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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 12, 1999
AmeriCredit Automobile Receivables Trust 1999-B
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(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
United States 333-63565 88-0359494
(State or Other Jurisdiction of (Commission File (I.R.S. Employer
Incorporation) 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)
</TABLE>
Registrant's telephone number including area code (817) 882 7082
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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 Securities and the Auto Loans
AmeriCredit Financial Services, Inc., as Sponsor, has registered an
issuance of $1,000,000,000 in principal amount of Securities (the "Securities")
on Form S-3. Pursuant to the Registration Statement, AmeriCredit Automobile
Receivables Trust 1999-B (the "Trust") issued $140,000,000 Class A-1 4.9166%
Asset Backed Notes, $435,000,000 Class A-2 5.304% Asset Backed Notes,
$130,000,000 Class A-3 5.780 Asset Backed Notes and $295,000,000 Class A-4 5.960
Asset Backed Notes (collectively, the "Notes") on May 20, 1999. 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 Notes, the
forms of which were filed as Exhibits to the Registration Statement.
The Notes were issued pursuant to an Indenture attached hereto as
Exhibit 4.1, dated as of May 12, 1999, between the Trust and Bank One, N.A., as
Trustee and Trust Collateral Agent (the "Trustee" and the "Trust Collateral
Agent").
The Notes 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.
As of the Closing Date, the Receivables had the characteristics
described in the Prospectus dated May 13, 1999 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.
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(a) Not applicable
(b) Not applicable
(c) Exhibits:
1.1 Underwriting Agreement, dated May 13, 1999 among AmeriCredit
Financial Services, Inc., as Servicer, AFS Funding Corp., as Seller, and Credit
Suisse First Boston Corporation, as Representative of the Underwriters.
4.1 Indenture, dated as of May 12, 1999 between AmeriCredit
Automobile Receivables Trust 1999-B and Bank One, N.A., as Trustee and Trust
Collateral Agent.
4.2 The Amended and Restated Trust Agreement dated as of May 12,
1999, between AFS Funding Corp., as Seller, and Bankers Trust (Delaware), as
Owner Trustee.
4.3 Sale and Servicing Agreement, dated as of May 12, 1999, among
AmeriCredit Automobile Receivables Trust 1999-B, AmeriCredit Financial Services,
Inc., as Servicer, AFS Funding Corp., as Seller, and Bank One, N.A., as Backup
Servicer and Trust Collateral Agent.
4.4 Note Guaranty Surety Bond, dated May 20, 1999 and delivered by
Financial Security Assurance Inc.
10.1 Purchase Agreement, dated as of May 12, 1999, among AmeriCredit
Financial Services, Inc. and CP Funding Corp., as Sellers, and AFS Funding
Corp., as Purchaser.
10.2 Indemnification Agreement, dated May 12, 1999, among Financial
Security Assurance Inc., as Insurer, AFS Funding Corp., as Seller, and Credit
Suisse First Boston Corporation, as Representative of the Underwriters.
23.1 Consent of PricewaterhouseCoopers L.L.P. regarding financial
statements of the Insurer and their report.
23.2 Consent of PricewaterhouseCoopers L.L.P. regarding financial
statements of AmeriCredit Automobile Receivables Trust 1999-B.
99.1 Statistical information for the receivables as of the Initial
Cut-off date.
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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 1999-B
By: AmeriCredit Financial Services, Inc., as Servicer
By: /s/ Preston Miller
-----------------------------------
Name: Preston Miller
Title: Senior Vice President and Treasurer
Dated: May 25, 1999
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EXHIBIT INDEX
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Exhibit No. Description
- ----------- -----------
1.1 Underwriting Agreement, dated May 13 1999, among AmeriCredit
Financial Services, Inc., as Servicer, AFS Funding Corp., as
Seller, and Credit Suisse First Boston Corporation, as
Representative of the Underwriters.
4.1 Indenture, dated as of May 12, 1999, between AmeriCredit
Automobile Receivables Trust 1999-B and Bank One, N.A., as
Trustee and Trust Collateral Agent.
4.2 Amended and Restated Trust Agreement dated as of May 12, 1999
between AFS Funding Corp., as Seller, and Bankers Trust
(Delaware), as Owner Trustee.
4.3 Sale and Servicing Agreement, dated as of May 12, 1999, among
AmeriCredit Automobile Receivables Trust 1999-B, AmeriCredit
Financial Services, Inc., as Servicer, AFS Funding Corp., as
Seller, and Bank One, N.A., as Backup Servicer and Trust
Collateral Agent.
4.4 Note Guaranty Surety Bond, dated May 20, 1999, and delivered by
Financial Security Assurance Inc.
10.1 Purchase Agreement, dated as of May 12, 1999, among AmeriCredit
Financial Services, Inc. and CP Funding Corp., as Sellers, and
AFS Funding Corp., as Purchaser.
10.2 Indemnification Agreement, dated May 12, 1999, among Financial
Security Assurance Inc., as Insurer, AFS Funding Corp., as
Seller, and Credit Suisse First Boston Corporation, as
Representative of the Underwriters.
23.1 Consent of Pricewaterhouse Coopers L.L.P. regarding financial
statements of the Insurer and their report.
23.2 Consent of Pricewaterhouse Coopers L.L.P. regarding financial
statements of AmeriCredit Automobile Receivables Trust 1999-B.
99.1 Statistical information for the receivables as of the Initial
Cut-off date.
5
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Exhibit 1.1
<PAGE>
EXHIBIT 1.1
AMERICREDIT AUTOMOBILE RECEIVABLES TRUST 1999-B
Class A-1 4.9166% Asset Backed Notes
Class A-2 5.304% Asset Backed Notes
Class A-3 5.780% Asset Backed Notes
Class A-4 5.960% Asset Backed Notes
UNDERWRITING AGREEMENT
----------------------
CREDIT SUISSE FIRST BOSTON CORPORATION
As Representative of the Underwriters
Eleven Madison Avenue
New York, New York 10010 May 13, 1999
Dear Sirs:
AmeriCredit Financial Services, Inc., a corporation organized and
existing under the laws of Delaware (the "Sponsor"), and AFS Funding Corp., a
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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 Notes. The Sponsor has authorized
--------------------------
the issuance and sale of $140,000,000 Class A-1 4.9166% Asset Backed Notes,
$435,000,000 Class A-2 5.304% Asset Backed Notes, $130,000,000 Class A-3 5.780%
Asset Backed Notes, and $295,000,000 Class A-4 5.960% Asset Backed Notes
(collectively, the "Notes"). The Notes are to be issued by AmeriCredit
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Automobile Receivables Trust 1999-B (the "Trust") pursuant to an Indenture, to
-----
be dated as of May 12, 1999 (the "Indenture"), between the Trust and Bank One,
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N.A., a national banking association, as indenture trustee (the "Trustee") and
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as Trust Collateral Agent. In addition to the Notes, the Trust will also issue
an Asset Backed Certificate (the "Certificate") (the Notes and the Certificate,
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collectively, the "Securities") pursuant to a Trust Agreement, dated as of May
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12, 1999 as amended and restated as of May 12, 1999 between the Seller and
Bankers Trust (Delaware), as owner trustee (the "Owner Trustee"). The assets of
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the Trust will initially include a pool of retail installment sale contracts
secured by new or used automobiles, light duty trucks and vans (the "Initial
-------
Receivables") and certain monies due thereunder on or after May 12, 1999 (the
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"Initial Cutoff Date"). Additional retail installment sale contracts secured by
- --------------------
new or used automobiles, light duty trucks and vans (the "Subsequent
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Receivables") and certain monies due thereunder on or after the applicable
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Subsequent Cutoff Date are intended to be purchased by the Trust from the Seller
from time to time on or before the end of the Funding Period, from funds
available under the Pre-Funded Amount. The Initial Receivables and the
Subsequent Receivables are hereinafter referred to as the "Receivables."
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The Notes will have the benefit of a note insurance policy (the "Note
----
Insurance Policy"), issued by Financial Security Assurance Inc., a monoline
- ----------------
insurance corporation organized under the laws of New York (the "Note Insurer").
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In connection with the issuance of the Note Insurance Policy (i) the
Companies, CP Funding Corp. ("CP Funding"), the Trust and the Note Insurer will
execute and deliver an Insurance Agreement dated as of May 12, 1999 (the
"Insurance Agreement") and (ii) the Seller, the Underwriters and the Note
- --------------------
Insurer will execute and deliver an Indemnification Agreement dated as of May
12, 1999 (the "Indemnification Agreement").
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As used herein, the term "Sponsor Agreements" means the Sale and
------------------
Servicing Agreement dated as of May 12, 1999 among the Trust, the Sponsor, as
servicer, the Seller and Bank One, N.A., a national banking association, as
trust collateral agent (the "Sale and Servicing Agreement"), the Purchase
----------------------------
Agreement between the Sponsor, CP Funding and the Seller dated as of May 12,
1999 (the "Purchase Agreement"), the Insurance Agreement, the Indemnification
------------------
Agreement and this Agreement; the term "Seller Agreements" means the Sale and
-----------------
Servicing Agreement, the Purchase Agreement, the Trust Agreement, the Insurance
Agreement, the Indemnification Agreement and this Agreement.
The Notes are being purchased by the Underwriters named in Schedule 1
hereto, and the Underwriters are purchasing, severally, only the Notes set forth
opposite their names in Schedule 1, except that the amounts purchased by the
Underwriters may change in accordance with Section 10 of this Agreement. Credit
Suisse First Boston Corporation is acting as representative of the Underwriters
and in such capacity, is hereinafter referred to as the "Representative."
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The offering of the Notes will be made by the Underwriters and the
Companies understand that the Underwriters propose to make a public offering of
the Notes for settlement on May 20, 1999 as the Underwriters deem advisable.
The Certificate will be retained by the Seller.
Defined terms used herein shall have their respective meanings as set
forth in the Sale and Servicing 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. 333-63565) 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
which are required to be filed as exhibits to the Registration Statement
pursuant to the Securities Act or the Rules and
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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
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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 Notes. The term "Base Prospectus" means the prospectus included
---------------
in the Registration Statement. The term "Prospectus Supplement" means the
---------------------
prospectus supplement dated the date hereof, specifically relating to the Notes,
as filed with the Commission pursuant to Rule 424 of the Rules and Regulations
(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 "The
Insurer" and (y) the Underwriter Information. The term "Seller Offering
---------------
Materials" means the Prospectus Supplement except for (x) the information set
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forth under the caption "The Insurer" and (y) the Underwriter 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 relating to any potential market-making, over-allotment or
price stabilization activities of the Underwriters. The term "Prospectus"
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means, together, the Base Prospectus and the Prospectus Supplement.
To the extent that the Underwriter either (i) has provided to the
Sponsor Collateral term sheets (as hereinafter defined) that such Underwriter
has provided to a prospective investor, the Sponsor has filed such Collateral
term sheets as an exhibit to a report on Form 8-K within two business days of
its receipt thereof, or (ii) has provided to the Sponsor Structural term sheets
or Computational Materials (each as defined below) that such Underwriter has
provided to a prospective investor, the Sponsor will file or cause to be filed
with the Commission a report on Form 8-K containing such Structural term sheet
and Computational Materials, as soon as reasonably practicable after the date of
this Agreement, but in any event, not later than the date on which the
Prospectus is made available to the Underwriter in final form.
(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 of the Securities Act or the Securities Exchange
Act of 1934, as
3
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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 Notes, 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 Notes 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 Securities to be issued.
(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 Securities, (iii) seeking to prevent the issuance of the
Securities 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 is likely to materially and
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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
Securities.
(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 its 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 Securities, 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) PricewaterhouseCoopers LLP is an independent public
accountant with respect to the Sponsor as required by the Securities Act and the
Rules and Regulations.
(xi) 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 Notes, or the consummation
by the Sponsor of the other transactions contemplated by this Agreement, except
the registration under the Securities Act of the Securities 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 Notes by the Underwriters.
(xii) 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.
5
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(xiii) The Sponsor will not conduct its operations while any of the
Securities 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.
--------
(xiv) Any taxes, fees and other governmental charges in connection
with the execution, delivery and issuance of any Sponsor Agreement, the Note
Insurance Policy and the Securities 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.
(xv) 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.
(xvi) 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 Notes 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.
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, (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
6
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holders of the Securities, 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 Notes 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 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 Securities 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 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 Securities.
(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
7
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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 its respective properties or assets.
(ix) PricewaterhouseCoopers LLP 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 Notes, or the consummation
by the Seller of the transactions contemplated by each Seller Agreement except
the registration under the Securities Act of the Securities 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 Notes 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 Sale and Servicing 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 Sale and Servicing 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 Trust
Agreement will conduct their operations while any of the Securities are
outstanding in a manner that would require the Seller or the Trust to be
registered as an "investment company" under the 1940 Act, as in effect on the
date hereof.
(xv) Each of the Securities, the Sale and Servicing Agreement,
the Purchase Agreement, the Trust Agreement, the Indemnification Agreement and
the Note Insurance Policy 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 Agreement, the Note
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Insurance Policy and the Securities 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.
(xviii) The direction by the Seller to the Owner Trustee to execute,
authenticate, issue and deliver the Certificate will be duly authorized by the
Seller and, assuming the Owner Trustee has been duly authorized to do so, when
executed, authenticated, issued and delivered by the Owner Trustee in accordance
with the Trust Agreement, the Certificate will be validly issued and outstanding
and will be entitled to the benefits of the Trust Agreement.
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 Notes 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' commitment to
-----------------
purchase the Notes pursuant to this Agreement shall be deemed to have been made
on the basis of the representations and warranties of the Companies herein
contained and shall be subject to the terms and conditions herein set forth. The
Sponsor agrees to instruct the Trust to issue the Notes to the Underwriters, and
the Underwriters agree to purchase on the date of issuance thereof. The purchase
prices for the Notes shall be as set forth on Schedule 1 hereto.
Section 4. Delivery and Payment. Payment of the purchase price for,
--------------------
and delivery of, any Notes to be purchased by the Underwriters shall be made at
the office of Dewey Ballantine LLP, 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 20, 1999 (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
Notes 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 Notes 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 Notes for sale to the public as set forth in
the Prospectus.
Section 6. Covenants of the Seller. Each of the Companies covenants
-----------------------
with the Underwriters as follows:
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
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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 Notes 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 Notes 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 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' 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
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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 Notes: (i) any amendment to
the Registration Statement or supplement to the Prospectus, or document
incorporated by reference in the Prospectus, or (ii) the Prospectus filed
pursuant to Rule 424 of the Rules and Regulations.
F. To use its best efforts, in cooperating with the Sponsor and the
Underwriters, to qualify the Notes 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 Notes. The Seller will cause the filing of such statements and reports as
may be required by the laws of each jurisdiction in which the Notes have been so
qualified.
G. The Seller will not, without the prior written consent of the
Representative, contract to sell any automobile receivables-backed certificates,
automobile receivables-backed notes or other similar securities either directly
or indirectly (as through the Sponsor) for a period of five (5) business days
after the later of the termination of the syndicate or the Closing Date.
H. So long as the Notes 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 Sale and Servicing Agreement;
(ii) the annual statement of a firm of independent public accountants furnished
to the Trustee pursuant to Section 4.11(a) of the Sale and Servicing Agreement
with respect to the Servicer; and (iii) the monthly reports furnished to the
Noteholders pursuant to Section 5.9 of the Sale and Servicing Agreement.
I. So long as any of the Notes 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
Noteholders 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) non-structured equity or debt offering
of the Sponsor or the Seller or (B) the Notes 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.
J. To apply the net proceeds from the sale of the Notes in the
manner set forth in the Prospectus.
K. 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
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operations of the Sponsor or the Seller, the Seller will give prompt written
notice thereof to the Underwriters.
L. To the extent, if any, that the ratings provided with respect to
the Notes by the rating agency or agencies that initially rate the Notes 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 Notes 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) 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 Sale and Servicing
Agreement, the Purchase Agreement, the Indenture, the Trust Agreement, the
Indemnification Agreement and the Notes 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 LLP,
counsel for the Companies, 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 Notes have been duly authorized
and, when executed, authenticated, countersigned and delivered by the
Trustee in accordance with the Indenture and delivered and paid for
pursuant to this Agreement, will be validly issued and outstanding and will
be entitled to the benefits of the Trust Agreement and the Indenture,
respectively.
(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 Sale and Servicing 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
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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 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) None of the Sponsor, the Seller nor the Trust is required to
be registered as an "investment company" under the 1940 Act, as amended.
(v) The direction by the Seller to the Owner Trustee to execute,
issue, countersign and deliver the Certificate has been duly authorized
and, when the Certificate is executed and authenticated by the Trustee in
accordance with the Trust Agreement and delivered and paid for, they will
be validly issued and outstanding and entitled to the benefits provided by
the Trust Agreement.
(vi) 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.
(vii) The Securities, the Sale and Servicing 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.
(viii) The statements in the Base Prospectus under the captions
"Summary of Terms - Tax Considerations", "Summary of Terms - ERISA
Considerations", "ERISA Considerations" and "Certain Tax Considerations"
and the statements in the Prospectus Supplement under the captions "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 counsel and represent a fair and accurate
summary of the matters addressed therein, under existing law and the
assumptions stated therein.
(ix) The statements in the Base Prospectus 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.
(x) 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.
(xi) The conditions to the use by the Sponsor of a registration
statement on Form S-3 under the Securities 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 Securities Act or the Rules and Regulations
thereunder which have not been so filed.
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(xii) 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.
(xiii) 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.
(xiv) The execution, delivery and performance of each Seller
Agreement by the Seller 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 Seller or its
properties or assets.
In addition, 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 Note 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
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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, 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 omit 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.,
house counsel of the Companies, 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).
(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.
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(iii) The direction by the Seller to the Trustee to execute, issue,
countersign and deliver the Notes has been duly authorized by the Seller.
(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 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 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 Securities 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 Sale and Servicing 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 securities
laws, filings with respect to the transfer of the Receivables to the Trust
pursuant to the Sale and Servicing Agreement and such other approvals or
consents as have been obtained.
(viii) 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 Securities, (iii) could
materially adversely affect the Sponsor's or the
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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 Securities.
G. The Underwriters shall have received from special counsel to the
Note 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 Note 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 Note 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 Note Insurer, which, if
adversely determined, would have a material and adverse effect on the
ability of the Note Insurer to perform its obligations under the Note
Insurance Policy.
(iii) The Note Insurance Policy and the Indemnification Agreement
constitute the irrevocable, valid, legal and binding obligations of the
Note Insurer in accordance with their respective terms to the extent
provided therein, enforceable against the Note Insurer in accordance with
their respective terms, except as the enforceability thereof and the
availability of particular remedies to enforce the respective terms thereof
against the Note Insurer may be limited by applicable laws affecting the
rights of creditors of the Note Insurer and by the application of general
principles of equity.
(iv) The Note 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 Note 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 "The Insurer" 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 Note Insurer and,
insofar as such statements constitute a summary of the Note Insurance
Policy, accurately and fairly summarize the terms of the Note Insurance
Policy.
(vi) The Note Insurance Policy constitutes an insurance policy
within the meaning of Section 3(a)(8) of the Securities Act.
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(vii) Neither the execution or delivery by the Note Insurer of the
Note Insurance Policy or the Indemnification Agreement, nor the performance
by the Note Insurer of its obligations thereunder, will conflict with any
provision of the certificate of incorporation or the amended by-laws of the
Note 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 Note 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 Note Insurer of any governmental
regulatory body, administrative agency, court or arbitrator located in any
jurisdiction in which the Note Insurer is licensed or authorized to do
business.
H. The Underwriters shall have received from Dewey Ballantine LLP,
counsel for the Underwriters, such opinion or opinions, dated the Closing Date,
with respect to the validity of the Securities 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:
(i) The Trustee 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) The Trustee and the Back-Up Servicer each have full
corporate trust power and authority to enter into and perform its
obligations under the Indenture, 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 Notes.
(iii) The Indenture has been duly authorized, executed and
delivered by the Trustee and constitutes a legal, valid and binding
obligation of the Trustee enforceable against the Trustee, in accordance
with its 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 Notes have been duly authorized, executed and
authenticated by the Trustee on the date hereof on behalf of the Trust in
accordance with the Indenture.
(v) The execution, delivery and performance of the Indenture and
the Notes by the Trustee 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 pursuant to the terms of the
articles of association or the by-laws of the Trustee or any statute, rule,
regulation or order of any governmental agency or body, or any court having
jurisdiction over the Trustee or its property or assets or any agreement or
instrument known to such counsel, to which the Trustee is a party or by
which the Trustee or any of its respective property or assets is bound.
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(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 Indenture and the Notes, as
applicable.
J. The Underwriters shall have received from counsel to the Owner
Trustee 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 Owner Trustee 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) The Owner Trustee has full corporate trust power and
authority to enter into and perform its obligations under the Trust
Agreement, as the case may be, including, but not limited to, its
obligation to serve in the capacity of Owner Trustee and to execute, issue,
countersign and deliver the Certificate.
(iii) The Trust Agreement has been duly authorized, executed and
delivered by the Owner Trustee and constitutes a legal, valid and binding
obligation of the Owner Trustee enforceable against the Owner Trustee, in
accordance with its 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 Certificate has been duly authorized, executed and
authenticated by the Owner Trustee on the date hereof on behalf of the
Trust in accordance with the Trust Agreement.
(v) The execution, delivery and performance of the Trust
Agreement and the Certificate by the Owner Trustee 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 Owner Trustee
pursuant to the terms of the articles of association or the by-laws of the
Owner Trustee or any statute, rule, regulation or order of any governmental
agency or body, or any court having jurisdiction over the Owner Trustee or
its property or assets or any agreement or instrument known to such
counsel, to which the Owner Trustee is a party or by which the Owner
Trustee 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
Owner Trustee of the Trust Agreement and the Certificate, as applicable.
K. Bank One, N.A. ("Bank One") shall have furnished to the
--------
Underwriters a certificate of Bank One, signed by one or more duly authorized
--------
officers of Bank One, dated the Closing Date, as to the due authorization,
--------
execution and delivery of the Indenture and the Sale and Servicing Agreement by
Bank One and the acceptance by the Trustee of the trust created
- --------
19
<PAGE>
thereby and the due execution and delivery of the Notes by the Trustee
thereunder and such other matters as the Underwriters shall reasonably request.
L. Bankers Trust (Delaware) ("Bankers") shall have furnished to the
-------
Underwriters a certificate of Bankers, signed by one or more duly authorized
officers of Bankers, dated the Closing Date, as to the due authorization,
execution and delivery of the Trust Agreement by Bankers and the acceptance by
the Owner Trustee of the trust created thereby and the due execution and
delivery of the Certificate by the Owner Trustee thereunder and such other
matters as the Underwriters shall reasonably request.
M. The Indemnification Agreement shall have been executed and
delivered, in which the Note Insurer shall represent, among other
representations, that (i) the information under the captions, "The Insurance
Policy" in the section entitled "Summary", "The Policy" and "The Insurer" in the
Prospectus Supplement was approved by the Note 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 Note Insurer since September 30, 1998, which would
have a material adverse effect on the Note Insurer's ability to meet its
obligations under the Note Insurance Policy.
N. The Note Insurance Policy shall have been issued by the Note
Insurer and shall have been duly countersigned by an authorized agent of the
Note Insurer, if so required under applicable state law or regulation.
O. The Class A-1 Notes shall have been rated "A-1+" by Standard &
Poor's Ratings Services ("S&P") and "P-1" by Moody's Investors Service, Inc.
("Moody's") and the Class A-2 Notes, the Class A-3 Notes, and the Class A-4
Notes shall have been rated AAA by S&P and Aaa by Moody's.
P. 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
Notes as set forth in Section O above.
Q. The Underwriters shall have received from Dewey Ballantine LLP,
counsel to the Companies, 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 addressees of any opinions of counsel supplied to the
rating organizations relating to the Notes.
R. 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.
S. 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
20
<PAGE>
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.
T. On the Closing Date the Underwriters shall have received from
PricewaterhouseCoopers LLP a letter dated as of the Closing Date, in the form
heretofore agreed to.
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 9 and the provisions of Sections 12 and 15 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 Notes, (iv) the
fees and disbursements of Dewey Ballantine LLP, counsel for the Underwriters and
special counsel to the Seller, (v) the fees and disbursements of
PricewaterhouseCoopers LLP, accountants of the Companies, (vi) the qualification
of the Notes under securities and Blue Sky laws and the determination of the
eligibility of the Notes for investment in accordance with the provisions
hereof, including filing fees and the fees and disbursements of Dewey Ballantine
LLP, 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 Sale and Servicing Agreement, the
Indenture, the Trust Agreement and the other transaction documents, (ix) the
fees charged by nationally recognized statistical rating agencies for rating the
Notes, (x) the fees and expenses of the Trustee and its counsel, the fees and
expenses of the Owner Trustee and its counsel and (xi) the fees and expenses of
the Note 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 LLP, 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 Notes), to
which the Underwriters or any such controlling person may become subject, under
the Securities Act or
21
<PAGE>
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 Notes 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
Notes (unless such Prospectus is amended or supplemented after the Prospectus
has been delivered pursuant to Rule 424(b)) 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 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 Notes), 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
Notes 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 Notes to such person
22
<PAGE>
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. Each of the Underwriters agrees to severally and not jointly
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 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
23
<PAGE>
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 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.
24
<PAGE>
D. Each Underwriter agrees to deliver to the Companies no later than
the date prior to the date on which the Form 8-K is required to be filed
pursuant to Section 2(ii) hereof with a copy of its Derived Information (defined
-------------------
below) for filing with the Commission on Form 8-K.
E. Each Underwriter agrees, assuming all Company-Provided Information
----------------------------
(defined below) is accurate and complete in all material respects, to severally
and not jointly indemnify and hold harmless the Sponsor and the Seller, each of
the Sponsor's and the Seller's officers and directors and each person who
controls the Sponsor or the Seller within the meaning of Section 15 of the
Securities Act against any and all losses, claims, damages or liabilities, joint
or several, to which they may become subject under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement of a
material fact contained in the Derived Information provided by such Underwriter,
or arise out of or are based upon the omission or alleged omission to 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 agrees to reimburse each such indemnified party for
any legal or other expenses reasonably incurred by him, her or it in connection
with investigating or defending or preparing to defend any such loss, claim,
damage, liability or action as such expenses are incurred; provided, however,
that in no case shall any Underwriter be responsible for any amount in excess of
the underwriting discount applicable to the Notes purchased by such Underwriter.
The obligations of each of the Underwriters under this Section 9E shall be in
addition to any liability which such Underwriter may otherwise have.
The procedures set forth in Section 9C shall be equally applicable to
this Section 9E.
F. For purposes of this Section 9, the term "Derived Information"
means such portion, if any, of the information delivered to the Sponsor or the
Seller pursuant to Section 9D for filing with the Commission on Form 8-K as:
(i) is not contained in the Prospectus without taking into account
information incorporated therein by reference;
(ii) does not constitute Company-Provided Information; and
(iii) is of the type of information defined as Collateral term sheets,
Structural term sheets or Computational Materials (as such terms
are interpreted in the No-Action Letters).
"Company-Provided Information" means any computer tape furnished to
the Underwriters by the Sponsor or the Seller concerning the Receivables
comprising the Trust.
The terms "Collateral term sheet" and "Structural term sheet" shall
have the respective meanings assigned to them in the February 13, 1995 letter
(the "PSA Letter") of Cleary, Gottlieb, Steen & Hamilton on behalf of the Public
Securities Association (which letter, and the SEC staff's response thereto, were
publicly available February 17, 1995). The term
25
<PAGE>
"Collateral term sheet" as used herein includes any subsequent Collateral term
sheet that reflects a substantive change in the information presented. The term
"Computational Materials" has the meaning assigned to it in the May 17, 1994
letter (the "Kidder letter" and together with the PSA Letter, the "No-Action
Letters") of Brown & Wood on behalf of Kidder, Peabody & Co., Inc. (which
letter, and the SEC staff's response thereto, were publicly available May 20,
1994).
