of the vehicle at time of sale. Adjustments to the
account are made once final liquidation of the vehicle occurs.
B. It is AmeriCredit's policy that any account that is not successfully
recovered by 180 days delinquent is submitted to the Director of
Collections for approval and charge-off.
C. It is AmeriCredit's policy to carry all Chapter 13 bankruptcy accounts
until confirmation of the plan. Once the plan is approved, a partial
charge-off is taken for the unsecured portion of the account. On fully
reaffirmed Chapter 7 bankruptcy accounts, the accounts are deferred
current at the time of discharge.
Deficiency Collections
A. Contact is made with the customer in an attempt to establish acceptable
payment arrangements or settlements on the account.
B. If the customer is unwilling to do so, AmeriCredit may invoke any legal
collection remedy that the state allows, i.e., judgements,
garnishments, etc.
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EXHIBIT A
FORM OF CLASS A CERTIFICATE
SEE ATTACHED PAGES FOR CERTAIN DEFINITIONS
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC")
TO ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
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AMERICREDIT AUTOMOBILE RECEIVABLES TRUST 1996-B
6.50% ASSET BACKED CERTIFICATE, CLASS A
NUMBER
A-1 $115,941,814.19
THIS CERTIFIES THAT CEDE & CO. is the registered owner of a
One Hundred Fifteen Million Nine Hundred Forty One Thousand Eight Hundred
Fourteen dollar and Nineteen cent nonassessable, fully-paid, fractional
undivided interest in the AmeriCredit Automobile Receivables Trust 1996-B (the
"Trust") formed by AFS Funding Corp., a Nevada corporation (the "Seller"). The
Trust was created pursuant to a Pooling and Servicing Agreement dated as of
April 30, 1996 (the "Agreement"), among the Seller, AmeriCredit Financial
Services, Inc., as servicer (the "Servicer"), and LaSalle National Bank, as
trustee (the "Trustee"), a summary of certain of the pertinent provisions of
which is set forth below. Unless the certificate of authentication hereon shall
have been executed by an authorized signatory of the Trustee, by manual
signature, this Class A Certificate shall not entitle the holder hereof to any
benefit under the Agreement or be valid for any purpose. All capitalized terms
not otherwise defined herein have the meanings assigned to them in the
Agreement.
IN WITNESS WHEREOF, the Trustee on behalf of the Trust and not
in its individual capacity has caused this Class A Certificate to be duly
executed.
AMERICREDIT AUTOMOBILE
RECEIVABLES TRUST 1996-B
By: LASALLE NATIONAL BANK, as
Trustee
By:
-------------------------------------
DATED: May 16, 1996
This is one of the Class A Certificates referred
to in the within-mentioned Agreement.
LaSalle National Bank, as Trustee
By:
-------------------------------------
Authorized Signatory
This Certificate evidences a fractional undivided interest in
the Trust, as defined above, the property of which includes a pool of retail
installment sale contracts secured by new and used automobiles and light trucks
and sold to the Trust by the Seller. This Certificate does not represent an
interest in or obligation of the Seller, in its individual capacity or as the
Servicer or any of their respective affiliates thereof, except
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to the extent described below.
To the extent not otherwise defined herein, the capitalized
terms used herein have the meanings assigned to them in the Agreement. This
Certificate is one of the duly authorized Certificates designated as "6.50%
Asset Backed Certificates, Class A" (herein called the "Class A Certificates").
Also issued under the Agreement are Certificates designated as "Asset Backed
Certificates, Class B" (the "Class B Certificates"). The Class B Certificates
and the Class A Certificates are hereinafter collectively called the
"Certificates." The Class A Certificates represent initially, or in the
aggregate, 92% of the principal balance of all Certificates. This Class A
Certificate is issued under and is subject to the terms, provisions, and
conditions of the Agreement, to which Agreement the holder of this Class A
Certificate by virtue of the acceptance hereof assents and by which such holder
is bound. The property of the Trust includes (as more fully described in the
Agreement) a pool of retail installment sale contracts for new and used
automobiles and light duty trucks (the "Receivables"), certain monies due
thereunder on or after April 30, 1996, security interests in the vehicles
financed thereby, certain bank accounts and the proceeds thereof, property
securing the Receivables and held by the Trustee, proceeds from claims on
physical damage, credit life and disability insurance policies covering vehicles
financed thereby and the obligors thereunder, all Collateral Insurance relating
to the Receivables and the financed vehicles, certain rights against Dealers and
in contracts with Dealers, all right, title and interest of the Seller in and to
this Agreement and any and all proceeds of the foregoing.
Under the Agreement, there will be distributed on the 12th day
of each month or, if such 12th day is not a Business Day, the next Business Day
(the "Distribution Date"), commencing on June 12, 1996, to the person in whose
name this Class A Certificate is registered at the close of business on the last
day of the prior calendar month (the "Accounting Date"), to the extent available
from the Amount Available, such Class A Certificateholder's fractional undivided
interest in the sum of the Class A Interest Distributable Amount for such
Distribution Date, any outstanding Class A Interest Carryover Shortfall for such
Distribution Date, the Class A Principal Distributable Amount for such
Distribution Date and any Class A Principal Carryover Shortfall for such
Distribution Date.
Except as otherwise provided in the Agreement, distributions
on this Class A Certificate will be made by the Trustee by wire transfer (as
provided in the Agreement), check or money order mailed to the Class A
Certificateholder of record in the Certificate Register without the presentation
or surrender of this Class A Certificate or the making of any notation hereon.
Except as otherwise provided in the Agreement and notwithstanding the above, the
final distribution on this Class A Certificate will be made after due notice by
the Trustee of the pendency of such distribution and only upon presentation and
surrender of this Class A Certificate at the office or agency maintained for
that purpose by the Trustee in Chicago, Illinois. The Accounting Date otherwise
applicable to such distribution shall not be applicable.
The Certificates do not represent an obligation of, or an
interest in, the Seller, the Servicer, the Trustee or any affiliate of any of
them. The Certificates are
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<PAGE> 104
limited in right of payment to certain collections and recoveries respecting the
Receivables, all as more specifically set forth in the Agreement. A copy of the
Agreement may be examined during normal business hours at the principal office
of the Seller, and at such other places, if any, designated by the Seller, by
any Certificateholder upon request.
As provided in the Agreement, so long as no Insurer Default
has occurred and is continuing, with certain exceptions whenever Class A
Certificateholder action, consent or approval is required under the Agreement,
such action, consent or approval shall be deemed to have been taken or given on
behalf of, and shall be binding upon, all Class A Certificateholders if the
Security Insurer agrees to take such action or give such consent or approval. If
an Insurer Default shall have occurred and is continuing, no Certificateholder
shall have any right by virtue or by availing itself of any provisions of the
Agreement to institute any suit, action, or proceeding in equity or at law upon
or under or with respect to the Agreement, unless such Holder previously shall
have given to the Trustee a written notice of default and of the continuance
thereof, as provided in the Agreement and unless also the Holders of
Certificates evidencing not less than 25% of the sum of the Class A Certificate
Balance and the Class B Certificate Balance, or, if there are no Class A
Certificates then outstanding, by Holders of Class B Certificates evidencing not
less than 25% of the Class B Certificate Balance shall have made written request
upon the Trustee to institute such action, suit or proceeding in its own name as
Trustee under the Agreement.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Seller and the rights of the Certificateholders under the
Agreement at any time by the Seller and the Trustee with the consent of the
Security Insurer and the Holders of Certificates, voting together as a Class,
evidencing not less than a Certificate Majority. Any such consent by the Holder
of this Certificate shall be conclusive and binding on such Holder and on all
future Holders of this Certificate and of any Certificate issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof whether
or not notation of such consent is made upon this Certificate. The Agreement
also permits the amendment thereof, in certain limited circumstances, without
the consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain
limitations set forth therein, the transfer of this Certificate is registrable
in the Certificate Registrar upon surrender of this Certificate for registration
of transfer at the offices or agencies maintained by the Trustee in its capacity
as Certificate Registrar, or by any successor Certificate Registrar, in the City
of Chicago, Illinois, accompanied by a written instrument of transfer in form
satisfactory to the Trustee and the Certificate Registrar duly executed by the
holder hereof or such holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of authorized denominations evidencing
the same aggregate interest in the Trust will be issued to the designated
transferee.
The Class A Certificates and the Class B Certificates are
issuable only as registered Certificates without coupons in denominations of
$1,000 and integral multiples
A-4
<PAGE> 105
of $1,000 in excess thereof; however, one Certificate of each such Class may be
issued in a denomination representing or including any remaining portion of the
original Class A Certificate Balance or the original Class B Certificate
Balance, as the case may be. As provided in the Agreement and subject to certain
limitations therein set forth, Certificates are exchangeable for new
Certificates of authorized denominations evidencing the same aggregate
denomination, as requested by the holder surrendering the same. No service
charge will be made for any such registration of transfer or exchange, but the
Trustee may require payment of a sum sufficient to cover any tax or governmental
charges payable in connection therewith.
The Trustee, the Certificate Registrar, and any agent of the
Trustee or the Certificate Registrar may treat the person in whose name this
Class A Certificate is registered as the owner hereof for all purposes, and
neither the Trustee, the Certificate Registrar, nor any such agent shall be
affected by any notice to the contrary.
Each Certificateholder by purchase of the Certificates held by
it acknowledges that the Seller, as partial consideration of the issuance of the
Policy, has agreed that the Security Insurer shall have certain rights hereunder
for so long as no Insurer Default shall have occurred and be continuing. So long
as an Insurer Default has occurred and is continuing, any provision giving the
Security Insurer the right to direct, appoint or consent to, approve of, or take
any action under this Agreement shall be inoperative during the period of such
Insurer Default and such right shall instead vest in the Trustee acting at the
direction of the Holders of Certificates. The Security Insurer may disclaim any
of its rights and powers under this Agreement (but not its duties and
obligations under the Policy) upon delivery of a written notice to the Trustee.
The Security Insurer may give or withhold any consent hereunder in its sole and
absolute discretion.
The obligations and responsibilities created by the Agreement
and the Trust created thereby shall terminate upon the payment to
Certificateholders of all amounts required to be paid to them pursuant to the
Agreement and the disposition of all property held as part of the Trust. The
Servicer of the Receivables may at its option purchase the corpus of the Trust
at a price specified in the Agreement, and such purchase of the Receivables and
other property of the Trust will effect early retirement of the Certificates;
however, such right of purchase is exercisable only as of the last day of any
Collection Period as of which the Class A Certificate Balance is 10% or less of
the Cut-Off Date Class A Certificate Balance.
The recitals contained herein (other than the certificate of
authentication herein) shall be taken as the statements of the Seller or the
Servicer, as the case may be, and the Trustee assumes no responsibility for the
correctness thereof. The Trustee makes no representations as to the validity or
sufficiency of this Certificate (other than the certificate of authentication
herein), or of any Receivable or related document.
A-5
<PAGE> 106
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and
transfers unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
________________________________________
(Please print or typewrite name and address, including postal zip code, of
assignee)
________________________________________
the within Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
________________________ Attorney to transfer said Certificate on the books of
the Certificate Registrar, with full power of substitution in the premises.
Dated:
_____________________________*
Signature Guaranteed:
_____________________________*
* NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Certificate in every particular, without
alteration, enlargement or any change whatever. Such signature must be
guaranteed by a member firm of the New York Stock Exchange or a commercial bank
or trust company.
A-6
<PAGE> 107
EXHIBIT B
FORM OF CLASS B CERTIFICATE
SEE ATTACHED PAGES FOR CERTAIN DEFINITIONS
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF CERTAIN PAYMENTS
TO THE CLASS A CERTIFICATES AS DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN. IN
ADDITION, ALL DISTRIBUTIONS HEREON ARE SUBJECT TO THE PRIOR CLAIMS OF CERTAIN
PARTIES TO RECEIVE AMOUNTS ON DEPOSIT IN THE SPREAD ACCOUNT.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY
STATE IN RELIANCE UPON EXEMPTIONS PROVIDED BY THE SECURITIES ACT AND SUCH STATE
SECURITIES LAWS. NO RESALE OR OTHER TRANSFER OF THIS CERTIFICATE MAY BE MADE
UNLESS SUCH RESALE OR TRANSFER (A) IS MADE IN ACCORDANCE WITH SECTION 7.3 OF THE
POOLING AND SERVICING AGREEMENT AND (B) IS MADE (i) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT, (ii) IN A TRANSACTION EXEMPT
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND APPLICABLE STATE
SECURITIES LAWS, (iii) TO THE SELLER OR (iv) TO A PERSON WHO THE TRANSFEROR
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A UNDER THE SECURITIES ACT THAT IS AWARE THAT THE RESALE OR OTHER
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A AND (C) UPON THE SATISFACTION OF
CERTAIN OTHER REQUIREMENTS SPECIFIED IN THE AGREEMENT. NEITHER THE SELLER, THE
SERVICER, THE TRUST NOR THE TRUSTEE IS OBLIGATED TO REGISTER THE CERTIFICATES
UNDER THE SECURITIES ACT OR ANY APPLICABLE STATE SECURITIES LAWS.
NO RESALE OR OTHER TRANSFER OF THIS CERTIFICATE MAY BE MADE
UNLESS THE CERTIFICATE REGISTRAR SHALL HAVE RECEIVED A REPRESENTATION LETTER IN
SUBSTANTIALLY THE FORM REQUIRED BY THE AGREEMENT REFERRED TO BELOW FROM THE
TRANSFEREE OF THIS CERTIFICATE OR SUCH OTHER REPRESENTATIONS (OR AN OPINION OF
COUNSEL) AS MAY BE APPROVED BY THE SELLER OR CS FIRST BOSTON CORPORATION, TO THE
EFFECT THAT SUCH A TRANSFER MAY BE MADE PURSUANT TO AN EXEMPTION FROM THE
SECURITIES ACT, INCLUDING RULE 144A THEREUNDER, AND APPLICABLE STATE SECURITIES
LAWS AND (A) SUCH TRANSFEREE WILL NOT ACQUIRE THIS CERTIFICATE WITH THE ASSETS
OF ANY "EMPLOYEE BENEFIT PLAN" AS DEFINED IN SECTION 3(3) OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS
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<PAGE> 108
AMENDED ("ERISA") OR SECTION 4975(e)(1) OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED (THE "CODE"), (B) IN THE CASE OF A TRANSFER TO AN INSURANCE COMPANY
GENERAL ACCOUNT, EITHER (A) ABOVE OR, PURSUANT TO SECTION I OF PROHIBITED
TRANSACTION CLASS EXEMPTION 95-60 ("PTCE 9560"), THE ACQUISITION AND HOLDING OF
THE CERTIFICATE AND, PURSUANT TO SECTION III OF PTCE 95-60, THE SERVICING,
MANAGEMENT AND OPERATION OF THE TRUST ARE, WITH RESPECT TO SUCH TRANSFEREE,
EXEMPT FROM THE "PROHIBITED TRANSACTION" PROVISIONS OF ERISA AND THE CODE.