G. If the indemnification provided for in this Section 9 shall for any
reason be unavailable to hold harmless an indemnified party under Section 9A or
B in respect of any loss, claim, damage or liability, or any action in respect
thereof, referred to therein, then each indemnifying party shall, in lieu of
indemnifying such indemnified party, contribute to the amount paid or payable by
such indemnified party as a result of such loss, claim, damage or liability, or
action in respect thereof, (i) in such proportion as shall be appropriate to
reflect the relative benefits received by the Sponsor or the Seller on the one
hand and the Underwriters on the other from the offering of the Notes 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 the Sponsor or
the Seller on the one hand and the Underwriters on the other with respect to the
statements or omissions which resulted in such loss, claim, damage or liability,
or action in respect thereof, as well as any other relevant equitable
considerations.
The relative benefits of the Underwriters and the Sponsor or the
Seller shall be deemed to be in such proportion so that the Underwriters are
responsible for that portion represented by the percentage that the underwriting
discount appearing on the cover page of the Prospectus bears to the public
offering price appearing on the cover page of the Prospectus.
The relative fault of the Underwriters and the Sponsor or the Seller
shall be determined by reference to whether the untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material
fact relates to information supplied by the Sponsor or the Seller or by one of
the Underwriters, the intent of the parties and their relative knowledge, access
to information and opportunity to correct or prevent such statement or omission
and other equitable considerations.
The Sponsor, the Seller and the Underwriters agree that it would not
be just and equitable if contributions pursuant to this Section 9G 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 liability, or action in respect thereof, referred to above in this
Section 9G shall be deemed to include, for purposes of this Section 9G, any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
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.
26
<PAGE>
In no case shall any Underwriter be responsible for any amount in
excess of the underwriting discount applicable to the Notes purchased by such
Underwriter hereunder. 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.
H. The Underwriters severally confirm that the information set forth
(i) in the Prospectus Supplement relating to market making and (ii) under the
caption "Underwriting" in the Prospectus Supplement, together with the Derived
Information, is correct and constitutes the only information furnished in
writing to the Sponsor or the Seller by or on behalf of the Underwriters
specifically for inclusion in the Registration Statement and the Prospectus.
Section 10. Default by One or More of the Underwriters. If one or more
------------------------------------------
of the Underwriters participating in the public offering of the Notes shall fail
at the Closing Date to purchase the Notes which it is obligated to purchase
hereunder (the "Defaulted Securities"), 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 Securities 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 Securities
does not exceed 10% of the aggregate principal amount of the Notes 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 Securities
exceeds 10% of the aggregate principal amount of the Notes 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 shall relieve the defaulting
Underwriter from 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, each of the Underwriters and the Seller 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 11. 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 Notes 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 Notes or makes
it impractical or inadvisable to market the Notes; (ii) the Notes have been
placed on credit watch by S&P or Moody's with negative implications; (iii)
trading in securities generally on the New York Stock Exchange or the National
Association of Securities Dealers National Market System shall have been
27
<PAGE>
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 Notes. 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 12. 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
Notes to the Representative or any controlling person.
Section 13. 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: Credit Suisse First Boston Corporation
Eleven Madison Avenue
New York, New York 10010
Attention:
Fax: (212) 325-8259
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
Section 14. 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 Section 9 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
28
<PAGE>
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 Notes
from the Representative shall be deemed to be a successor by reason merely of
such purchase.
SECTION 15. 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 16. 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 17. 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.
29
<PAGE>
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/ Preston A. Miller
---------------------------------------
Name: Preston A. Miller
Title: Executive Vice President and
Treasurer
AFS FUNDING CORP.
By: /s/ Preston A. Miller
---------------------------------------
Name: Preston A. Miller
Title: Executive Vice President and
Treasurer
CONFIRMED AND ACCEPTED, as of
the date first above written:
CREDIT SUISSE FIRST BOSTON CORPORATION
Acting on its own behalf and as Representative of the
Underwriters referred to in the foregoing Agreement
By: /s/ Richard d'Albert
--------------------------------------
Name: Richard d'Albert
Title: Managing Director
[Underwriting Agreement]
<PAGE>
Schedule 1
Underwriting
Purchase Price (excluding accrued interest)
<TABLE>
<CAPTION>
CLASS A-1 CLASS A-2 CLASS A-3 CLASS A-4
----------------- ---------------- ----------------- ----------------
<S> <C> <C> <C> <C>
Credit Suisse First 99.84% 99.77% 99.727% 99.657%
Boston
Chase Securities, 99.84% 99.77% 99.727% 99.657%
Inc.
Bank of Boston 99.84% 99.77% 99.727% 99.657%
Robertson
Stephens, Inc.
NationsBanc 99.84% 99.77% 99.727% 99.657%
Montgomery
Securities LLC
</TABLE>
<TABLE>
<CAPTION>
Notional Principal Amount
CLASS A-1 CLASS A-2 CLASS A-3 CLASS A-4
-------------- ---------------- --------------- ----------------
<S> <C> <C> <C> <C>
Credit Suisse First $ 35,000,000 $108,750,000 $ 32,500,000 $ 73,750,000
Boston
Chase Securities, $ 35,000,000 $108,750,000 $ 32,500,000 $ 73,750,000
Inc.
Bank of Boston $ 35,000,000 $108,750,000 $ 32,500,000 $ 73,750,000
Robertson
Stephens, Inc.
NationsBanc $ 35,000,000 $108,750,000 $ 32,500,000 $ 73,750,000
-------------- ---------------- --------------- ----------------
Montgomery
Securities LLC
-------------- ---------------- --------------- ----------------
TOTAL $140,000,000 $435,000,000 $130,000,000 $295,000,000
-------------- ---------------- --------------- ----------------
</TABLE>
<PAGE>
Exhibit 4.1
<PAGE>
EXHIBIT 4.1
================================================================================
AMERICREDIT AUTOMOBILE RECEIVABLES TRUST 1999-B
Class A-1 4.9166% Asset Backed Notes
Class A-2 5.304% Asset Backed Notes
Class A-3 5.780% Asset Backed Notes
Class A-4 5.960% Asset Backed Notes
----------------------
INDENTURE
Dated as of May 12, 1999
----------------------
BANK ONE, N.A.
Trustee and Trust Collateral Agent
================================================================================
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE...................................... 3
SECTION 1.1 Definitions.......................................................... 3
SECTION 1.2 Incorporation by Reference of Trust Indenture Act.................... 11
SECTION 1.3 Rules of Construction................................................ 11
ARTICLE II THE NOTES...................................................................... 12
SECTION 2.1 Form................................................................. 12
SECTION 2.2 Execution, Authentication and Delivery............................... 12
SECTION 2.3 Temporary Notes...................................................... 13
SECTION 2.4 Registration; Registration of Transfer and Exchange.................. 13
SECTION 2.5 Mutilated, Destroyed, Lost or Stolen Notes........................... 14
SECTION 2.6 Persons Deemed Owner................................................. 15
SECTION 2.7 Payment of Principal and Interest; Defaulted Interest................ 15
SECTION 2.8 Cancellation......................................................... 17
SECTION 2.9 Release of Collateral................................................ 17
SECTION 2.10 Book-Entry Notes..................................................... 17
SECTION 2.11 Notices to Clearing Agency........................................... 18
SECTION 2.12 Definitive Notes..................................................... 18
ARTICLE III COVENANTS..................................................................... 18
SECTION 3.1 Payment of Principal and Interest.................................... 18
SECTION 3.2 Maintenance of Office or Agency...................................... 19
SECTION 3.3 Money for Payments to be Held in Trust............................... 19
SECTION 3.4 Existence............................................................ 20
SECTION 3.5 Protection of Trust Estate........................................... 21
SECTION 3.6 Opinions as to Trust Estate.......................................... 21
SECTION 3.7 Performance of Obligations; Servicing of Receivables................. 22
SECTION 3.8 Negative Covenants................................................... 23
SECTION 3.9 Annual Statement as to Compliance.................................... 23
SECTION 3.10 Issuer May Consolidate, Etc. Only on Certain Terms................... 24
SECTION 3.11 Successor or Transferee.............................................. 26
SECTION 3.12 No Other Business.................................................... 26
SECTION 3.13 No Borrowing......................................................... 26
SECTION 3.14 Servicer's Obligations............................................... 26
SECTION 3.15 Guarantees, Loans, Advances and Other Liabilities.................... 27
SECTION 3.16 Capital Expenditures................................................. 27
SECTION 3.17 Compliance with Laws................................................. 27
SECTION 3.18 Restricted Payments.................................................. 27
SECTION 3.19 Notice of Events of Default.......................................... 27
SECTION 3.20 Further Instruments and Acts......................................... 27
SECTION 3.21 Amendments of Sale and Servicing Agreement and Trust Agreement....... 27
SECTION 3.22 Income Tax Characterization.......................................... 28
ARTICLE IV SATISFACTION AND DISCHARGE..................................................... 28
SECTION 4.1 Satisfaction and Discharge of Indenture.............................. 28
SECTION 4.2 Application of Trust Money........................................... 29
SECTION 4.3 Repayment of Moneys Held by Note Paying Agent........................ 29
ARTICLE V REMEDIES........................................................................ 29
SECTION 5.1 Events of Default.................................................... 29
</TABLE>
i
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C>
SECTION 5.2 Rights Upon Event of Default......................................... 31
SECTION 5.3 Collection of Indebtedness and Suits for Enforcement by Trustee...... 32
SECTION 5.4 Remedies............................................................. 35
SECTION 5.5 Optional Preservation of the Receivables............................. 36
SECTION 5.6 Priorities........................................................... 36
SECTION 5.7 Limitation of Suits.................................................. 37
SECTION 5.8 Unconditional Rights of Noteholders To Receive Principal and
Interest........................................................... 38
SECTION 5.9 Restoration of Rights and Remedies................................... 38
SECTION 5.10 Rights and Remedies Cumulative....................................... 38
SECTION 5.11 Delay or Omission Not a Waiver....................................... 38
SECTION 5.12 Control by Noteholders............................................... 38
SECTION 5.13 Waiver of Past Defaults.............................................. 39
SECTION 5.14 Undertaking for Costs................................................ 39
SECTION 5.15 Waiver of Stay or Extension Laws..................................... 40
SECTION 5.16 Action on Notes...................................................... 40
SECTION 5.17 Performance and Enforcement of Certain Obligations................... 40
ARTICLE VI THE TRUSTEE AND THE TRUST COLLATERAL AGENT..................................... 41
SECTION 6.1 Duties of Trustee.................................................... 41
SECTION 6.2 Rights of Trustee.................................................... 42
SECTION 6.3 Individual Rights of Trustee......................................... 44
SECTION 6.4 Trustee's Disclaimer................................................. 44
SECTION 6.5 Notice of Defaults................................................... 44
SECTION 6.6 Reports by Trustee to Holders........................................ 44
SECTION 6.7 Compensation and Indemnity........................................... 44
SECTION 6.8 Replacement of Trustee............................................... 45
SECTION 6.9 Successor Trustee by Merger.......................................... 46
SECTION 6.10 Appointment of Co-Trustee or Separate Trustee........................ 47
SECTION 6.11 Eligibility: Disqualification........................................ 48
SECTION 6.12 Preferential Collection of Claims Against Issuer..................... 48
SECTION 6.13 Appointment and Powers............................................... 48
SECTION 6.14 Performance of Duties................................................ 49
SECTION 6.15 Limitation on Liability.............................................. 49
SECTION 6.16 Reliance Upon Documents.............................................. 49
SECTION 6.17 Successor Trust Collateral Agent..................................... 50
SECTION 6.18 Compensation......................................................... 51
SECTION 6.19 Representations and Warranties of the Trust Collateral Agent......... 51
SECTION 6.20 Waiver of Setoffs.................................................... 52
SECTION 6.21 Control by the Controlling Party..................................... 52
ARTICLE VII NOTEHOLDERS' LISTS AND REPORTS................................................ 52
SECTION 7.1 Issuer To Furnish To Trustee Names and Addresses of Noteholders...... 52
SECTION 7.2 Preservation of Information; Communications to Noteholders........... 52
SECTION 7.3 Reports by Issuer.................................................... 52
SECTION 7.4 Reports by Trustee................................................... 53
ARTICLE VIII ACCOUNTS, DISBURSEMENTS AND RELEASES......................................... 53
SECTION 8.1 Collection of Money.................................................. 53
SECTION 8.2 Release of Trust Estate.............................................. 54
SECTION 8.3 Opinion of Counsel................................................... 54
ARTICLE IX SUPPLEMENTAL INDENTURES........................................................ 54
SECTION 9.1 Supplemental Indentures Without Consent of Noteholders............... 54
SECTION 9.2 Supplemental Indentures with Consent of Noteholders.................. 56
SECTION 9.3 Execution of Supplemental Indentures................................. 57
SECTION 9.4 Effect of Supplemental Indenture..................................... 57
</TABLE>
ii
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C>
SECTION 9.5 Conformity With Trust Indenture Act.................................. 58
SECTION 9.6 Reference in Notes to Supplemental Indentures........................ 58
ARTICLE X REDEMPTION OF NOTES............................................................. 58
SECTION 10.1 Redemption........................................................... 58
SECTION 10.2 Form of Redemption Notice............................................ 59
SECTION 10.3 Notes Payable on Redemption Date..................................... 59
ARTICLE XI MISCELLANEOUS.................................................................. 60
SECTION 11.1 Compliance Certificates and Opinions, etc............................ 60
SECTION 11.2 Form of Documents Delivered to Trustee............................... 61
SECTION 11.3 Acts of Noteholders.................................................. 62
SECTION 11.4 Notices, etc., to Trustee, Issuer and Rating Agencies................ 63
SECTION 11.5 Notices to Noteholders; Waiver....................................... 64
SECTION 11.6 [Reserved]........................................................... 64
SECTION 11.7 Conflict with Trust Indenture Act.................................... 65
SECTION 11.8 Effect of Headings and Table of Contents............................. 65
SECTION 11.9 Successors and Assigns............................................... 65
SECTION 11.10 Separability......................................................... 65
SECTION 11.11 Benefits of Indenture................................................ 65
SECTION 11.12 Legal Holidays....................................................... 66
SECTION 11.13 Governing Law........................................................ 66
SECTION 11.14 Counterparts......................................................... 66
SECTION 11.15 Recording of Indenture............................................... 66
SECTION 11.16 Trust Obligation..................................................... 66
SECTION 11.17 No Petition.......................................................... 67
SECTION 11.18 Inspection........................................................... 67
</TABLE>
iii
<PAGE>
INDENTURE dated as of May 12, 1999, between AMERICREDIT AUTOMOBILE
RECEIVABLES TRUST 1999-B, a Delaware business trust (the "Issuer"), and BANK
ONE, N.A., a national banking association, as trustee (the "Trustee") and Trust
Collateral Agent (as defined below)
Each party agrees as follows for the benefit of the other party and
for the equal and ratable benefit of the Holders of the Issuer's Class A-1
4.9166% Asset Backed Notes (the "Class A-1 Notes"), Class A-2 5.304% Asset
Backed Notes (the "Class A-2 Notes"), Class A-3 5.780% Asset Backed Notes (the
"Class A-3 Notes") and Class A-4 5.960% Asset Backed Notes (the "Class A-4
Notes" and together with the Class A-1 Notes, the Class A-2 Notes and the Class
A-3 Notes, the "Notes"):
As security for the payment and performance by the Issuer of its
obligations under this Indenture and the Notes, the Issuer has agreed to assign
the Indenture Collateral (as defined below) as collateral to the Trust
Collateral Agent for the benefit of the Trustee on behalf of the Noteholders.
Financial Security Assurance Inc. (the "Security Insurer") has issued
and delivered a financial guaranty insurance policy, dated the Closing Date
(with endorsements, the "Note Policy"), pursuant to which the Security Insurer
guarantees Scheduled Payments, as defined in the Insurance Agreement.
As an inducement to the Security Insurer to issue and deliver the Note
Policy, the Issuer and the Security Insurer have executed and delivered the
Insurance and Indemnity Agreement, dated as of May 12, 1999 (as amended from
time to time, the "Insurance Agreement"), among the Security Insurer, the
Issuer, AmeriCredit Financial Services, Inc., AmeriCredit Corp., and AFS Funding
Corp..
As an additional inducement to the Security Insurer to issue the Note
Policy, and as security for the performance by the Issuer of the Insurer Issuer
Secured Obligations and as security for the performance by the Issuer of the
Trustee Issuer Secured Obligations, the Issuer has agreed to assign the
Collateral (as defined below) as collateral to the Trust Collateral Agent for
the benefit of the Issuer Secured Parties, as their respective interests may
appear.
1
<PAGE>
GRANTING CLAUSE
The Issuer hereby Grants to the Trust Collateral Agent at the Closing
Date, for the benefit of the Issuer Secured Parties, all of the Issuer's right,
title and interest in and to (a) the Initial Receivables; (b) an assignment of
the security interests in the Financed Vehicles granted by Obligors pursuant to
the Initial Receivables and any Subsequent Receivables and any other interest of
the Issuer in the Financed Vehicles; (c) any proceeds with respect to the
Initial Receivables and the Subsequent Receivables repurchased by a Dealer,
pursuant to a Dealer Agreement, as a result of a breach of representation or
warranty in the related Dealer Agreement; (d) all rights under any Service
Contracts on the related Financed Vehicles; (e) any proceeds with respect to the
Initial Receivables and the Subsequent Receivables from claims on any physical
damage, credit life or disability insurance policies covering Financed Vehicles
or Obligors; (f) the Trust Accounts and all funds on deposit from time to time
in the Trust Accounts, and in all investments and proceeds thereof and all
rights of the Issuer therein (including all income thereon); (g) the Issuer's
rights and benefits, but none of its obligations or burdens, under the Purchase
Agreement and each Subsequent Purchase Agreement, including the delivery
requirements, representations and warranties and the cure and repurchase
obligations of AmeriCredit under the Purchase Agreement; (h) all items contained
in the Receivable Files and any and all other documents that AmeriCredit keeps
on file in accordance with its customary procedures relating to the Receivables,
the Obligors or the Financed Vehicles, (i) the Issuer's rights and benefits, but
none of its obligations or burdens, under the Sale and Servicing Agreement
(including all rights of the Seller under the Purchase Agreement, any Subsequent
Purchase Agreement and any Subsequent Transfer Agreement assigned to the Issuer
pursuant to the Sale and Servicing Agreement); and (j) all present and future
claims, demands, causes and choses of 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 all 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
(collectively, the "Collateral").
The foregoing Grant is made in trust to the Trust Collateral Agent,
for the benefit of the Trustee on behalf of the Noteholders and for the benefit
of the Security Insurer. The Trust Collateral Agent hereby acknowledges such
Grant, accepts the trusts under this Indenture in accordance with the provisions
of this Indenture and agrees to perform its duties required in this Indenture to
the end that the interests of such parties, recognizing the priorities of their
respective interests may be adequately and effectively protected.
2
<PAGE>
ARTICLE I
Definitions and Incorporation by Reference
------------------------------------------
SECTION 1.1 Definitions. Except as otherwise specified herein, the
-----------
following terms have the respective meanings set forth below for all purposes of
this Indenture.
"Act" has the meaning specified in Section 11.3(a).
---
"Affiliate" means, with respect to any specified Person, any other
---------
Person controlling or controlled by or under 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 policies of
such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing. A Person shall not be
deemed to be an Affiliate of any person solely because such other Person has the
contractual right or obligation to manage such Person unless such other Person
controls such Person through equity ownership or otherwise.
"Authorized Officer" means, with respect to the Issuer and the
------------------
Servicer, any officer or agent acting pursuant to a power of attorney of the
Owner Trustee or the Servicer, as applicable, who is authorized to act for the
Owner Trustee or the Servicer, as applicable, in matters relating to the Issuer
and who is identified on the list of Authorized Officers delivered by each of
the Owner Trustee and the Servicer to the Trustee on the Closing Date (as such
list may be modified or supplemented from time to time thereafter).
"Basic Documents" means this Indenture, the Certificate of Trust, the
---------------
Trust Agreement, as amended, the Sale and Servicing Agreement, the Spread
Account Agreement, the Spread Account Agreement Supplement, the Insurance
Agreement and other documents and certificates delivered in connection
therewith.
"Book Entry Notes" means a beneficial interest in the Notes, ownership
----------------
and transfers of which shall be made through book entries by a Clearing Agency
as described in Section 2.10.
"Business Day" means (i) with respect to the Note Policy, any day
------------
other than a Saturday, Sunday, legal holiday or other day on which commercial
banking institutions in Wilmington, Delaware, New York, New York, Columbus, Ohio
or Fort Worth, Texas or any other location of any successor Servicer, successor
Owner Trustee or successor Trust Collateral Agent are authorized or obligated by
law, executive order or governmental decree to be closed and (ii) otherwise, a
day other than a Saturday, a Sunday or other day on which commercial banks
located in the states of Delaware, Texas, New York or Ohio are authorized or
obligated to be closed.
"Certificate" means a trust certificate evidencing the beneficial
-----------
interest of a Certificateholder in the Trust.
3
<PAGE>
"Certificateholder" means the Person in whose name a Certificate is
-----------------
registered on the Certificate Register.
"Certificate of Trust" means the certificate of trust of the Issuer
--------------------
substantially in the form of Exhibit B to the Trust Agreement.
"Class A-1 Interest Rate" means 4.9166% per annum (computed on the
-----------------------
basis of the actual number of days elapsed in a 360-day year).
"Class A-1 Notes" means the Class A-1 4.9166% Asset Backed Notes,
---------------
substantially in the form of Exhibit A-1.
"Class A-1 Prepayment Amount" means, as of the Distribution Date on or
---------------------------
immediately following the last day of the Funding Period, after giving effect to
any transfer of Subsequent Receivables on such date, an amount equal to the
Class A-1 Noteholders' pro rata share (based on the respective current
outstanding principal balance of each class of Notes) of the Pre-Funded Amount
as of such Distribution Date.
"Class A-2 Interest Rate" means 5.304% per annum (computed on the
-----------------------
basis of the actual number of days elapsed in a 360-day year).
"Class A-2 Notes" means the Class A-2 5.304% Asset Backed Notes,
---------------
substantially in the form of Exhibit A-2.
"Class A-2 Prepayment Amount" means, as of the Distribution Date on or
---------------------------
immediately following the last day of the Funding Period, after giving effect to
any transfer of Subsequent Receivables on such date, an amount equal to the
Class A-2 Noteholders' pro rata share (based on the respective current
outstanding principal balance of each class of Notes) of the Pre-Funded Amount
as of such Distribution Date.
"Class A-3 Interest Rate" means 5.780% per annum (computed on the
-----------------------
basis of a 360 day year of twelve 30-day months).
"Class A-3 Notes" means the Class A-3 5.780% Asset Backed Notes,
---------------
substantially in the form of Exhibit A-3.
"Class A-3 Prepayment Amount" means, as of the Distribution Date on or
---------------------------
immediately following the last day of the Funding Period, after giving effect to
any transfer of Subsequent Receivables on such date, an amount equal to the
Class A-3 Noteholders' pro rata share (based on the respective current
outstanding principal balance of each class of Notes) of the Pre-Funded Amount
as of such Distribution Date.
"Class A-4 Interest Rate" means 5.960% per annum (computed on the
-----------------------
basis of a 360 day year of twelve 30-day months).
"Class A-4 Notes" means the Class A-4 5.960% Asset Backed Notes,
---------------
substantially in the form of Exhibit A-4.
4
<PAGE>
"Class A-4 Prepayment Amount" means, as of the Distribution Date on or
---------------------------
immediately following the last day of the Funding Period, after giving effect to
any transfer of Subsequent Receivables on such date, an amount equal to the
Class A-4 Noteholders' pro rata share (based on the respective current
outstanding principal balance of each class of Notes) of the Pre-Funded Amount
as of such Distribution Date.
"Clearing Agency" means an organization registered as a "clearing
---------------
agency" pursuant to Section 17A of the Exchange Act.
"Clearing Agency Participant" means a broker, dealer, bank, other
---------------------------
financial institution or other Person for whom from time to time a Clearing
Agency effects book-entry transfers and pledges of securities deposited with the
Clearing Agency.
"Closing Date" means May 20, 1999.
------------
"Code" means the Internal Revenue Code of 1986, as amended from time
----
to time, and Treasury Regulations promulgated thereunder.
"Collateral" has the meaning specified in the Granting Clause of this
----------
Indenture.
"Controlling Party" means the Security Insurer, so long as no Insurer
-----------------
Default shall have occurred and be continuing, and the Trustee, for so long as
an Insurer Default shall have occurred and be continuing.
"Corporate Trust Office" means the principal office of the Trustee at
----------------------
which at any particular time its corporate trust business shall be administered
which office at date of the execution of this Agreement is located at 100 East
Broad Street, 8th Floor, Columbus, Ohio 43215 (facsimile number (614) 248-5195)
Attention: Indenture Trust Administration or at such other address as the
Trustee may designate from time to time by notice to the Noteholders, the
Security Insurer, the Servicer and the Issuer, or the principal corporate trust
office of any successor Trustee (the address of which the successor Trustee will
notify the Noteholders and the Issuer).
"Default" means any occurrence that is, or with notice or the lapse of
-------
time or both would become, an Event of Default.
"Definitive Notes" has the meaning specified in Section 2.10.
----------------
"Distribution Date" has the meaning specified in the Sale and
-----------------
Servicing Agreement.
"Event of Default" has the meaning specified in Section 5.1.
----------------
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
------------
"Executive Officer" means, with respect to any corporation, the Chief
-----------------
Executive Officer, Chief Operating Officer, Chief Financial Officer, President,
any Executive Vice
5
<PAGE>
President, any Vice President, the Secretary or the Treasurer of such
corporation; and with respect to any partnership, any general partner thereof.
"Grant" means mortgage, pledge, bargain, warrant, alienate, remise,
-----
release, convey, assign, transfer, create, grant a lien upon and a security
interest in and right of set-off against, deposit, set over and confirm pursuant
to this Indenture. A Grant of the Collateral or of any other agreement or
instrument shall include all rights, powers and options (but none of the
obligations) of the Granting party thereunder, including the immediate and
continuing right to claim for, collect, receive and give receipt for principal
and interest payments in respect of the Collateral and all other moneys payable
thereunder, to give and receive notices and other communications, to make
waivers or other agreements, to exercise all rights and options, to bring
proceedings in the name of the Granting party or otherwise and generally to do
and receive anything that the Granting party is or may be entitled to do or
receive thereunder or with respect thereto.
"Holder" or "Noteholder" means the Person in whose name a Note is
------ ----------
registered on the Note Register.
"Indebtedness" means, with respect to any Person at any time, (a)
------------
indebtedness or liability of such Person for borrowed money whether or not
evidenced by bonds, debentures, notes or other instruments, or for the deferred
purchase price of property or services (including trade obligations); (b)
obligations of such Person as lessee under leases which should have been or
should be, in accordance with generally accepted accounting principles, recorded
as capital leases; (c) current liabilities of such Person in respect of unfunded
vested benefits under plans covered by Title IV of ERISA; (d) obligations issued
for or liabilities incurred on the account of such Person; (e) obligations or
liabilities of such Person arising under acceptance facilities; (f) obligations
of such Person under any guarantees, endorsements (other than for collection or
deposit in the ordinary course of business) and other contingent obligations to
purchase, to provide funds for payment, to supply funds to invest in any Person
or otherwise to assure a creditor against loss; (g) obligations of such Person
secured by any lien on property or assets of such Person, whether or not the
obligations have been assumed by such Person; or (h) obligations of such Person
under any interest rate or currency exchange agreement.
"Indenture" means this Indenture as amended and supplemented from time
---------
to time.
"Independent" means, when used with respect to any specified Person,
-----------
that the person (a) is in fact independent of the Issuer, any other obligor upon
the Notes, the Seller and any Affiliate of any of the foregoing persons, (b)
does not have any direct financial interest or any material indirect financial
interest in the Issuer, any such other obligor, the Seller or any Affiliate of
any of the foregoing Persons and (c) is not connected with the Issuer, any such
other obligor, the Seller or any Affiliate of any of the foregoing Persons as an
officer, employee, promoter, underwriter, trustee, partner, director or Person
performing similar functions.
"Independent Certificate" means a certificate or opinion to be
-----------------------
delivered to the Trust Collateral Agent under the circumstances described in,
and otherwise complying with, the applicable requirements of Section 11.1,
prepared by an Independent appraiser or other expert
6
<PAGE>
appointed by an Issuer Order and approved by the Trust Collateral Agent in the
exercise of reasonable care, and such opinion or certificate shall state that
the signer has read the definition of "Independent" in this Indenture and that
the signer is Independent within the meaning thereof.
"Insurance Agreement Indenture Cross Default" has the meaning
-------------------------------------------
specified therefor in the Insurance Agreement.
"Insured Distribution Date" has the meaning specified in the Sale and
-------------------------
Servicing Agreement.
"Insurer Issuer Secured Obligations" means all amounts and obligations
----------------------------------
which the Issuer may at any time owe to or on behalf of the Security Insurer
under this Indenture, the Insurance Agreement or any other Basic Document.
"Interest Rate" means, with respect to the (i) Class A-1 Notes, the
-------------
Class A-1 Interest Rate, (ii) Class A-2 Notes, the Class A-2 Interest Rate,
(iii) Class A-3 Notes, the Class A-3 Interest Rate, and (iv) Class A-4 Notes,
the Class A-4 Interest Rate.
"Issuer" means the party named as such in this Indenture until a
------
successor replaces it and, thereafter, means the successor and, for purposes of
any provision contained herein and required by the TIA, each other obligor on
the Notes.
"Issuer Order" and "Issuer Request" means a written order or request
------------ --------------
signed in the name of the Issuer by any one of its Authorized Officers and
delivered to the Trustee.
"Issuer Secured Obligations" means the Insurer Issuer Secured
--------------------------
Obligations and the Trustee Issuer Secured Obligations.
"Issuer Secured Parties" means each of the Trustee in respect of the
----------------------
Trustee Issuer Secured Obligations and the Security Insurer in respect of the
Insurer Issuer Secured Obligations.
"Note" means a Class A-1 Note, a Class A-2 Note, a Class A-3 Note and
----
a Class A-4 Note.
"Note Owner" means, with respect to a Book-Entry Note, the person who
----------
is the owner of such Book-Entry Note, as reflected on the books of the Clearing
Agency, or on the books of a Person maintaining an account with such Clearing
Agency (directly as a Clearing Agency Participant or as an indirect participant,
in each case in accordance with the rules of such Clearing Agency).
"Note Paying Agent" means the Trustee or any other Person that meets
-----------------
the eligibility standards for the Trustee specified in Section 6.11 and is
authorized by the Issuer to make the payments to and distributions from the
Collection Account and the Note Distribution Account, including payment of
principal of or interest on the Notes on behalf of the Issuer.
"Note Policy" means the insurance policy issued by the Security
-----------
Insurer with respect to the Notes, including any endorsements thereto.
7
<PAGE>
"Note Policy Claim Amount" has the meaning specified in the Sale and
------------------------
Serving Agreement.
"Note Register" and "Note Registrar" have the respective meanings
------------- --------------
specified in Section 2.4.
"Notice of Claim" has the meaning specified in the Sale and Servicing
---------------
Agreement.
"Officer's Certificate" means a certificate signed by any Authorized
---------------------
Officer of the Owner Trustee, under the circumstances described in, and
otherwise complying with, the applicable requirements of Section 11.1 and TIA
(S) 314, and delivered to the Trustee. Unless otherwise specified, any
reference in this Indenture to an Officer's Certificate shall be to an Officer's
Certificate of any Authorized Officer of the Issuer.
"Opinion of Counsel" means one or more written opinions of counsel who
------------------
may, except as otherwise expressly provided in this Indenture, be employees of
or counsel to the Issuer and who shall be satisfactory to the Trustee and, if
addressed to the Security Insurer, satisfactory to the Security Insurer, and
which shall comply with any applicable requirements of Section 11.1, and shall
be in form and substance satisfactory to the Trustee, and if addressed to the
Security Insurer, satisfactory to the Security Insurer.
"Outstanding" means, as of the date of determination, all Notes
-----------
theretofore authenticated and delivered under this Indenture except:
(i) Notes theretofore canceled by the Note Registrar or delivered to
the Note Registrar for cancellation;
(ii) Notes or portions thereof the payment for which money in the
necessary amount has been theretofore deposited with the Trustee or any
Note Paying Agent in trust for the Noteholders (provided, however, that if
-------- -------
such Notes are to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture or provision therefor, satisfactory to the
Trustee); and
(iii) Notes in exchange for or in lieu of other Notes which have been
authenticated and delivered pursuant to this Indenture unless proof
satisfactory to the Trustee is presented that any such Notes are held by a
bona fide purchaser;
provided, however, that Notes which have been paid with proceeds of the Note
- -------- -------
Policy shall continue to remain Outstanding for purposes of this Indenture until
the Security Insurer has been paid as subrogee hereunder or reimbursed pursuant
to the Insurance Agreement as evidenced by a written notice from the Security
Insurer delivered to the Trustee, and the Security Insurer shall be deemed to be
the Holder thereof to the extent of any payments thereon made by the Security
Insurer; provided, further, that in determining whether the Holders of the
-------- -------
requisite Outstanding Amount of the Notes have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or under any Basic
Document, Notes owned by the Issuer, any other obligor upon the Notes, the
Seller or any Affiliate of any of the foregoing Persons shall be disregarded and
deemed not to be Outstanding, except that, in determining whether the Trustee
shall be
8
<PAGE>
protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Notes that a Responsible Officer of the Trustee
either actually knows to be so owned or has received written notice thereof
shall be so disregarded. Notes so owned that have been pledged in good faith may
be regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgees right so to act with respect to such Notes and that the
pledgee is not the Issuer, any other obligor upon the Notes, the Seller or any
Affiliate of any of the foregoing Persons.
"Outstanding Amount" means the aggregate principal amount of all
------------------
Notes, or class of Notes, as applicable, Outstanding at the date of
determination.
"Predecessor Note" means, with respect to any particular Note, every
----------------
previous Note evidencing all or a portion of the same debt as that evidenced by
such particular Note; and, for the purpose of this definition, any Note
authenticated and delivered under Section 2.5 in lieu of a mutilated, lost,
destroyed or stolen Note shall be deemed to evidence the same debt as the
mutilated, lost, destroyed or stolen Note.
"Preference Claim" has the meaning specified in the Sale and Servicing
----------------
Agreement.
"Proceeding" means any suit in equity, action at law or other judicial
----------
or administrative proceeding.
"Rating Agency" means each of Moody's and Standard & Poor's, so long
-------------
as such Persons maintain a rating on the Notes; and if either Moody's or
Standard & Poor's no longer maintains a rating on the Notes, such other
nationally recognized statistical rating organization selected by the Seller and
(so long as an Insurer Default shall not have occurred and be continuing)
acceptable to the Security Insurer.
"Rating Agency Condition" means, with respect to any action, that each
-----------------------
Rating Agency shall have been given 10 days' (or such shorter period as shall be
acceptable to each Rating Agency) prior notice thereof and that each of the
Rating Agencies shall have notified the Seller, the Servicer, the Security
Insurer, the Trustee, the Owner Trustee and the Issuer in writing that such
action will not result in a reduction or withdrawal of the then current rating
of the Notes.
"Record Date" means, with respect to a Distribution Date or Redemption
-----------
Date, the close of business on the Business Day immediately preceding such
Distribution Date or Redemption Date.
"Redemption Date" means (a) in the case of a redemption of the Notes
---------------
pursuant to Section 10.1(a) or a payment to Noteholders pursuant to Section
10.1(b), the Distribution Date specified by the Servicer or the Issuer pursuant
to Section 10.1(a) or (b) as applicable.
"Redemption Price" means (a) in the case of a redemption of the Notes
----------------
pursuant to Section 10.1(a), an amount equal to the unpaid principal amount of
the then outstanding principal amount of each class of Notes being redeemed plus
accrued and unpaid interest thereon to but excluding the Redemption Date, or (b)
in the case of a payment made to Noteholders
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<PAGE>
pursuant to Section 10.1(b), the amount on deposit in the Note Distribution
Account, but not in excess of the amount specified in clause (a) above.
"Responsible Officer" means, with respect to the Trustee or the Trust
-------------------
Collateral Agent, any officer within the Corporate Trust Office of the Trustee,
including any Vice President, Assistant Vice President, Assistant Treasurer,
Assistant Secretary, or any other officer of the Trustee or the Trust Collateral
Agent customarily performing functions similar to those performed by any of the
above designated officers and also, with respect to a particular matter, any
other officer to whom such matter is referred because of such officer's
knowledge of and familiarity with the particular subject.
"Sale and Servicing Agreement" means the Sale and Servicing Agreement
----------------------------
dated as of May 12, 1999, among the Issuer, the Seller, the Servicer and the
Trustee as Backup Servicer and Trust Collateral Agent, as the same may be
amended or supplemented from time to time.
"Scheduled Payments" has the meaning specified in the Note Policy.
------------------
"State" means any one of the 50 states of the United States of America
-----
or the District of Columbia.
"Termination Date" means the latest of (i) the expiration of the Note
----------------
Policy and the return of the Note Policy to the Security Insurer for
cancellation, (ii) the date on which the Security Insurer shall have received
payment and performance of all Insurer Issuer Secured obligations and (iii) the
date on which the Trustee shall have received payment and performance of all
Trustee Issuer Secured Obligations.
"Trust Collateral Agent" means, initially, Bank One, N.A., in its
----------------------
capacity as collateral agent on behalf of the Issuer Secured Parties, including
its successors-in-interest, until and unless a successor Person shall have
become the Trust Collateral Agent pursuant to Section 6.17 hereof, and
thereafter "Trust Collateral Agent" shall mean such successor Person.
"Trust Estate" means all money, instruments, rights and other property
------------
that are subject or intended to be subject to the lien and security interest of
this Indenture for the benefit of the Noteholders (including all property and
interests Granted to the Trust Collateral Agent), including all proceeds
thereof.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939,
------------------- ---
as amended and as in force on the date hereof, unless otherwise specifically
provided.
"Trustee" means Bank One, N.A., a national banking association, not in
-------
its individual capacity but as trustee under this Indenture, or any successor
trustee under this Indenture.
"Trustee Issuer Secured Obligations" means all amounts and obligations
----------------------------------
which the Issuer may at any time owe to or on behalf of the Trustee for the
benefit of the Noteholders under this Indenture or the Notes.
10
<PAGE>
"UCC" means, unless the context otherwise requires, the Uniform
---
Commercial Code, as in effect in the relevant jurisdiction, as amended from time
to time.
Capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned to them in the Sale and Servicing Agreement or the
Trust Agreement.
SECTION 1.2 Incorporation by Reference of Trust Indenture Act.
-------------------------------------------------
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture. The following
TIA terms used in this Indenture have the following meanings:
"Commission" means the Securities and Exchange Commission.
"indenture securities" means the Notes.
"indenture security holder" means a Noteholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Issuer.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by Commission rule
have the meaning assigned to them by such definitions.
SECTION 1.3 Rules of Construction. Unless the context otherwise
---------------------
requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the meaning
assigned to it in accordance with generally accepted accounting
principles as in effect from time to time;
(iii) "or" is not exclusive;
(iv) "including" means including without limitation; and
(v) words in the singular include the plural and words in the
plural include the singular.
ARTICLE II
The Notes
---------
SECTION 2.1 Form. The Class A-1 Notes, the Class A-2 Notes, the
----
Class A-3 Notes and the Class A-4 Notes, in each case together with the
Trustee's certificate of authentication, shall be in substantially the form set
forth in Exhibit A-1, A-2, A-3 and A-4,
11
<PAGE>
respectively, with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture and may have
such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may, consistently herewith, be determined by the
officers executing such Notes, as evidenced by their execution of the Notes. Any
portion of the text of any Note may be set forth on the reverse thereof, with an
appropriate reference thereto on the face of the Note.
The Definitive Notes shall be typewritten, printed, lithographed or
engraved or produced by any combination of these methods (with or without steel
engraved borders), all as determined by the officers executing such Notes, as
evidenced by their execution of such Notes.
Each Note shall be dated the date of its authentication. The terms of
the Notes set forth in Exhibits A-1, A-2, A-3 and A-4 are part of the terms of
this Indenture.
SECTION 2.2 Execution, Authentication and Delivery. The Notes shall
--------------------------------------
be executed on behalf of the Issuer by any of its Authorized Officers. The
signature of any such Authorized Officer on the Notes may be manual or
facsimile.
Notes bearing the manual or facsimile signature of individuals who
were at any time Authorized Officers of the Issuer shall bind the Issuer,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Notes or did not hold
such offices at the date of such Notes.
The Trustee shall, upon receipt of the Note Policy and Issuer Order,
authenticate and deliver Class A-1 Notes for original issue in an aggregate
principal amount of $140,000,000, Class A-2 Notes for original issue in the
aggregate principal amount of $435,000,000, Class A-3 Notes for original issue
in an aggregate principal amount of $130,000,000 and Class A-4 Notes for
original issue in the aggregate principal amount of $295,000,000. The Class A-1
Notes, Class A-2 Notes, Class A-3 Notes and Class A-4 Notes outstanding at any
time may not exceed such amounts except as provided in Section 2.5.
The Notes shall be issuable as registered Notes in the minimum
denomination of $1,000 and in integral multiples thereof (except for one Note of
each class which may be issued in a denomination other than an integral multiple
of $1,000).
No Note shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose, unless there appears on such Note a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by the manual signature of one of its authorized
signatories, and such certificate upon any Note shall be conclusive evidence,
and the only evidence, that such Note has been duly authenticated and delivered
hereunder.
SECTION 2.3 Temporary Notes. Pending the preparation of Definitive
---------------
Notes, the Issuer may execute, and upon receipt of an Issuer Order the Trustee
shall authenticate and deliver, temporary Notes which are printed, lithographed,
typewritten, mimeographed or otherwise produced, of the tenor of the Definitive
Notes in lieu of which they are issued and with such variations not inconsistent
with the terms of this Indenture as the officers executing such Notes may
determine, as evidenced by their execution of such Notes.
12
<PAGE>
If temporary Notes are issued, the Issuer will cause Definitive Notes
to be prepared without unreasonable delay. After the preparation of Definitive
Notes, the temporary Notes shall be exchangeable for Definitive Notes upon
surrender of the temporary Notes at the office or agency of the Issuer to be
maintained as provided in Section 3.2, without charge to the Noteholder. Upon
surrender for cancellation of any one or more temporary Notes, the Issuer shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
like principal amount of Definitive Notes of authorized denominations. Until so
exchanged, the temporary Notes shall in all respects be entitled to the same
benefits under this Indenture as Definitive Notes.
SECTION 2.4 Registration; Registration of Transfer and Exchange. The
---------------------------------------------------
Issuer shall cause to be kept a register (the "Note Register") in which, subject
to such reasonable regulations as it may prescribe, the Issuer shall provide for
the registration of Notes and the registration of transfers of Notes. The
Trustee shall be "Note Registrar" for the purpose of registering Notes and
transfers of Notes as herein provided. Upon any resignation of any Note
Registrar, the Issuer shall promptly appoint a successor or, if it elects not to
make such an appointment, assume the duties of Note Registrar.
If a Person other than the Trustee is appointed by the Issuer as Note
Registrar, the Issuer will give the Trustee prompt written notice of the
appointment of such Note Registrar and of the location, and any change in the
location, of the Note Register, and the Trustee shall have the right to inspect
the Note Register at all reasonable times and to obtain copies thereof, and the
Trustee shall have the right to conclusively rely upon a certificate executed on
behalf of the Note Registrar by an Executive Officer thereof as to the names and
addresses of the Noteholders of the Notes and the principal amounts and number
of such Notes.
Subject to Sections 2.10 and 2.12 hereof, upon surrender for
registration of transfer of any Note at the office or agency of the Issuer to be
maintained as provided in Section 3.2, if the requirements of Section 8-401(1)
of the UCC are met the Issuer shall execute and upon its request the Trustee
shall authenticate and the Noteholder shall obtain from the Trustee, in the name
of the designated transferee or transferees, one or more new Notes, in any
authorized denominations, of the same class and a like aggregate principal
amount.
At the option of the Noteholder, Notes may be exchanged for other
Notes in any authorized denominations, of the same class and a like aggregate
principal amount, upon surrender of the Notes to be exchanged at such office or
agency. Whenever any Notes are so surrendered for exchange, subject to Sections
2.10 and 2.12 hereof, if the requirements of Section 8-401(1) of the UCC are met
the Issuer shall execute and upon its request the Trustee shall authenticate and
the Noteholder shall obtain from the Trustee, the Notes which the Noteholder
making the exchange is entitled to receive.
All Notes issued upon any registration of transfer or exchange of
Notes shall be the valid obligations of the Issuer, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Notes surrendered
upon such registration of transfer or exchange.
Every Note presented or surrendered for registration of transfer or
exchange shall be (i) duly endorsed by, or be accompanied by a written
instrument of transfer in the form
13
<PAGE>
attached to Exhibits A-1, A-2, A-3 and A-4 duly executed by, the Holder thereof
or such Holder's attorney duly authorized in writing, with such signature
guaranteed by an "eligible guarantor institution" meeting the requirements of
the Note Registrar which requirements include membership or participation in
Securities Transfer Agents Medallion Program ("Stamp") or such other "signature
guarantee program" as may be determined by the Note Registrar in addition to, or
in substitution for, Stamp, all in accordance with the Exchange Act, and (ii)
accompanied by such other documents as the Trustee may require.
Notwithstanding the foregoing, in the case of any sale or other
transfer of a Definitive Note, the transferor of such Definitive Note shall be
required to represent and warrant in writing that the prospective transferee
either (a) is not (i) an employee benefit plan (as defined in section 3(3) of
the Employee Retirement Income Security Act of 1974, as amended ("ERISA")),
which is subject to the provisions of Title I of ERISA, (ii) a plan (as defined
in section 4975(e)(1) of the Code), which is subject to Section 4975 of the
Code, or (iii) an entity whose underlying assets are deemed to be assets of a
plan described in (i) or (ii) above by reason of such plan's investment in the
entity (any such entity described in clauses (i) through (iii), a "Benefit Plan
Entity") or (b) is a Benefit Plan Entity and the acquisition and holding of the
Definitive Note by such prospective transferee is covered by a Department of
Labor Prohibited Transaction Class Exemption. Each transferee of a Book Entry
Note that is a Benefit Plan Entity shall be deemed to represent that its
acquisition and holding of the Book Entry Note is covered by a Department of
Labor Prohibited Transaction Class Exemption.
No service charge shall be made to a Noteholder for any registration
of transfer or exchange of Notes, but the Note Registrar may require payment of
a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of Notes,
other than exchanges pursuant to Section 2.3 or 9.6 not involving any transfer.
The preceding provisions of this section notwithstanding, the Issuer
shall not be required to make and the Note Registrar shall not register
transfers or exchanges of Notes selected for redemption or of any Note for a
period of 15 days preceding the due date for any payment with respect to the
Note.
SECTION 2.5 Mutilated, Destroyed, Lost or Stolen Notes. If (i) any
------------------------------------------
mutilated Note is surrendered to the Trustee, or the Trustee receives evidence
to its satisfaction of the destruction, loss or theft of any Note, and (ii)
there is delivered to the Trustee and the Security Insurer (unless an Insurer
Default shall have occurred and be continuing) such security or indemnity as may
be required by it to hold the Issuer, the Trustee and the Security Insurer
harmless, then, in the absence of notice to the Issuer, the Note Registrar or
the Trustee that such Note has been acquired by a bona fide purchaser, and
provided that the requirements of Section 8-405 of the UCC are met, the Issuer
shall execute and upon its request the Trustee shall authenticate and deliver,
in exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Note, a replacement Note; provided, however, that if any such destroyed, lost or
-------- -------
stolen Note, but not a mutilated Note, shall have become or within seven days
shall be due and payable, or shall have been called for redemption, instead of
issuing a replacement Note, the Issuer may direct the Trustee, in writing, to
pay such destroyed, lost or stolen Note when so due or payable or upon the
Redemption Date without surrender thereof. If, after the delivery of such
14
<PAGE>
replacement Note or payment of a destroyed, lost or stolen Note pursuant to the
proviso to the preceding sentence, a bona fide purchaser of the original Note in
lieu of which such replacement Note was issued presents for payment such
original Note, the Issuer, the Trustee and the Security Insurer shall be
entitled to recover such replacement Note (or such payment) from the Person to
whom it was delivered or any Person taking such replacement Note from such
Person to whom such replacement Note was delivered or any assignee of such
Person, except a bona fide purchaser, and shall be entitled to recover upon the
security or indemnity provided therefor to the extent of any loss, damage, cost
or expense incurred by the Issuer or the Trustee in connection therewith.
Upon the issuance of any replacement Note under this Section, the
Issuer may require the payment by the Holder of such Note of a sum sufficient to
cover any tax or other governmental charge that may be imposed in relation
thereto and any other reasonable expenses (including the fees and expenses of
the Trustee) connected therewith.
Every replacement Note issued pursuant to this Section in replacement
of any mutilated, destroyed, lost or stolen Note shall constitute an original
additional contractual obligation of the Issuer, whether or not the mutilated,
destroyed, lost or stolen Note shall be at any time enforceable by anyone, and
shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Notes duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Notes.
SECTION 2.6 Persons Deemed Owner. Prior to due presentment for
--------------------
registration of transfer of any Note, the Issuer, the Trustee and any agent of
the Issuer or the Trustee, or the Security Insurer may treat the Person in whose
name any Note is registered (as of the Record Date) as the owner of such Note
for the purpose of receiving payments of principal of and interest, if any on
such Note and for all other purposes whatsoever, whether or not such Note be
overdue, and none of the Issuer, the Security Insurer, the Trustee nor any agent
of the Issuer or the Trustee shall be affected by notice to the contrary.
SECTION 2.7 Payment of Principal and Interest; Defaulted Interest.
-----------------------------------------------------
(a) The Notes shall accrue interest as provided in the forms of the
Class A-1 Note, the Class A-2 Note, the Class A-3 Note and the Class A-4 Note
set forth in Exhibits A-1, A-2, A-3 and A-4, respectively, and such interest
shall be due and payable on each Distribution Date and each Insured Distribution
Date, as specified therein. Any installment of interest or principal, if any,
payable on any Note which is punctually paid or duly provided for by the Issuer
on the applicable Distribution Date or Insured Distribution Date shall be paid
to the Person in whose name such Note (or one or more Predecessor Notes) is
registered on the Record Date, by check mailed first-class, postage prepaid, to
such Person's address as it appears on the Note Register on such Record Date,
except that, unless Definitive Notes have been issued pursuant to Section 2.12,
with respect to Notes registered on the Record Date in the name of the nominee
of the Clearing Agency (initially, such nominee to be Cede & Co.), payment will
be made by wire transfer in immediately available funds to the account
designated by such nominee and except
15
<PAGE>
for the final installment of principal payable with respect to such Note on a
Distribution Date or Insured Distribution Date or on the Final Scheduled
Distribution Date (or the Insured Distribution Date which immediately follows
such Final Scheduled Distribution Date)(and except for the Redemption Price for
any Note called for redemption pursuant to Section 10.1(a)) which shall be
payable as provided below. The funds represented by any such checks returned
undelivered shall be held in accordance with Section 3.3.
(b) The principal of each Note shall be payable in installments on
each Distribution Date or Insured Distribution Date, as applicable, as provided
in the forms of the Class A-1 Note, the Class A-2 Note, the Class A-3 Note and
the Class A-4 Note set forth in Exhibits A-1, A-2, A-3 and A-4, respectively.
Notwithstanding the foregoing, the entire unpaid principal amount of the Notes
shall be due and payable, if not previously paid, on the date on which an Event
of Default shall have occurred and be continuing, if the Trustee or the
Noteholders representing not less than a majority of the Outstanding Amount of
the Notes have declared the Notes to be immediately due and payable in the
manner provided in Section 5.2. All principal payments on each class of Notes
shall be made pro rata to the Noteholders of such class entitled thereto. Upon
written notice from the Issuer, the Trustee shall notify the Person in whose
name a Note is registered at the close of business on the Record Date preceding
the Distribution Date on which the Issuer expects that the final installment of
principal of and interest on such Note will be paid. Such notice shall be mailed
or transmitted by facsimile prior to such final Distribution Date and shall
specify that such final installment will be payable only upon presentation and
surrender of such Note and shall specify the place where such Note may be
presented and surrendered for payment of such installment. Notices in connection
with redemptions of Notes shall be mailed to Noteholders as provided in Section
10.2.
(c) If the Issuer defaults in a payment of interest on the Notes, and
such default is waived by the Controlling Party, the Issuer shall pay defaulted
interest (plus interest on such defaulted interest to the extent lawful) at the
applicable Interest Rate in any lawful manner. The Issuer may pay such defaulted
interest to the Persons who are Noteholders on the immediately following Insured
Distribution Date, and, if such amount is not paid on such following Insured
Distribution Date, then on a subsequent special record date, which date shall be
at least five Business Days prior to the payment date. The Issuer shall fix or
cause to be fixed any such special record date and payment date, and, at least
15 days before any such special record date, the Issuer shall mail to each
Noteholder and the Trustee a notice that states the special record date, the
payment date and the amount of defaulted interest to be paid.
(d) Promptly following the date on which all principal of and
interest on the Notes has been paid in full and the Notes have been surrendered
to the Trustee, the Trustee shall, if the Security Insurer has paid any amount
in respect of the Notes under the Note Policy or otherwise which has not been
reimbursed to it, deliver such surrendered Notes to the Security Insurer.
SECTION 2.8 Cancellation. Subject to Section 2.7(d), all Notes
------------
surrendered for payment, registration of transfer, exchange or redemption shall,
if surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly canceled by the Trustee. Subject to Section 2.7(d), the
Issuer may at any time deliver to the Trustee for cancellation any Notes
previously authenticated and delivered hereunder which the Issuer may have
acquired in
16
<PAGE>
any manner whatsoever, and all Notes so delivered shall be promptly canceled by
the Trustee. No Notes shall be authenticated in lieu of or in exchange for any
Notes canceled as provided in this Section, except as expressly permitted by
this Indenture. Subject to Section 2.7(d), all canceled Notes may be held or
disposed of by the Trustee in accordance with its standard retention or disposal
policy as in effect at the time unless the Issuer shall timely direct by an
Issuer Order that they be destroyed or returned to it; provided that such Issuer
Order is timely and the Notes have not been previously disposed of by the
Trustee.
SECTION 2.9 Release of Collateral. The Trust Collateral Agent shall,
---------------------
on or after the Termination Date, release any remaining portion of the Trust
Estate from the lien created by this Indenture and deposit in the Collection
Account any funds then on deposit in any other Trust Account. The Trust
Collateral Agent shall release property from the lien created by this Indenture
pursuant to this Section 2.9 only upon receipt of an Issuer Request accompanied
by an Officer's Certificate, an Opinion of Counsel and (if required by the TIA)
Independent Certificates in accordance with TIA (S)(S) 314(c) and 314(d)(1)
meeting the applicable requirements of Section 11.1.