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<PAGE> 109
AMERICREDIT AUTOMOBILE RECEIVABLES TRUST 1996-B
ASSET BACKED CERTIFICATE, CLASS B
NUMBER
RB $____________
THIS CERTIFIES THAT AFS Funding Corp. is the registered owner
of a $_______ dollars nonassessable, fully-paid, fractional undivided interest
in the AmeriCredit Automobile Receivables Trust 1996-B (the "Trust") formed by
AFS Funding Corp., a Nevada corporation (the "Seller"). The Trust was created
pursuant to a Pooling and Servicing Agreement dated as of April 30, 1996 (the
"Agreement"), among the Seller, AmeriCredit Financial Services, Inc., as
servicer (the "Servicer") , and LaSalle National Bank, as Trustee (the
"Trustee"), a summary of certain of the pertinent provisions of which is set
forth below.
Reference is made to the further provisions of this Class B
Certificate set forth in the attached pages 3 through 7, which further
provisions shall for all purposes have the same effect as if set forth at this
place. Unless the certificate of authentication hereon shall have been executed
by an authorized signatory of the Trustee, by manual signature, this Class B
Certificate shall not entitle the holder hereof to any benefit under the
Agreement or be valid for any purpose. All capitalized terms not otherwise
defined herein have the meanings assigned to them in the Agreement.
IN WITNESS WHEREOF, the Trustee on behalf of the Trust and not
in its individual capacity has caused this Class B Certificate to be duly
executed.
AMERICREDIT AUTOMOBILE
RECEIVABLES TRUST 1996-B
By: LaSalle National Bank, as Trustee
By:
-------------------------------------
DATED: May 16, 1996
This is one of the Class B Certificates referred
to in the within-mentioned Agreement.
LaSalle National Bank, as Trustee
By:
-------------------------------------
Authorized Signatory
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<PAGE> 110
This Certificate evidences a fractional undivided interest in
the Trust, as defined below, the property of which includes a pool of retail
installment sale contracts secured by new and used automobiles and light duty
trucks and sold to the Trust by the Seller. This Certificate does not represent
an interest in or obligation of the Seller, in its individual capacity or as the
Servicer or any of their respective affiliates thereof, except to the extent
described below.
To the extent not otherwise defined herein, the capitalized
terms used herein have the meanings assigned to them in the Agreement. This
Certificate is one of the duly authorized Certificates designated as "Asset
Backed Certificates, Class B" (herein called the "Class B Certificates"). Also
issued under the Agreement are Certificates designated as "6.50% Asset Backed
Certificates, Class A" (the "Class A Certificates"). The Class B Certificates
and the Class A Certificates are hereinafter collectively called the
"Certificates." This Class B Certificate is issued under and is subject to the
terms, provisions, and conditions of the Agreement, to which Agreement the
holder of this Class B Certificate by virtue of the acceptance hereof assents
and by which such holder is bound. The property of the Trust includes (as more
fully described in the Agreement) a pool of retail installment sale contracts
for new and used automobiles and light duty trucks (the "Receivables"), certain
monies due thereunder on or after April 30, 1996, security interests in the
vehicles financed thereby, certain bank accounts and the proceeds thereof,
property securing the Receivables and held by the Trustee, proceeds from claims
on physical damage, credit life and disability insurance policies covering
vehicles financed thereby and the obligors thereunder, all Collateral Insurance
relating to the Receivables and the financed vehicles, certain rights against
Dealers and in contracts with Dealers, all right, title and interest of the
Seller in and to this Agreement and any and all proceeds of the foregoing. The
rights of the holders of the Class B Certificates to receive certain payments
are subordinated to the rights of the holders of the Class A Certificates, as
set forth in the Agreement. In addition, all distributions hereon are subject to
the prior claims of certain parties to receive amounts on deposit in the Spread
Account.
Under the Agreement, on the 12th day of each month or, if such
12th day is not a Business Day, the next Business Day (the "Distribution Date"),
commencing on June 12, 1996, the Class B Distributable Amount (as defined in the
Agreement) will be applied as follows:
(A) to the Security Insurer, to the extent of any
amounts owing to the Security Insurer under the Insurance Agreement and
not paid, whether or not AmeriCredit is also obligated to pay such
amounts; and
(B) to the Collateral Agent for deposit in the Spread
Account the remaining Available Funds; and
Amounts will only be distributed to the Holder of the Class B
Certificate as such amounts are released from the Spread Account. However, for
all purposes of the Agreement and for federal income tax purposes the full
amount of the Class B Distributable Amount will be deemed distributed to the
Class B Certificateholders on each
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<PAGE> 111
Distribution Date, notwithstanding that all of such amount shall be turned over
to the Security Insurer or deposited to the Spread Account on such Distribution
Date.
Amounts released from the Spread Account on such Distribution
Date shall be paid to the person in whose name this Class B Certificate is
registered at the close of business on the last day of the prior calendar month
(the "Accounting Date").
Except as otherwise provided in the Agreement, distributions
on this Class B Certificate will be made by the Trustee by wire transfer (as
provided in the Agreement), check or money order mailed to the Class B
Certificateholder of record in the Certificate Register without the presentation
or surrender of this Class B Certificate or the making of any notation hereon.
Except as otherwise provided in the Agreement and notwithstanding the above, the
final distribution on this Class B Certificate will be made after due notice by
the Trustee of the pendency of such distribution and only upon presentation and
surrender of this Class B Certificate at the office or agency maintained for
that purpose by the Trustee in Chicago, Illinois.
The Certificates do not represent an obligation of, or an
interest in, the Seller, the Servicer, the Trustee or any affiliate of any of
them. The Certificates are limited in right of payment to certain collections
and recoveries respecting the Receivables, all as more specifically set forth in
the Agreement. A copy of the Agreement may be examined during normal business
hours at the principal office of the Seller, and at such other places, if any,
designated by the Seller, by any Certificateholder upon request.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Seller and the rights of the Certificateholders under the
Agreement at any time by the Seller and the Trustee with the consent of the
Security Insurer and the Holders of Certificates, voting together as a Class,
evidencing not less than a Certificate Majority. Any such consent by the Holder
of this Certificate shall be conclusive and binding on such Holder and on all
future Holders of this Certificate and of any Certificate issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof whether
or not notation of such consent is made upon this Certificate. The Agreement
also permits the amendment thereof, in certain limited circumstances, without
the consent of the Holders of any of the Certificates. Notwithstanding the
foregoing, however, no consent of any Class A Certificateholder or Class B
Certificateholder shall be required in connection with any amendment in order
for the Seller to sell, assign, transfer or otherwise dispose of the excess
interest.
As provided in the Agreement and subject to certain
limitations set forth therein, the transfer of this Certificate is registrable
in the Certificate Registrar upon surrender of this Certificate for registration
of transfer at the offices or agencies maintained by the Trustee in its capacity
as Certificate Registrar, or by any successor Certificate Registrar, in Chicago,
Illinois, accompanied by a written instrument of transfer in form satisfactory
to the Trustee and the Certificate Registrar duly executed by the
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<PAGE> 112
holder hereof or such holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of authorized denominations evidencing
the same aggregate interest in the Trust will be issued to the designated
transferee.
The Class A Certificates and Class B Certificates are issuable
only as registered Certificates without coupons in denominations of $1,000,000
and integral multiples of $1,000 in excess thereof; however, one Certificate of
each such Class may be issued in a denomination representing or including any
remaining portion of the original Class A Certificate Balance or the original
Class B Certificate Balance, as the case may be. As provided in the Agreement
and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of authorized denominations evidencing the
same aggregate denomination, as requested by the holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or governmental charges payable in connection therewith.
Each Certificateholder by purchase of the Certificates held by
it acknowledges that the Trustee, as partial consideration of the issuance of
the Policy, has agreed that the Security Insurer shall have certain rights
hereunder for so long as no Insurer Default shall have occurred and be
continuing. So long as an Insurer Default has occurred and is continuing, any
provision giving the Security Insurer the right to direct, appoint or consent
to, approve of, or take any action under this Agreement shall be inoperative
during the period of such Insurer Default and such right shall instead vest in
the Trustee acting at the direction of the Holders of Certificates. The Security
Insurer may disclaim any of its rights and powers under this Agreement (but not
its duties and obligations under the Policy) upon delivery of a written notice
to the Trustee. The Security Insurer may give or withhold any consent hereunder
in its sole and absolute discretion.
The Trustee, the Certificate Registrar, and any agent of the
Trustee or the Certificate Registrar may treat the person in whose name this
Class B Certificate is registered as the owner hereof for all purposes, and
neither the Trustee, the Certificate Registrar, nor any such agent shall be
affected by any notice to the contrary.
The obligations and responsibilities created by the Agreement
and the Trust created thereby shall terminate upon the payment to
Certificateholders of all amounts required to be paid to them pursuant to the
Agreement and the disposition of all property held as part of the Trust. The
Servicer of the Receivables may at its option purchase the corpus of the Trust
at a price specified in the Agreement, and such purchase of the Receivables and
other property of the Trust will effect early retirement of the Certificates;
however, such right of purchase is exercisable only as of the last day of any
Collection Period as of which the Class A Certificate Balance is less than 10%
of the Cut-Off Date Class A Certificate Balance.
B-6
<PAGE> 113
The recitals contained herein (other than the certificate of
authentication herein) shall be taken as the statements of the Seller or the
Servicer, as the case may be, and the Trustee assumes no responsibility for the
correctness thereof. The Trustee makes no representations as to the validity or
sufficiency of this Certificate (other than the certificate of authentication
herein), or of any Receivable or related document.
B-7
<PAGE> 114
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and
transfers unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
________________________________________
(Please print or typewrite name and address, including postal zip code, of
assignee)
________________________________________
the within Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
________________________ Attorney to transfer said Certificate on the books of
the Certificate Registrar, with full power of substitution in the premises.
Dated:
_____________________________*
Signature Guaranteed:
_____________________________*
* NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Certificate in every particular, without
alteration, enlargement or any change whatever. Such signature must be
guaranteed by a member firm of the New York Stock Exchange or a commercial bank
or trust company.
B-8
<PAGE> 115
EXHIBIT C
FORM OF SERVICER'S CERTIFICATE
C-1
<PAGE> 1
EXHIBIT 4.2
<PAGE> 2
[LOGO FINANCIAL SECURITY ASSURANCE(R)]
FINANCIAL GUARANTY
INSURANCE POLICY
Trust: AmeriCredit Automobile Receivables Trust 1996-B Policy No.: 50459-N
Certificates: $115,941,814.19 6.50% Automobile Receivables-Backed
Date of Issuance: 5/16/96
Certificates, Class A
FINANCIAL SECURITY ASSURANCE INC. ("Financial Security"), for
consideration received, hereby UNCONDITIONALLY AND IRREVOCABLY GUARANTEES to the
Trustee for the benefit of each Holder, subject only to the terms of this Policy
(which includes each endorsement hereto), the full and complete payment of
Guaranteed Distributions with respect to the Certificates of the Trust referred
to above.
For the further protection of each Holder, Financial Security
irrevocably and unconditionally guarantees payment of the amount of any
distribution of principal or interest with respect to the Certificates made
during the Term of this Policy to such Holder that is subsequently avoided in
whole or in part as a preference payment under applicable law.
Payment of any amount required to be paid under this Policy will be
made following receipt by Financial Security of notice as described in
Endorsement No. 1 hereto.
Financial Security shall be subrogated to the rights of each Holder to
receive distributions with respect to each Certificate held by such Holder to
the extent of any payment by Financial Security hereunder.
Except to the extent expressly modified by Endorsement No. 1 hereto,
the following terms shall have the meanings specified for all purposes of this
Policy. "Holder" means the registered owner of any Certificate as indicated on
the registration books maintained by or on behalf of the Trustee for such
purpose or, if the Certificate is in bearer form, the holder of the Certificate.
"Trustee", "Guaranteed Distributions" and "Term of this Policy" shall have the
meanings set forth in Endorsement No. 1 hereto.
This Policy sets forth in full the undertaking of Financial Security,
and shall not be modified, altered or affected by any other agreement or
instrument, including any modification or amendment thereto. Except to the
extent expressly modified by an endorsement hereto, the premiums paid in respect
of this Policy are nonrefundable for any reason whatsoever. This Policy may not
be canceled or revoked during the Term of this Policy. An acceleration payment
shall not be due under this Policy unless such acceleration is at the sole
option of Financial Security. THIS POLICY IS NOT COVERED BY THE
PROPERTY/CASUALTY INSURANCE SECURITY FUND SPECIFIED IN ARTICLE 76 OF THE NEW
YORK INSURANCE LAW.
In witness whereof, FINANCIAL SECURITY ASSURANCE INC. has caused this
Policy to be executed on its behalf by its Authorized Officer.
Countersignature FINANCIAL SECURITY ASSURANCE INC.
By /s/ Kathryn E. McDonald By /s/ Robert P. Cochran
------------------------- -------------------------
AUTHORIZED OFFICER
A subsidiary of Financial Security Assurance Holdings Ltd.
350 Park Avenue, New York, N.Y. 10022-6022 (212) 826-0100
Form 101NY (5/89)
<PAGE> 3
ENDORSEMENT NO. 1
FINANCIAL SECURITY 350 Park Avenue
ASSURANCE INC. New York, New York 10022
TRUST: AmeriCredit Automobile Receivables Trust 1996-B
CERTIFICATES: $115,941,814.19 6.50% Automobile Receivables-Backed
Certificates, Class A
Policy No.: 50459-N
Date of
Issuance: May 16, 1996
1. Definitions. For all purposes of this Policy, the terms
specified below shall have the meanings or constructions provided below.
Capitalized terms used and not defined herein shall have the respective meanings
ascribed to such terms in the Pooling and Servicing Agreement dated as of April
30, 1996, by and among AmeriCredit Financial Services, Inc., as Servicer, AFS
Funding Corp., as Seller and Initial Class B Certificateholder, and LaSalle
National Bank, as Trustee, Backup Servicer and Collateral Agent, unless the
context shall otherwise require.
"Business Day" means any day other than a Saturday, Sunday,
legal holiday or other day on which commercial banking institutions in Fort
Worth, Texas, New York, New York, Chicago, Illinois, or the principal place of
business of any successor Servicer, successor Issuer, successor Trustee or
successor Indenture Collateral Agent, are authorized or obligated by law,
executive order or governmental decree to be closed.
"Guaranteed Distributions" means, with respect to each
Distribution Date, the distribution to be made to Holders of Certificates in an
amount equal to the sum of the Class A Interest Distributable Amount due and
payable to the Holders on such Distribution Date and the Class A Principal
Distributable Amount due and payable to the Holders on such Distribution Date,
in each case in accordance with the original terms of the Certificates when
issued and without regard to any amendment or modification of the Certificates
or the Pooling and Servicing Agreement except amendments or modifications to
which Financial Security has given its prior written consent. Guaranteed
Distributions shall not include, nor shall coverage be provided under this
Policy in respect of, any taxes, withholding or other charge imposed with
respect to any Holders of Certificates by any governmental authority.
<PAGE> 4
Policy No. 50459-N Date of Issuance: May 16, 1996
"Policy" means this Financial Guaranty Insurance Policy and
includes each endorsement thereto.
"Receipt" and "Received" mean actual delivery to Financial
Security and to the Fiscal Agent (as defined below), if any, prior to 12:00
noon, New York City time, on a Business Day; delivery either on a day that is
not a Business Day, or after 12:00 noon, New York City time, shall be deemed to
be receipt on the next succeeding Business Day. If any notice or certificate
given hereunder by the Trustee is not in proper form or is not properly
completed, executed or delivered, it shall be deemed not to have been Received,
and Financial Security or its Fiscal Agent shall promptly so notify the Trustee
and the Trustee may submit an amended notice.
"Term of this Policy" means the period from and including the
Closing Date to and including the latest of the date on which (i) the Class A
Certificate Balance has been reduced to zero and all distributions of the Class
A Interest Distributable Amount have been paid on the Certificates, (ii) any
period during which any payment on the Certificates could have been avoided in
whole or in part as a preference payment under applicable bankruptcy,
insolvency, receivership or similar law has expired, and (iii) if any
proceedings requisite to avoidance as a preference payment have been commenced
prior to the occurrence of (i) and (ii), a final and nonappealable order in
resolution of each such proceeding has been entered.
"Trustee" means LaSalle National Bank, in its capacity as
Trustee for the Certificateholders under the Pooling and Servicing Agreement,
and any successor in such capacity.
2. Notices and Conditions to Payment in Respect of Guaranteed
Distributions. Following Receipt by Financial Security of a notice and
certificate from the Trustee in the form attached as Exhibit A to this
Endorsement, Financial Security will pay any amount payable hereunder in respect
of Guaranteed Distributions out of the funds of Financial Security on the later
to occur of (a) 12:00 noon, New York City time, on the third Business Day
following such Receipt; and (b) 12:00 noon, New York City time, on the
Distribution Date to which such claim relates. Payments due hereunder in respect
of Guaranteed Distributions will be disbursed to the Trustee by wire transfer of
immediately available funds.
Financial Security shall be entitled to pay any amount
hereunder in respect of Guaranteed Distributions, including any acceleration
payment, whether or not any notice and certificate shall have been Received by
Financial Security as provided above. Financial Security's obligations hereunder
in respect of Guaranteed Distributions shall be discharged to the extent funds
are disbursed
2
<PAGE> 5
Policy No. 50459-N Date of Issuance: May 16, 1996
by Financial Security as provided herein, whether or not such funds are properly
applied by the Trustee.
3. Notices and Conditions to Payment in Respect of Guaranteed
Distributions Avoided as Preference Payments. If any Guaranteed Distribution is
avoided as a preference payment under applicable bankruptcy, insolvency,
receivership or similar law, Financial Security will pay such amount out of the
funds of Financial Security on the later of (a) the date when due to be paid
pursuant to the Order referred to below or (b) the first to occur of (i) the
fourth Business Day following Receipt by Financial Security from the Trustee of
(A) a certified copy of the order of the court or other governmental body which
exercised jurisdiction to the effect that the Holder is required to return
principal of or interest paid on the Certificates during the Term of this Policy
because such payments were avoidable as preference payments under applicable
bankruptcy law (the "Order"), (B) a certificate of the Holder that the Order has
been entered and is not subject to any stay and (C) an assignment duly executed
and delivered by the Holder, in such form as is reasonably required by Financial
Security, and provided to the Holder by Financial Security, irrevocably
assigning to Financial Security all rights and claims of the Holder relating to
or arising under the Certificates against the estate of the Obligor or otherwise
with respect to such preference payment or (ii) the date of Receipt by Financial
Security from the Trustee of the items referred to in clauses (A), (B) and (C)
above if, at least four Business Days prior to such date of Receipt, Financial
Security shall have Received written notice from the Trustee that such items
were to be delivered on such date and such date was specified in such notice.
Such payment shall be disbursed to the receiver, conservator, debtor-in-
possession or trustee in bankruptcy named in the Order and not to the Trustee
or any Holder directly (unless a Holder has previously paid such amount to the
receiver, conservator, debtor-in-possession or trustee in bankruptcy named in
the Order, in which case such payment shall be disbursed to the Trustee for
distribution to such Holder upon proof of such payment reasonably satisfactory
to Financial Security). In connection with the foregoing, Financial Security
shall have the rights provided pursuant to Section 6.5 of the Pooling and
Servicing Agreement.
4. Governing Law. This Policy shall be governed by and construed in
accordance with the laws of the State of New York without giving effect to the
conflict of laws principles thereof.
5. Fiscal Agent. At any time during the Term of this Policy, Financial
Security may appoint a fiscal agent (the "Fiscal Agent") for purposes of this
Policy by written notice to the Trustee at the notice address specified in the
Indenture specifying the name and notice address of the Fiscal Agent. From and
after
3
<PAGE> 6
Policy No. 50459-N Date of Issuance: May 16, 1996
the date of receipt of such notice by the Trustee, (i) copies of all notices and
documents required to be delivered to Financial Security pursuant to this Policy
shall be simultaneously delivered to the Fiscal Agent and to Financial Security
and shall not be deemed Received until Received by both, and (ii) all payments
required to be made by Financial Security under this Policy may be made directly
by Financial Security or by the Fiscal Agent on behalf of Financial Security.
The Fiscal Agent is the agent of Financial Security only and the Fiscal Agent
shall in no event be liable to any Holder for any acts of the Fiscal Agent or
any failure of Financial Security to deposit, or cause to be deposited,
sufficient funds to make payments due under this Policy.
6. Waiver of Defenses. To the fullest extent permitted by applicable
law, Financial Security agrees not to assert, and hereby waives, for the benefit
of each Holder, all rights (whether by counterclaim, setoff or otherwise) and
defenses (including, without limitation, the defense of fraud), whether acquired
by subrogation, assignment or otherwise, to the extent that such rights and
defenses may be available to Financial Security to avoid payment of its
obligations under this Policy in accordance with the express provisions of this
Policy.
7. Notices. All notices to be given hereunder shall be in writing
(except as otherwise specifically provided herein) and shall be mailed by
registered mail or personally delivered or telecopied to Financial Security as
follows:
Financial Security Assurance Inc.
350 Park Avenue
New York, NY 10022
Attention: Senior Vice
President - Surveillance
Telecopy No.: (212) 339-3518
Confirmation: (212) 826-0100
Financial Security may specify a different address or addresses by
writing mailed or delivered to the Trustee.
8. Priorities. In the event that any term or provision of the face of
this Policy is inconsistent with the provisions of this Endorsement, the
provisions of this Endorsement shall take precedence and shall be binding.
9. Exclusions From Insurance Guaranty Funds. This Policy is not covered
by the Property/Casualty Insurance Security Fund specified in Article 76 of the
New York Insurance Law. This Policy is not covered by the Florida Insurance
Guaranty Association created under Part II of Chapter 631 of the Florida
Insurance Code. In the event that Financial Security were to become insolvent,
any
4
<PAGE> 7
Policy No. 50459-N Date of Issuance: May 16, 1996
claims arising under this Policy are excluded from coverage by the California
Insurance Guaranty Association, established pursuant to Article 14.2 of Chapter
1 of Part 2 of Division 1 of the California
Insurance Code.
10. Surrender of Policy. The Trustee shall surrender this
Policy to Financial Security for cancellation upon expiration of the Term of
this Policy.
IN WITNESS WHEREOF, FINANCIAL SECURITY ASSURANCE INC. has caused this
Endorsement No. l to be executed by its Authorized Officer.
FINANCIAL SECURITY ASSURANCE INC.
By /s/ Robert P. Cochran
----------------------------
Authorized Officer
5
<PAGE> 8
Policy No. 50459-N Date of Issuance: May 16, 1996
EXHIBIT A
CERTIFICATE OF CLAIM
(Letterhead of Trustee)
Dated:
Financial Security Assurance Inc.
350 Park Avenue
New York, New York 10022
Attention: Senior Vice President
Re: AmeriCredit Automobile Receivables Trust 1996-B
The undersigned, a duly authorized officer of LaSalle
National Bank (the "Trustee"), hereby certifies to Financial Security Assurance
Inc. ("Financial Security"), with reference to Financial Guaranty Insurance
Policy No. 50459-N, dated May 16, 1996 (the "Policy") issued by Financial
Security in respect of $115,941,814.19 of 6.50% Automobile Receivables-Backed
Certificates, Class A of the above-referenced trust (the "Certificates") that:
(i) The Trustee is the Trustee under the
Pooling and Servicing Agreement for the Holders.
(ii) The sum of all amounts on deposit (or
scheduled to be on deposit) in the Collection Account or the
Certificate Account and available for distribution to the Holders
pursuant to the Pooling and Servicing Agreement will be $ (the
"Shortfall") less than the Guaranteed Distributions with respect to
[Distribution Date].
(iii) The Trustee is making a claim under the
Policy for the Shortfall to be applied to the Certificates.
(iv) The Trustee agrees that, following
receipt of funds from Financial Security, it shall (a) hold such
amounts in trust and apply the same directly to the payment of
Guaranteed Distributions on the Certificates when due; (b) not apply
such funds for any other purpose; (c) not commingle such funds with
other funds held by the Trustee and (d) maintain an accurate record
of such payments with respect to each Certificate and the
corresponding claim on the Policy and proceeds thereof and, if the
Certificate is required to be surrendered or presented for such
payment, shall stamp on each such Certificate the legend $"[insert
applicable amount]
A-1
<PAGE> 9
Policy No. 50459-N Date of Issuance: May 16, 1996
paid by Financial Security and the balance hereof has been cancelled
and reissued" and then shall deliver such Certificate to Financial
Security.
(v) The Trustee, on behalf of the Holders,
hereby assigns to Financial Security the rights of the Holders with
respect to the Certificates to the extent of any payments under the
Policy, including, without limitation, any amounts due to the Holders
in respect of securities law violations arising from the offer and
sale of the Certificates. The foregoing assignment is in addition to,
and not in limitation of, rights of subrogation otherwise available
to Financial Security in respect of such payments. Payments to
Financial Security in respect of the foregoing assignment shall in
all cases be subject to and subordinate to the rights of the Holders
to receive all Guaranteed Distributions in respect of the
Certificates. The Trustee shall take such action and deliver such
instruments as may be reasonably requested or required by Financial
Security to effectuate the purpose or provisions of this clause (v).
(vi) The Trustee, on its behalf and on behalf of
the Holders, hereby appoints Financial Security as agent and
attorney-in-fact for the Trustee and each such Holder in any legal
proceeding with respect to the Certificates. The Trustee hereby
agrees that Financial Security may at any time during the
continuation of any proceeding by or against any debtor with respect
to which a Preference Claim (as defined below) or other claim with
respect to the Certificates is being asserted under the United States
Bankruptcy Code or any other applicable bankruptcy, insolvency,
receivership, rehabilitation or similar law (an "Insolvency
Proceeding") direct all matters relating to such Insolvency
Proceeding, including without limitation, (A) all matters relating to
any claim in connection with an Insolvency Proceeding seeking the
avoidance as a preferential transfer of any payment made with respect
to the Certificates (a "Preference Claim"), (B) the direction of any
appeal of any order relating to any Preference Claim at the expense
of Financial Security but subject to reimbursement as provided in the
Insurance Agreement and (C) the posting of any surety, supersedeas or
performance bond pending any such appeal. In addition, the Trustee
hereby agrees that Financial Security shall be subrogated to, and the
Trustee on its behalf and on behalf of each Holder, hereby delegates
and assigns to Financial Security, to the fullest extent permitted by
law, the rights of the Trustee and each Holder in the conduct of any
Insolvency Proceeding, including, without limitation, all rights of
any party to an adversary proceeding or action with
A-2
<PAGE> 10
Policy No. 50459-N Date of Issuance: May 16, 1996
respect to any court order issued in connection with any such
Insolvency Proceeding.
(vii) Payment should be made by wire transfer
directed to [SPECIFY ACCOUNT].
Unless the context otherwise requires, any capitalized term
used in this Certificate of Claim shall have the meaning assigned thereto in the
Policy, including in the Endorsement thereto.
IN WITNESS WHEREOF, the Trustee has executed and
delivered this Certificate of Claim as of the day of , 19 .
LASALLE NATIONAL BANK
as Trustee
By:________________________________
Name:
Title:
_________________________________________________________________________
For Financial Security Assurance Inc. or Fiscal Agent
use only.
Wire transfer sent on __________________________________________ by
______________________________Confirmation Number ________________.
A-3
<PAGE> 1
EXHIBIT 10.1
<PAGE> 2
RECEIVABLES PURCHASE AGREEMENT AND ASSIGNMENT
BETWEEN
AFS FUNDING CORP.
PURCHASER
AND
AMERICREDIT FINANCIAL SERVICES, INC.
SELLER
DATED AS OF
APRIL 30, 1996
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE I DEFINITIONS.................................................................... 1
SECTION 1.1 General................................................................ 1
SECTION 1.2 Specific Terms......................................................... 1
SECTION 1.3 Usage of Terms......................................................... 2
SECTION 1.4 Certain References..................................................... 3
SECTION 1.5 No Recourse............................................................ 3
SECTION 1.6 Action by or Consent of Certificateholders............................. 3
SECTION 1.7 Material Adverse Effect................................................ 3
ARTICLE II CONVEYANCE OF THE RECEIVABLES
AND THE OTHER CONVEYED PROPERTY................................................ 4
SECTION 2.1 Conveyance of the Receivables and the
Other Conveyed Property................................................ 4
SECTION 2.2 Purchase Price......................................................... 4
ARTICLE III REPRESENTATIONS AND WARRANTIES................................................ 4
SECTION 3.1 Representations and Warranties of Seller............................... 4
SECTION 3.2 Representations and Warranties of Purchaser............................ 6
ARTICLE IV COVENANTS OF SELLER........................................................... 8
SECTION 4.1 Protection of Title of Purchaser....................................... 8
SECTION 4.2 Other Liens or Interests............................................... 10
SECTION 4.3 Costs and Expenses..................................................... 10
SECTION 4.4 Indemnification........................................................ 10
ARTICLE V REPURCHASES.................................................................... 12
SECTION 5.1 Repurchase of Receivables Upon Breach of Warranty....................... 12
SECTION 5.2 Reassignment of Purchased Receivables................................... 13
SECTION 5.3 Waivers................................................................. 13
ARTICLE VI MISCELLANEOUS.................................................................. 14
SECTION 6.1 Liability of Seller.................................................... 14
SECTION 6.2 Merger or Consolidation of Seller or Purchaser......................... 14
SECTION 6.3 Limitation on Liability of Seller and Others........................... 15
</TABLE>
i
<PAGE> 4
<TABLE>
<CAPTION>
Page
----
<S> <C>
SECTION 6.4 Seller May Own Certificates.................................... 15
SECTION 6.5 Amendment...................................................... 15
SECTION 6.6 Notices........................................................ 16
SECTION 6.7 Merger and Integration......................................... 16
SECTION 6.8 Severability of Provisions..................................... 16
SECTION 6.9 Intention of the Parties....................................... 16
SECTION 6.10 Governing Law.................................................. 17
SECTION 6.11 Counterparts................................................... 17
SECTION 6.12 Conveyance of the Receivables and the Other
Conveyed Property to the Issuer................................ 17
SECTION 6.13 Nonpetition Covenant........................................... 17
</TABLE>
ii
<PAGE> 5
RECEIVABLES PURCHASE AGREEMENT AND ASSIGNMENT
THIS RECEIVABLES PURCHASE AGREEMENT AND ASSIGNMENT, dated as
of April 30, 1996, executed between AFS Funding Corp., a Nevada corporation, as
purchaser ("Purchaser"), and AmeriCredit Financial Services, Inc., a Delaware
corporation, as seller ("Seller").