SECTION 2.10 Book-Entry Notes. The Notes, upon original issuance,
----------------
will be issued in the form of typewritten Notes representing the Book-Entry
Notes, to be delivered to The Depository Trust Company, the initial Clearing
Agency, by, or on behalf of, the Issuer. Such Notes shall initially be
registered on the Note Register in the name of Cede & Co., the nominee of the
initial Clearing Agency, and no Note Owner will receive a Definitive Note
representing such Note Owner's interest in such Note, except as provided in
Section 2.12. Unless and until definitive, fully registered Notes (the
"Definitive Notes") have been issued to Note Owners pursuant to Section 2.12:
(i) the provisions of this Section shall be in full force and
effect;
(ii) the Note Registrar and the Trustee shall be entitled to
deal with the Clearing Agency for all purposes of this Indenture
(including the payment of principal of and interest on the Notes and
the giving of instructions or directions hereunder) as the sole Holder
of the Notes, and shall have no obligation to the Note Owners;
(iii) to the extent that the provisions of this Section conflict
with any other provisions of this Indenture, the provisions of this
Section shall control;
(iv) the rights of Note Owners shall be exercised only through
the Clearing Agency and shall be limited to those established by law
and agreements between such Note Owners and the Clearing Agency and/or
the Clearing Agency Participants. Unless and until Definitive Notes
are issued pursuant to Section 2.12, the initial Clearing Agency will
make book-entry transfers among the Clearing Agency Participants and
receive and transmit payments of principal of and interest on the
Notes to such Clearing Agency Participants;
(v) whenever this Indenture requires or permits actions to be
taken based upon instructions or directions of Noteholders evidencing
a specified
17
<PAGE>
percentage of the Outstanding Amount of the Notes, the Clearing Agency
shall be deemed to represent such percentage only to the extent that
it has received instructions to such effect from Note Owners and/or
Clearing Agency Participants owning or representing, respectively,
such required percentage of the beneficial interest in the Notes and
has delivered such instructions to the Trustee; and
(vi) Note Owners may receive copies of any reports sent to
Noteholders pursuant to this Indenture, upon written request, together
with a certification that they are Note Owners and payment of
reproduction and postage expenses associated with the distribution of
such reports, from the Trustee at the Corporate Trust Office.
SECTION 2.11 Notices to Clearing Agency. Whenever a notice or other
--------------------------
communication to the Noteholders is required under this Indenture, unless and
until Definitive Notes shall have been issued to Note Owners pursuant to Section
2.12, the Trustee shall give all such notices and communications specified
herein to be given to the Noteholders to the Clearing Agency, and shall have no
obligation to the Note Owners.
SECTION 2.12 Definitive Notes. If (i) the Servicer advises the
----------------
Trustee in writing that the Clearing Agency is no longer willing or able to
properly discharge its responsibilities with respect to the Notes, and the
Servicer is unable to locate a qualified successor, (ii) the Servicer at its
option advises the Trustee in writing that it elects to terminate the book-entry
system through the Clearing Agency or (iii) after the occurrence of an Event of
Default, Note Owners representing beneficial interests aggregating at least a
majority of the Outstanding Amount of the Notes advise the Trustee through the
Clearing Agency in writing that the continuation of a book entry system through
the Clearing Agency is no longer in the best interests of the Note Owners, then
the Clearing Agency shall notify all Note Owners and the Trustee of the
occurrence of any such event and of the availability of Definitive Notes to Note
Owners requesting the same. Upon surrender to the Trustee of the typewritten
Note or Notes representing the Book-Entry Notes by the Clearing Agency,
accompanied by registration instructions, the Issuer shall execute and the
Trustee shall authenticate the Definitive Notes in accordance with the
instructions of the Clearing Agency. None of the Issuer, the Note Registrar or
the Trustee shall be liable for any delay in delivery of such instructions and
may conclusively rely on, and shall be fully protected in relying on, such
instructions. Upon the issuance of Definitive Notes, the Trustee shall recognize
the Holders of the Definitive Notes as Noteholders.
ARTICLE III
Covenants
---------
SECTION 3.1 Payment of Principal and Interest. The Issuer will duly
---------------------------------
and punctually pay the principal of and interest on the Notes in accordance with
the terms of the Notes and this Indenture. Without limiting the foregoing, the
Issuer will cause to be distributed all amounts on deposit in the Note
Distribution Account on a Distribution Date deposited therein pursuant to the
Sale and Servicing Agreement (i) for the benefit of the Class A-1 Notes, to
Class A-1 Noteholders, (ii) for the benefit of the Class A-2 Notes, to Class A-2
Noteholders, (iii) for the benefit of the Class A-3 Notes, to Class A-3
Noteholders, and (iv) for the benefit of the Class
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A-4 Notes, to Class A-4 Noteholders. Amounts properly withheld under the Code by
any Person from a payment to any Noteholder of interest and/or principal shall
be considered as having been paid by the Issuer to such Noteholder for all
purposes of this Indenture.
SECTION 3.2 Maintenance of Office or Agency. The Issuer will
-------------------------------
maintain in Columbus, Ohio, an office or agency where Notes may be surrendered
for registration of transfer or exchange, and where notices and demands to or
upon the Issuer in respect of the Notes and this Indenture may be served. The
Issuer hereby initially appoints the Trustee to serve as its agent for the
foregoing purposes. The Issuer will give prompt written notice to the Trustee of
the location, and of any change in the location, of any such office or agency.
If at any time the Issuer shall fail to maintain any such office or agency or
shall fail to furnish the Trustee with the address thereof, such surrenders,
notices and demands may be made or served at the Corporate Trust Office, and the
Issuer hereby appoints the Trustee as its agent to receive all such surrenders,
notices and demands.
SECTION 3.3 Money for Payments to be Held in Trust. On or before
--------------------------------------
each Distribution Date, Insured Distribution Date and Redemption Date, the
Issuer shall deposit or cause to be deposited in the Note Distribution Account
from the Collection Account an aggregate sum sufficient to pay the amounts then
becoming due under the Notes, such sum to be held in trust for the benefit of
the Persons entitled thereto and (unless the Note Paying Agent is the Trustee)
shall promptly notify the Trustee of its action or failure so to act.
The Issuer will cause each Note Paying Agent other than the Trustee to
execute and deliver to the Trustee and the Security Insurer an instrument in
which such Note Paying Agent shall agree with the Trustee (and if the Trustee
acts as Note Paying Agent, it hereby so agrees), subject to the provisions of
this Section, that such Note Paying Agent will:
(i) hold all sums held by it for the payment of amounts due
with respect to the Notes in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided and pay such sums to such
Persons as herein provided;
(ii) give the Trustee notice of any default by the Issuer (or
any other obligor upon the Notes) of which it has actual knowledge in
the making of any payment required to be made with respect to the
Notes;
(iii) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent;
(iv) immediately resign as a Note Paying Agent and forthwith pay
to the Trustee all sums held by it in trust for the payment of Notes
if at any time it ceases to meet the standards required to be met by a
Note Paying Agent at the time of its appointment; and
(v) comply with all requirements of the Code with respect to
the withholding from any payments made by it on any Notes of any
applicable
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withholding taxes imposed thereon and with respect to any applicable
reporting requirements in connection therewith.
The Issuer may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, by Issuer
Order direct any Note Paying Agent to pay to the Trustee all sums held in trust
by such Note Paying Agent, such sums to be held by the Trustee upon the same
trusts as those upon which the sums were held by such Note Paying Agent; and
upon such a payment by any Note Paying Agent to the Trustee, such Note Paying
Agent shall be released from all further liability with respect to such money.
Subject to applicable laws with respect to the escheat of funds, any
money held by the Trustee or any Note Paying Agent in trust for the payment of
any amount due with respect to any Note and remaining unclaimed for two years
after such amount has become due and payable shall be discharged from such trust
and be paid to the Issuer on Issuer Request with the consent of the Security
Insurer (unless an Insurer Default shall have occurred and be continuing) and
shall be deposited by the Trustee in the Collection Account; and the Holder of
such Note shall thereafter, as an unsecured general creditor, look only to the
Issuer for payment thereof (but only to the extent of the amounts so paid to the
Issuer), and all liability of the Trustee or such Note Paying Agent with respect
to such trust money shall thereupon cease; provided, however, that if such money
-------- -------
or any portion thereof had been previously deposited by the Security Insurer or
the Trust Collateral Agent with the Trustee for the payment of principal or
interest on the Notes, to the extent any amounts are owing to the Security
Insurer, such amounts shall be paid promptly to the Security Insurer upon the
Trustee's receipt of a written request by the Security Insurer to such effect,
and provided, further, that the Trustee or such Note Paying Agent, before being
required to make any such repayment, shall at the expense of the Issuer cause to
be published once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in New York, New York,
notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such publication,
any unclaimed balance of such money then remaining will be repaid to the Issuer.
The Trustee shall also adopt and employ, at the expense of the Issuer, any other
reasonable means of notification of such repayment (including, but not limited
to, mailing notice of such repayment to Holders whose Notes have been called but
have not been surrendered for redemption or whose right to or interest in moneys
due and payable but not claimed is determinable from the records of the Trustee
or of any Note Paying Agent, at the last address of record for each such
Holder).
SECTION 3.4 Existence. Except as otherwise permitted by the
---------
provisions of Section 3.10, the Issuer will keep in full effect its existence,
rights and franchises as a business trust under the laws of the State of
Delaware (unless it becomes, or any successor Issuer hereunder is or becomes,
organized under the laws of any other state or of the United States of America,
in which case the Issuer will keep in full effect its existence, rights and
franchises under the laws of such other jurisdiction) and will obtain and
preserve its qualification to do business in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Indenture, the Notes, the Collateral and each other
instrument or agreement included in the Trust Estate.
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SECTION 3.5 Protection of Trust Estate. The Issuer intends the
--------------------------
security interest Granted pursuant to this Indenture in favor of the Issuer
Secured Parties to be prior to all other liens in respect of the Trust Estate,
and the Issuer shall take all actions necessary to obtain and maintain, in favor
of the Trust Collateral Agent, for the benefit of the Issuer Secured Parties, a
first lien on and a first priority, perfected security interest in the Trust
Estate. The Issuer will from time to time prepare (or shall cause to be
prepared), execute and deliver all such supplements and amendments hereto and
all such financing statements, continuation statements, instruments of further
assurance and other instruments, and will take such other action necessary or
advisable to:
(i) Grant more effectively all or any portion of the Trust
Estate;
(ii) maintain or preserve the lien and security interest (and
the priority thereof) in favor of the Trust Collateral Agent for the
benefit of the Issuer Secured Parties created by this Indenture or
carry out more effectively the purposes hereof;
(iii) perfect, publish notice of or protect the validity of any
Grant made or to be made by this Indenture;
(iv) enforce any of the Collateral;
(v) preserve and defend title to the Trust Estate and the
rights of the Trust Collateral Agent in such Trust Estate against the
claims of all persons and parties; and
(vi) pay all taxes or assessments levied or assessed upon the
Trust Estate when due.
The Issuer hereby designates the Trust Collateral Agent its agent and attorney-
in-fact to execute any financing statement, continuation statement or other
instrument required by the Trust Collateral Agent pursuant to this Section.
SECTION 3.6 Opinions as to Trust Estate.
---------------------------
(a) On the Closing Date, the Issuer shall furnish to the Trustee, the
Trust Collateral Agent and the Security Insurer an Opinion of Counsel either
stating that, in the opinion of such counsel, such action has been taken with
respect to the recording and filing of this Indenture, any indentures
supplemental hereto, and any other requisite documents, and with respect to the
execution and filing of any financing statements and continuation statements, as
are necessary to perfect and make effective the first priority lien and security
interest in favor of the Trust Collateral Agent, for the benefit of the Issuer
Secured Parties, created by this Indenture and reciting the details of such
action, or stating that, in the opinion of such counsel, no such action is
necessary to make such lien and security interest effective.
(b) Within 120 days after the beginning of each calendar year,
beginning with the first calendar year beginning more than six months after the
Closing Date, the Issuer shall furnish to the Trustee, Trust Collateral Agent
and the Security Insurer an Opinion of Counsel either stating that, in the
opinion of such counsel, such action has been taken with respect to the
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recording, filing, re-recording and refiling of this Indenture, any indentures
supplemental hereto and any other requisite documents and with respect to the
execution and filing of any financing statements and continuation statements as
are necessary to maintain the lien and security interest created by this
Indenture and reciting the details of such action or stating that in the opinion
of such counsel no such action is necessary to maintain such lien and security
interest. Such Opinion of Counsel shall also describe the recording, filing, re-
recording and refiling of this Indenture, any indentures supplemental hereto and
any other requisite documents and the execution and filing of any financing
statements and continuation statements that will, in the opinion of such
counsel, be required to maintain the lien and security interest of this
Indenture until January 30 in the following calendar year.
SECTION 3.7 Performance of Obligations; Servicing of Receivables.
----------------------------------------------------
(a) The Issuer will not take any action and will use its best efforts
not to permit any action to be taken by others that would release any Person
from any of such Person's material covenants or obligations under any instrument
or agreement included in the Trust Estate or that would result in the amendment,
hypothecation, subordination, termination or discharge of, or impair the
validity or effectiveness of, any such instrument or agreement, except as
ordered by any bankruptcy or other court or as expressly provided in this
Indenture, the Basic Documents or such other instrument or agreement.
(b) The Issuer may contract with other Persons acceptable to the
Security Insurer (so long as no Insurer Default shall have occurred and be
continuing) to assist it in performing its duties under this Indenture, and any
performance of such duties by a Person identified to the Trustee and the
Security Insurer in an Officer's Certificate of the Issuer shall be deemed to be
action taken by the Issuer. Initially, the Issuer has contracted with the
Servicer to assist the Issuer in performing its duties under this Indenture.
(c) The Issuer will punctually perform and observe all of its
obligations and agreements contained in this Indenture, the Basic Documents and
in the instruments and agreements included in the Trust Estate, including, but
not limited to, preparing (or causing to prepared) and filing (or causing to be
filed) all UCC financing statements and continuation statements required to be
filed by the terms of this Indenture and the Sale and Servicing Agreement in
accordance with and within the time periods provided for herein and therein.
Except as otherwise expressly provided therein, the Issuer shall not waive,
amend, modify, supplement or terminate any Basic Document or any provision
thereof without the consent of the Trustee, the Security Insurer or the Holders
of at least a majority of the Outstanding Amount of the Notes.
(d) If a responsible officer of the Owner Trustee shall have actual
knowledge of the occurrence of a Servicer Termination Event under the Sale and
Servicing Agreement, the Issuer shall promptly notify the Trustee, the Security
Insurer and the Rating Agencies thereof in accordance with Section 11.4, and
shall specify in such notice the action, if any, the Issuer is taking in respect
of such default. If a Servicer Termination Event shall arise from the failure of
the Servicer to perform any of its duties or obligations under the Sale and
Servicing Agreement with respect to the Receivables, the Issuer shall take all
reasonable steps available to it to remedy such failure.
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(e) The Issuer agrees that it will not waive timely performance or
observance by the Servicer or the Seller of their respective duties under the
Basic Documents (x) without the prior consent of the Security Insurer (unless an
Insurer Default shall have occurred and be controlling) or (y) if the effect
thereof would adversely affect the Holders of the Notes.
SECTION 3.8 Negative Covenants. So long as any Notes are
------------------
Outstanding, the Issuer shall not:
(i) except as expressly permitted by this Indenture or the
Basic Documents, sell, transfer, exchange or otherwise dispose of any
of the properties or assets of the Issuer, including those included in
the Trust Estate, unless directed to do so by the Controlling Party;
(ii) claim any credit on, or make any deduction from the
principal or interest payable in respect of, the Notes (other than
amounts properly withheld from such payments under the Code) or assert
any claim against any present or former Noteholder by reason of the
payment of the taxes levied or assessed upon any part of the Trust
Estate; or
(iii) (A) permit the validity or effectiveness of this Indenture
to be impaired, or permit the lien in favor of the Trust Collateral
Agent created by this Indenture to be amended, hypothecated,
subordinated, terminated or discharged, or permit any Person to be
released from any covenants or obligations with respect to the Notes
under this Indenture except as may be expressly permitted hereby, (B)
permit any lien, charge, excise, claim, security interest, mortgage or
other encumbrance (other than the lien of this Indenture) to be
created on or extend to or otherwise arise upon or burden the Trust
Estate or any part thereof or any interest therein or the proceeds
thereof (other than tax liens, mechanics' liens and other liens that
arise by operation of law, in each case on a Financed Vehicle and
arising solely as a result of an action or omission of the related
Obligor), (C) permit the lien of this Indenture not to constitute a
valid first priority (other than with respect to any such tax,
mechanics' or other lien) security interest in the Trust Estate or (D)
amend, modify or fail to comply with the provisions of the Basic
Documents without the prior written consent of the Controlling Party.
SECTION 3.9 Annual Statement as to Compliance. The Issuer will
---------------------------------
deliver to the Trustee and the Security Insurer, within 120 days after the end
of each fiscal year of the Issuer (commencing with the fiscal year ended
December 31, 1999), and otherwise in compliance with the requirements of TIA
Section 314(a)(4) an Officer's Certificate stating, as to the Authorized Officer
signing such Officer's Certificate, that
(i) a review of the activities of the Issuer during such year
and of performance under this Indenture has been made under such
Authorized Officer's supervision; and
(ii) to the best of such Authorized Officer's knowledge, based
on such review, the Issuer has complied with all conditions and
covenants under this
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Indenture throughout such year, or, if there has been a default in the
compliance of any such condition or covenant, specifying each such
default known to such Authorized Officer and the nature and status
thereof.
SECTION 3.10 Issuer May Consolidate, Etc. Only on Certain Terms.
--------------------------------------------------
(a) The Issuer shall not consolidate or merge with or into any other
Person, unless
(i) the Person (if other than the Issuer) formed by or
surviving such consolidation or merger shall be a Person organized and
existing under the laws of the United States of America or any state
and shall expressly assume, by an indenture supplemental hereto,
executed and delivered to the Trustee, in form satisfactory to the
Trustee and the Security Insurer (so long as no Insurer Default shall
have occurred and be continuing), the due and punctual payment of the
principal of and interest on all Notes and the performance or
observance of every agreement and covenant of this Indenture on the
part of the Issuer to be performed or observed, all as provided
herein;
(ii) immediately after giving effect to such transaction, no
Default or Event of Default shall have occurred and be continuing;
(iii) the Rating Agency Condition shall have been satisfied with
respect to such transaction;
(iv) the Issuer shall have received an Opinion of Counsel (and
shall have delivered copies thereof to the Trustee and the Security
Insurer (so long as no Insurer Default shall have occurred and be
continuing)) to the effect that such transaction will not have any
material adverse tax consequence to the Trust, the Security Insurer,
any Noteholder or the Certificateholder;
(v) any action as is necessary to maintain the lien and
security interest created by this Indenture shall have been taken;
(vi) the Issuer shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel each stating that such
consolidation or merger and such supplemental indenture comply with
this Article III and that all conditions precedent herein provided for
relating to such transaction have been complied with (including any
filing required by the Exchange Act); and
(vii) so long as no Insurer Default shall have occurred and be
continuing, the Issuer shall have given the Security Insurer written
notice of such conveyance or transfer at least 20 Business Days prior
to the consummation of such action and shall have received the prior
written approval of the Security Insurer of such conveyance or
transfer and the Issuer or the Person (if other than the Issuer)
formed by or surviving such conveyance or transfer has a net worth,
immediately after such conveyance or transfer, that is (a) greater
than zero and (b) not less than the net worth of the Issuer
immediately prior to giving effect to such conveyance or transfer.
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(b) The Issuer shall not convey or transfer all or substantially all
of its properties or assets, including those included in the Trust Estate, to
any Person, unless
(i) the Person that acquires by conveyance or transfer the
properties and assets of the Issuer the conveyance or transfer of
which is hereby restricted shall (A) be a United States citizen or a
Person organized and existing under the laws of the United States of
America or any state, (B) expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, and the Security Insurer (so long as no
Insurer Default shall have occurred and be continuing), the due and
punctual payment of the principal of and interest on all Notes and the
performance or observance of every agreement and covenant of this
Indenture and each of the Basic Documents on the part of the Issuer to
be performed or observed, all as provided herein, (C) expressly agree
by means of such supplemental indenture that all right, title and
interest so conveyed or transferred shall be subject and subordinate
to the rights of Holders of the Notes, (D) unless otherwise provided
in such supplemental indenture, expressly agree to indemnify, defend
and hold harmless the Issuer against and from any loss, liability or
expense arising under or related to this Indenture and the Notes and
(E) expressly agree by means of such supplemental indenture that such
Person (or if a group of persons, then one specified Person) shall
prepare (or cause to be prepared) and make all filings with the
Commission (and any other appropriate Person) required by the Exchange
Act in connection with the Notes;
(ii) immediately after giving effect to such transaction, no
Default or Event of Default shall have occurred and be continuing;
(iii) the Rating Agency Condition shall have been satisfied with
respect to such transaction;
(iv) the Issuer shall have received an Opinion of Counsel (and
shall have delivered copies thereof to the Trustee and the Security
Insurer (so long as no Insurer Default shall have occurred and be
continuing)) to the effect that such transaction will not have any
material adverse tax consequence to the Trust, the Security Insurer,
any Noteholder or the Certificateholder;
(v) any action as is necessary to maintain the lien and
security interest created by this Indenture shall have been taken; and
(vi) the Issuer shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that such
conveyance or transfer and such supplemental indenture comply with
this Article III and that all conditions precedent herein provided for
relating to such transaction have been complied with (including any
filing required by the Exchange Act); and
(vii) so long as no Insurer Default shall have occurred and be
continuing, the Issuer shall have given the Security Insurer written
notice of such
25
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conveyance or transfer at least 20 Business Days prior to the
consummation of such action and shall have received the prior written
approval of the Security Insurer of such consolidation or merger and
the Issuer or the Person (if other than the Issuer) formed by or
surviving such consolidation or merger has a net worth, immediately
after such consolidation or merger, that is (a) greater than zero and
(b) not less than the net worth of the Issuer immediately prior to
giving effect to such consolidation or merger.
SECTION 3.11 Successor or Transferee.
-----------------------
(a) Upon any consolidation or merger of the Issuer in accordance with
Section 3.10(a), the Person formed by or surviving such consolidation or merger
(if other than the Issuer) shall succeed to, and be substituted for, and may
exercise every right and power of, the Issuer under this Indenture with the same
effect as if such Person had been named as the Issuer herein.
(b) Upon a conveyance or transfer of all the assets and properties of
the Issuer pursuant to Section 3.10 (b), AmeriCredit Automobile Receivables
Trust 1999-B will be released from every covenant and agreement of this
Indenture to be observed or performed on the part of the Issuer with respect to
the Notes immediately upon the delivery of written notice to the Trustee stating
that AmeriCredit Automobile Receivables Trust 1999-B is to be so released.
SECTION 3.12 No Other Business. The Issuer shall not engage in any
-----------------
business other than financing, purchasing, owning, selling and managing the
Receivables in the manner contemplated by this Indenture and the Basic Documents
and activities incidental thereto. After the Funding Period, the Issuer shall
not fund the purchase of any additional Receivables.
SECTION 3.13 No Borrowing. The Issuer shall not issue, incur, assume,
------------
guarantee or otherwise become liable, directly or indirectly, for any
Indebtedness except for (i) the Notes, (ii) obligations owing from time to time
to the Security Insurer under the Insurance Agreement and (iii) any other
Indebtedness permitted by or arising under the Basic Documents. The proceeds of
the Notes shall be used exclusively to fund the Issuer's purchase of the
Receivables and the other assets specified in the Sale and Servicing Agreement,
to fund the Pre-Funding Account, the Capitalized Interest Account and the Spread
Account and to pay the Issuer's organizational, transactional and start-up
expenses.
SECTION 3.14 Servicer's Obligations. The Issuer shall cause the
----------------------
Servicer to comply with Sections 4.9, 4.10, 4.11 and 5.10 of the Sale
and Servicing Agreement.
SECTION 3.15 Guarantees, Loans, Advances and Other Liabilities.
-------------------------------------------------
Except as contemplated by the Sale and Servicing Agreement or this Indenture,
the Issuer shall not make any loan or advance or credit to, or guarantee
(directly or indirectly or by an instrument having the effect of assuring
another's payment or performance on any obligation or capability of so doing or
otherwise), endorse or otherwise become contingently liable, directly or
indirectly, in connection with the obligations, stocks or dividends of, or own,
purchase, repurchase or acquire (or agree contingently to do so) any stock,
obligations, assets or securities of, or any other interest in, or make any
capital contribution to, any other Person.
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SECTION 3.16 Capital Expenditures. The Issuer shall not make any
--------------------
expenditure (by long-term or operating lease or otherwise) for capital assets
(either realty or personalty).
SECTION 3.17 Compliance with Laws. The Issuer shall comply with the
--------------------
requirements of all applicable laws, the non-compliance with which would,
individually or in the aggregate, materially and adversely affect the ability of
the Issuer to perform its obligations under the Notes, this Indenture or any
Basic Document.
SECTION 3.18 Restricted Payments. The Issuer shall not, directly or
-------------------
indirectly, (i) pay any dividend or make any distribution (by reduction of
capital or otherwise), whether in cash, property, securities or a combination
thereof, to the Owner Trustee or any owner of a beneficial interest in the
Issuer or otherwise with respect to any ownership or equity interest or security
in or of the Issuer or to the Servicer, (ii) redeem, purchase, retire or
otherwise acquire for value any such ownership or equity interest or security or
(iii) set aside or otherwise segregate any amounts for any such purpose;
provided, however, that the Issuer may make, or cause to be made, distributions
- -------- -------
to the Servicer, the Owner Trustee, the Trustee and the Certificateholders as
permitted by, and to the extent funds are available for such purpose under, the
Sale and Servicing Agreement or Trust Agreement. The Issuer will not, directly
or indirectly, make payments to or distributions from the Collection Account
except in accordance with this Indenture and the Basic Documents.
SECTION 3.19 Notice of Events of Default. Upon a responsible officer
---------------------------
of the Owner Trustee having actual knowledge thereof, the Issuer agrees to give
the Trustee, the Security Insurer and the Rating Agencies prompt written notice
of each Event of Default hereunder and each default on the part of the Servicer
or the Seller of its obligations under the Sale and Servicing Agreement.
SECTION 3.20 Further Instruments and Acts. Upon request of the
----------------------------
Trustee or the Security Insurer, the Issuer will execute and deliver such
further instruments and do such further acts as may be reasonably necessary or
proper to carry out more effectively the purpose of this Indenture.
SECTION 3.21 Amendments of Sale and Servicing Agreement and Trust
----------------------------------------------------
Agreement. The Issuer shall not agree to any amendment to Section 12.1 of the
- ---------
Sale and Servicing Agreement or Section 13.1 of the Trust Agreement to eliminate
the requirements thereunder that the Trustee or the Holders of the Notes consent
to amendments thereto as provided therein.
SECTION 3.22 Income Tax Characterization. For purposes of federal
---------------------------
income, state and local income and franchise and any other income taxes, the
Issuer will treat the Notes as indebtedness and hereby instructs the Trustee to
treat the Notes as indebtedness for all applicable tax reporting purposes.