W I T N E S S E T H :
WHEREAS, Purchaser has agreed to purchase from Seller, and
Seller, pursuant to this Agreement, is transferring to Purchaser the Receivables
and Other Conveyed Property.
NOW, THEREFORE, in consideration of the premises and the
mutual agreements hereinafter contained, and for other good and valuable
consideration, the receipt of which is acknowledged, Purchaser and Seller,
intending to be legally bound, hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 General. The specific terms defined in this
Article include the plural as well as the singular. The words "herein", "hereof"
and "hereunder" and other words of similar import refer to this Agreement as a
whole and not to any particular Article, Section or other subdivision, and
Article, Section, Schedule and Exhibit references, unless otherwise specified,
refer to Articles and Sections of and Schedules and Exhibits to this Agreement.
Capitalized terms used herein without definition shall have the respective
meanings assigned to such terms in the Pooling and Servicing Agreement dated as
of April 30, 1996, by and among AFS Funding Corp. (as Seller), AmeriCredit
Financial Services, Inc. (in its individual capacity and as Servicer),
AmeriCredit Automobile Receivables Trust 1996-B (as Issuer) and LaSalle National
Bank, a national banking association (as Trustee, Backup Servicer and Collateral
Agent).
SECTION 1.2 Specific Terms. Whenever used in this Agreement,
the following words and phrases, unless the context otherwise requires, shall
have the following meanings:
"Agreement" shall mean this Receivables Purchase Agreement and
Assignment and all amendments hereof and supplements hereto.
"Closing Date" means May 16, 1996.
<PAGE> 6
"Issuer" means AmeriCredit Automobile Receivables Trust
1996-B.
"Other Conveyed Property" means all monies payable on the
Receivables or in respect thereof after the Cutoff Date, an assignment of
security interests in the Financed Vehicles, and any proceeds from any Insurance
Policies relating to the Receivables, the Obligors or the related Financed
Vehicles, including rebates of premiums, rights of Seller against Dealers with
respect to the Receivables under the Dealer Agreements and the Dealer
Assignments, all items contained in the Receivable Files, property (including
the right to receive future Liquidation Proceeds) that secures a Receivable and
that has been acquired by or on behalf of the Purchaser, the Issuer or the
Trustee pursuant to liquidation of such Receivable, and all proceeds of the
foregoing.
"Pooling and Servicing Agreement" means the Pooling and
Servicing Agreement referred to in Section 1.1 hereof.
"Related Documents" means the Certificates, the Custodian
Agreement, the Pooling and Servicing Agreement, the Policy, the Spread Account
Agreement, the Spread Account Agreement Supplement, the Insurance Agreement, the
Lockbox Agreement and the Underwriting Agreement. The Related Documents to be
executed by any party are referred to herein as "such party's Related
Documents," "its Related Documents" or by a similar expression.
"Repurchase Event" means the occurrence of a breach of any of
Seller's representations and warranties hereunder or any other event which
requires the repurchase of a Receivable by Seller under the Pooling and
Servicing Agreement.
"Schedule of Receivables" means the schedule of all retail
installment sales contracts and promissory notes sold and transferred pursuant
to this Agreement which is attached hereto as Schedule A.
"Schedule of Representations" means the Schedule of
Representations and Warranties attached hereto as Schedule B.
"Trustee" means LaSalle National Bank, as trustee and any
successor Trustee appointed and acting pursuant to the Pooling and Servicing
Agreement.
SECTION 1.3 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 gender; 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 or the Pooling
and Servicing Agreement; references to Persons include their permitted
successors and assigns; and
2
<PAGE> 7
the terms "include" or "including" mean "include without limitation" or
"including without limitation."
SECTION 1.4 Certain References. All references to the
Principal Balance of a Receivable as of an Accounting Date shall refer to the
close of business on such day, or as of the first day of a Monthly Period shall
refer to the opening of business on such day. All references to the last day of
a Monthly Period shall refer to the close of business on such day.
SECTION 1.5 No Recourse. Without limiting the obligations of
Seller hereunder, 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 Seller,
or of any predecessor or successor of Seller.
SECTION 1.6 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
the Certificateholder of record as of the Record Date immediately preceding the
date on which such action is to be taken, or consent given, by
Certificateholders. Solely for the purposes of any action to be taken, or
consented to, by Certificateholders, any Certificate registered in the name of
the Seller or any Affiliate thereof shall be deemed not to be outstanding, and
the related Class B Certificate Balance evidenced thereby shall not be taken
into account in determining whether the requisite Class B Certificate Balance
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.
SECTION 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 Certificateholders (or any similar or analogous
determination), such determination shall be made without taking into account the
funds available from claims under the Policy.
3
<PAGE> 8
ARTICLE II
CONVEYANCE OF THE RECEIVABLES
AND THE OTHER CONVEYED PROPERTY
SECTION 2.1 Conveyance of the Receivables and the Other
Conveyed Property. Subject to the terms and conditions of this Agreement, Seller
hereby sells, transfers, assigns, and otherwise conveys to Purchaser without
recourse (but without limitation of its obligations in this Agreement), and
Purchaser hereby purchases, all right, title and interest of Seller in and to
the Receivables and the Other Conveyed Property. It is the intention of Seller
and Purchaser that the transfer and assignment contemplated by this Agreement
shall constitute a sale of the Receivables and the Other Conveyed Property from
Seller to Purchaser, conveying good title thereto free and clear of any liens,
and the beneficial interest in and title to the Receivables and the Other
Conveyed Property shall not be part of Seller's estate in the event of the
filing of a bankruptcy petition by or against Seller under any bankruptcy or
similar law.
SECTION 2.2 Purchase Price. Simultaneously with the conveyance
of the Receivables and the Other Conveyed Property to Purchaser, Purchaser has
paid or caused to be paid to or upon the order of Seller an amount equal to the
book value of the Receivables on the books and records of the Seller, by wire
transfer of immediately available funds.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1 Representations and Warranties of Seller. Seller
makes the following representations and warranties, on which Purchaser relies in
purchasing the Receivables and the Other Conveyed Property and in transferring
the Receivables and the Other Conveyed Property to the Issuer under the Pooling
and Servicing Agreement and on which the Security Insurer will rely in issuing
the Policy. Such representations are made as of the execution and delivery of
this Agreement, but shall survive the sale, transfer and assignment of the
Receivables and the Other Conveyed Property hereunder, and the sale, transfer
and assignment thereof by Purchaser to the Issuer under the Pooling and
Servicing Agreement. Seller and Purchaser agree that Purchaser will assign to
Issuer all Purchaser's rights under this Agreement and that the Trustee will
thereafter be entitled to enforce this Agreement against Seller in the Trustee's
own name on behalf of the Certificateholders.
(a) Schedule of Representations. The representations and
warranties set forth on the Schedule of Representations are true and
correct.
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(b) Organization and Good Standing. Seller has been duly
organized and is validly existing as a corporation in good standing
under the laws of the State of Delaware, with power and authority to
own its properties and to conduct its business as such properties are
currently owned and such business is currently conducted, and had at
all relevant times, and now has, power, authority and legal right to
acquire, own and sell the Receivables and the Other Conveyed Property
to be transferred to Purchaser.
(c) Due Qualification. 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 in which the
ownership or lease of its property or the conduct of its business
requires such qualification.
(d) Power and Authority. 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; 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
Purchaser hereunder and has duly authorized such sale and assignment to
Purchaser by all necessary corporate action; and the execution,
delivery and performance of this Agreement and Seller's Related
Documents have been duly authorized by Seller by all necessary
corporate action.
(e) Valid Sale; Binding Obligations. This Agreement and
Seller's Related Documents have been duly executed and delivered, shall
effect a valid sale, transfer and assignment of the Receivables and the
Other Conveyed Property to the Purchaser, enforceable against Seller
and creditors of and purchasers from Seller; and this Agreement and
Seller's Related Documents constitute legal, valid and binding
obligations of 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 articles of incorporation or bylaws of
Seller, or any indenture, agreement, mortgage, deed of trust or other
instrument to which 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,
the Spread
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Account Agreement and the Pooling and Servicing Agreement, or violate
any law, order, rule or regulation applicable to Seller of any court or
of any federal or state regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over Seller or any of
its properties.
(g) No Proceedings. There are no proceedings or investigations
pending or, to Seller's knowledge, threatened against Seller, before
any court, regulatory body, administrative agency or other tribunal or
governmental instrumentality having jurisdiction over Seller or its
properties (i) asserting the invalidity of this Agreement or any of the
Related Documents, (ii) 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, (iii)
seeking any determination or ruling that might materially and adversely
affect the performance by Seller of its obligations under, or the
validity or enforceability of, this Agreement or any of the Related
Documents or (iv) seeking to affect adversely the federal income tax or
other federal, state or local tax attributes of, or seeking to impose
any excise, franchise, transfer or similar tax upon, the transfer and
acquisition of the Receivables and the Other Conveyed Property
hereunder or under the Pooling and Servicing Agreement.
(h) Chief Executive Office. The chief executive office of
Seller is located at 200 Bailey Avenue, Fort Worth, Texas 76107-1220.
SECTION 3.2 Representations and Warranties of Purchaser.
Purchaser makes the following representations and warranties, on which Seller
relies in selling, assigning, transferring and conveying the Receivables and the
Other Conveyed Property to Purchaser hereunder. Such representations are made as
of the execution and delivery of this Agreement, but shall survive the sale,
transfer and assignment of the Receivables and the Other Conveyed Property
hereunder and the sale, transfer and assignment thereof by Purchaser to the
Issuer under the Pooling and Servicing Agreement.
(a) Organization and Good Standing. Purchaser has been duly
organized and is validly existing and in good standing as a corporation
under the laws of the State of Nevada, with the power and authority to
own its properties and to conduct its business as such properties are
currently owned and such business is currently conducted, and had at
all relevant times, and has, full power, authority and legal right to
acquire and own the Receivables and the Other Conveyed Property, and to
transfer the Receivables and the Other Conveyed Property to the Issuer
pursuant to the Pooling and Servicing Agreement.
(b) Due Qualification. Purchaser 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
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and adversely affect Purchaser's ability to acquire the Receivables or
the Other Conveyed Property, and to transfer the Receivables and the
Other Conveyed Property to the Issuer pursuant to the Pooling and
Servicing Agreement, or the validity or enforceability of the
Receivables and the Other Conveyed Property or to perform Purchaser's
obligations hereunder and under the Purchaser's Related Documents.
(c) Power and Authority. Purchaser has the power, authority
and legal right to execute and deliver this Agreement and to carry out
the terms hereof and to acquire the Receivables and the Other Conveyed
Property hereunder; and the execution, delivery and performance of this
Agreement and all of the documents required pursuant hereto have been
duly authorized by Purchaser by all necessary action.
(d) No Consent Required. Purchaser is not required to obtain
the consent of any other Person, or any consent, license, approval or
authorization or registration or declaration with, any governmental
authority, bureau or agency in connection with the execution, delivery
or performance of this Agreement and the Related Documents, except for
such as have been obtained, effected or made.
(e) Binding Obligation. This Agreement constitutes a legal,
valid and binding obligation of Purchaser, enforceable against
Purchaser in accordance with its terms, subject, as to enforceability,
to applicable bankruptcy, insolvency, reorganization, conservatorship,
receivership, liquidation and other similar laws and to general
equitable principles.
(f) No Violation. The execution, delivery and performance by
Purchaser of this Agreement, 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 do
not and will not conflict with, result in any breach of any of the
terms and provisions of, or constitute (with or without notice or lapse
of time) a default under, the certificate of incorporation or bylaws of
Purchaser, or conflict with or breach any of the terms or provisions
of, or constitute (with or without notice or lapse of time) a default
under, any indenture, agreement, mortgage, deed of trust or other
instrument to which Purchaser is a party or by which Purchaser is bound
or to which any of its properties are subject, 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 the Pooling and Servicing Agreement and
the Spread Account Agreement), or violate any law, order, rule or
regulation, applicable to Purchaser or its properties, of any federal
or state regulatory body, any court, administrative agency, or other
governmental instrumentality having jurisdiction over Purchaser or any
of its properties.
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(g) No Proceedings. There are no proceedings or investigations
pending, or, to the knowledge of Purchaser, threatened against
Purchaser, before any court, regulatory body, administrative agency, or
other tribunal or governmental instrumentality having jurisdiction over
Purchaser or its properties: (i) asserting the invalidity of this
Agreement or any of the Related Documents, (ii) seeking to prevent the
consummation of any of the transactions contemplated by this Agreement
or any of the Related Documents, (iii) seeking any determination or
ruling that might materially and adversely affect the performance by
Purchaser of its obligations under, or the validity or enforceability
of, this Agreement or any of the Related Documents or (iv) that may
adversely affect the federal or state income tax attributes of, or
seeking to impose any excise, franchise, transfer or similar tax upon,
the transfer and acquisition of the Receivables and the Other Conveyed
Property hereunder or the transfer of the Receivables and the Other
Conveyed Property to the Issuer pursuant to the Pooling and Servicing
Agreement.
In the event of any breach of a representation and warranty made by
Purchaser hereunder, Seller covenants and agrees that it will not take any
action to pursue any remedy that it may have hereunder, in law, in equity or
otherwise, until a year and a day have passed since the date on which all
Certificates, pass-through certificates or other similar securities issued by
Purchaser, or a trust or similar vehicle formed by Purchaser, have been paid in
full. Seller and Purchaser agree that damages will not be an adequate remedy for
such breach and that this covenant may be specifically enforced by Purchaser,
Issuer or by the Trustee on behalf of the Certificateholders.