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ARTICLE IV
Satisfaction and Discharge
--------------------------
SECTION 4.1 Satisfaction and Discharge of Indenture. This Indenture
---------------------------------------
shall cease to be of further effect with respect to the Notes except as to (i)
rights of registration of transfer and exchange, (ii) substitution of mutilated,
destroyed, lost or stolen Notes, (iii) rights of Noteholders to receive payments
of principal thereof and interest thereon, (iv) Sections 3.3, 3.4, 3.5, 3.8,
3.10, 3.12, 3.13, 3.20, 3.21 and 3.22, (v) the rights, obligations and
immunities of the Trustee hereunder (including the rights of the Trustee under
Section 6.7 and the obligations of the Trustee under Section 4.2) and (vi) the
rights of Noteholders as beneficiaries hereof with respect to the property so
deposited with the Trustee payable to all or any of them, and the Trustee, on
demand of and at the expense of the Issuer, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture with respect to the
Notes, when
(A) either
(1) all Notes theretofore authenticated and delivered (other
than (i) Notes that have been destroyed, lost or stolen and that have
been replaced or paid as provided in Section 2.5 and (ii) Notes for
whose payment money has theretofore been deposited in trust or
segregated and held in trust by the Issuer and thereafter repaid to
the Issuer or discharged from such trust, as provided in Section 3.3)
have been delivered to the Trustee for cancellation and the Note
Policy has expired and been returned to the Security Insurer for
cancellation; or
(2) all Notes not theretofore delivered to the Trustee for
cancellation
(i) have become due and payable,
(ii) will become due and payable at their respective
Final Scheduled Distribution Dates within one year, or
(iii) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the name, and at the
expense, of the Issuer,
and the Issuer, in the case of (i), (ii) or (iii) above, has
irrevocably deposited or caused to be irrevocably deposited with the
Trust Collateral Agent cash or direct obligations of or obligations
guaranteed by the United States of America (which will mature prior to
the date such amounts are payable), in trust for such purpose, in an
amount sufficient to pay and discharge the entire indebtedness on such
Notes not theretofore delivered to the Trustee for cancellation when
due to the Final Scheduled Distribution Date or Redemption Date (if
Notes shall have been called for redemption pursuant to Section
10.1(a)), as the case may be;
(B) the Issuer has paid or caused to be paid all Insurer Issuer
Secured Obligations and all Trustee Issuer Secured Obligations; and
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(C) the Issuer has delivered to the Trustee, the Trust Collateral
Agent and the Security Insurer an Officer's Certificate, an Opinion of
Counsel and if required by the TIA, the Trustee, the Trust Collateral Agent
or the Security Insurer (so long as an Insurer Default shall not have
occurred and be continuing) an Independent Certificate from a firm of
certified public accountants, each meeting the applicable requirements of
Section 11.1(a) and each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture
have been complied with.
SECTION 4.2 Application of Trust Money. All moneys deposited with
--------------------------
the Trustee pursuant to Section 4.1 hereof shall be held in trust and applied by
it, in accordance with the provisions of the Notes and this Indenture, to the
payment, either directly or through any Note Paying Agent, as the Trustee may
determine, to the Holders of the particular Notes for the payment or redemption
of which such moneys have been deposited with the Trustee, of all sums due and
to become due thereon for principal and interest; but such moneys need not be
segregated from other funds except to the extent required herein or in the Sale
and Servicing Agreement or required by law.
SECTION 4.3 Repayment of Moneys Held by Note Paying Agent. In
---------------------------------------------
connection with the satisfaction and discharge of this Indenture with respect to
the Notes, all moneys then held by any Note Paying Agent other than the Trustee
under the provisions of this Indenture with respect to such Notes shall, upon
demand of the Issuer, be paid to the Trustee to be held and applied according to
Section 3.3 and thereupon such Note Paying Agent shall be released from all
further liability with respect to such moneys.
ARTICLE V
Remedies
--------
SECTION 5.1 Events of Default. "Event of Default", wherever used
-----------------
herein, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(i) default in the payment of any interest on any Note when
the same becomes due and payable, and such default shall continue for
a period of five days (solely for purposes of this clause, (x) a
payment due on a Distribution Date shall not be considered "due" until
the immediately following Insured Distribution Date and (y) a payment
on the Notes funded by the Security Insurer or the Collateral Agent
pursuant to the Spread Account Agreement shall be deemed to be a
payment made by the Issuer); or
(ii) default in the payment of the principal of or any
installment of the principal of any Note when the same becomes due and
payable (solely for purposes of this clause, (x) a payment due on a
Distribution Date shall not be considered "due" until the immediately
following Insured Distribution Date and (y) a payment on the Notes
funded by the Security Insurer or the Collateral Agent
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pursuant to the Spread Account Agreement, shall be deemed to be a
payment made by the Issuer); or
(iii) so long as an Insurer Default shall not have occurred and
be continuing, an Insurance Agreement Indenture Cross Default shall
have occurred; provided, however, that the occurrence of an Insurance
-------- -------
Agreement Cross Default may not form the basis of an Event of Default
unless the Security Insurer shall, upon prior written notice to the
Rating Agencies, have delivered to the Issuer and the Trustee and not
rescinded a written notice specifying that such Insurance Agreement
Indenture Cross Default constitutes an Event of Default under the
Indenture; or
(iv) so long as an In surer Default shall have occurred and be
continuing, default in the observance or performance of any covenant
or agreement of the Issuer made in this Indenture (other than a
covenant or agreement, a default in the observance or performance of
which is elsewhere in this Section specifically dealt with), or any
representation or warranty of the Issuer made in this Indenture or in
any certificate or other writing delivered pursuant hereto or in
connection herewith proving to have been incorrect in any material
respect as of the time when the same shall have been made, and such
default shall continue or not be cured, or the circumstance or
condition in respect of which such misrepresentation or warranty was
incorrect shall not have been eliminated or otherwise cured, for a
period of 30 days (or for such longer period, not in excess of 90
days, as may be reasonably necessary to remedy such default; provided
that such default is capable of remedy within 90 days or less and the
Servicer on behalf of the Owner Trustee delivers an Officer's
Certificate to the Trustee to the effect that the Issuer has
commenced, or will promptly commence and diligently pursue, all
reasonable efforts to remedy such default) after there shall have been
given, by registered or certified mail, to the Issuer by the Trustee
or to the Issuer and the Trustee by the Holders of at least 25% of the
Outstanding Amount of the Notes, a written notice specifying such
default or incorrect representation or warranty and requiring it to be
remedied and stating that such notice is a "Notice of Default"
hereunder; or
(v) so long as an Insurer Default shall have occurred and be
continuing, the filing of a decree or order for relief by a court
having jurisdiction in the premises in respect of the Issuer or any
substantial part of the Trust Estate in an involuntary case under any
applicable federal or State bankruptcy, insolvency or other similar
law now or hereafter in effect, or appointing a receiver, liquidator,
assignee, custodian, trustee, sequestrator or similar official of the
Issuer or for any substantial part of the Trust Estate, or ordering
the winding-up or liquidation of the Issuer's affairs, and such decree
or order shall remain unstayed and in effect for a period of 60
consecutive days; or
(vi) so long as an Insurer Default shall have occurred and be
continuing, the commencement by the Issuer of a voluntary case under
any applicable federal or State bankruptcy, insolvency or other
similar law now or
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hereafter in effect, or the consent by the Issuer to the entry of an
order for relief in an involuntary case under any such law, or the
consent by the Issuer to the appointment or taking possession by a
receiver, liquidator, assignee, custodian, trustee, sequestrator or
similar official of the Issuer or for any substantial part of the
Trust Estate, or the making by the Issuer of any general assignment
for the benefit of creditors, or the failure by the Issuer generally
to pay its debts as such debts become due, or the taking of action by
the Issuer in furtherance of any of the foregoing.
The Issuer shall deliver to the Trustee and the Security Insurer,
within five days after the occurrence thereof, written notice in the form of an
Officer's Certificate of any event which with the giving of notice and the lapse
of time would become an Event of Default under clause (iii), its status and what
action the Issuer is taking or proposes to take with respect thereto.
SECTION 5.2 Rights Upon Event of Default.
----------------------------
(a) If an Insurer Default shall not have occurred and be continuing
and an Event of Default shall have occurred and be continuing, the Notes shall
become immediately due and payable at par, together with accrued interest
thereon. If an Event of Default shall have occurred and be continuing, the
Controlling Party may exercise any of the remedies specified in Section 5.4(a).
In the event of any acceleration of any Notes by operation of this Section 5.2,
the Trustee shall continue to be entitled to make claims under the Note Policy
pursuant to the Sale and Servicing Agreement for Scheduled Payments on the
Notes. Payments under the Note Policy following acceleration of any Notes shall
be applied by the Trustee:
FIRST: to Noteholders for amounts due and unpaid on the Notes for
interest, ratably, without preference or priority of any kind, according to
the amounts due and payable on the Notes for interest; and
SECOND: to Noteholders for amounts due and unpaid on the Notes for
principal, ratably, without preference or priority of any kind, according
to the amounts due and payable on the Notes for principal.
(b) In the event any Notes are accelerated due to an Event of Default,
the Security Insurer shall have the right (in addition to its obligation to pay
Scheduled Payments on the Notes in accordance with the Note Policy), but not the
obligation, to make payments under the Note Policy or otherwise of interest and
principal due on such Notes, in whole or in part, on any date or dates following
such acceleration as the Security Insurer, in its sole discretion, shall elect.
(c) If an Insurer Default shall have occurred and be continuing and an
Event of Default shall have occurred and be continuing, the Trustee in its
discretion may, or if so requested in writing by Holders holding Notes
representing not less than a majority of the Outstanding Amount of the Notes,
declare by written notice to the Issuer that the Notes become, whereupon they
shall become, immediately due and payable at par, together with accrued interest
thereon.
(d) If an Insurer Default shall have occurred and be continuing, then
at any time after such declaration of acceleration of maturity has been made and
before a judgment or decree
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for payment of the money due has been obtained by the Trustee as hereinafter in
this Article V provided, the Noteholders representing a majority of the
Outstanding Amount of the Notes, by written notice to the Issuer and the
Trustee, may rescind and annul such declaration and its consequences if:
(i) the Issuer has paid or deposited with the Trustee a sum
sufficient to pay:
(A) all payments of principal of and interest on all Notes
and all other amounts that would then be due hereunder or upon
such Notes if the Event of Default giving rise to such
acceleration had not occurred; and
(B) all sums paid or advanced by the Trustee hereunder and
the reasonable compensation, expenses, disbursements and advances
of the Trustee and its agents and counsel; and
(ii) all Events of Default, other than the nonpayment of the
principal of the Notes that has become due solely by such
acceleration, have been cured or waived as provided in Section 5.12.
No such rescission shall affect any subsequent default or impair any
right consequent thereto.
SECTION 5.3 Collection of Indebtedness and Suits for Enforcement by
-------------------------------------------------------
Trustee.
- -------
(a) The Issuer covenants that if (i) default is made in the payment of
any interest on any Note when the same becomes due and payable, and such default
continues for a period of five days, or (ii) default is made in the payment of
the principal of or any installment of the principal of any Note when the same
becomes due and payable, the Issuer will pay to the Trustee, for the benefit of
the Holders of the Notes, the whole amount then due and payable on such Notes
for principal and interest, with interest upon the overdue principal, and, to
the extent payment at such rate of interest shall be legally enforceable, upon
overdue installments of interest, at the applicable Interest Rate and in
addition thereto such further amount as shall be sufficient to cover the costs
and expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee and its agents and counsel.
(b) Each Issuer Secured Party hereby irrevocably and unconditionally
appoints the Controlling Party as the true and lawful attorney-in-fact of such
Issuer Secured Party for so long as such Issuer Secured Party is not the
Controlling Party, with full power of substitution, to execute, acknowledge and
deliver any notice, document, certificate, paper, pleading or instrument and to
do in the name of the Controlling Party as well as in the name, place and stead
of such Issuer Secured Party such acts, things and deeds for or on behalf of and
in the name of such Issuer Secured Party under this Indenture (including
specifically under Section 5.4) and under the Basic Documents which such Issuer
Secured Party could or might do or which may be necessary, desirable or
convenient in such Controlling Party's sole discretion to effect the purposes
contemplated hereunder and under the Basic Documents and, without limitation,
following the occurrence of an Event of Default, exercise full right, power and
authority to take,
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or defer from taking, any and all acts with respect to the administration,
maintenance or disposition of the Trust Estate.
(c) If an Event of Default occurs and is continuing, the Trustee may
in its discretion but with the consent of the Controlling Party and shall, at
the direction of the Controlling Party (except as provided in Section 5.3(d)
below), proceed to protect and enforce its rights and the rights of the
Noteholders by such appropriate Proceedings as the Trustee or the Controlling
Party shall deem most effective to protect and enforce any such rights, whether
for the specific enforcement of any covenant or agreement in this Indenture or
in aid of the exercise of any power granted herein, or to enforce any other
proper remedy or legal or equitable right vested in the Trustee by this
Indenture or by law.
(d) Notwithstanding anything to the contrary contained in this
Indenture (including, without limitation, Sections 5.4(a), 5.12, 5.13 and 5.17)
and regardless of whether an Insurer Default shall have occurred and be
continuing, if the Issuer fails to perform its obligations under Section 10.1(b)
hereof when and as due, the Trustee may in its discretion (and without the
consent of the Controlling Party) proceed to protect and enforce its rights and
the rights of the Noteholders by such appropriate proceedings as the Trustee
shall deem most effective to protect and enforce any such rights, whether for
specific performance of any covenant or agreement in this Indenture or in aid of
the exercise of any power granted herein, or to enforce any other proper remedy
or legal or equitable right vested in the Trustee by this Indenture or by law;
provided that the Trustee shall only be entitled to take any such actions
without the consent of the Controlling Party to the extent such actions (x) are
taken only to enforce the Issuer's obligations to redeem the principal amount of
Notes and (y) are taken only against the portion of the Collateral, if any,
consisting of the Pre-Funding Account, the Capitalized Interest Account, any
investments therein and any proceeds thereof.
(e) In case there shall be pending, relative to the Issuer or any
other obligor upon the Notes or any Person having or claiming an ownership
interest in the Trust Estate, proceedings under Title 11 of the United States
Code or any other applicable federal or State bankruptcy, insolvency or other
similar law, or in case a receiver, assignee or trustee in bankruptcy or
reorganization, liquidator, sequestrator or similar official shall have been
appointed for or taken possession of the Issuer or its property or such other
obligor or Person, or in case of any other comparable judicial proceedings
relative to the Issuer or other obligor upon the Notes, or to the creditors or
property of the Issuer or such other obligor, the Trustee, irrespective of
whether the principal of any Notes shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the Trustee
shall have made any demand pursuant to the provisions of this Section, shall be
entitled and empowered, by intervention in such proceedings or otherwise:
(i) to file and prove a claim or claims for the whole amount of
principal and interest owing and unpaid in respect of the Notes and to
file such other papers or documents as may be necessary or advisable
in order to have the claims of the Trustee (including any claim for
reasonable compensation to the Trustee and each predecessor Trustee,
and their respective agents, attorneys and counsel, and for
reimbursement of all expenses and liabilities incurred, and all
advances made, by the Trustee and each predecessor Trustee, except as
a result of
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negligence, bad faith or willful misconduct) and of the Noteholders
allowed in such proceedings;
(ii) unless prohibited by applicable law and regulations, to
vote on behalf of the Noteholders in any election of a trustee, a
standby trustee or person performing similar functions in any such
proceedings;
(iii) to collect and receive any moneys or other property payable
or deliverable on any such claims and to distribute all amounts
received with respect to the claims of the Noteholders and of the
Trustee on their behalf; and
(iv) to file such proofs of claim and other papers or documents
as may be necessary or advisable in order to have the claims of the
Trustee or the Noteholders allowed in any judicial proceedings
relative to the Issuer, its creditors and its property;
and any trustee, receiver, liquidator, custodian or other similar official in
any such Proceeding is hereby authorized by each of such Noteholders to make
payments to the Trustee, and, in the event that the Trustee shall consent to the
making of payments directly to such Noteholders, to pay to the Trustee such
amounts as shall be sufficient to cover reasonable compensation to the Trustee,
each predecessor Trustee and their respective agents, attorneys and counsel, and
all other expenses and liabilities incurred, and all advances made, by the
Trustee and each predecessor Trustee except as a result of negligence or bad
faith.
(f) Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent to or vote for or accept or adopt on behalf of any
Noteholder any plan of reorganization, arrangement, adjustment or composition
affecting the Notes or the rights of any Holder thereof or to authorize the
Trustee to vote in respect of the claim of any Noteholder in any such Proceeding
except, as aforesaid, to vote for the election of a trustee in bankruptcy or
similar person.
(g) All rights of action and of asserting claims under this Indenture,
the Spread Account Agreement or under any of the Notes, may be enforced by the
Trustee without the possession of any of the Notes or the production thereof in
any trial or other proceedings relative thereto, and any such action or
Proceedings instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment, subject to the
payment of the expenses, disbursements and compensation of the Trustee, each
predecessor Trustee and their respective agents and attorneys, shall be for the
ratable benefit of the Holders of the Notes.
(h) In any Proceedings brought by the Trustee (and also any
Proceedings involving the interpretation of any provision of this Indenture or
the Spread Account Agreement), the Trustee shall be held to represent all the
Holders of the Notes, and it shall not be necessary to make any Noteholder a
party to any such proceedings.
SECTION 5.4 Remedies.
--------
(a) If an Event of Default shall have occurred and be continuing, the
Controlling Party may do one or more of the following (subject to Section 5.5):
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(i) institute Proceedings in its own name and as trustee of an
express trust for the collection of all amounts then payable on the Notes
or under this Indenture with respect thereto, whether by declaration or
otherwise, enforce any judgment obtained, and collect from the Issuer and
any other obligor upon such Notes moneys adjudged due;
(ii) institute Proceedings from time to time for the complete or
partial foreclosure of this Indenture with respect to the Trust Estate;
(iii) exercise any remedies of a secured party under the UCC and take
any other appropriate action to protect and enforce the rights and remedies
of the Trustee and the Holders of the Notes; and
(iv) direct the Trust Collateral Agent to sell the Trust Estate or
any portion thereof or rights or interest therein, at one or more public or
private sales called and conducted in any manner permitted by law;
provided, however, that
-------- -------
(A) if the Security Insurer is the Controlling Party, the Security Insurer
may not sell or otherwise liquidate the Trust Estate following an Insurance
Agreement Indenture Cross Default unless
(I) such Insurance Agreement Indenture Cross Default arises from
a claim being made on the Note Policy or from the insolvency of the
Trust or the Seller, or
(II) the proceeds of such sale or liquidation distributable to
the Noteholders are sufficient to discharge in full all amounts then
due and unpaid upon such Notes for principal and interest; or
(B) if the Trustee is the Controlling Party, the Trustee may not sell or
otherwise liquidate the Trust Estate following an Event of Default unless
(I) such Event of Default is of the type described in Section
5.01(i) or (ii), or
(II) either
(x) the Holders of 100% of the Outstanding Amount of the
Notes consent thereto,
(y) the proceeds of such sale or liquidation distributable
to the Noteholders are sufficient to discharge in full all
amounts then due and unpaid upon such Notes for principal and
interest, or
(z) the Trustee determines that the Trust Estate will not
continue to provide sufficient funds for the payment of principal
of and interest on the Notes as they would have become due if the
Notes had not been declared due and payable, and the Trustee
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provides prior written notice to the Rating Agencies and obtains
the consent of Holders of 66-2/3% of the Outstanding Amount of
the Notes.
In determining such sufficiency or insufficiency with respect to
clause (y) and (z), the Trustee may, but need not, obtain and conclusively rely
upon an opinion of an Independent investment banking or accounting firm of
national reputation as to the feasibility of such proposed action and as to the
sufficiency of the Trust Estate for such purpose.
SECTION 5.5 Optional Preservation of the Receivables. If the Trustee
----------------------------------------
is the Controlling Party and if the Notes have been declared to be due and
payable under Section 5.2 following an Event of Default and such declaration and
its consequences have not been rescinded and annulled, the Trustee may, but need
not, elect to direct the Trust Collateral Agent to maintain possession of the
Trust Estate. It is the desire of the parties hereto and the Noteholders that
there be at all times sufficient funds for the payment of principal of and
interest on the Notes, and the Trustee shall take such desire into account when
determining whether or not to direct the Trust Collateral Agent to maintain
possession of the Trust Estate. In determining whether to direct the Trust
Collateral Agent to maintain possession of the Trust Estate, the Trustee may,
but need not, obtain and conclusively rely upon an opinion of an Independent
investment banking or accounting firm of national reputation as to the
feasibility of such proposed action and as to the sufficiency of the Trust
Estate for such purpose.
SECTION 5.6 Priorities.
----------
(a) Following (1) the acceleration of the Notes pursuant to Section
5.2 or (2) if an Insurer Default shall have occurred and be continuing, the
occurrence of an Event of Default pursuant to Section 5.1(i), 5.1(ii), 5.1(iv),
5.1(v) or 5.1(vi) of the Indenture or (3) the receipt of Insolvency Proceeds
pursuant to Section 10.1(b) of the Sale and Servicing Agreement, the
Distribution Amount, including any money or property collected pursuant to
Section 5.4 of the Indenture and any such Insolvency Proceeds, shall be applied
by the Trust Collateral Agent on the related Distribution Date in the following
order of priority:
FIRST: amounts due and owing and required to be distributed to the
Servicer (provided there is no Servicer Event of Default), the Owner
Trustee, the Trustee, the Collateral Agent, Back Up Servicer and the Trust
Collateral Agent, respectively, pursuant to priorities (i) and (ii) of
Section 5.7(b) of the Sale and Servicing Agreement and not previously
distributed, in the order of such priorities and without preference or
priority of any kind within such priorities;
SECOND: to Noteholders for amounts due and unpaid on the Notes for
interest, ratably, without preference or priority of any kind, according to
the amounts due and payable on the Notes for interest;
THIRD: to Noteholders for amounts due and unpaid on the Notes for
principal, ratably, without preference or priority of any kind, according
to the amounts due and payable on the Notes for principal;
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FOURTH: amounts due and owing and required to be distributed to the
Security Insurer pursuant to priority (v) of Section 5.7(b) of the Sale and
Servicing Agreement and not previously distributed); and
FIFTH: to the Collateral Agent to be applied as provided in the
Spread Account Agreement;
provided that any amounts collected from the Pre-Funding Account or the
- --------
Capitalized Interest Account shall be paid, first, for amounts due and unpaid on
the Notes for principal for distribution to Noteholders in accordance with
Section 10.1(b) and, second, in accordance with priorities FIRST through FIFTH
above.
(b) The Trustee may fix a record date and payment date for any
payment to Noteholders pursuant to this Section 5.6. At least 15 days before
such record date the Issuer shall mail to each Noteholder and the Trustee a
notice that states the record date, the payment date and the amount to be paid.
SECTION 5.7 Limitation of Suits. No Holder of any Note shall have any
-------------------
right to institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless:
(i) such Holder has previously given written notice to the
Trustee of a continuing Event of Default;
(ii) the Holders of not less than 25% of the Outstanding Amount
of the Notes have made written request to the Trustee to institute
such Proceeding in respect of such Event of Default in its own name as
Trustee hereunder;
(iii) such Holder or Holders have offered to the Trustee
indemnity reasonably satisfactory to it against the costs, expenses
and liabilities to be incurred in complying with such request;
(iv) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute such
Proceedings;
(v) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of
a majority of the Outstanding Amount of the Notes; and
(vi) an Insurer Default shall have occurred and be continuing;
it being understood and intended that no one or more Noteholders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other
Noteholders or to obtain or to seek to obtain priority or preference over any
other Holders or to enforce any right under this Indenture, except in the manner
herein provided.
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In the event the Trustee shall receive conflicting or inconsistent
requests and indemnity from two or more groups of Noteholders, each representing
less than a majority of the Outstanding Amount of the Notes, the Trustee in its
sole discretion may determine what action, if any, shall be taken,
notwithstanding any other provisions of this Indenture.
SECTION 5.8 Unconditional Rights of Noteholders To Receive Principal
--------------------------------------------------------
and Interest. Notwithstanding any other provisions in this Indenture, the Holder
- ------------
of any Note shall have the right, which is absolute and unconditional, to
receive payment of the principal of and interest, if any, on such Note on or
after the respective due dates thereof expressed in such Note or in this
Indenture (or, in the case of redemption, on or after the Redemption Date) and
to institute suit for the enforcement of any such payment, and such right shall
not be impaired without the consent of such Holder.
SECTION 5.9 Restoration of Rights and Remedies. If the Controlling
----------------------------------
Party or any Noteholder has instituted any Proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason or has been determined adversely to the Trustee or to
such Noteholder, then and in every such case the Issuer, the Trustee and the
Noteholders shall, subject to any determination in such Proceeding, be restored
severally and respectively to their former positions hereunder, and thereafter
all rights and remedies of the Trustee and the Noteholders shall continue as
though no such Proceeding had been instituted.
SECTION 5.10 Rights and Remedies Cumulative. No right or remedy
------------------------------
herein conferred upon or reserved to the Controlling Party or to the Noteholders
is intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 5.11 Delay or Omission Not a Waiver. No delay or omission of
------------------------------
the Trustee, the Controlling Party or any Holder of any Note to exercise any
right or remedy accruing upon any Default or Event of Default shall impair any
such right or remedy or constitute a waiver of any such Default or Event of
Default or an acquiescence therein. Every right and remedy given by this Article
V or by law to the Trustee or to the Noteholders may be exercised from time to
time, and as often as may be deemed expedient, by the Trustee or by the
Noteholders, as the case may be.
SECTION 5.12 Control by Noteholders. If the Trustee is the
----------------------
Controlling Party, the Holders of a majority of the Outstanding Amount of the
Notes shall have the right to direct the time, method and place of conducting
any Proceeding for any remedy available to the Trustee with respect to the Notes
or exercising any trust or power conferred on the Trustee; provided that
(i) such direction shall not be in conflict with any rule of
law or with this Indenture;
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(ii) subject to the express terms of Section 5.4, any
direction to the Trustee to sell or liquidate the Trust Estate shall
be by the Noteholders representing not less than 100% of the
Outstanding Amount of the Notes;
(iii) if the conditions set forth in Section 5.5 have been
satisfied and the Trustee elects to retain the Trust Estate pursuant
to such Section, then any direction to the Trustee by Noteholders
representing less than 100% of the Outstanding Amount of the Notes to
sell or liquidate the Trust Estate shall be of no force and effect;
and
(iv) the Trustee may take any other action deemed proper by
the Trustee that is not inconsistent with such direction;
provided, however, that, subject to Article VI, the Trustee need not take any
- -------- -------
action that it determines might involve it in liability or might materially
adversely affect the rights of any Noteholders not consenting to such action.
SECTION 5.13 Waiver of Past Defaults. If an Insurer Default shall
-----------------------
have occurred and be continuing, prior to the declaration of the acceleration of
the maturity of the Notes as provided in Section 5.4, the Noteholders of not
less than a majority of the Outstanding Amount of the Notes may waive any past
Default or Event of Default and its consequences except a Default (a) in payment
of principal of or interest on any of the Notes or (b) in respect of a covenant
or provision hereof which cannot be modified or amended without the consent of
the Holder of each Note. In the case of any such waiver, the Issuer, the Trustee
and the Holders of the Notes shall be restored to their former positions and
rights hereunder, respectively; but no such waiver shall extend to any
subsequent or other Default or impair any right consequent thereto.
Upon any such waiver, such Default shall cease to exist and be deemed
to have been cured and not to have occurred, and any Event of Default arising
therefrom shall be deemed to have been cured and not to have occurred, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other Default or Event of Default or impair any right consequent thereto.
SECTION 5.14 Undertaking for Costs. All parties to this Indenture
---------------------
agree, and each Holder of any Note by such Holder's acceptance thereof shall be
deemed to have agreed, that any court may in its discretion require, in any suit
for the enforcement of any right or remedy under this Indenture, or in any suit
against the Trustee for any action taken, suffered or omitted by it as Trustee,
the filing by any party litigant in such suit of an undertaking to pay the costs
of such suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses made by
such party litigant; but the provisions of this Section shall not apply to (a)
any suit instituted by the Trustee, (b) any suit instituted by any Noteholder,
or group of Noteholders, in each case holding in the aggregate more than 10% of
the Outstanding Amount of the Notes or (c) any suit instituted by any Noteholder
for the enforcement of the payment of principal of or interest on any Note on or
after the respective due
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dates expressed in such Note and in this Indenture (or, in the case of
redemption, on or after the Redemption Date).
SECTION 5.15 Waiver of Stay or Extension Laws. The Issuer covenants
--------------------------------
(to the extent that it may lawfully do so) that it will not at any time insist
upon, or plead or in any manner whatsoever, claim or take the benefit or
advantage of, any stay or extension law wherever enacted, now or at any time
hereafter in force, that may affect the covenants or the performance of this
Indenture; and the Issuer (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and covenants that it
will not hinder, delay or impede the execution of any power herein granted to
the Trustee, but will suffer and permit the execution of every such power as
though no such law had been enacted.