ARTICLE IV
COVENANTS OF SELLER
SECTION 4.1 Protection of Title of Purchaser.
(a) At or prior to the Closing Date, Seller shall have filed
or caused to be filed a UCC-1 financing statement, executed by Seller
as seller or debtor, naming Purchaser as purchaser or secured party and
describing the Receivables and the Other Conveyed Property being sold
by it to Purchaser as collateral, with the office of the Secretary of
State of the State of Texas and in such other locations as Purchaser
shall have required. From time to time thereafter, Seller shall execute
and file such financing statements and cause to be executed and filed
such continuation statements, all in such manner and in such places as
may be required by law fully to preserve, maintain and protect the
interest of Purchaser under this Agreement, of the Issuer under the
Pooling and Servicing Agreement and of the Trustee under the Pooling
and Servicing Agreement in the Receivables and the Other Conveyed
Property and in the proceeds thereof. Seller shall deliver (or cause to
be delivered) to Purchaser,
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the Trustee and the Security Insurer file-stamped copies of, or filing
receipts for, any document filed as provided above, as soon as
available following such filing. In the event that Seller fails to
perform its obligations under this subsection, Purchaser, Issuer or the
Trustee may do so, at the expense of Seller.
(b) Seller shall not change its name, identity, or corporate
structure in any manner that would, could or might make any financing
statement or continuation statement filed by Seller (or by Purchaser,
Issuer or the Trustee on behalf of Seller) in accordance with paragraph
(a) above seriously misleading within the meaning of Section 9-402(7)
of the UCC, unless it shall have given Purchaser, Issuer and the
Trustee at least 60 days' prior written notice thereof, and shall
promptly file appropriate amendments to all previously filed financing
statements and continuation statements.
(c) Seller shall give Purchaser, the Issuer, the Security
Insurer (so long as an Insurer Default shall not have occurred and be
continuing) and the Trustee at least 60 days' prior written notice of
any relocation of its principal executive office if, as a result of
such relocation, the applicable provisions of the UCC would require the
filing of any amendment of any previously filed financing or
continuation statement or of any new financing statement. Seller shall
at all times maintain each office from which it services Receivables
and its principal executive office within the United States of America.
(d) Prior to the Closing Date, Seller has maintained accounts
and records as to each Receivable accurately and in sufficient detail
to permit (i) the reader thereof to know at any time as of or prior to
the Closing Date, the status of such Receivable, including payments and
recoveries made and payments owing (and the nature of each) and (ii)
reconciliation between payments or recoveries on (or with respect to)
each Receivable and the Principal Balance as of the Closing Date.
Seller shall maintain its computer systems so that, from and after the
time of sale under this Agreement of the Receivables to Purchaser, and
the conveyance of the Receivables by Purchaser to the Issuer, Seller's
master computer records (including archives) that shall refer to a
Receivable indicate clearly that such Receivable has been sold to
Purchaser and has been conveyed by Purchaser to the Issuer. Indication
of the Issuer's ownership of a Receivable shall be deleted from or
modified on Seller's computer systems when, and only when, the
Receivable shall become a Purchased Receivable or shall have been paid
in full.
(e) If at any time Seller shall propose to sell, grant a
security interest in, or otherwise transfer any interest in any motor
vehicle receivables to any prospective purchaser, lender or other
transferee, Seller shall give to such prospective purchaser, lender, or
other transferee computer tapes, records, or print-outs (including any
restored from archives) that, if they shall
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refer in any manner whatsoever to any Receivable (other than a
Purchased Receivable), shall indicate clearly that such Receivable has
been sold to Purchaser, sold by Purchaser to Issuer, and is owned by
the Issuer.
SECTION 4.2 Other Liens or Interests. Except for the
conveyances hereunder, Seller will not sell, pledge, assign or transfer to any
other Person, or grant, create, incur, assume or suffer to exist any Lien on the
Receivables or the Other Conveyed Property or any interest therein, and Seller
shall defend the right, title, and interest of Purchaser and the Issuer in and
to the Receivables and the Other Conveyed Property against all claims of third
parties claiming through or under Seller.
SECTION 4.3 Costs and Expenses. Seller shall pay all
reasonable costs and disbursements in connection with the performance of its
obligations hereunder and under its Related Documents.
SECTION 4.4 Indemnification.
(a) Seller shall defend, indemnify and hold harmless
Purchaser, the Issuer, the Trustee, the Backup Servicer and the
Certificateholders from and against any and all costs, expenses,
losses, damages, claims, and liabilities, arising out of or resulting
from any breach of any of Seller's representations and warranties
contained herein.
(b) Seller shall defend, indemnify and hold harmless
Purchaser, the Issuer, the Trustee, the Backup Servicer and the
Certificateholders from and against any and all costs, expenses,
losses, damages, claims, and liabilities, arising out of or resulting
from the use, ownership or operation by Seller or any affiliate thereof
of a Financed Vehicle.
(c) Seller shall defend, indemnify and hold harmless
Purchaser, the Issuer, the Trustee, the Backup Servicer and the
Certificateholders against any and all costs, expenses, losses,
damages, claims and liabilities arising out of or resulting from any
action taken, or failed to be taken, by it in respect of any portion of
the Receivables other than in accordance with this Agreement or the
Pooling and Servicing Agreement.
(d) Seller agrees to pay, and shall defend, indemnify and hold
harmless Purchaser, the Issuer, the Trustee, the Backup Servicer and
the Certificateholders from and against any taxes that may at any time
be asserted against Purchaser, the Issuer, the Trustee, the Backup
Servicer and the Certificateholders with respect to the transactions
contemplated in this Agreement, including without limitation, any
sales, gross receipts, general corporation, tangible or intangible
personal property, privilege, or license taxes (but not including any
taxes asserted with respect to, and as of the date
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of, the sale, transfer and assignment of the Receivables and the Other
Conveyed Property to Purchaser and by Purchaser to the Issuer or the
issuance and original sale of the Certificates, or asserted with
respect to ownership of the Receivables and Other Conveyed Property
which shall be indemnified by Seller pursuant to clause (e) below, or
federal, state or other income taxes, arising out of distributions on
the Certificates or transfer taxes arising in connection with the
transfer of Certificates) and costs and expenses in defending against
the same, arising by reason of the acts to be performed by Seller under
this Agreement or imposed against such Persons.
(e) Seller agrees to pay, and to indemnify, defend and hold
harmless Purchaser, the Issuer, the Trustee, the Backup Servicer, and
the Certificateholders from, any taxes which may at any time be
asserted against such Persons with respect to, and as of the date of,
the conveyance or ownership of the Receivables or the Other Conveyed
Property hereunder and the conveyance or ownership of the Receivables
under the Pooling and Servicing Agreement or the issuance and original
sale of the Certificates, including, without limitation, any sales,
gross receipts, personal property, tangible or intangible personal
property, privilege or license taxes (but not including any federal or
other income taxes, including franchise taxes, arising out of the
transactions contemplated hereby or transfer taxes arising in
connection with the transfer of Certificates) and costs and expenses in
defending against the same, arising by reason of the acts to be
performed by Seller under this Agreement or imposed against such
Persons.
(f) Seller shall defend, indemnify, and hold harmless
Purchaser, the Issuer, the Trustee, the Backup Servicer and the
Certificateholders from and against any and all costs, expenses,
losses, claims, damages, and liabilities to the extent that such cost,
expense, loss, claim, damage, or liability arose out of, or was imposed
upon Purchaser, the Issuer, the Trustee, the Backup Servicer or the
Certificateholders through, the negligence, willful misfeasance, or bad
faith of Seller in the performance of its duties under this Agreement
or by reason of reckless disregard of Seller's obligations and duties
under this Agreement.
(g) Seller shall indemnify, defend and hold harmless
Purchaser, the Issuer, the Trustee, the Backup Servicer and the
Certificateholders from and against any loss, liability or expense
incurred by reason of the violation by Seller of federal or state
securities laws in connection with the registration or the sale of the
Certificates.
(h) Seller shall indemnify, defend and hold harmless
Purchaser, the Issuer, the Trustee, the Backup Servicer and the
Certificateholders from and against any loss, liability or expense
imposed upon, or incurred by, Purchaser, the Issuer, the Trustee, the
Backup Servicer or the Certificateholders as result
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of the failure of any Receivable, or the sale of the related Financed
Vehicle, to comply with all requirements of applicable law.
(i) Seller shall defend, indemnify, and hold harmless
Purchaser from and against all costs, expenses, losses, claims,
damages, and liabilities arising out of or incurred in connection with
the acceptance or performance of Seller's trusts and duties as Servicer
under the Pooling and Servicing Agreement, except to the extent that
such cost, expense, loss, claim, damage, or liability shall be due to
the willful misfeasance, bad faith, or negligence (except for errors in
judgment) of Purchaser.
Indemnification under this Section 4.4 shall include
reasonable fees and expenses of counsel and expenses of litigation and shall
survive payment of the Certificates. The indemnity obligations hereunder shall
be in addition to any obligation that Seller may otherwise have.
ARTICLE V
REPURCHASES
SECTION 5.1 Repurchase of Receivables Upon Breach of Warranty.
Upon the occurrence of a Repurchase Event, Seller shall, unless the breach which
is the subject of such Repurchase Event shall have been cured in all material
respects, repurchase the Receivable relating thereto from the Issuer and, on or
before the related Deposit Date, Seller shall pay the Purchase Amount in full,
without deduction or offset, to the Issuer, pursuant to Section 3.5 of the
Pooling and Servicing Agreement. It is understood and agreed that, except as set
forth in Section 6.1 hereof, the obligation of Seller to repurchase any
Receivable, as to which a breach occurred and is continuing, shall, if such
obligation is fulfilled, constitute the sole remedy against Seller for such
breach available to Purchaser, the Issuer, the Security Insurer, the Backup
Servicer, Certificateholders or the Trustee on behalf of Certificateholders. The
provisions of this Section 5.1 are intended to grant the Issuer and the Trustee
a direct right against Seller to demand performance hereunder, and in connection
therewith, Seller waives any requirement of prior demand against Purchaser with
respect to such repurchase obligation. Any such repurchase shall take place in
the manner specified in Section 3.5 of the Pooling and Servicing Agreement.
Notwithstanding any other provision of this Agreement or the Pooling and
Servicing Agreement to the contrary, the obligation of Seller under this Section
shall not terminate upon a termination of Seller as Servicer under the Pooling
and Servicing Agreement and shall be performed in accordance with the terms
hereof notwithstanding the failure of the Servicer or Purchaser to perform any
of their respective obligations with respect to such Receivable under the
Pooling and Servicing Agreement.
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In addition to the foregoing and notwithstanding whether the
related Receivable shall have been purchased by Seller, Seller shall indemnify
the Issuer, the Trustee, the Backup Servicer, the Security Insurer 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 Repurchase Events.
SECTION 5.2 Reassignment of Purchased Receivables. Upon
deposit in the Collection Account of the Purchase Amount of any Receivable
repurchased by Seller under Section 5.1 hereof, Purchaser and the Issuer shall
take such steps as may be reasonably requested by Seller in order to assign to
Seller all of Purchaser's and the Issuer's right, title and interest in and to
such Receivable and all security and documents and all Other Conveyed Property
conveyed to Purchaser and the Issuer directly relating thereto, without
recourse, representation or warranty, except as to the absence of liens, charges
or encumbrances created by or arising as a result of actions of Purchaser or the
Issuer. Such assignment shall be a sale and assignment outright, and not for
security. If, following the reassignment of a Purchased Receivable, in any
enforcement suit or legal proceeding, it is held that Seller may not enforce any
such Receivable on the ground that it shall not be a real party in interest or a
holder entitled to enforce the Receivable, Purchaser and the Issuer shall, at
the expense of Seller, take such steps as Seller deems reasonably necessary to
enforce the Receivable, including bringing suit in Purchaser's or in the
Issuer's name.
SECTION 5.3 Waivers. No failure or delay on the part of
Purchaser, or the Issuer as assignee of Purchaser, in exercising any power,
right or remedy under this Agreement shall operate as a waiver thereof, nor
shall any single or partial exercise of any such power, right or remedy preclude
any other or future exercise thereof or the exercise of any other power, right
or remedy.
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ARTICLE VI
MISCELLANEOUS
SECTION 6.1 Liability of Seller. Seller shall be liable in
accordance herewith only to the extent of the obligations in this Agreement
specifically undertaken by Seller and the representations and warranties of
Seller.
SECTION 6.2 Merger or Consolidation of Seller or Purchaser.
Any corporation or other entity (i) into which Seller or Purchaser may be merged
or consolidated, (ii) resulting from any merger or consolidation to which Seller
or Purchaser is a party or (iii) succeeding to the business of Seller or
Purchaser, in the case of Purchaser, which corporation has a certificate of
incorporation containing provisions relating to limitations on business and
other matters substantively identical to those contained in Purchaser's
certificate of incorporation, provided that in any of the foregoing cases such
corporation shall execute an agreement of assumption to perform every obligation
of Seller or Purchaser, as the case may be, under this Agreement and, whether or
not such assumption agreement is executed, shall be the successor to Seller or
Purchaser, as the case may be, hereunder (without relieving Seller or Purchaser
of its responsibilities hereunder, if it survives such merger or consolidation)
without the execution or filing of any document or any further action by any of
the parties to this Agreement. Notwithstanding the foregoing, so long as an
Insurer Default shall not have occurred and be continuing, Purchaser shall not
merge or consolidate with any other Person or permit any other Person to become
the successor to Purchaser's business without the prior written consent of the
Security Insurer. Seller or Purchaser shall promptly inform the other party, the
Issuer, the Trustee and, so long as an Insurer Default shall not have occurred
and be continuing, the Security Insurer of such merger, consolidation or
purchase and assumption. Notwithstanding the foregoing, as a condition to the
consummation of the transactions referred to in clauses (i), (ii) and (iii)
above, (x) immediately after giving effect to such transaction, no
representation or warranty made pursuant to Sections 3.1 and 3.2 of this
Agreement shall have been breached (for purposes hereof, such representations
and warranties shall speak as of the date of the consummation of such
transaction) and no event that, after notice or lapse of time, or both, would
become an event of default under the Insurance Agreement, shall have occurred
and be continuing, (y) Seller or Purchaser, as applicable, shall have delivered
written notice of such consolidation, merger or purchase and assumption to the
Rating Agencies prior to the consummation of such transaction and shall have
delivered to the Issuer and the Trustee an Officer's Certificate and an Opinion
of Counsel each stating that such consolidation, merger or succession and such
agreement of assumption comply with this Section 6.2 and that all conditions
precedent, if any, provided for in this Agreement relating to such transaction
have been complied with, and (z) Seller or Purchaser, as applicable, shall have
delivered to the Issuer and the Trustee an Opinion of Counsel, stating, in the
opinion of such counsel, either (A) all financing statements and continuation
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statements and amendments thereto have been executed and filed that are
necessary to preserve and protect the interest of the Trustee in the Receivables
and reciting the details of the filings or (B) no such action shall be necessary
to preserve and protect such interest.