SECTION 5.16 Action on Notes. The Trustee's right to seek and
---------------
recover judgment on the Notes or under this Indenture shall not be affected by
the seeking, obtaining or application of any other relief under or with respect
to this Indenture. Neither the lien of this Indenture nor any rights or remedies
of the Trustee or the Noteholders shall be impaired by the recovery of any
judgment by the Trustee against the Issuer or by the levy of any execution under
such judgment upon any portion of the Trust Estate or upon any of the assets of
the Issuer.
SECTION 5.17 Performance and Enforcement of Certain Obligations.
--------------------------------------------------
(a) Promptly following a request from the Trustee to do so and at the
Servicer's expense, the Issuer agrees to take all such lawful action as the
Trustee may request to compel or secure the performance and observance by the
Seller and the Servicer, as applicable, of each of their obligations to the
Issuer under or in connection with the Sale and Servicing Agreement in
accordance with the terms thereof, and to exercise any and all rights, remedies,
powers and privileges lawfully available to the Issuer under or in connection
with the Sale and Servicing Agreement to the extent and in the manner directed
by the Trustee, including the transmission of notices of default on the part of
the Seller or the Servicer thereunder and the institution of legal or
administrative actions or Proceedings to compel or secure performance by the
Seller or the Servicer of each of their obligations under the Sale and Servicing
Agreement.
(b) If the Trustee is a Controlling Party and if an Event of Default
has occurred and is continuing, the Trustee may, and, at the written direction
of the Holders of 66-2/3% of the Outstanding Amount of the Notes shall, subject
to Article VI, exercise all rights, remedies, powers, privileges and claims of
the Issuer against the Seller or the Servicer under or in connection with the
Sale and Servicing Agreement, including the right or power to take any action to
compel or secure performance or observance by the Seller or the Servicer of each
of their obligations to the Issuer thereunder and to give any consent, request,
notice, direction, approval, extension or waiver under the Sale and Servicing
Agreement, and any right of the Issuer to take such action shall be suspended.
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ARTICLE VI
The Trustee and the Trust Collateral Agent
------------------------------------------
SECTION 6.1 Duties of Trustee.
-----------------
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise the rights and powers vested in it by this Indenture and
the Basic Documents to which is a Party and use the same degree of care and
skill in its exercise as a prudent person would exercise or use under the
circumstances in the conduct of such person's own affairs.
(b) Except during the continuance of an Event of Default:
(i) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture and no
implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements
of this Indenture; however, the Trustee shall examine the certificates
and opinions to determine whether or not they conform on their face to
the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of paragraph
(b) of this Section;
(ii) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer unless it is
proved that the Trustee was negligent in ascertaining the pertinent
facts; and
(iii) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 5.12.
(d) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Issuer.
(e) Money held in trust by the Trustee need not be segregated from
other funds except to the extent required by law or the terms of this Indenture
or the Sale and Servicing Agreement.
(f) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers, if it shall have reasonable grounds to believe that
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repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
(g) Every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section 6.1 and to the provisions of the TIA.
(h) The Trustee shall, upon two Business Days' prior notice to the
Trustee, permit any representative of the Security Insurer at the expense of the
Trust, during the Trustee's normal business hours, to examine all books of
account, records, reports and other papers of the Trustee relating to the Notes,
to make copies and extracts therefrom and to discuss the Trustee's affairs and
actions, as such affairs and actions relate to the Trustee's duties with respect
to the Notes, with the Trustee's officers and employees responsible for carrying
out the Trustee's duties with respect to the Notes.
(i) The Trustee shall, and hereby agrees that it will, perform all of
the obligations and duties required of it under the Sale and Servicing
Agreement.
(j) The Trustee shall, and hereby agrees that it will, hold the Note
Policy in trust, and will hold any proceeds of any claim on the Note Policy in
trust solely for the use and benefit of the Noteholders.
(k) Without limiting the generality of this Section 6.1, the Trustee
shall have no duty (i) to see to any recording, filing or depositing of this
Indenture 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 Indenture
or the Sale 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
of observance of any of the Issuer's, 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 Sale
and Servicing Agreement.
(l) In no event shall Bank One, N.A., in any of its capacities
hereunder, be deemed to have assumed any duties of the Owner Trustee under the
Delaware Business Trust Statute, common law, or the Trust Agreement.
SECTION 6.2 Rights of Trustee.
-----------------
(a) The Trustee may conclusively rely on any document believed by it
to be genuine and to have been signed or presented by the proper person. The
Trustee need not investigate any fact or matter stated in the document.
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(b) Before the Trustee acts or refrains from acting, it may require
an Officer's Certificate or an Opinion of Counsel. The Trustee shall not be
liable for any action it takes or omits to take in good faith in reliance on the
Officer's Certificate or Opinion of Counsel.
(c) The Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys or a custodian or nominee, and the Trustee shall not be responsible
for any misconduct or negligence on the part of, or for the supervision of,
AmeriCredit Financial Services, Inc., or any other such agent, attorney,
custodian or nominee appointed with due care by it hereunder.
(d) The Trustee shall not be liable for any action it takes or omits
to take in good faith which it believes to be authorized or within its rights or
powers; provided, however, that the Trustee's conduct does not constitute
-------- -------
willful misconduct, negligence or bad faith.
(e) The Trustee may consult with counsel, and the advice or opinion
of counsel with respect to legal matters relating to this Indenture and the
Notes shall be full and complete authorization and protection from liability in
respect to any action taken, omitted or suffered by it hereunder in good faith
and in accordance with the advice or opinion of such counsel.
(f) The Trustee shall be under no obligation to institute, conduct or
defend any litigation under this Indenture or in relation to this Indenture, at
the request, order or direction of any of the Noteholders or the Controlling
Party, pursuant to the provisions of this Indenture, unless such Noteholders or
the Controlling Party shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities that may be incurred
therein or thereby; provided, however, that the Trustee shall, upon the
-------- -------
occurrence of an Event of Default (that has not been cured), exercise the rights
and powers vested in it by this Indenture with reasonable care and skill.
(g) The Trustee shall not be bound to make any investigation into the
facts or 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 (so
long as no Insurer Default shall have occurred and be continuing) or (if an
Insurer Default shall have occurred and be continuing) by the Noteholders
evidencing not less than 25% of the Outstanding Amount thereof; 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 Indenture or the
Sale and Servicing 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.
(h) The Trustee shall not be liable for any losses on investments
except for losses resulting from the failure of the Trustee to make an
investment in accordance with instructions given in accordance hereunder. If the
Trustee acts as the Note Paying Agent or Note Registrar, the rights and
protections afforded to the Trustee shall be afforded to the Note Paying Agent
and Note Registrar.
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SECTION 6.3 Individual Rights of Trustee. The Trustee in its
----------------------------
individual or any other capacity may become the owner or pledgee of Notes and
may otherwise deal with the Issuer or its Affiliates with the same rights it
would have if it were not Trustee. Any Note Paying Agent, Note Registrar, co-
registrar or co-Note Paying Agent may do the same with like rights. However, the
Trustee must comply with Sections 6.11 and 6.12.
SECTION 6.4 Trustee's Disclaimer. The Trustee shall not be
--------------------
responsible for and makes no representation as to the validity or adequacy of
this Indenture, the Trust Estate or the Notes, it shall not be accountable for
the Issuer's use of the proceeds from the Notes, and it shall not be responsible
for any statement of the Issuer in the Indenture or in any document issued in
connection with the sale of the Notes or in the Notes other than the Trustee's
certificate of authentication.
SECTION 6.5 Notice of Defaults. If an Event of Default occurs and is
------------------
continuing and if it is either known by, or written notice of the existence
thereof has been delivered to, a Responsible Officer of the Trustee, the Trustee
shall mail to each Noteholder notice of the Default within 90 days after such
knowledge or notice occurs. Except in the case of a Default in payment of
principal of or interest on any Note (including payments pursuant to the
mandatory redemption provisions of such Note), the Trustee may withhold the
notice if and so long as a committee of two or more of its Responsible Officers
in good faith determines that withholding the notice is in the interests of
Noteholders.
SECTION 6.6 Reports by Trustee to Holders. The Trustee shall deliver
-----------------------------
to each Noteholder such information as may be reasonably required to enable such
Holder to prepare its federal and State income tax returns.
SECTION 6.7 Compensation and Indemnity.
--------------------------
(a) Pursuant to Section 5.7(b) of the Sale and Servicing Agreement,
the Issuer shall, or shall cause the Servicer to, pay to the Trustee from time
to time compensation for its services. The Trustee's compensation shall not be
limited by any law on compensation of a trustee of an express trust. The Issuer
shall cause the Servicer to reimburse the Trustee and the Trust Collateral Agent
for all reasonable out-of-pocket expenses incurred or made by it, including
costs of collection, in addition to the compensation for its services. Such
expenses shall include the reasonable compensation and expenses, disbursements
and advances of the Trustee's, the Backup Servicer's, the Collateral Agent's and
the Trust Collateral Agent's agents, counsel, accountants and experts. The
Issuer shall cause the Servicer to indemnify the Trustee, the Trust Collateral
Agent and their respective officers, directors, employees and agents against any
and all loss, liability or expense (including attorneys' fees and expenses)
incurred by each of them in connection with the acceptance or the administration
of this Trust and the performance of its duties hereunder. The Trustee, Trust
Collateral Agent, the Collateral Agent or the Backup Servicer shall notify the
Issuer and the Servicer promptly of any claim for which it may seek indemnity.
Failure by the Trustee or Trust Collateral Agent to so notify the Issuer and the
Servicer shall not relieve the Issuer of its obligations hereunder or the
Servicer of its obligations under Article XI of the Sale and Servicing
Agreement. The Issuer shall cause the Servicer to defend the claim, the Trustee,
Trust Collateral Agent, the Collateral Agent or the Backup Servicer may have
separate counsel and the Issuer shall cause the Servicer to pay the fees and
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expenses of such counsel. Neither the Issuer nor the Servicer need reimburse any
expense or indemnify against any loss, liability or expense incurred by the
Trustee or Trust Collateral Agent through the Trustee's or Trust Collateral
Agent's own willful misconduct, negligence or bad faith.
(b) The Issuer's payment obligations to the Trustee pursuant to this
Section shall survive the discharge of this Indenture or the earlier resignation
or removal of the Trustee or the Trust Collateral Agent or the Collateral Agent
or the Backup Servicer. When the Trustee, the Trust Collateral Agent, the
Collateral Agent or the Backup Servicer incurs expenses after the occurrence of
a Default specified in Section 5.1(v) or (vi) with respect to the Issuer, the
expenses are intended to constitute expenses of administration under Title 11 of
the United States Code or any other applicable federal or State bankruptcy,
insolvency or similar law. Notwithstanding anything else set forth in this
Indenture or the Basic Documents, the Trustee agrees that the obligations of the
Issuer (but not the Servicer) to the Trustee hereunder and under the Basic
Documents shall be recourse to the Trust Estate only and specifically shall not
be recourse to the assets of the Certificateholder or any Noteholder. In
addition, the Trustee agrees that its recourse to the Issuer, the Trust Estate,
the Seller and amounts held pursuant of the Spread Account Agreement shall be
limited to the right to receive the distributions referred to in Section 5.7(b)
of the Sale and Servicing Agreement.
SECTION 6.8 Replacement of Trustee. The Trustee may resign at any
----------------------
time by so notifying the Issuer and the Security Insurer. The Issuer may and, at
the request of the Security Insurer (unless an Insurer Default shall have
occurred and be continuing) shall, remove the Trustee, if:
(i) the Trustee fails to comply with Section 6.11;
(ii) a court having jurisdiction in the premises in respect
of the Trustee in an involuntary case or proceeding under federal or
state banking or bankruptcy laws, as now or hereafter constituted, or
any other applicable federal or state bankruptcy, insolvency or other
similar law, shall have entered a decree or order granting relief or
appointing a receiver, liquidator, assignee, custodian, trustee,
conservator, sequestrator (or similar official) for the Trustee or for
any substantial part of the Trustee's property, or ordering the
winding-up or liquidation of the Trustee's affairs;
(iii) an involuntary case under the federal bankruptcy laws,
as now or hereafter in effect, or another present or future federal or
state bankruptcy, insolvency or similar law is commenced with respect
to the Trustee and such case is not dismissed within 60 days;
(iv) the Trustee commences a voluntary case under any
federal or state banking or bankruptcy laws, as now or hereafter
constituted, or any other applicable federal or state bankruptcy,
insolvency or other similar law, or consents to the appointment of or
taking possession by a receiver, liquidator, assignee, custodian,
trustee, conservator, sequestrator (or other similar official) for the
Trustee or for any substantial part of the Trustee's property, or
makes any assignment for the benefit of creditors or fails generally
to pay its debts as such
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debts become due or takes any corporate action in furtherance of any
of the foregoing; or
(v) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason (the Trustee in such event being referred to
herein as the retiring Trustee), the Issuer shall promptly appoint a successor
Trustee acceptable to the Security Insurer (so long as an Insurer Default shall
not have occurred and be continuing). If the Issuer fails to appoint such a
successor Trustee, the Security Insurer may appoint a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee, the Security Insurer (provided that no
Insurer Default shall have occurred and be continuing) and to the Issuer.
Thereupon the resignation or removal of the retiring Trustee shall become
effective, and the successor Trustee shall have all the rights, powers and
duties of the retiring Trustee under this Indenture subject to satisfaction of
the Rating Agency Condition. The successor Trustee shall mail a notice of its
succession to Noteholders. The retiring Trustee shall promptly transfer all
property held by it as Trustee to the successor Trustee.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Issuer or the
Holders of a majority in Outstanding Amount of the Notes may petition any court
of competent jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 6.11, any Noteholder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
Any resignation or removal of the Trustee and appointment of a
successor Trustee pursuant to any of the provisions of this Section shall not
become effective until acceptance of appointment by the successor Trustee
pursuant to Section 6.8 and payment of all fees and expenses owed to the
outgoing Trustee.
Notwithstanding the replacement of the Trustee pursuant to this
Section, the Issuer's and the Servicer's obligations under Section 6.7 shall
continue for the benefit of the retiring Trustee.
SECTION 6.9 Successor Trustee by Merger. If the Trustee consolidates
---------------------------
with, merges or converts into, or transfers all or substantially all its
corporate trust business or assets to, another corporation or banking
association, the resulting, surviving or transferee corporation without any
further act shall be the successor Trustee. The Trustee shall provide the Rating
Agencies prior written notice of any such transaction.
In case at the time such successor or successors by merger, conversion
or consolidation to the Trustee shall succeed to the trusts created by this
Indenture any of the Notes shall have been authenticated but not delivered, any
such successor to the Trustee may adopt the certificate of authentication of any
predecessor trustee, and deliver such Notes so authenticated; and in case at
that time any of the Notes shall not have been authenticated, any successor to
the
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Trustee may authenticate such Notes either in the name of any predecessor
hereunder or in the name of the successor to the Trustee; and in all such cases
such certificates shall have the full force which it is anywhere in the Notes or
in this Indenture provided that the certificate of the Trustee shall have.
SECTION 6.10 Appointment of Co-Trustee or Separate Trustee.
---------------------------------------------
(a) Notwithstanding any other provisions of this Indenture, at any
time, for the purpose of meeting any legal requirement of any jurisdiction in
which any part of the Trust may at the time be located, the Trustee with the
consent of the Security Insurer (so long as an Insurer Default shall not have
occurred and be continuing) shall have the power and may execute and deliver all
instruments to appoint one or more Persons to act as a co-trustee or co-
trustees, or separate trustee or separate trustees, of all or any part of the
Trust, and to vest in such Person or Persons, in such capacity and for the
benefit of the Noteholders, such title to the Trust, or any part hereof, and,
subject to the other provisions of this Section, such powers, duties,
obligations, rights and trusts as the Trustee may consider necessary or
desirable. No co-trustee or separate trustee hereunder shall be required to meet
the terms of eligibility as a successor trustee under Section 6.11 and no notice
to Noteholders of the appointment of any co-trustee or separate trustee shall be
required under Section 6.8 hereof.
(b) 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 co-
trustee jointly (it being understood that such separate trustee or co-
trustee 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
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 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 hereunder shall be personally liable by
reason of any act or omission of any other trustee hereunder,
including acts or omissions of predecessor or successor trustees; and
(iii) the Trustee may at any time accept the resignation of
or remove any separate trustee or co-trustee.
(c) 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 VI. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its
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instrument of appointment, either jointly with the Trustee or separately, as may
be provided therein, subject to all the provisions of this Indenture,
specifically including every provision of this Indenture relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Every
such instrument shall be filed with the Trustee.
(d) 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, dissolve, become insolvent, become incapable of acting, resign or be
removed, all of its estates, properties, rights, remedies and trusts shall
invest in and be exercised by the Trustee, to the extent permitted by law,
without the appointment of a new or successor trustee.
(e) Any and all amounts relating to the fees and expenses of the co-
trustee or separate trustee will be borne by the Trust Estate.
SECTION 6.11 Eligibility: Disqualification. The Trustee shall at
-----------------------------
all times satisfy the requirements of TIA (S) 310(a). The Trustee shall have a
combined capital and surplus of at least $50,000,000 as set forth in its most
recent published annual report of condition and it shall have a long term debt
rating of BBB- or better by the Rating Agencies. The Trustee shall provide
copies of such reports to the Security Insurer upon request. The Trustee shall
comply with TIA (S) 310(b), including the optional provision permitted by the
second sentence of TIA (S) 310(b)(9); provided, however, that there shall be
-------- -------
excluded from the operation of TIA (S) 310(b)(1) any indenture or indentures
under which other securities of the Issuer are outstanding if the requirements
for such exclusion set forth in TIA (S) 310(b)(1) are met.
SECTION 6.12 Preferential Collection of Claims Against Issuer. The
------------------------------------------------
Trustee shall comply with TIA (S) 311(a), excluding any creditor relationship
listed in TIA (S) 311(b). A Trustee who has resigned or been removed shall be
subject to TIA (S) 311(a) to the extent indicated.
SECTION 6.13 Appointment and Powers. Subject to the terms and
----------------------
conditions hereof, each of the Issuer Secured Parties hereby appoints Bank One,
N.A. as the Trust Collateral Agent with respect to the Collateral, and Bank One,
N.A. hereby accepts such appointment and agrees to act as Trust Collateral Agent
with respect to the Indenture Collateral for the Issuer Secured Parties, to
maintain custody and possession of such Indenture Collateral (except as
otherwise provided hereunder) and to perform the other duties of the Trust
Collateral Agent in accordance with the provisions of this Indenture and the
other Basic Documents. Each Issuer Secured Party hereby authorizes the Trust
Collateral Agent to take such action on its behalf, and to exercise such rights,
remedies, powers and privileges hereunder, as the Controlling Party may direct
and as are specifically authorized to be exercised by the Trust Collateral Agent
by the terms hereof, together with such actions, rights, remedies, powers and
privileges as are reasonably incidental thereto, including, but not limited to,
the execution of any powers of attorney. The Trust Collateral Agent shall act
upon and in compliance with the written instructions of the Controlling Party
delivered pursuant to this Indenture promptly following receipt of such written
instructions; provided that the Trust Collateral Agent shall not act in
accordance with any instructions (i) which are not authorized by, or in
violation of the provisions
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of, this Indenture, (ii) which are in violation of any applicable law, rule or
regulation or (iii) for which the Trust Collateral Agent has not received
reasonable indemnity. Receipt of such instructions shall not be a condition to
the exercise by the Trust Collateral Agent of its express duties hereunder,
except where this Indenture provides that the Trust Collateral Agent is
permitted to act only following and in accordance with such instructions.
SECTION 6.14 Performance of Duties. The Trust Collateral Agent shall
---------------------
have no duties or responsibilities except those expressly set forth in this
Indenture and the other Basic Documents to which the Trust Collateral Agent is a
party or as directed by the Controlling Party in accordance with this Indenture.
The Trust Collateral Agent shall not be required to take any discretionary
actions hereunder except at the written direction and with the indemnification
of the Controlling Party. The Trust Collateral Agent shall, and hereby agrees
that it will, subject to this Article, perform all of the duties and obligations
required of it under the Sale and Servicing Agreement.
SECTION 6.15 Limitation on Liability. Neither the Trust Collateral
-----------------------
Agent nor any of its directors, officers or employees shall be liable for any
action taken or omitted to be taken by it or them hereunder, or in connection
herewith, except that the Trust Collateral Agent shall be liable for its
negligence, bad faith or willful misconduct; nor shall the Trust Collateral
Agent be responsible for the validity, effectiveness, value, sufficiency or
enforceability against the Issuer of this Indenture or any of the Indenture
Collateral (or any part thereof). Notwithstanding any term or provision of this
Indenture, the Trust Collateral Agent shall incur no liability to the Issuer or
the Issuer Secured Parties for any action taken or omitted by the Trust
Collateral Agent in connection with the Indenture Collateral, except for the
negligence, bad faith or willful misconduct on the part of the Trust Collateral
Agent, and, further, shall incur no liability to the Issuer Secured Parties
except for negligence, bad faith or willful misconduct in carrying out its
duties to the Issuer Secured Parties. The Trust Collateral Agent shall be
protected and shall incur no liability to any such party in relying upon the
accuracy, acting in reliance upon the contents, and assuming the genuineness of
any notice, demand, certificate, signature, instrument or other document
reasonably believed by the Trust Collateral Agent to be genuine and to have been
duly executed by the appropriate signatory, and (absent actual knowledge to the
contrary by a Responsible Officer of the Trust Collateral Agent) the Trust
Collateral Agent shall not be required to make any independent investigation
with respect thereto. The Trust Collateral Agent shall at all times be free
independently to establish to its reasonable satisfaction, but shall have no
duty to independently verify, the existence or nonexistence of facts that are a
condition to the exercise or enforcement of any right or remedy hereunder or
under any of the Basic Documents. The Trust Collateral Agent may consult with
counsel, and shall not be liable for any action taken or omitted to be taken by
it hereunder in good faith and in accordance with the advice of such counsel.
The Trust Collateral Agent shall not be under any obligation to exercise any of
the remedial rights or powers vested in it by this Indenture or to follow any
direction from the Controlling Party or risk its own funds or otherwise incur
financial liability in the performance of any of its duties hereunder unless it
shall have received reasonable security or indemnity satisfactory to the Trust
Collateral Agent against the costs, expenses and liabilities which might be
incurred by it.
SECTION 6.16 Reliance Upon Documents. In the absence of negligence,
-----------------------
bad faith or willful misconduct on its part, the Trust Collateral Agent shall be
entitled to conclusively
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rely on any communication, instrument, paper or other document reasonably
believed by it to be genuine and correct and to have been signed or sent by the
proper Person or Persons and shall have no liability in acting, or omitting to
act, where such action or omission to act is in reasonable reliance upon any
statement or opinion contained in any such document or instrument.
SECTION 6.17 Successor Trust Collateral Agent.
--------------------------------
(a) Merger. Any Person into which the Trust Collateral Agent may be
------
converted or merged, or with which it may be consolidated, or to which it may
sell or transfer its trust business and assets as a whole or substantially as a
whole, or any Person resulting from any such conversion, merger, consolidation,
sale or transfer to which the Trust Collateral Agent is a party, shall (provided
it is otherwise qualified to serve as the Trust Collateral Agent hereunder) be
and become a successor Trust Collateral Agent hereunder and be vested with all
of the title to and interest in the Indenture Collateral and all of the trusts,
powers, discretions, immunities, privileges and other matters as was its
predecessor without the execution or filing of any instrument or any further
act, deed or conveyance on the part of any of the parties hereto, anything
herein to the contrary notwithstanding, except to the extent, if any, that any
such action is necessary to perfect, or continue the perfection of, the security
interest of the Issuer Secured Parties in the Indenture Collateral; provided
that any such successor shall also be the successor Trustee under Section 6.9.
(b) Resignation. The Trust Collateral Agent and any successor Trust
-----------
Collateral Agent may resign at any time by so notifying the Issuer and the
Security Insurer; provided that the Trust Collateral Agent shall not so resign
unless it shall also resign as Trustee hereunder.
(c) Removal. The Trust Collateral Agent may be removed by the
-------
Controlling Party at any time (and should be removed at any time that the
Trustee has been removed), with or without cause, by an instrument or concurrent
instruments in writing delivered to the Trust Collateral Agent, the other Issuer
Secured Party and the Issuer. A temporary successor may be removed at any time
to allow a successor Trust Collateral Agent to be appointed pursuant to
subsection (d) below. Any removal pursuant to the provisions of this subsection
(c) shall take effect only upon the date which is the latest of (i) the
effective date of the appointment of a successor Trust Collateral Agent and the
acceptance in writing by such successor Trust Collateral Agent of such
appointment and of its obligation to perform its duties hereunder in accordance
with the provisions hereof, and (ii) receipt by the Controlling Party of an
Opinion of Counsel to the effect described in Section 3.6.
(d) Acceptance by Successor. The Controlling Party shall have the
-----------------------
sole right to appoint each successor Trust Collateral Agent. Every temporary or
permanent successor Trust Collateral Agent appointed hereunder shall execute,
acknowledge and deliver to its predecessor and to the Trustee, each Issuer
secured Party and the Issuer an instrument in writing accepting such appointment
hereunder and the relevant predecessor shall execute, acknowledge and deliver
such other documents and instruments as will effectuate the delivery of all
Indenture Collateral to the successor Trust Collateral Agent, whereupon such
successor, without any further act, deed or conveyance, shall become fully
vested with all the estates, properties, rights, powers, duties and obligations
of its predecessor. Such predecessor shall, nevertheless, on the written request
of
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either Issuer Secured Party or the Issuer, execute and deliver an instrument
transferring to such successor all the estates, properties, rights and powers of
such predecessor hereunder. In the event that any instrument in writing from the
Issuer or an Issuer Secured Party is reasonably required by a successor Trust
Collateral Agent to more fully and certainly vest in such successor the estates,
properties, rights, powers, duties and obligations vested or intended to be
vested hereunder in the Trust Collateral Agent, any and all such written
instruments shall, at the request of the temporary or permanent successor Trust
Collateral Agent, be forthwith executed, acknowledged and delivered by the
Trustee or the Issuer, as the case may be. The designation of any successor
Trust Collateral Agent and the instrument or instruments removing any Trust
Collateral Agent and appointing a successor hereunder, together with all other
instruments provided for herein, shall be maintained with the records relating
to the Indenture Collateral and, to the extent required by applicable law, filed
or recorded by the successor Trust Collateral Agent in each place where such
filing or recording is necessary to effect the transfer of the Indenture
Collateral to the successor Trust Collateral Agent or to protect or continue the
perfection of the security interests granted hereunder.
SECTION 6.18 Compensation. The Trust Collateral Agent shall not be
------------
entitled to any compensation for the performance of its duties hereunder other
than the compensation it is entitled to receive in its capacity as Trustee.
SECTION 6.19 Representations and Warranties of the Trust Collateral
------------------------------------------------------
Agent. The Trust Collateral Agent represents and warrants to the Issuer and to
- -----
each Issuer Secured Party as follows:
(a) Due Organization. The Trust Collateral Agent is a national
----------------
banking association and is duly authorized and licensed under applicable law to
conduct its business as presently conducted.
(b) Corporate Power. The Trust Collateral Agent has all requisite
---------------
right, power and authority to execute and deliver this Indenture and to perform
all of its duties as Trust Collateral Agent hereunder.
(c) Due Authorization. The execution and delivery by the Trust
-----------------
Collateral Agent of this Indenture and the other Transaction Documents to which
it is a party, and the performance by the Trust Collateral Agent of its duties
hereunder and thereunder, have been duly authorized by all necessary corporate
proceedings and no further approvals or filings, including any governmental
approvals, are required for the valid execution and delivery by the Trust
Collateral Agent, or the performance by the Trust Collateral Agent, of this
Indenture and such other Basic Documents.
(d) Valid and Binding Indenture. The Trust Collateral Agent has duly
---------------------------
executed and delivered this Indenture and each other Basic Document to which it
is a party, and each of this Indenture and each such other Basic Document
constitutes the legal, valid and binding obligation of the Trust Collateral
Agent, enforceable against the Trust Collateral Agent in accordance with its
terms, except as (i) such enforceability may be limited by bankruptcy,
insolvency, reorganization and similar laws relating to or affecting the
enforcement of creditors'
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rights generally and (ii) the availability of equitable remedies may be limited
by equitable principles of general applicability.
SECTION 6.20 Waiver of Setoffs. The Trust Collateral Agent hereby
-----------------
expressly waives any and all rights of setoff that the Trust Collateral Agent
may otherwise at any time have under applicable law with respect to any Trust
Account and agrees that amounts in the Trust Accounts shall at all times be held
and applied solely in accordance with the provisions hereof.
SECTION 6.21 Control by the Controlling Party. The Trust Collateral
--------------------------------
Agent shall comply with notices and instructions given by the Issuer only if
accompanied by the written consent of the Controlling Party, except that if any
Event of Default shall have occurred and be continuing, the Trust Collateral
Agent shall act upon and comply with notices and instructions given by the
Controlling Party alone in the place and stead of the Issuer.
ARTICLE VII
Noteholders' Lists and Reports
------------------------------
SECTION 7.1 Issuer To Furnish To Trustee Names and Addresses of
---------------------------------------------------
Noteholders. The Issuer will furnish or cause to be furnished to the Trustee
- -----------
(a) not more than five days after the earlier of (i) each Record Date and (ii)
three months after the last Record Date, a list, in such form as the Trustee may
reasonably require, of the names and addresses of the Holders as of such Record
Date, (b) at such other times as the Trustee may request in writing, within 30
days after receipt by the Issuer of any such request, a list of similar form and
content as of a date not more than 10 days prior to the time such list is
furnished; provided, however, that so long as the Trustee is the Note Registrar,
-------- -------
no such list shall be required to be furnished. The Trustee or, if the Trustee
is not the Note Registrar, the Issuer shall furnish to the Security Insurer in
writing on an annual basis on each June 30 and at such other times as the
Security Insurer may request a copy of the list.
SECTION 7.2 Preservation of Information; Communications to
----------------------------------------------
Noteholders.
- -----------
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of the Holders contained in the most recent
list furnished to the Trustee as provided in Section 7.1 and the names and
addresses of Holders received by the Trustee in its capacity as Note Registrar.
The Trustee may destroy any list furnished to it as provided in such Section 7.1
upon receipt of a new list so furnished.
(b) Noteholders may communicate pursuant to TIA (S) 312(b) with other
Noteholders with respect to their rights under this Indenture or under the
Notes.
(c) The Issuer, the Trustee and the Note Registrar shall have the
protection of TIA (S) 312(c).
SECTION 7.3 Reports by Issuer.
-----------------
(a) The Issuer shall:
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(i) file with the Trustee, within 15 days after the
Issuer is required to file the same with the Commission, copies of the
annual reports and of the information, documents and other reports (or
copies of such portions of any of the foregoing as the Commission may
from time to time by rules and regulations prescribe) which the Issuer
may be required to file with the Commission pursuant to Section 13 or
15(d) of the Exchange Act;
(ii) file with the Trustee and the Commission in
accordance with rules and regulations prescribed from time to time by
the Commission such additional information, documents and reports with
respect to compliance by the Issuer with the conditions and covenants
of this Indenture as may be required from time to time by such rules
and regulations; and
(iii) supply to the Trustee (and the Trustee shall transmit
by mail to all Noteholders described in TIA (S) 313(c)) such summaries
of any information, documents and reports required to be filed by the
Issuer pursuant to clauses (i) and (ii) of this Section 7.3(a) as may
be required by rules and regulations prescribed from time to time by
the Commission.
(b) Unless the Issuer otherwise determines, the fiscal year of the
Issuer shall end on December 31 of each year.
SECTION 7.4 Reports by Trustee. If required by TIA (S) 313(a),
------------------
within 60 days after each May 31, beginning with May 31, 1999, the Trustee shall
mail to each Noteholder as required by TIA (S) 313(c) a brief report dated as of
such date that complies with TIA (S) 313(a). The Trustee also shall comply with
TIA (S) 313(b).
A copy of each report at the time of its mailing to Noteholders shall
be filed by the Trustee with the Commission and each stock exchange, if any, on
which the Notes are listed. The Issuer shall notify the Trustee if and when the
Notes are listed on any stock exchange.
ARTICLE VIII
Accounts, Disbursements and Releases
------------------------------------
SECTION 8.1 Collection of Money. Except as otherwise expressly
-------------------
provided herein, the Trustee may demand payment or delivery of, and shall
receive and collect, directly and without intervention or assistance of any
fiscal agent or other intermediary, all money and other property payable to or
receivable by the Trust Collateral Agent pursuant to this Indenture and the Sale
and Servicing Agreement. The Trustee shall apply all such money received by it,
or cause the Trust Collateral Agent to apply all money received by it as
provided in this Indenture and the Sale and Servicing Agreement. Except as
otherwise expressly provided in this Indenture or in the Sale and Servicing
Agreement, if any default occurs in the making of any payment or performance
under any agreement or instrument that is part of the Trust Estate, the Trustee
may take such action as may be appropriate to enforce such payment or
performance, including the institution and prosecution of appropriate
proceedings. Any such action shall be without
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prejudice to any right to claim a Default or Event of Default under this
Indenture and any right to proceed thereafter as provided in Article V.
SECTION 8.2 Release of Trust Estate.
-----------------------
(a) Subject to the payment of its fees and expenses and other amounts
pursuant to Section 6.7, the Trust Collateral Agent may, and when required by
the provisions of this Indenture shall, execute instruments to release property
from the lien of this Indenture, in a manner and under circumstances that are
not inconsistent with the provisions of this Indenture. No party relying upon an
instrument executed by the Trust Collateral Agent as provided in this Article
VIII shall be bound to ascertain the Trust Collateral Agent's authority, inquire
into the satisfaction of any conditions precedent or see to the application of
any moneys.
(b) The Trust Collateral Agent shall, at such time as there are no
Notes outstanding and all sums due the Trustee pursuant to Section 6.7 have been
paid, release any remaining portion of the Trust Estate that secured the Notes
from the lien of this Indenture and release to the Issuer or any other Person
entitled thereto any funds then on deposit in the Trust Accounts. The Trustee
shall release property from the lien of this Indenture pursuant to this Section
8.2(b) only upon receipt of an Issuer Request accompanied by an Officer's
Certificate, an Opinion of Counsel and (if required by the TIA) Independent
Certificates in accordance with TIA (S)(S) 314(c) and 314(d)(1) meeting the
applicable requirements of Section 11.1.
SECTION 8.3 Opinion of Counsel. The Trust Collateral Agent shall
------------------
receive at least seven days' notice when requested by the Issuer to take any
action pursuant to Section 8.2(a), accompanied by copies of any instruments
involved, and the Trustee shall also require as a condition to such action, an
Opinion of Counsel in form and substance satisfactory to the Trustee, stating
the legal effect of any such action, outlining the steps required to complete
the same, and concluding that all conditions precedent to the taking of such
action have been complied with and such action will not materially and adversely
impair the security for the Notes or the rights of the Noteholders in
contravention of the provisions of this Indenture; provided, however, that such
-------- -------
Opinion of Counsel shall not be required to express an opinion as to the fair
value of the Trust Estate. Counsel rendering any such opinion may rely, without
independent investigation, on the accuracy and validity of any certificate or
other instrument delivered to the Trustee in connection with any such action.
ARTICLE IX
Supplemental Indentures
-----------------------
SECTION 9.1 Supplemental Indentures Without Consent of Noteholders.
------------------------------------------------------
(a) Without the consent of the Holders of any Notes but with the
consent of the Security Insurer (unless an Insurer Default shall have occurred
and be continuing) and with prior notice to the Rating Agencies by the Issuer,
as evidenced to the Trustee, the Issuer and the Trustee, when authorized by an
Issuer Order, at any time and from time to time, may enter into one or more
indentures supplemental hereto (which shall conform to the provisions of the
Trust
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Indenture Act as in force at the date of the execution thereof), in form
satisfactory to the Trustee, for any of the following purposes:
(i) to correct or amplify the description of any property
at any time subject to the lien of this Indenture, or better to
assure, convey and confirm unto the Trust Collateral Agent any
property subject or required to be subjected to the lien of this
Indenture, or to subject to the lien of this Indenture additional
property;
(ii) to evidence the succession, in compliance with the
applicable provisions hereof, of another person to the Issuer, and the
assumption by any such successor of the covenants of the Issuer herein
and in the Notes contained;
(iii) to add to the covenants of the Issuer, for the
benefit of the Holders of the Notes, or to surrender any right or
power herein conferred upon the Issuer;
(iv) to convey, transfer, assign, mortgage or pledge any
property to or with the Trust Collateral Agent;
(v) to cure any ambiguity, to correct or supplement any
provision herein or in any supplemental indenture which may be
inconsistent with any other provision herein or in any supplemental
indenture or to make any other provisions with respect to matters or
questions arising under this Indenture or in any supplemental
indenture; provided that such action shall not adversely affect the
--------
interests of the Holders of the Notes;
(vi) to evidence and provide for the acceptance of the
appointment hereunder by a successor trustee with respect to the Notes
and to add to or change any of the provisions of this Indenture as
shall be necessary to facilitate the administration of the trusts
hereunder by more than one trustee, pursuant to the requirements of
Article VI; or
(vii) to modify, eliminate or add to the provisions of this
Indenture to such extent as shall be necessary to effect the
qualification of this Indenture under the TIA or under any similar
federal statute hereafter enacted and to add to this Indenture such
other provisions as may be expressly required by the TIA.
The Trustee is hereby authorized to join in the execution of any such
supplemental indenture and to make any further appropriate agreements and
stipulations that may be therein contained.
(b) The Issuer and the Trustee, when authorized by an Issuer Order,
may, also without the consent of any of the Holders of the Notes but with prior
notice to the Rating Agencies by the Issuer, as evidenced to the Trustee, enter
into an indenture or indentures supplemental hereto for the purpose of adding
any provisions to, or changing in any manner or eliminating any of the
provisions of, this Indenture or of modifying in any manner the rights of the
Holders of the Notes under this Indenture; provided, however, that such action
-------- -------
shall not, as
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evidenced by an Opinion of Counsel, adversely affect in any material respect the
interests of any Noteholder.
SECTION 9.2 Supplemental Indentures with Consent of Noteholders.
---------------------------------------------------
The Issuer and the Trustee, when authorized by an Issuer Order, also may, with
prior notice to the Rating Agencies, with the consent of the Security Insurer
(unless an Insurer Default shall have occurred and be continuing) and with the
consent of the Holders of not less than a majority of the outstanding Amount of
the Notes, by Act of such Holders delivered to the Issuer and the Trustee, enter
into an indenture or indentures supplemental hereto for the purpose of adding
any provisions to, or changing in any manner or eliminating any of the
provisions of, this Indenture or of modifying in any manner the rights of the
Holders of the Notes under this Indenture; provided, however, that, subject to
-------- -------
the express rights of the Security Insurer under the Basic Documents, no such
supplemental indenture shall, without the consent of the Holder of each
Outstanding Note affected thereby:
(i) change the date of payment of any installment of
principal of or interest on any Note, or reduce the principal amount
thereof, the interest rate thereon or the Redemption Price with
respect thereto, change the provision of this Indenture relating to
the application of collections on, or the proceeds of the sale of, the
Trust Estate to payment of principal of or interest on the Notes, or
change any place of payment where, or the coin or currency in which,
any Note or the interest thereon is payable, provided, that any change
necessitated by the assumption by the Backup Servicer or other
successor Servicer to the duties of AmeriCredit Financial Services,
Inc., as Servicer, which results in the Distribution Date becoming the
same date as the Insured Distribution Date shall not be considered an
event which requires the consent of the Trustee, the Security Insurer
or any Noteholder;
(ii) impair the right to institute suit for the
enforcement of the provisions of this Indenture requiring the
application of funds available therefor, as provided in Article V, to
the payment of any such amount due on the Notes on or after the
respective due dates thereof (or, in the case of redemption, on or
after the Redemption Date);
(iii) reduce the percentage of the Outstanding Amount of
the Notes, the consent of the Holders of which is required for any
such supplemental indenture, or the consent of the Holders of which is
required for any waiver of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences
provided for in this Indenture;
(iv) modify or alter the provisions of the proviso to the
definition of the term "Outstanding";
(v) reduce the percentage of the Outstanding Amount of
the Notes required to direct the Trustee to direct the Issuer to sell
or liquidate the Trust Estate pursuant to Section 5.4;
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(vi) modify any provision of this Section except to
increase any percentage specified herein or to provide that certain
additional provisions of this Indenture or the Basic Documents cannot
be modified or waived without the consent of the Holder of each
Outstanding Note affected thereby;
(vii) modify any of the provisions of this Indenture in
such manner as to affect the calculation of the amount of any payment
of interest or principal due on any Note on any Distribution Date or
any Insured Distribution Date (including the calculation of any of the
individual components of such calculation) or to affect the rights of
the Noteholders to the benefit of any provisions for the mandatory
redemption of the Notes contained herein; or
(viii) permit the creation of any lien ranking prior to or
on a parity with the lien of this Indenture with respect to any part
of the Trust Estate or, except as otherwise permitted or contemplated
herein or in any of the Basic Documents, terminate the lien of this
Indenture on any property at any time subject hereto or deprive the
Holder of any Note of the security provided by the lien of this
Indenture.
The Trustee may determine whether or not any Notes would be affected
by any supplemental indenture and any such determination shall be conclusive
upon the Holders of all Notes, whether theretofore or thereafter authenticated
and delivered hereunder. The Trustee shall not be liable for any such
determination made in good faith.
It shall not be necessary for any Act of Noteholders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
Promptly after the execution by the Issuer and the Trustee of any
supplemental indenture pursuant to this Section, the Trustee shall mail to the
Holders of the Notes to which such amendment or supplemental indenture relates a
notice setting forth in general terms the substance of such supplemental
indenture. Any failure of the Trustee to mail such notice, or any defect
therein, shall not, however, in any way impair or affect the validity of any
such supplemental indenture.
SECTION 9.3 Execution of Supplemental Indentures. In executing, or
------------------------------------
permitting the additional trusts created by, any supplemental indenture
permitted by this Article IX or the amendments or modifications thereby of the
trusts created by this Indenture, the Trustee shall be entitled to receive,
shall be fully protected in relying upon, an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or permitted by this
Indenture. The Trustee may, but shall not be obligated to, enter into any such
supplemental indenture that affects the Trustee's own rights, duties,
liabilities or immunities under this Indenture or otherwise.
SECTION 9.4 Effect of Supplemental Indenture. Upon the execution
--------------------------------
of any supplemental indenture pursuant to the provisions hereof, this Indenture
shall be and be deemed to be modified and amended in accordance therewith with
respect to the Notes affected thereby, and the respective rights, limitations of
rights, obligations, duties, liabilities and immunities
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under this Indenture of the Trustee, the Issuer and the Holders of the Notes
shall thereafter be determined, exercised and enforced hereunder subject in all
respects to such modifications and amendments, and all the terms and conditions
of any such supplemental indenture shall be and be deemed to be part of the
terms and conditions of this Indenture for any and all purposes.
SECTION 9.5 Conformity With Trust Indenture Act. Every amendment
-----------------------------------
of this Indenture and every supplemental indenture executed pursuant to this
Article IX shall conform to the requirements of the Trust Indenture Act as then
in effect so long as this Indenture shall then be qualified under the Trust
Indenture Act.
SECTION 9.6 Reference in Notes to Supplemental Indentures. Notes
---------------------------------------------
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article IX may, and if required by the Trustee shall, bear a
notation in form approved by the Trustee as to any matter provided for in such
supplemental indenture. If the Issuer or the Trustee shall so determine, new
Notes so modified as to conform, in the opinion of the Trustee and the Issuer,
to any such supplemental indenture may be prepared and executed by the Issuer
and authenticated and delivered by the Trustee in exchange for Outstanding
Notes.
ARTICLE X
Redemption of Notes
-------------------
SECTION 10.1 Redemption.
----------
(a) The Notes are subject to redemption in whole, but not in part, at
the direction of the Servicer or the Seller pursuant to Section 10.1(a) of the
Sale and Servicing Agreement, on any Distribution Date on which the Servicer
exercises its option to purchase the Trust Estate pursuant to said Section
10.1(a), for a purchase price equal to the Redemption Price; provided, however,
-------- -------
that the Issuer has available funds sufficient to pay the Redemption Price. The
Servicer or the Issuer shall furnish the Security Insurer and the Rating
Agencies notice of such redemption. If the Notes are to be redeemed pursuant to
this Section 10.1(a), the Servicer or the Issuer shall furnish notice of such
election to the Trustee not later than 35 days prior to the Redemption Date and
the Issuer shall deposit with the Trustee in the Note Distribution Account the
Redemption Price of the Notes to be redeemed whereupon all such Notes shall be
due and payable on the Redemption Date upon the furnishing of a notice complying
with Section 10.2 to each Holder of Notes.
(b) In the event that on the Distribution Date on which the Funding
Period ends (or on the Distribution Date on or immediately following the last
day of the Funding Period, if the Funding Period does not end on a Distribution
Date), the Pre-Funded Amount after giving effect to the purchase of all
Subsequent Receivables, including any such purchase on such Redemption Date, the
Notes will be redeemed in part, on a pro rata basis, in an aggregate principal
amount equal to the Class A-1 Prepayment Amount, the Class A-2 Prepayment
Amount, the Class A-3 Prepayment Amount, and the Class A-4 Prepayment Amount.
(c) In the event that the assets of the Trust are sold pursuant to
Section 9.2 of the Trust Agreement, all amounts on deposit in the Note
Distribution Account shall be paid to the
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Noteholders up to the Outstanding Amount of the Notes and all accrued and unpaid
interest thereon. If amounts are to be paid to Noteholders pursuant to this
Section 10.1(c), the Servicer or the Issuer shall, to the extent practicable,
furnish notice of such event to the Trustee not later than 45 days prior to the
Redemption Date whereupon all such amounts shall be payable on the Redemption
Date.
SECTION 10.2 Form of Redemption Notice.
-------------------------
(a) Notice of redemption under Section 10.1(a) shall be given by the
Trustee by facsimile or by first-class mail, postage prepaid, transmitted or
mailed prior to the applicable Redemption Date to each Holder of Notes, as of
the close of business on the Record Date preceding the applicable Redemption
Date, at such Holder's address appearing in the Note Register.
All notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) that the Record Date otherwise applicable to such
Redemption Date is not applicable and that payments shall be made only
upon presentation and surrender of such Notes and the place where such
Notes are to be surrendered for payment of the Redemption Price (which
shall be the office or agency of the Issuer to be maintained as
provided in Section 3.2); and
(iv) that interest on the Notes shall cease to accrue on
the Redemption Date.
Notice of redemption of the Notes shall be given by the Trustee in the
name and at the expense of the Issuer. Failure to give notice of redemption, or
any defect therein, to any Holder of any Note shall not impair or affect the
validity of the redemption of any other Note.
(b) Prior notice of redemption under Section 10.1(b) is not required
to be given to Noteholders.
SECTION 10.3 Notes Payable on Redemption Date. The Notes to be
--------------------------------
redeemed shall, following notice of redemption as required by Section 10.2 (in
the case of redemption pursuant to Section 10.1(a)), on the Redemption Date
become due and payable at the Redemption Price and (unless the Issuer shall
default in the payment of the Redemption Price) no interest shall accrue on the
Redemption Price for any period after the date to which accrued interest is
calculated for purposes of calculating the Redemption Price.
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ARTICLE XI
Miscellaneous
-------------
SECTION 11.1 Compliance Certificates and Opinions, etc.
-----------------------------------------
(a) Upon any application or request by the Issuer to the Trustee or
the Trust Collateral Agent to take any action under any provision of this
Indenture, the Issuer shall furnish to the Trustee or the Trust Collateral
Agent, as the case may be, and to the Security Insurer if the application or
request is made to the Trust Collateral Agent (i) an Officer's Certificate
stating that all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with, (ii) an Opinion of
Counsel stating that in the opinion of such counsel all such conditions
precedent, if any, have been complied with and (iii) (if required by the TIA) an
Independent Certificate from a firm of certified public accountants meeting the
applicable requirements of this Section, except that, in the case of any such
application or request as to which the furnishing of such documents is
specifically required by any provision of this Indenture, no additional
certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(i) a statement that each signatory of such certificate
or opinion has read or has caused to be read such covenant or
condition and the definitions herein relating thereto;
(ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(iii) a statement that, in the opinion of each such
signatory, such signatory has made such examination or investigation
as is necessary to enable such signatory to express an informed
opinion as to whether or not such covenant or condition has been
complied with; and
(iv) a statement as to whether, in the opinion of each
such signatory such condition or covenant has been complied with.
(b) (i) Prior to the deposit of any Collateral or other property or
securities with the Trust Collateral Agent that is to be made the basis for the
release of any property or securities subject to the lien of this Indenture, the
Issuer shall, in addition to any obligation imposed in Section 11.1(a) or
elsewhere in this Indenture, furnish to the Trust Collateral Agent and the
Security Insurer an Officer's Certificate certifying or stating the opinion of
each person signing such certificate as to the fair value (within 90 days of
such deposit) to the Issuer of the Collateral or other property or securities to
be so deposited.
(ii) Whenever the Issuer is required to furnish to the Trust
Collateral Agent and the Security Insurer an Officer's Certificate
certifying or stating the opinion of any signer thereof as to the
matters described in clause (i) above, the
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Issuer shall also deliver to the Trust Collateral Agent and the
Security Insurer an Independent Certificate as to the same matters, if
the fair value to the Issuer of the securities to be so deposited and
of all other such securities made the basis of any such withdrawal or
release since the commencement of the then-current fiscal year of the
Issuer, as set forth in the certificates delivered pursuant to clause
(i) above and this clause (ii), is 10% or more of the Outstanding
Amount of the Notes, but such a certificate need not be furnished with
respect to any securities so deposited, if the fair value thereof to
the Issuer as set forth in the related Officer's Certificate is less
than $25,000 or less than 1% percent of the Outstanding Amount of the
Notes.
(iii) Other than with respect to the release of any Purchased
Receivables or Liquidated Receivables, whenever any property or
securities are to be released from the lien of this Indenture, the
Issuer shall also furnish to the Trust Collateral Agent and the
Security Insurer an Officer's Certificate certifying or stating the
opinion of each person signing such certificate as to the fair value
(within 90 days of such release) of the property or securities
proposed to be released and stating that in the opinion of such person
the proposed release will not impair the security under this Indenture
in contravention of the provisions hereof.
(iv) Whenever the Issuer is required to furnish to the Trustee
and the Security Insurer an Officer's Certificate certifying or
stating the opinion of any signer thereof as to the matters described
in clause (iii) above, the Issuer shall also furnish to the Trust
Collateral Agent and the Security Insurer an Independent Certificate
as to the same matters if the fair value of the property or securities
and of all other property other than Purchased Receivables and
Defaulted Receivables, or securities released from the lien of this
Indenture since the commencement of the then current calendar year, as
set forth in the certificates required by clause (iii) above and this
clause (iv), equals 10% or more of the Outstanding Amount of the
Notes, but such certificate need not be furnished in the case of any
release of property or securities if the fair value thereof as set
forth in the related Officer's Certificate is less than $25,000 or
less than 1 percent of the then Outstanding Amount of the Notes.
(v) Notwithstanding Section 2.9 or any other provision of this
Section, the Issuer may (A) collect, liquidate, sell or otherwise
dispose of Receivables as and to the extent permitted or required by
the Basic Documents and (B) make cash payments out of the Trust
Accounts as and to the extent permitted or required by the Basic
Documents.
SECTION 11.2 Form of Documents Delivered to Trustee. In any case
--------------------------------------
where several matters are required to be certified by, or covered by an opinion
of, any specified Person, it is not necessary that all such matters be certified
by, or covered by the opinion of, only one such Person, or that they be so
certified or covered by only one document, but one such Person may certify or
give an opinion with respect to some matters and one or more other such Persons
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as to other matters, and any such Person may certify or give an opinion as to
such matters in one or several documents.
Any certificate or opinion of an Authorized Officer of the Issuer may
be based, insofar as it relates to legal matters, upon a certificate or opinion
of, or representations by, counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his or her certificate or
opinion is based are erroneous. Any such certificate of an Authorized Officer
or Opinion of Counsel may be based, insofar as it relates to factual matters,
upon a certificate or opinion of, or representations by, an officer or officers
of the Servicer, the Seller or the Issuer, stating that the information with
respect to such factual matters is in the possession of the Servicer, the Seller
or the Issuer, unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Whenever in this Indenture, in connection with any application or
certificate or report to the Trustee, it is provided that the Issuer shall
deliver any document as a condition of the granting of such application, or as
evidence of the Issuer's compliance with any term hereof, it is intended that
the truth and accuracy, at the time of the granting of such application or at
the effective date of such certificate or report (as the case may be), of the
facts and opinions stated in such document shall in such case be conditions
precedent to the right of the Issuer to have such application granted or to the
sufficiency of such certificate or report. The foregoing shall not, however, be
construed to affect the Trustee's right to rely upon the truth and accuracy of
any statement or opinion contained in any such document as provided in Article
VI.
SECTION 11.3 Acts of Noteholders.
-------------------
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Noteholders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Noteholders in person or by agents
duly appointed in writing; and except as herein otherwise expressly provided
such action shall become effective when such instrument or instruments are
delivered to the Trustee, and, where it is hereby expressly required, to the
Issuer. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the
Noteholders signing such instrument or instruments. Proof of execution of any
such instrument or of a writing appointing any such agent shall be sufficient
for any purpose of this Indenture and (subject to Section 6.1) conclusive in
favor of the Trustee and the Issuer, if made in the manner provided in this
Section.
(b) The fact and date of the execution by any person of any such
instrument or writing may be proved in any customary manner of the Trustee.
(c) The ownership of Notes shall be proved by the Note Register.
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(d) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Notes shall bind the Holder of every
Note issued upon the registration thereof or in exchange therefor or in lieu
thereof, in respect of anything done, omitted or suffered to be done by the
Trustee or the Issuer in reliance thereon, whether or not notation of such
action is made upon such Note.
SECTION 11.4 Notices, etc., to Trustee, Issuer and Rating Agencies.
-----------------------------------------------------
Any request, demand, authorization, direction, notice, consent, waiver or Act of
Noteholders or other documents provided or permitted by this Indenture to be
made upon, given or furnished to or filed with:
(a) The Trustee by any Noteholder or by the Issuer shall be
sufficient for every purpose hereunder if personally delivered, delivered by
overnight courier or mailed certified mail, return receipt requested and shall
be deemed to have been duly given upon receipt to the Trustee at its Corporate
Trust Office, or
(b) The Issuer by the Trustee or by any Noteholder shall be
sufficient for every purpose hereunder if personally delivered, delivered by
overnight courier or mailed certified mail, return receipt requested and shall
deemed to have been duly given upon receipt to the Issuer addressed to:
AmeriCredit Automobile Receivables Trust 1999-B, in care of Bankers Trust
(Delaware), E.A. Delle Donne Corporate Center, Montgomery Building, 1011 Centre
Road, Suite 200, Wilmington, Delaware 19805 Attention: Lisa Wilkins, with a copy
to Bankers Trust Company, 4 Albany Street, New York, New York 10006, Attention:
Corporate Trust Agency, or at any other address previously furnished in writing
to the Trustee by Issuer. The Issuer shall promptly transmit any notice received
by it from the Noteholders to the Trustee.
(c) The Security Insurer by the Issuer or the Trustee shall be
sufficient for any purpose hereunder if in writing and mailed by registered mail
or personally delivered or telexed or telecopied to the recipient as follows:
To the Security Insurer: Financial Security Assurance Inc.