SECTION 6.3 Limitation on Liability of Seller and Others.
Seller and any director, officer, employee or agent may rely in good faith on
the advice of counsel or on any document of any kind prima facie properly
executed and submitted by any Person respecting any matters arising under this
Agreement. Seller shall not be under any obligation to appear in, prosecute or
defend any legal action that is not incidental to its obligations under this
Agreement or its Related Documents and that in its opinion may involve it in any
expense or liability.
SECTION 6.4 Seller May Own Certificates. Subject to the
provisions of the Pooling and Servicing Agreement, Seller and any Affiliate of
Seller may in its individual or any other capacity become the owner or pledgee
of Certificates with the same rights as it would have if it were not Seller or
an Affiliate thereof.
SECTION 6.5 Amendment.
(a) This Agreement may be amended by Seller and Purchaser with
the prior written consent of the Security Insurer (so long as an
Insurer Default shall not have occurred and be continuing) but without
the consent of the Trustee or any of the Certificateholders (i) to cure
any ambiguity or (ii) to correct any provisions in this Agreement;
provided, however, that such action shall not, as evidenced by an
Opinion of Counsel delivered to the Issuer and the Trustee, adversely
affect in any material respect the interests of any Certificateholder.
(b) This Agreement may also be amended from time to time by
Seller and Purchaser, with the prior written consent of the Security
Insurer (so long as an Insurer Default shall not have occurred and be
continuing) and with the consent of the Trustee and, if required, the
Certificateholders, in accordance with the Pooling and Servicing
Agreement, for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Agreement, or
of modifying in any manner the rights of the Certificateholders;
provided, however, that no such amendment shall increase or reduce in
any manner the amount of, or accelerate or delay the timing of,
collections of payments on Receivables or distributions that shall be
required to be made on any Certificate.
(c) Prior to the execution of any such amendment or consent,
Seller shall have furnished written notification of the substance of
such amendment or consent to each Rating Agency.
15
<PAGE> 20
(d) It shall not be necessary for the consent of
Certificateholders pursuant to this Section to approve the particular
form of any proposed amendment or consent, but it shall be sufficient
if such consent shall approve the substance thereof. The manner of
obtaining such consents and of evidencing the authorization of the
execution thereof by Certificateholders shall be subject to such
reasonable requirements as the Trustee may prescribe, including the
establishment of record dates. The consent of a Holder of a Certificate
given pursuant to this Section or pursuant to any other provision of
this Agreement shall be conclusive and binding on such Holder and on
all future Holders of such Certificate and of any Certificate issued
upon the transfer thereof or in exchange thereof or in lieu thereof
whether or not notation of such consent is made upon the Certificate.
SECTION 6.6 Notices. All demands, notices and communications
to Seller or Purchaser hereunder shall be in writing, personally delivered, or
sent by telecopier (subsequently confirmed in writing), reputable overnight
courier or mailed by certified mail, return receipt requested, and shall be
deemed to have been given upon receipt (a) in the case of Seller, to AmeriCredit
Financial Services, Inc., 200 Bailey Avenue, Fort Worth, Texas 76107-1220,
Attention: Chief Financial Officer, or (b) in case of Purchaser, to AFS Funding
Corp., 1325 Airmotive Way, Reno, Nevada 89502, Attention: Chief Financial
Officer, or such other address as shall be designated by a party in a written
notice delivered to the other party or to the Issuer or the Trustee, as
applicable.
SECTION 6.7 Merger and Integration. Except as specifically
stated otherwise herein, this Agreement and Related Documents set forth the
entire understanding of the parties relating to the subject matter hereof, and
all prior understandings, written or oral, are superseded by this Agreement and
the Related Documents. This Agreement may not be modified, amended, waived or
supplemented except as provided herein.
SECTION 6.8 Severability of Provisions. If any one or more of
the covenants, provisions or terms of this Agreement shall be for any reason
whatsoever held invalid, then such covenants, provisions or terms shall be
deemed severable from the remaining covenants, provisions or terms of this
Agreement and shall in no way affect the validity or enforceability of the other
provisions of this Agreement.
SECTION 6.9 Intention of the Parties. The execution and
delivery of this Agreement shall constitute an acknowledgment by Seller and
Purchaser that they intend that the assignment and transfer herein contemplated
constitute a sale and assignment outright, and not for security, of the
Receivables and the Other Conveyed Property, conveying good title thereto free
and clear of any Liens, from Seller to Purchaser, and that the Receivables and
the Other Conveyed Property shall not be a part of Seller's estate in the event
of the bankruptcy, reorganization, arrangement, insolvency or liquidation
proceeding, or other proceeding under any federal or state
16
<PAGE> 21
bankruptcy or similar law, or the occurrence of another similar event, of, or
with respect to Seller. In the event that such conveyance is determined to be
made as security for a loan made by Purchaser, the Issuer or the
Certificateholders to Seller, the parties intend that Seller shall have granted
to Purchaser a security interest in all of Seller's right, title and interest in
and to the Receivables and the Other Conveyed Property conveyed pursuant to
Section 2.1 hereof, and that this Agreement shall constitute a security
agreement under applicable law.
SECTION 6.10 Governing Law. This Agreement shall be construed
in accordance with the laws of the State of New York without regard to the
principles of conflicts of laws thereof and the obligations, rights and remedies
of the parties under this Agreement shall be determined in accordance with such
laws.
SECTION 6.11 Counterparts. For the purpose of facilitating the
execution of this Agreement and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and all of which counterparts
shall constitute but one and the same instrument.
SECTION 6.12 Conveyance of the Receivables and the Other
Conveyed Property to the Issuer. Seller acknowledges that Purchaser intends,
pursuant to the Pooling and Servicing Agreement, to convey the Receivables and
the Other Conveyed Property, together with its rights under this Agreement, to
the Issuer on the date hereof. Seller acknowledges and consents to such
conveyance and pledge and waives any further notice thereof and covenants and
agrees that the representations and warranties of Seller contained in this
Agreement and the rights of Purchaser hereunder are intended to benefit the
Security Insurer, the Issuer, the Trustee and the Certificateholders. In
furtherance of the foregoing, Seller covenants and agrees to perform its duties
and obligations hereunder, in accordance with the terms hereof for the benefit
of the Security Insurer, the Issuer, the Trustee and the Certificateholders and
that, notwithstanding anything to the contrary in this Agreement, Seller shall
be directly liable to the Issuer, the Trustee and the Certificateholders
(notwithstanding any failure by the Servicer, the Backup Servicer or the
Purchaser to perform their respective duties and obligations hereunder or under
Related Documents) and that the Trustee may enforce the duties and obligations
of Seller under this Agreement against Seller for the benefit of the Security
Insurer, the Trustee and the Certificateholders.
SECTION 6.13 Nonpetition Covenant. Neither Purchaser nor
Seller shall petition or otherwise invoke the process of any court or government
authority for the purpose of commencing or sustaining a case against the
Purchaser or the Issuer under any federal or state bankruptcy, insolvency or
similar law or appointing a receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of the Purchaser or the Issuer or any
substantial part of their respective
17
<PAGE> 22
property, or ordering the winding up or liquidation of the affairs of the
Purchaser or the Issuer.
18
<PAGE> 23
IN WITNESS WHEREOF, the parties have caused this Receivables
Purchase Agreement and Assignment to be duly executed by their respective
officers as of the day and year first above written.
AFS FUNDING CORP.,
as Purchaser
By /s/ Daniel Berce
---------------------------------------------
Name: Daniel Berce
Title: Executive Vice President, Chief Financial
Officer and Treasurer
AMERICREDIT FINANCIAL SERVICES, INC.,
as Seller
By /s/ Daniel Berce
---------------------------------------------
Name: Daniel Berce
Title: Executive Vice President, Chief Financial
Officer and Treasurer
Accepted:
LASALLE NATIONAL BANK,
As Trustee
By /s/ Shashank Mishra
-------------------------------
Name: Shashank Mishra
Title: Vice President
<PAGE> 24
SCHEDULE A
SCHEDULE OF RECEIVABLES
<PAGE> 25
SCHEDULE B
(TO THE PURCHASE AGREEMENT)
REPRESENTATIONS AND WARRANTIES OF SELLER
1. Characteristics of Receivables. Each Receivable (A) was originated
by a Dealer for the retail sale of a Financed Vehicle in the ordinary course of
such Dealer's business in accordance with Seller's credit policies and such
Dealer had all necessary licenses and permits to originate Receivables in the
state where such Dealer was located, was fully and properly executed by the
parties thereto, was purchased by Seller from such Dealer under an existing
Dealer Agreement or pursuant to a Dealer Assignment with Seller and was validly
assigned by such Dealer to Seller pursuant to a Dealer Assignment, (B) contains
customary and enforceable provisions such as to render the rights and remedies
of the holder thereof adequate for realization against the collateral security,
(C) is a Receivable which provides for level monthly payments (provided that the
period in the first Monthly Period and the payment in the final Monthly Period
of the Receivable may be minimally different from the normal period and level
payment) which, if made when due, shall fully amortize the Amount Financed over
the original term and (D) has not been amended or collections with respect to
which waived, other than as evidenced in the Receivable File relating thereto.
2. No Fraud or Misrepresentation. Each Receivable was originated by a
Dealer and was sold by the Dealer to Seller without any fraud or
misrepresentation on the part of such Dealer in either case.
3. Compliance with Law. All requirements of applicable federal, state
and local laws, and regulations thereunder (including, without limitation, usury
laws, the Federal Truth-in-Lending Act, the Equal Credit Opportunity Act, the
Fair Credit Billing Act, the Fair Credit Reporting Act, the Fair Debt Collection
Practices Act, the Federal Trade Commission Act, the Magnuson-Moss Warranty Act,
the Federal Reserve Board's Regulations "B" and "Z", the Soldiers' and Sailors'
Civil Relief Act of 1940, each applicable state Motor Vehicle Retail Installment
Sales Act, and state adaptations of the National Consumer Act and of the Uniform
Consumer Credit Code and other consumer credit laws and equal credit opportunity
and disclosure laws) in respect of the Receivables and the Financed Vehicles,
have been complied with in all material respects, and each Receivable and the
sale of the Financed Vehicle evidenced by each Receivable complied at the time
it was originated or made and now complies in all material respects with all
applicable legal requirements.
4. Origination. Each Receivable was originated in the United States.
B-1
<PAGE> 26
5. Binding Obligation. Each Receivable represents the genuine, legal,
valid and binding payment obligation of the Obligor thereon, enforceable by the
holder thereof in accordance with its terms, except (A) as enforceability may be
limited by bankruptcy, insolvency, reorganization or similar laws affecting the
enforcement of creditors' rights generally and by equitable limitations on the
availability of specific remedies, regardless of whether such enforceability is
considered in a proceeding in equity or at law and (B) as such Receivable may be
modified by the application after the Cutoff Date of the Soldiers' and Sailors'
Civil Relief Act of 1940, as amended; and all parties to each Receivable had
full legal capacity to execute and deliver such Receivable and all other
documents related thereto and to grant the security interest purported to be
granted thereby.
6. No Government Obligor. No Obligor is the United States of America or
any State or any agency, department, subdivision or instrumentality thereof.
7. Obligor Bankruptcy. At the Cutoff Date no Obligor had been
identified on the records of Seller as being the subject of a current bankruptcy
proceeding.
8. Schedule of Receivables. The information set forth in the Schedule
of Receivables has been produced from the Electronic Ledger and was true and
correct in all material respects as of the close of business on the Cutoff Date.
9. Marking Records. By the Closing Date, the Seller will have caused
the portions of the Electronic Ledger relating to the Receivables to be clearly
and unambiguously marked to show that the Receivables have been sold to
Purchaser by Seller, resold by Purchaser to the Issuer in accordance with the
terms of the Pooling and Servicing Agreement.
10. Computer Tape. The Computer Tape made available by the Seller to
the Purchaser on the Closing Date was complete and accurate as of the Cutoff
Date and includes a description of the same Receivables that are described in
the Schedule of Receivables.
11. Adverse Selection. No selection procedures adverse to the
Certificateholders were utilized in selecting the Receivables from those
receivables owned by Seller which met the selection criteria contained in the
Pooling and Servicing Agreement.
12. Chattel Paper. The Receivables constitute chattel paper within the
meaning of the UCC as in effect in the States of Texas and New York.
13. One Original. There is only one original executed copy of each
Receivable.
B-2
<PAGE> 27
14. Receivable Files Complete. There exists a Receivable File
pertaining to each Receivable and such Receivable File contains (a) a fully
executed original of the Receivable, (b) the original executed credit
application, or a copy thereof and (c) the original Lien Certificate or
application therefor. Each of such documents which is required to be signed by
the Obligor has been signed by the Obligor in the appropriate spaces. All blanks
on any form have been properly filled in and each form has otherwise been
correctly prepared. The complete Receivable File for each Receivable currently
is in the possession of the Custodian.
15. Receivables in Force. No Receivable has been satisfied,
subordinated or rescinded, and the Financed Vehicle securing each such
Receivable has not been released from the lien of the related Receivable in
whole or in part. No terms of any Receivable have been waived, altered or
modified in any respect since its origination, except by instruments or
documents identified in the Receivable File. No Receivable has been modified as
a result of application of the Soldiers' and Sailors' Civil Relief Act of 1940,
as amended.
16. Lawful Assignment. No Receivable was originated in, or is subject
to the laws of, any jurisdiction the laws of which would make unlawful, void or
voidable the sale, transfer and assignment of such Receivable under this
Agreement or pursuant to transfers of the Certificates.
17. Good Title. Except as disclosed in writing by the Seller to the
Purchaser, the Security Insurer and the Trustee on or before the Closing Date,
no Receivable has been sold, transferred, assigned or pledged by Seller to any
Person other than the Purchaser; immediately prior to the conveyance of the
Receivables pursuant to this Purchase Agreement, Seller was the sole owner of
and had good and indefeasible title thereto, free and clear of any Lien, and
immediately upon the transfer thereof, Purchaser shall have good and
indefeasible title to and will be the sole owner of such Receivables, free of
any Lien. No Dealer has a participation in, or other right to receive, proceeds
of any Receivable. Seller has taken no action to convey any right to any Person
that would result in such Person having a right to payments received under the
related Insurance Policies or the related Dealer Agreements or Dealer
Assignments or to payments due under such Receivables.
18. Security Interest in Financed Vehicle. Each Receivable created or
shall create a valid, binding and enforceable first priority security interest
in favor of Seller in the Financed Vehicle. The Lien Certificate and original
certificate of title for each Financed Vehicle show, or if a new or replacement
Lien Certificate is being applied for with respect to such Financed Vehicle the
Lien Certificate will be received within 180 days of the Closing Date and will
show Seller named as the original secured party under each Receivable as the
holder of a first priority security interest in such Financed Vehicle. With
respect to each Receivable for which the Lien Certificate has not yet been
returned from the Registrar of Titles, Seller has received written evidence from
the
B-3
<PAGE> 28
related Dealer that such Lien Certificate showing Seller as first lienholder has
been applied for. Seller's security interest has been validly assigned by Seller
to the Purchaser pursuant to this Agreement. Immediately after the sale,
transfer and assignment thereof by Purchaser to the Issuer, each Receivable will
be secured by an enforceable and perfected first priority security interest in
the Financed Vehicle in favor of the Issuer as secured party, which security
interest is prior to all other Liens upon and security interests in such
Financed Vehicle which now exist or may hereafter arise or be created (except,
as to priority, for any lien for taxes, labor or materials affecting a Financed
Vehicle). As of the Cutoff Date there were no Liens or claims for taxes, work,
labor or materials affecting a Financed Vehicle which are or may be Liens prior
or equal to the Liens of the related Receivable.
19. All Filings Made. All filings (including, without limitation, UCC
filings) required to be made by any Person and actions required to be taken or
performed by any Person in any jurisdiction to give the Issuer a first priority
perfected lien on, or ownership interest in, the Receivables and the proceeds
thereof and the Other Conveyed Property have been made, taken or performed.
20. No Impairment. Seller has not done anything to convey any right to
any Person that would result in such Person having a right to payments due under
the Receivable or otherwise to impair the rights of the Purchaser, the Issuer,
the Trustee, the Security Insurer and the Certificateholders in any Receivable
or the proceeds thereof.
21. Receivable Not Assumable. No Receivable is assumable by another
Person in a manner which would release the Obligor thereof from such Obligor's
obligations to the Seller with respect to such Receivable.
22. No Defenses. No Receivable is subject to any right of rescission,
setoff, counterclaim or defense and no such right has been asserted or
threatened with respect to any Receivable.
23. No Default. There has been no default, breach, violation or event
permitting acceleration under the terms of any Receivable (other than payment
delinquencies of not more than 30 days), and no condition exists or event has
occurred and is continuing that with notice, the lapse of time or both would
constitute a default, breach, violation or event permitting acceleration under
the terms of any Receivable, and there has been no waiver of any of the
foregoing. As of the Cutoff Date no Financed Vehicle had been repossessed.
24. Insurance. At the time of a purchase of a Receivable by Seller from
a Dealer, each Financed Vehicle is required to be covered by a comprehensive and
collision insurance policy (i) in an amount at least equal to the lesser of (a)
its maximum insurable value or (b) the principal amount due from the Obligor
under the related Receivable, (ii) naming Seller as loss payee and (iii)
insuring against loss and damage
B-4
<PAGE> 29
due to fire, theft, transportation, collision and other risks generally covered
by comprehensive and collision coverage. Each Receivable requires the Obligor to
maintain physical loss and damage insurance, naming Seller and its successors
and assigns as additional insured parties, and each Receivable permits the
holder thereof to obtain physical loss and damage insurance at the expense of
the Obligor if the Obligor fails to do so. No Financed Vehicle is insured under
a policy of Force-Placed Insurance on the Cutoff Date.
25. Past Due. At the Cutoff Date no Receivable was more than 30 days
past due.
26. Remaining Principal Balance. At the Cutoff Date each Receivable had
a remaining principal balance equal to or greater than $567.36 and the Principal
Balance of each Receivable set forth in the Schedule of Receivables is true and
accurate in all material respects.
27. Final Scheduled Payment Date. No Receivable has a final scheduled
payment date after April 30, 2001.
28. Certain Characteristics. (A) Each Receivable had a remaining
maturity, as of the Cutoff Date, of not more than 59 months; (B) each Receivable
had an original maturity of not more than 60 months; (C) each Receivable had a
remaining Principal Balance as of the Cutoff Date of at least $567.36 and not
more than $29,789.59; (D) each Receivable has an Annual Percentage Rate of at
least 14.38% and not more than 30.08%; (E) no Receivable was more than 30 days
past due as of the Cutoff Date, (F) no funds have been advanced by the Seller,
the Purchaser, any Dealer, or anyone acting on behalf of any of them in order to
cause any Receivable to qualify under clause (E) above.
B-5
<PAGE> 1
EXHIBIT 10.2
<PAGE> 2
- --------------------------------------------------------------------------------
INDEMNIFICATION AGREEMENT
among
FINANCIAL SECURITY ASSURANCE INC.,
AFS FUNDING CORP.
and
CS FIRST BOSTON CORPORATION
Dated as of May 1, 1996
6.50% $115,941,814.19 Automobile Receivables-Backed Certificates, Class A
- --------------------------------------------------------------------------------
<PAGE> 3
TABLE OF CONTENTS
Page
----
Section 1. Definitions................................................ 1
Section 2. Representations, Warranties and Agreements of
Financial Security......................................... 3
Section 3. Representations, Warranties and Agreements of
the Underwriters........................................... 5
Section 4. Indemnification............................................ 6
Section 5. Indemnification Procedures................................. 6
Section 6. Contribution............................................... 7
Section 7. Miscellaneous.............................................. 8
EXHIBIT A -- Opinion of Associate General Counsel
i
<PAGE> 4
INDEMNIFICATION AGREEMENT
INDEMNIFICATION AGREEMENT dated as of May 1, 1996, among FINANCIAL
SECURITY ASSURANCE INC. ("Financial Security"), AFS FUNDING CORP., (the
"Seller") and CS FIRST BOSTON CORPORATION, as representative of the
Underwriters (as defined below):
Section 1. Definitions. For purposes of this Agreement, the following
terms shall have the meanings provided below:
"Agreement" means this Indemnification Agreement, as amended from time
to time.
"Federal Securities Laws" means the Securities Act, the Securities
Exchange Act of 1934, the Trust Indenture Act of 1939, the Investment Company
Act of 1940, the Investment Advisers Act of 1940 and the Public Utility Holding
Company Act of 1935, each as amended from time to time, and the rules and
regulations in effect from time to time under such Acts.
"Financial Security Agreements" means this Agreement, the Stock Pledge
Agreement, the Spread Account Agreement, the Spread Account Agreement
Supplement and the Insurance Agreement.
"Financial Security Information" has the meaning provided in Section
2(g) hereof.
"Financial Security Party" means any of Financial Security, its parent,
subsidiaries and affiliates, and any shareholder, director, officer, employee,
agent or "controlling person" (as such term is used in the Securities Act) of
any of the foregoing.
"Indemnified Party" means any party entitled to any indemnification
pursuant to Section 4 hereof.
"Indemnifying Party" means any party required to provide
indemnification pursuant to Section 4 hereof.
"Insurance Agreement" means the Insurance and Indemnity Agreement,
dated as of May 1, 1996 among Financial Security, AmeriCredit Financial
Services, Inc., AFS Funding Corp. and AmeriCredit Corp.
"Losses" means (a) any actual out-of-pocket damages incurred by the
party entitled to indemnification or contribution hereunder, (b) any actual
out-of-pocket costs or expenses incurred by such party, including reasonable
fees or expenses of its counsel and other expenses incurred in connection with
investigating or defending any claim, action or other proceeding which entitle
such party to be indemnified hereunder (subject to the limitations set forth in
Section 5 hereof), to the extent not paid, satisfied or reimbursed from funds
provided by any other Person other than an affiliate of such party (provided
that the foregoing shall not create or imply any obligation to pursue recourse
against any such other Person), plus (c) interest on
1
<PAGE> 5
the amount paid by the party entitled to indemnification or contribution from
the date of such payment to the date of payment by the party who is obligated
to indemnify or contribute hereunder at the statutory rate applicable to
judgments for breach of contract.
"Offering Document" means the Prospectus and any other material or
documents delivered by the Underwriters to any Person in connection with the
offer or sale of the Securities.
"Person" means any individual, partnership, joint venture, corporation,
trust, unincorporated organization or other organization or entity (whether
governmental or private).
"Policy" means the financial guaranty insurance policy delivered by
Financial Security with respect to the Securities.
"Prospectus" means the Prospectus relating to the Securities dated
February 23, 1996, the Preliminary Prospectus Supplement dated May 6, 1996,
(the "Preliminary Prospectus Supplement") relating to the Securities and the
Final Prospectus Supplement dated May 9, 1996 (the "Final Prospectus
Supplement") relating to the Securities.
"Representative" means CS First Boston Corporation as representative of
the Underwriters.
"Securities" means the $115,941,814.19 6.50% Automobile
Receivables-Backed Certificates, Class A of Americredit Automobile Receivables
Trust 1996-B.
"Securities Act" means the Securities Act of 1933, as amended from time
to time.
"Seller Party" means any of the Seller, its parent, subsidiaries and
affiliates and any shareholder, director, officer, employee, agent or
"controlling person" (as such term is used in the Securities Act) of any of the
foregoing.
"Spread Account Agreement" means the Spread Account Agreement, as
amended and restated, dated as of May 1, 1996 among Financial Security, AFS
Funding Corp., the collateral agent named therein and the trustees specified
therein, as the same may be amended, supplemented or otherwise modified in
accordance with the terms thereof.
Spread Account Agreement Supplement: The Spread Account Agreement
Supplement means the Series 1996-B Supplement to Spread Account Agreement dated
as of May 1, 1996, among Financial Security, AFS Funding Corp., the collateral
agent named therein and the trustees specified therein.
"Stock Pledge Agreement" means the Stock Pledge Agreement, dated as of
May 1, 1996 among Financial Security, AmeriCredit Financial Services, Inc. and
the collateral agent named therein, as the same may be amended, supplemented or
otherwise modified in accordance with the terms thereof.
2
<PAGE> 6
"Underwriters" means CS First Boston Corporation and Prudential
Securities Incorporated, as the underwriters.
"Underwriter Information" has the meaning provided in Section 3(c)
hereof.
"Underwriter Party" means any of the Underwriters, its respective
parent, subsidiaries and affiliates and any shareholder, director, officer,
employee, agent or "controlling person" (as such item is used in the Securities
Act) of any of the foregoing.
"Underwriting Agreement" means the Underwriting Agreement, dated as of
May 8, 1996 between the Seller and the Representative.
Section 2. Representations, Warranties and Agreements of Financial
Security. Financial Security represents, warrants and agrees as follows:
(a) Organization, Etc. Financial Security is a stock
insurance company duly organized, validly existing and authorized to
transact financial guaranty insurance business under the laws of the
State of New York.
(b) Authorization, Etc. The Policy and the Financial
Security Agreements have been duly authorized, executed and delivered by
Financial Security.
(c) Validity, Etc. The Policy and the Financial Security
Agreements constitute valid and binding obligations of Financial
Security, enforceable against Financial Security in accordance with
their terms, subject, as to the enforcement of remedies, to bankruptcy,
insolvency, reorganization, rehabilitation, moratorium and other similar
laws affecting the enforceability of creditors' rights generally
applicable in the event of the bankruptcy or insolvency of Financial
Security and to the application of general principles of equity and
subject, in the case of this Agreement, to principles of public policy
limiting the right to enforce the indemnification provisions contained
herein.
(d) Exemption From Registration. The Policy is exempt from
registration under the Securities Act.
(e) No Conflicts. Neither the execution or delivery by
Financial Security of the Policy or the Financial Security Agreements,
nor the performance by Financial Security of its obligations thereunder,
will conflict with any provision of the certificate of incorporation or
the bylaws of Financial Security nor result in a breach of, or
constitute a default under, any material agreement or other instrument
to which Financial Security is a party or by which any of its property
is bound nor violate any judgment, order or decree applicable to
Financial Security of any governmental or regulatory body,
administrative agency, court or arbitrator having jurisdiction over
Financial Security (except that, in the published opinion of the
Securities and Exchange Commission, the indemnification provisions of
this Agreement, insofar as they relate to indemnification for
liabilities arising under the Securities Act, are against the public
policy as expressed in the Securities Act and are therefore
unenforceable).
3
<PAGE> 7
(f) Financial Information. The consolidated balance sheets
of Financial Security as of December 31, 1995 and December 31, 1994 and
the related consolidated statements of income, changes in shareholder's
equity and cash flows for the fiscal years then ended, furnished by
Financial Security to the Underwriters, fairly present in all material
respects the financial condition of Financial Security as of such dates
and for such periods in accordance with generally accepted accounting
principles consistently applied (subject as to interim statements to
normal year-end adjustments) and since the date of the most current
interim consolidated balance sheet referred to above there has been no
change in the financial condition of Financial Security which would
materially and adversely affect its ability to perform its obligations
under the Policy.
(g) Financial Security Information. The information in the
Prospectus set forth under the caption "Financial Security Assurance
Inc." (as revised from time to time in accordance with the provisions
hereof, the "Financial Security Information") is limited and does not
purport to provide the scope of disclosure required to be included in a
prospectus with respect to a registrant in connection with the offer
and sale of securities of such registrant registered under the
Securities Act. Within such limited scope of disclosure, however, as of
the date of the Prospectus and as of the date hereof, the Financial
Security Information does not contain any untrue statement of a material
fact, or omit to state a material fact necessary to make the statements
contained therein, in the light of the circumstances under which they
were made, not misleading.
(h) Additional Information. Financial Security will furnish
to the Underwriters or the Seller, upon request of the Underwriters or
the Seller, as the case may be, copies of Financial Security's most
recent financial statements (annual or interim, as the case may be)
which fairly present in all material respects the financial condition of
Financial Security as of the dates and for the periods indicated, in
accordance with generally accepted accounting principles consistently
applied except as noted therein (subject, as to interim statements, to
normal year-end adjustments). In addition, if the delivery of a
Prospectus relating to the Securities is required at any time prior to
the expiration of nine months after the time of issue of the Prospectus
in connection with the offering or sale of the Securities, the Seller or
the Underwriters will notify Financial Security of such requirement to
deliver a Prospectus and Financial Security will promptly provide the
Underwriters and the Seller with any revisions to the Financial Security
Information that are in the judgment of Financial Security necessary to
prepare an amended Prospectus or a supplement to the Prospectus.
(i) Opinion of Counsel. Financial Security will furnish to
the Underwriters and the Seller on the closing date for the sale of the
Securities an opinion of its Associate General Counsel, to the effect
set forth in Exhibit A attached hereto, dated such closing date and
addressed to the Seller and the Underwriters.
(j) Consents and Reports of Independent Accountants.
Financial Security will furnish to the Underwriters and the Seller, upon
request, as comfort from its independent accountants in respect of its
financial condition, (i) at the expense of the Person specified in the
Insurance Agreement, a copy of the Prospectus, including either a
manually signed
4
<PAGE> 8
consent or a manually signed report of Financial Security's independent
accountants and (ii) the quarterly review letter by Financial Security's
independent accountants in respect of the most recent interim financial
statements of Financial Security.
Nothing in this Agreement shall be construed as a representation or warranty by
Financial Security concerning the rating of its claims-paying ability by
Moody's Investors Service, Inc. or Standard & Poor's Rating Group or any other
rating agency (collectively, the "Rating Agencies"). The Rating Agencies, in
assigning such ratings, take into account facts and assumptions not described
in the Prospectus and the facts and assumptions which are considered by the
Rating Agencies, and the ratings issued thereby, are subject to change over
time.
Section 3. Representations, Warranties and Agreements of the
Underwriters. Each of the Underwriters represents, warrants and agrees as
follows:
(a) Compliance With Laws. Such Underwriter will comply in
all material respects with all legal requirements in connection with
offers and sales of the Securities and make such offers and sales in the
manner provided in the Prospectus.
(b) Offering Document. Such Underwriter will not use, or
distribute to other broker-dealers for use, any Offering Document in
connection with the offer and sale of the Securities unless such
Offering Document includes such information as has been furnished by
Financial Security for inclusion therein and the information therein
concerning Financial Security has been approved by Financial Security in
writing. Financial Security hereby consents to the information in
respect of Financial Security included in the Prospectus. Each Offering
Document will include the following statement:
"The Policy is not covered by the property/casualty insurance
security fund specified in Article 76 of the New York Insurance
Law".
Each Offering Document including financial information with respect to
Financial Security prepared in accordance with generally accepted
accounting principles will include the following statement immediately
preceding such financial information:
"The New York State Insurance Department recognizes only
statutory accounting practices for determining and reporting the
financial condition and results of operations of an insurance
company, for determining its solvency under the New York
Insurance Law, and for determining whether its financial
condition warrants the payment of a dividend to its
stockholders. No consideration is given by the New York State
Insurance Department to financial statements prepared in
accordance with generally accepted accounting principles in
making such determinations."
(c) Underwriter Information. All material provided by the
Underwriters for inclusion in the Prospectus (as revised from time to
time, the "Underwriter Information"), insofar as such information
relates to the Underwriters, is true and correct
5
<PAGE> 9
in all material respects. In respect of the Preliminary Prospectus
Supplement, the Underwriter Information is limited to the information
set forth (i) in the second and third paragraphs of the cover page, (ii)
the second full paragraph of page S-3, and (iii) under the caption
"Underwriting" and in respect of the Final Prospectus Supplement, the
Underwriter Information is limited to the information set forth (i) in
the second and third paragraphs of the cover page, (ii) the second full
paragraph of page S-3, and (iii) under the caption "Underwriting".
Section 4. Indemnification.
(a) Financial Security agrees, upon the terms and subject to
the conditions provided herein, to indemnify, defend and hold harmless
each Seller Party and each Underwriter Party against (i) any and all
Losses incurred by them with respect to the offer and sale of the
Securities and resulting from Financial Security's breach of any of its
representations, warranties or agreements set forth in Section 2 hereof
and (ii) any and all Losses to which any Seller Party or Underwriter
Party may become subject, under the Securities Act or otherwise, insofar
as such Losses arise out of or result from an untrue statement of a
material fact contained in any Offering Document or the omission to
state therein a material fact required to be stated therein or necessary
to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or omission
was made in the Financial Security Information included therein in
accordance with the provisions hereof.
(b) Each of the Underwriters, agrees, upon the terms and
subject to the conditions provided herein, to indemnify, defend and
hold harmless each Financial Security Party and each Seller Party
against (i) any and all Losses incurred by them with respect to the
offer and sale of the Securities and resulting from the Underwriters'
breach of any of its representations, warranties or agreements set forth
in Section 3 hereof and (ii) any and all Losses to which any Financial
Security Party or Seller Party may become subject, under the Securities
Act or otherwise, insofar as such Losses arise out of or result from an
untrue statement of a material fact contained in any Offering Document
or the omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such untrue
statement or omission was made in the Underwriter Information included
therein.
(c) Upon the incurrence of any Losses for which a party is
entitled to indemnification hereunder, the Indemnifying Party shall
reimburse the Indemnified Party promptly upon establishment by the
Indemnified Party to the Indemnifying Party of the Losses incurred.
Section 5. Indemnification Procedures. Except as provided below in
Section 6 with respect to contribution, the indemnification provided herein by
an Indemnifying Party shall be the exclusive remedy of any and all Indemnified
Parties for the breach of a representation, warranty or agreement hereunder by
an Indemnifying party; provided, however, that each Indemnified Party shall be
entitled to pursue any other remedy at law or in equity for any such
6
<PAGE> 10
breach so long as the damages sought to be recovered shall not exceed the
Losses incurred thereby resulting from such breach. In the event that any
action or regulatory proceeding shall be commenced or claim asserted which may
entitle an Indemnified Party to be indemnified under this Agreement, such party
shall give the Indemnifying Party written or telegraphic notice of such action
or claim reasonably promptly after receipt of written notice thereof. The
Indemnifying Party shall be entitled to participate in and, upon notice to the
Indemnified Party, assume the defense of any such action or claim in reasonable
cooperation with, and with the reasonable cooperation of, the Indemnified
Party. The Indemnified Party will have the right to employ its own counsel in
any such action in addition to the counsel of the Indemnifying Party, but the
fees and expenses of such counsel will be at the expense of such Indemnified
Party, unless (a) the employment of counsel by the Indemnified Party at its
expense has been authorized in writing by the Indemnifying Party, (b) the
Indemnifying Party has not in fact employed counsel satisfactory to Financial
Security to assume the defense of such action within a reasonable time after
receiving notice of the commencement of the action, or (c) the named parties to
any such action or proceeding (including any impleaded parties) include both
the Indemnifying Party and one or more Indemnified Parties, and the Indemnified
Parties shall have been advised by counsel that (A) there may be one or more
legal defenses available to them which are different from or additional to
those available to the Indemnifying Party and (B) the representation of the
Indemnifying Party and such Indemnified Parties by the same counsel would be
inappropriate or contrary to prudent practice (in which case, if such
Indemnified Parties notify the Indemnifying Party in writing that they elect to
employ separate counsel at the expense of the Indemnifying Party, the
Indemnifying Party shall not have the right to assume the defense of such
action or proceeding on behalf of such Indemnified Parties, it being
understood, however, that the Indemnifying Party shall not, in connection with
any one such action or proceeding or separate but substantially similar or
related actions or proceedings in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the reasonable fees and
expenses of more than one separate firm of attorneys at any time for all Seller
Parties, one such firm for all Underwriter Parties and one such firm for all
Financial Security Parties, as the case may be, which firm shall be designated
in writing by the Seller in respect of the Seller Parties, by the Underwriters
in respect of the Underwriter Parties and by Financial Security in respect of
the Financial Security Parties), in each of which cases the fees and expenses of
counsel will be at the expense of the Indemnifying Party and all such fees and
expenses will be reimbursed promptly as they are incurred. The Indemnifying
Party shall not be liable for any settlement of any such claim or action unless
the Indemnifying Party shall have consented thereto or be in default in its
obligations hereunder. Any failure by an Indemnified Party to comply with the
provisions of this Section shall relieve the Indemnifying Party of liability
only if such failure is prejudicial to the position of the Indemnifying Party
and then only to the extent of such prejudice.
Section 6. Contribution.
(a) To provide for just and equitable contribution if the
indemnification provided by any Indemnifying Party is determined to be
unavailable for any Indemnified Party (other than due to application of
this Section), each Indemnifying Party shall contribute to the Losses
arising from any breach of any of its representations, warranties or
agreements contained in this Agreement on the basis of the relative
fault of each of
7
<PAGE> 11
the parties as set forth in Section 6(b) below; provided, however, that an
Indemnifying Party shall in no event be required to contribute to all
Indemnified Parties an aggregate amount in excess of the Losses incurred by
such Indemnified Parties resulting from the breach of representations,
warranties or agreements contained in this Agreement.
(b) The relative fault of each Indemnifying Party, on the one hand,
and of each Indemnified Party, on the other, shall be determined by reference
to, among other things, whether the breach of, or alleged breach of, any
representations, warranties or agreements contained in this Agreement relates
to information supplied by, or action within the control of, the Indemnifying
Party or the Indemnified Party and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such breach.
(c) The parties agree that Financial Security shall be solely
responsible for the Financial Security Information and the Underwriters shall
be solely responsible for the Underwriter Information and that the balance of
each Offering Document shall be the responsibility of the Seller.
(d) Notwithstanding anything in this Section 6 to the contrary, the
Underwriters shall not be required to contribute an amount in excess of the
amount by which the total price of the Securities underwritten by the
Underwriters exceeds the amount of any damages that the Underwriters have
otherwise been required to pay in respect of such untrue statement or
omission.
(e) No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(f) Upon the incurrence of any Losses entitled to contribution
hereunder, the contributor shall reimburse the party entitled to contribution
promptly upon establishment by the party entitled to contribution to the
contributor of the Losses incurred.
Section 7. Miscellaneous
(a) Notices. All notices and other communications provided for
under this Agreement shall be delivered to the address set forth below or to
such other address as shall be designated by the recipient in a written notice
to the other party or parties hereto.
If to Financial Security: Financial Security Assurance Inc.
350 Park Avenue
New York, NY 10022
Attention: Senior Vice President --
Surveillance (with a copy to the attention of
the General Counsel)
If to the Seller: AFS Funding Corp.
8
<PAGE> 12
1325 Airmotive Way
Reno, Nevada 89502
Attention: General Counsel
If to the Underwriters: CS First Boston Corporation
55 East 52nd Street
New York, New York 10055
Attention: Charles D'Albert
(b) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(c) Assignments. This Agreement may not be assigned by any party
without the express written consent of each other party. Any assignment made in
violation of this Agreement shall be null and void.
(d) Amendments. Amendments of this Agreement shall be in writing
signed by each party hereto.
(e) Survival, Etc. The indemnity and contribution agreements
contained in this Agreement shall remain operative and in full force and
effect, regardless of (i) any investigation made by or on behalf of any
Indemnifying Party, (ii) the issuance of the Securities or (iii) any
termination of this Agreement or the Policy. The indemnification provided in
this Agreement will be in addition to any liability which the parties may
otherwise have and shall in no way limit any obligations of the Seller under
the Initial Purchase Agreement or the Insurance Agreement.
(f) Counterparts. This Agreement may be executed in counterparts by
the parties hereto, and all such counterparts shall constitute one and the same
instrument.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
9
<PAGE> 13
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the date first above written.
FINANCIAL SECURITY ASSURANCE INC.
By /s/ TOM MCCORMICK
-------------------------------
Name : Tom McCormick
---------------------------
Authorized Officer
AFS FUNDING CORP.
By /s/ DANIEL E. BERCE
-------------------------------
Name: Daniel E. Berce
Title: Executive Vice President,
Chief Financial Officer
and Treasurer
CS FIRST BOSTON CORPORATION
as Representative
By /s/ JOHN L. REYNEN
-------------------------------
Name: John L. Reynen
----------------------------
Title:
----------------------------
<PAGE> 14
EXHIBIT A
OPINION OF ASSOCIATE GENERAL COUNSEL
Based upon the foregoing, I am of the opinion that:
1. Financial Security is a stock insurance company duly organized,
validly existing and authorized to transact financial guaranty insurance
business under the laws of the State of New York.
2. The Policy and the Financial Security Agreements have been duly
authorized, executed and delivered by Financial Security.
3. The Policy and the Financial Security Agreements constitute valid
and binding obligations of Financial Security, enforceable against Financial
Security in accordance with their terms, subject, as to the enforcement of
remedies, to bankruptcy, insolvency, reorganization, rehabilitation, moratorium
and other similar laws affecting the enforceability of creditors' rights
generally applicable in the event of the bankruptcy or insolvency of Financial
Security and to the application of general principles of equity and subject, in
the case of the Indemnification Agreement, to principles of public policy
limiting the right to enforce the indemnification provisions contained therein
insofar as they relate to indemnification for liabilities arising under
applicable securities laws.
4. The Policy is exempt from registration under the Securities Act of
1933, as amended (the "Act").
5. Neither the execution or delivery by Financial Security of the
Policy or the Financial Security Agreements, nor the performance by Financial
Security of its obligations thereunder, will conflict with any provision of the
certificate of incorporation or the bylaws of Financial Security or violate any
law or regulation, which violation would impair the binding effect or
enforceability of the Policy or any of the Agreements or, to the best of my
knowledge (after due inquiry), result in a breach of, or constitute a default
under, any agreement or other instrument to which Financial Security is a party
or by which it or any of its property is bound or, to the best of my knowledge
(after due inquiry), violate any judgment, order or decree applicable to
Financial Security of any governmental or regulatory body, administrative
agency, court or arbitrator having jurisdiction over Financial Security (except
that in the published opinion of the Securities and Exchange Commission the
indemnification provisions of the Indemnification Agreement, insofar as they
relate to indemnification for liabilities arising under the Act, are against
public policy as expressed in the Act and are therefore unenforceable).
In addition, please be advised that I have reviewed the description of
Financial Security under the caption "Financial Security Assurance Inc." in the
Prospectus dated , 1996 (the "Offering Document") of the Seller with
respect to the Securities. The information
<PAGE> 15
provided in the Offering Document with respect to Financial Security is limited
and does not purport to provide the scope of disclosure required to be included
in a prospectus with respect to a registrant under the Act in connection with
the public offer and sale of securities of such registrant. Within such limited
scope of disclosure, however, there has not come to my attention any
information which would cause me to believe that the description of Financial
Security referred to above, as of the date of the Offering Document or as of
the date of this opinion, contained or contains any untrue statement of a
material fact or omitted or omits to state a material fact necessary to make
the statements therein, in the light of the circumstances under which they were
made, not misleading (except that I express no opinion with respect to any
financial statements or other financial information contained or referred to
therein.)
<PAGE> 1
EXHIBIT 23.1
<PAGE> 2
[COOPERS & LYBRAND LETTERHEAD]
CONSENT OF INDEPENDENT ACCOUNTANTS
----------
We consent to the incorporation by reference in the Prospectus Supplement dated
May 9, 1996 (to Prospectus dated February 23, 1996) of AmeriCredit Financial
Services, Inc. relating to AmeriCredit Automobile Receivables Trust 1996-B of
our report dated January 17, 1996 on our audits of the consolidated financial
statements of Financial Security Assurance Inc. and Subsidiaries as of December
31, 1995 and 1994 and for each of the three years in the period ended December
31, 1995. We also consent to the reference to our Firm under the caption
"Experts".
/s/ Coopers & Lybrand L.L.P.
----------------------------
COOPERS & LYBRAND L.L.P.
New York, New York
May 15, 1996