350 Park Avenue
New York, NY 10022
Attention: Transaction Oversight Department
Telex No.: (212) 688-3101
Confirmation: (212)826-0100
Telecopy Nos.: (212)339-3518 or
(212) 339-3529
(In each case in which notice or other communication to the Security Insurer
refers to an Event of Default, a claim on the Note Policy or with respect to
which failure on the part of the Security Insurer to respond shall be deemed to
constitute consent or acceptance, then a copy of such notice or other
communication should also be sent to the attention of the General Counsel and
the Head--Financial Guaranty Group "URGENT MATERIAL ENCLOSED.")
------------------------
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Notices required to be given to the Rating Agencies by the Issuer, the
Trustee or the Owner Trustee shall be in writing, personally delivered,
delivered by overnight courier or mailed certified mail, return receipt
requested to (i) in the case of Moody's, at the following address: Moody's
Investors Service, Inc., 99 Church Street, New York, New York 10004 and (ii) in
the case of S&P, at the following address: Standard & Poor's Ratings Services,
26 Broadway (15th Floor), New York, New York 10004, Attention of Asset Backed
Surveillance Department; or as to each of the foregoing, at such other address
as shall be designated by written notice to the other parties.
SECTION 11.5 Notices to Noteholders; Waiver. Where this Indenture
------------------------------
provides for notice to Noteholders of any event, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first-class, postage prepaid to each Noteholder affected by such
event, at his address as it appears on the Note Register, not later than the
latest date, and not earlier than the earliest date, prescribed for the giving
of such notice. In any case where notice to Noteholders is given by mail,
neither the failure to mail such notice nor any defect in any notice so mailed
to any particular Noteholder shall affect the sufficiency of such notice with
respect to other Noteholders, and any notice that is mailed in the manner here
in provided shall conclusively be presumed to have been duly given.
Where this Indenture provides for notice in any manner, such notice
may be waived in writing by any Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Noteholders shall be filed with the Trustee but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such a waiver.
In case, by reason of the suspension of regular mail service as a
result of a strike, work stoppage or similar activity, it shall be impractical
to mail notice of any event to Noteholders when such notice is required to be
given pursuant to any provision of this Indenture, then any manner of giving
such notice as shall be satisfactory to the Trustee shall be deemed to be a
sufficient giving of such notice.
Where this Indenture provides for notice to the Rating Agencies,
failure to give such notice shall not affect any other rights or obligations
created hereunder, and shall not under any circumstance constitute a Default or
Event of Default.
SECTION 11.6 [Reserved]
--------
SECTION 11.7 Conflict with Trust Indenture Act. If any provision
---------------------------------
hereof limits, qualifies or conflicts with another provision hereof that is
required to be included in this Indenture by any of the provisions of the Trust
Indenture Act, such required provision shall control.
The provisions of TIA (SS) 310 through 317 that impose duties on any
person (including the provisions automatically deemed included herein unless
expressly excluded by this Indenture) are a part of and govern this Indenture,
whether or not physically contained herein.
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SECTION 11.8 Effect of Headings and Table of Contents. The Article
----------------------------------------
and Section headings herein and the Table of Contents are for convenience only
and shall not affect the construction hereof.
SECTION 11.9 Successors and Assigns. All covenants and agreements
----------------------
in this Indenture and the Notes by the Issuer shall bind its successors and
assigns, whether so expressed or not. All agreements of the Trustee in this
Indenture shall bind its successors. All agreements of the Trust Collateral
Agent in this Indenture shall bind its successors.
SECTION 11.10 Separability. In case any provision in thisIndenture
------------
or in the Notes shall be invalid, illegal or unenforceable, the validity,
legality, and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
SECTION 11.11 Benefits of Indenture. The Security Insurer and its
---------------------
successors and assigns shall be a third-party beneficiary to the provisions of
this Indenture, and shall be entitled to rely upon and directly to enforce such
provisions of this Indenture so long as no Insurer Default shall have occurred
and be continuing. Nothing in this Indenture or in the Notes, express or
implied, shall give to any Person, other than the parties hereto and their
successors hereunder, and the Noteholders, and any other party secured
hereunder, and any other person with an Ownership interest in any part of the
Trust Estate, any benefit or any legal or equitable right, remedy or claim under
this Indenture. The Security Insurer may disclaim any of its rights and powers
under this Indenture (in which case the Trustee may exercise such right or power
hereunder), but not its duties and obligations under the Note Policy, upon
delivery of a written notice to the Trustee.
SECTION 11.12 Legal Holidays. In any case where the date on which any
--------------
payment is due shall not be a Business Day, then (notwithstanding any other
provision of the Notes or this Indenture) payment need not be made on such date,
but may be made on the next succeeding Business Day with the same force and
effect as if made on the date an which nominally due, and no interest shall
accrue for the period from and after any such nominal date.
SECTION 11.13 GOVERNING LAW. THIS INDENTURE SHALL BE CONSTRUED IN
-------------
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 11.14 Counterparts. This Indenture may be executed in any
------------
number of counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.
SECTION 11.15 Recording of Indenture. If this Indenture is subject
----------------------
to recording in any appropriate public recording offices, such recording is to
be effected by the Issuer and at its expense accompanied by an Opinion of
Counsel (which may be counsel to the Trustee or any other counsel reasonably
acceptable to the Trustee and the Security Insurer) to the effect that such
recording is necessary either for the protection of the Noteholders or any other
person secured hereunder or for the enforcement of any right or remedy granted
to the Trustee or the
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Trust Collateral Agent under this Indenture or the Collateral Agent under the
Spread Account Agreement.
SECTION 11.16 Trust Obligation. No recourse may be taken, directly
----------------
or indirectly, with respect to the obligations of the Issuer, the Seller, the
Servicer, the Owner Trustee, the Trust Collateral Agent or the Trustee on the
Notes or under this Indenture or any certificate or other writing delivered in
connection herewith or therewith, against (i) the Seller, the Servicer, the
Trustee, the Trust Collateral Agent or the Owner Trustee in its individual
capacity, (ii) any owner of a beneficial interest in the Issuer or (iii) any
partner, owner, beneficiary, agent, officer, director, employee or agent of the
Seller, the Servicer, the Trustee, the Trust Collateral Agent or the Owner
Trustee in its individual capacity, any holder of a beneficial interest in the
Issuer, the Seller, the Servicer, the Owner Trustee, the Trust Collateral Agent
or the Trustee or of any successor or assign of the Seller, the Servicer, the
Trustee, the Trust Collateral Agent or the Owner Trustee in its individual
capacity, except as any such Person may have expressly agreed (it being
understood that the Trustee, the Trust Collateral Agent and the Owner Trustee
have no such obligations in their individual capacity) and except that any such
partner, owner or beneficiary shall be fully liable, to the extent provided by
applicable law, for any unpaid consideration for stock, unpaid capital
contribution or failure to pay any installment or call owing to such entity. For
all purposes of this Indenture, in the performance of any duties or obligations
of the Issuer hereunder, the Owner Trustee shall be subject to, and entitled to
the benefits of, the terms and provisions of Article VI, VII and VIII of the
Trust Agreement.
SECTION 11.17 No Petition. The Trustee and the Trust Collateral
-----------
Agent, by entering into this Indenture, and each Noteholder, by accepting a
Note, hereby covenant and agree that they will not at any time institute against
the Seller, or the Issuer, or join in any institution against the Seller, or the
Issuer of, any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings, or other proceedings under any United States federal or
State bankruptcy or similar law in connection with any obligations relating to
the Notes, this Indenture or any of the Basic Documents.
SECTION 11.18 Inspection. The Issuer agrees that, on reasonable
----------
prior notice, it will permit any representative of the Trustee or of the
Security Insurer, during the Issuer's normal business hours, to examine all the
books of account, records, reports, and other papers of the Issuer, to make
copies and extracts therefrom, to cause such books to be audited by independent
certified public accountants, and to discuss the Issuer's affairs, finances and
accounts with the Issuer's officers, employees, and independent certified public
accountants, all at such reasonable times and as often as may be reasonably
requested. Notwithstanding anything herein to the contrary, the foregoing shall
not be construed to prohibit (i) disclosure of any and all information that is
or becomes publicly known, (ii) disclosure of any and all information (A) if
required to do so by any applicable statute, law, rule or regulation, (B) to any
government agency or regulatory body having or claiming authority to regulate or
oversee any respects of the Trustee's business or that of its affiliates, (C)
pursuant to any subpoena, civil investigative demand or similar demand or
request of any court, regulatory authority, arbitrator or arbitration to which
the Trustee or an affiliate or an officer, director, employer or shareholder
thereof is a party, (D) in any preliminary or final offering circular,
registration statement or contract or other document pertaining to the
transactions contemplated by the Indenture approved in advance by the Servicer
or the Issuer or (E) to any independent or internal auditor, agent, employee or
attorney of the Trustee having a
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need to know the same, provided that the Trustee advises such recipient of the
confidential nature of the information being disclosed, or (iii) any other
disclosure authorized by the Servicer or the Issuer.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Issuer and the Trustee have caused this
Indenture to be duly executed by their respective officers, hereunto duly
authorized, all as of the day and year first above written.
AMERICREDIT AUTOMOBILE RECEIVABLES TRUST 1999-B,
By: BANKERS TRUST (DELAWARE), not in its individual
capacity but solely as Owner Trustee
By: /s/ Louis Bodi
-----------------------------------------------------
Name: Louis Bodi
Title: Attorney-in-Fact
BANK ONE, N.A., not in its individual capacity but solely as
Trustee and Trust Collateral Agent
By: /s/ John J. Rothrock
-----------------------------------------------------
Name: John J. Rothrock
Title: Authorized Signer
<PAGE>
EXHIBIT A-1
REGISTERED $__________
No. RB-1-1
SEE REVERSE FOR CERTAIN DEFINITIONS
CUSIP NO. [____________]
Unless this Note is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Issuer or its
agent for registration of transfer, exchange or payment, and any Note issued is
registered in the name of Cede & Co. or in such other name as is 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.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME
MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
AMERICREDIT AUTOMOBILE RECEIVABLES TRUST 1999-B
CLASS A-1 4.9166% ASSET BACKED NOTE
AmeriCredit Automobile Receivables Trust 1999-B, a business trust
organized and existing under the laws of the State of Delaware (herein referred
to as the "Issuer"), for value received, hereby promises to pay to CEDE & CO.,
or registered assigns, the principal sum of ______________________ DOLLARS
payable on each Distribution Date in an amount equal to the result obtained by
multiplying (i) a fraction the numerator of which is $__________ and the
denominator of which is $__________ by (ii) the aggregate amount, if any,
payable from the Note Distribution Account in respect of principal on the Class
A-1 Notes pursuant to the Indenture; provided, however, that the entire unpaid
-------- -------
principal amount of this Note shall be due and payable on the June 2000 Insured
Distribution Date (the "Final Scheduled Distribution Date"). The Issuer will
pay interest on this Note at the rate per annum shown above on each Distribution
Date until the principal of this Note is paid or made available for payment.
Interest on this Note will accrue for each Distribution Date from the most
recent Distribution Date on which interest has been paid to but excluding such
Distribution Date or, if no interest has yet been paid, from May 20, 1999.
Interest will be computed on the basis of the actual number of days elapsed in a
360-day year. Such principal of and interest on this Note shall be paid in the
manner specified on the reverse hereof.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and
A-1-1
<PAGE>
private debts. All payments made by the Issuer with respect to this Note shall
be applied first to interest due and payable on this Note as provided above and
then to the unpaid principal of this Note.
The Notes are entitled to the benefits of a financial guaranty
insurance policy (the "Note Policy") issued by Financial Security Assurance Inc.
(the "Security Insurer"), pursuant to which the Security Insurer has
unconditionally guaranteed payments of the Noteholders' Interest Distributable
Amount and the Noteholders' Principal Distributable Amount with respect to each
Distribution Date will be paid on or prior to the related Insured Distribution
Date, all as more fully set forth in the Indenture and the related Sale and
Servicing Agreement. The Record Date applicable to any Insured Distribution
Date is the Record Date applicable to the related Distribution Date.
Reference is made to the further provisions of this Note set forth on
the reverse hereof, which shall have the same effect as though fully set forth
on the face of this Note.
Unless the certificate of authentication hereon has been executed by
the Trustee whose name appears below by manual signature, this Note shall not be
entitled to any benefit under the Indenture referred to on the reverse hereof,
or be valid or obligatory for any purpose.
A-1-2
<PAGE>
IN WITNESS WHEREOF, the Issuer has caused this instrument to be
signed, manually or in facsimile, by its Authorized Officer as of the date set
forth below.
AMERICREDIT AUTOMOBILE RECEIVABLES TRUST 1999-B
by
BANKERS TRUST (DELAWARE), not in its individual
capacity but solely as Owner Trustee under the
Trust Agreement
by_________________________________________
Name:
Title:
A-1-3
<PAGE>
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
Date: May 20, 1999 BANK ONE, N.A., not in its individual capacity but
solely as Trustee
by_______________________________________
Authorized Signer
A-1-4
<PAGE>
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its Class A-1 4.9166 Asset Backed Notes (herein called the "Class
A-1 Notes"), all issued under an Indenture dated as of May 12, 1999 (such
indenture, as supplemented or amended, is herein called the "Indenture"),
between the Issuer and Bank One, N.A. , as trustee (the "Trustee", which term
includes any successor Trustee under the Indenture) and as trust collateral
agent (the "Trust Collateral Agent"), which term includes any successor Trust
Collateral Agent) to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights and
obligations thereunder of the Issuer, the Trustee and the Holders of the Notes.
The Notes are subject to all terms of the Indenture. All terms used in this
Note that are defined in the Indenture, as supplemented or amended, shall have
the meanings assigned to them in or pursuant to the Indenture, as so
supplemented or amended.
The Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes, and
the Class A-4 Notes (together, the "Notes") are and will be equally and ratably
secured by the collateral pledged as security therefor as provided in the
Indenture.
Principal of the Class A-1 Notes will be payable on each Distribution
Date in an amount described on the face hereof. "Distribution Date" means the
fifth day of each month, or, if any such date is not a Business Day, the next
succeeding Business Day, provided that such day for payment shall in no event be
earlier than the third Business Day of the month, commencing June 7, 1999. The
term "Distribution Date," shall be deemed to include the Final Scheduled
Distribution Date.
As described above, the entire unpaid principal amount of this Note
shall be due and payable on the earlier of the Final Scheduled Distribution Date
and the Redemption Date, if any, pursuant to the Indenture. As described above,
a portion of the unpaid principal balance of this Note shall be due and payable
on the Redemption Date. Notwithstanding the foregoing, the entire unpaid
principal amount of the Notes shall be due and payable (i) on the date on which
an Event of Default shall have occurred and be continuing so long as an Insurer
Default shall not have occurred and be continuing or (ii) if an Insurer Default
shall have occurred and be continuing, on the date on which an Event of Default
shall have occurred and be continuing and the Trustee or the Holders of the
Notes representing at least 66-2/3% of the Outstanding Amount of the Notes have
declared the Notes to be immediately due and payable in the manner provided in
the Indenture. All principal payments on the Class A-1 Notes shall be made pro
rata to the Class A-1 Noteholders entitled thereto.
Payments of interest on this Note due and payable on each Distribution
Date, together with the installment of principal, if any, to the extent not in
full payment of this Note, shall be made by check mailed to the Person whose
name appears as the Holder of this Note (or one or more Predecessor Notes) on
the Note Register as of the close of business on each Record Date, except that
with respect to Notes registered on the Record Date in the name of the nominee
of the Clearing Agency (initially, such nominee to be Cede & Co.), payments will
be made by wire transfer in immediately available funds to the account
designated by such nominee. Such checks shall be mailed to the Person entitled
thereto at the address of such Person as it appears on the Note Register as of
the applicable Record Date without requiring that this Note be
A-1-5
<PAGE>
submitted for notation of payment. Any reduction in the principal amount of this
Note (or any one or more Predecessor Notes) effected by any payments made on any
Distribution Date shall be binding upon all future Holders of this Note and of
any Note issued upon the registration of transfer hereof or in exchange hereof
or in lieu hereof, whether or not noted hereon. If funds are expected to be
available, as provided in the Indenture, for payment in full of the then
remaining unpaid principal amount of this Note on a Distribution Date, then the
Trustee, in the name of and on behalf of the Issuer, will notify the Person who
was the Holder hereof as of the Record Date preceding such Distribution Date by
notice mailed prior to such Distribution Date and the amount then due and
payable shall be payable only upon presentation and surrender of this Note at
the Trustee's principal Corporate Trust Office or at the office of the Trustee's
agent appointed for such purposes located in Columbus, Ohio.
The Issuer shall pay interest on overdue installments of interest at
the Class A-1 Interest Rate to the extent lawful.
As provided in the Indenture, the Notes may be redeemed (a) in whole,
but not in part, at the option of the Servicer (with the consent of the Security
Insurer under certain circumstances), on any Distribution Date on or after the
date on which the Pool Balance is less than or equal to 10% of the Original Pool
Balance, and (b) in part, on a pro rata basis, on the Distribution Date on or
immediately following the last day of the Funding Period.
As provided in the Indenture and subject to certain limitations set
forth therein, the transfer of this Note may be registered on the Note Register
upon surrender of this Note for registration of transfer at the office or agency
designated by the Issuer pursuant to the Indenture, (i) duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Trustee duly executed by, the Holder hereof or his attorney duly authorized in
writing, with such signature guaranteed by an "eligible guarantor institution"
meeting the requirements of the Note Registrar which requirements include
membership or participation in Securities Transfer Agents Medallion Program
("Stamp") or such other "signature guarantee program" as may be determined by
the Note Registrar in addition to, or in substitution for, Stamp, all in
accordance with the Exchange Act, and (ii) accompanied by such other documents
as the Trustee may require, and thereupon one or more new Notes of authorized
denominations and in the same aggregate principal amount will be issued to the
designated transferee or transferees. No service charge will be charged for any
registration of transfer or exchange of this Note, but the transferor may be
required to pay a sum sufficient to cover any tax or other governmental charge
that may be imposed in connection with any such registration of transfer or
exchange.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case
of a Note Owner, a beneficial interest in a Note covenants and agrees that no
recourse may be taken, directly or indirectly, with respect to the obligations
of the Issuer, the Owner Trustee or the Trustee on the Notes or under the
Indenture or any certificate or other writing delivered in connection therewith,
against (i) the Seller, the Servicer, the General Partner, the Trustee or the
Owner Trustee in its individual capacity, (ii) any owner of a beneficial
interest in the Issuer or (iii) any partner, owner, beneficiary, agent, officer,
director or employee of the Seller, the Servicer, the General Partner, the
Trustee or the Owner Trustee in its individual capacity, any holder of a
beneficial interest in the Issuer, the Seller, the Servicer, the
A-1-6
<PAGE>
General Partner, the Owner Trustee or the Trustee or of any successor or assign
of the Seller, the Servicer, the General Partner, the Trustee or the Owner
Trustee in its individual capacity, except as any such Person may have expressly
agreed (it being understood that the Trustee and the Owner Trustee have no such
obligations in their individual capacity) and except that any such partner,
owner or beneficiary shall be fully liable, to the extent provided by applicable
law, for any unpaid consideration for stock, unpaid capital contribution or
failure to pay any installment or call owing to such entity.
Prior to the due presentment for registration of transfer of this
Note, the Issuer, the Trustee and the Security Insurer and any agent of the
Issuer, the Trustee or the Security Insurer may treat the Person in whose name
this Note (as of the day of determination or as of such other date as may be
specified in the Indenture) is registered as the owner hereof for all purposes,
whether or not this Note be overdue, and neither the Issuer, the Trustee nor any
such agent shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders of the Notes under the Indenture at any
time by the Issuer with the consent of the Security Insurer and of the
Noteholders representing a majority of the Outstanding Amount of all Notes at
the time Outstanding. The Indenture also contains provisions permitting the
Noteholders representing specified percentages of the Outstanding Amount of the
Notes, on behalf of the Holders of all the Notes, to waive compliance by the
Issuer with certain provisions of the Indenture and certain past defaults under
the Indenture and their consequences. Any such consent or waiver by the Holder
of this Note (or any one of more Predecessor Notes) shall be conclusive and
binding upon such Holder and upon all future Holders of this Note and of any
Note issued upon the registration of transfer hereof or in exchange hereof or in
lieu hereof whether or not notation of such consent or waiver is made upon this
Note. The Indenture also permits the Trustee to amend or waive certain terms
and conditions set forth in the Indenture without the consent of Holders of the
Notes issued thereunder.
The term "Issuer" as used in this Note includes any successor to the
Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain circumstances,
to merge or consolidate, subject to the rights of the Trustee and the
Noteholders under the Indenture.
The Notes are issuable only in registered form in denominations as
provided in the Indenture, subject to certain limitations therein set forth.
This Note and the Indenture shall be construed in accordance with the
laws of the State of New York, without reference to its conflict of law
provisions, and the obligations, rights and remedies of the parties hereunder
and thereunder shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place, and rate, and in the coin or currency herein prescribed.
A-1-7
<PAGE>
Anything herein to the contrary notwithstanding, except as expressly
provided in the Indenture or the Basic Documents, neither Bankers Trust
(Delaware) in its individual capacity, any owner of a beneficial interest in the
Issuer, nor any of their respective partners, beneficiaries, agents, officers,
directors, employees or successors or assigns shall be personally liable for,
nor shall recourse be had to any of them for, the payment of principal of or
interest on, or performance of, or omission to perform, any of the covenants,
obligations or indemnifications contained in this Note or the Indenture, it
being expressly understood that said covenants, obligations and indemnifications
have been made by the Owner Trustee for the sole purposes of binding the
interests of the Owner Trustee in the assets of the Issuer. The Holder of this
Note by the acceptance hereof agrees that except as expressly provided in the
Indenture or the Basic Documents, in the case of an Event of Default under the
Indenture, the Holder shall have no claim against any of the foregoing for any
deficiency, loss or claim therefrom; provided, however, that nothing contained
-------- -------
herein shall be taken to prevent recourse to, and enforcement against, the
assets of the Issuer for any and all liabilities, obligations and undertakings
contained in the Indenture or in this Note.
A-1-8
<PAGE>
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints, attorney, to transfer said Note on the books kept for registration
thereof, with full power of substitution in the premises.
Dated______________________/1/ ______________________________________
Signature Guaranteed:
___________________________ ______________________________________
_____________________________________
/1/ NOTE: The signature to this assignment must correspond with the name
of the registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatsoever.
A-1-9
<PAGE>
EXHIBIT A-2
REGISTERED $___________
No. RB-2-1
SEE REVERSE FOR CERTAIN DEFINITIONS
CUSIP NO. ___________
Unless this Note is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Issuer or its
agent for registration of transfer, exchange or payment, and any Note issued is
registered in the name of Cede & Co. or in such other name as is 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.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME
MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
AMERICREDIT AUTOMOBILE RECEIVABLES TRUST 1999-B
CLASS A-2 5.304% ASSET BACKED NOTE
AmeriCredit Automobile Receivables Trust 1999-B, a business trust
organized and existing under the laws of the State of Delaware (herein referred
to as the "Issuer"), for value received, hereby promises to pay to CEDE & CO.,
or registered assigns, the principal sum of _________________DOLLARS payable on
each Distribution Date in an amount equal to the result obtained by multiplying
(i) a fraction the numerator of which is $___________ and the denominator of
which is $___________ by (ii) the aggregate amount, if any, payable from the
Note Distribution Account in respect of principal on the Class A-2 Notes
pursuant to the Indenture; provided, however, that the entire unpaid principal
-------- -------
amount of this Note shall be due and payable on the October 2002 Insured
Distribution Date (the "Final Scheduled Distribution Date"). The Issuer will
pay interest on this Note at the rate per annum shown above on each Distribution
Date until the principal of this Note is paid or made available for payment.
Interest on this Note will accrue for each Distribution Date from the most
recent Distribution Date on which interest has been paid to but excluding such
Distribution Date or, if no interest has yet been paid, from May 20, 1999.
Interest will be computed on the basis of the actual number of days elapsed in a
360-day year. Such principal of and interest on this Note shall be paid in the
manner specified on the reverse hereof.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and
A-2-1
<PAGE>
private debts. All payments made by the Issuer with respect to this Note shall
be applied first to interest due and payable on this Note as provided above and
then to the unpaid principal of this Note.
The Notes are entitled to the benefits of a financial guaranty
insurance policy (the "Note Policy") issued by Financial Security Assurance Inc.
(the "Security Insurer"), pursuant to which the Security Insurer has
unconditionally guaranteed payments of the Noteholders' Interest Distributable
Amount and the Noteholders' Principal Distributable Amount with respect to each
Distribution Date will be paid on or prior to the related Insured Distribution
Date, all as more fully set forth in the Indenture and the related Sale and
Servicing Agreement. The Record Date applicable to any Insured Distribution
Date is the Record Date applicable to the related Distribution Date.
Reference is made to the further provisions of this Note set forth on
the reverse hereof, which shall have the same effect as though fully set forth
on the face of this Note.
Unless the certificate of authentication hereon has been executed by
the Trustee whose name appears below by manual signature, this Note shall not be
entitled to any benefit under the Indenture referred to on the reverse hereof,
or be valid or obligatory for any purpose.
A-2-2
<PAGE>
IN WITNESS WHEREOF, the Issuer has caused this instrument to be
signed, manually or in facsimile, by its Authorized Officer as of the date set
forth below.
AMERICREDIT AUTOMOBILE RECEIVABLES TRUST 1999-B
by
BANKERS TRUST (DELAWARE), not in its individual
capacity but solely as Owner Trustee under the
Trust Agreement
by________________________________________
Name:
Title:
A-2-3
<PAGE>
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
Date: May 20, 1999 BANK ONE, N.A., not in its individual capacity
but solely as Trustee
by_____________________________________
Authorized Signer
A-2-4
<PAGE>
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its Class A-2 5.304% Asset Backed Notes (herein called the "Class
A-2 Notes"), all issued under an Indenture dated as of May 12, 1999 (such
indenture, as supplemented or amended, is herein called the "Indenture"),
between the Issuer and Bank One, N.A., as trustee (the "Trustee", which term
includes any successor Trustee under the Indenture) and as trust collateral
agent (the "Trust Collateral Agent"), which term includes any successor Trust
Collateral Agent) to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights and
obligations thereunder of the Issuer, the Trustee and the Holders of the Notes.
The Notes are subject to all terms of the Indenture. All terms used in this
Note that are defined in the Indenture, as supplemented or amended, shall have
the meanings assigned to them in or pursuant to the Indenture, as so
supplemented or amended.
The Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes, and the
Class A-4 Notes (together, the "Notes") are and will be equally and ratably
secured by the collateral pledged as security therefor as provided in the
Indenture.
Principal of the Class A-2 Notes will be payable on each Distribution
Date in an amount described on the face hereof. "Distribution Date" means the
fifth day of each month, or, if any such date is not a Business Day, the next
succeeding Business Day, provided, that such day for payment shall in no event
be earlier than the third Business Day of the month, commencing June 7, 1999.
The term "Distribution Date," shall be deemed to include the Final Scheduled
Distribution Date.
As described above, the entire unpaid principal amount of this Note
shall be due and payable on the earlier of the Final Scheduled Distribution Date
and the Redemption Date, if any, pursuant to the Indenture. As described above,
a portion of the unpaid principal balance of this Note shall be due and payable
on the Redemption Date. Notwithstanding the foregoing, the entire unpaid
principal amount of the Notes shall be due and payable (i) on the date on which
an Event of Default shall have occurred and be continuing so long as an Insurer
Default shall not have occurred and be continuing or (ii) if an Insurer Default
shall have occurred and be continuing, on the date on which an Event of Default
shall have occurred and be continuing and the Trustee or the Holders of the
Notes representing at least 66-2/3% of the Outstanding Amount of the Notes have
declared the Notes to be immediately due and payable in the manner provided in
the Indenture. All principal payments on the Class A-2 Notes shall be made pro
rata to the Class A-2 Noteholders entitled thereto.
Payments of interest on this Note due and payable on each Distribution
Date, together with the installment of principal, if any, to the extent not in
full payment of this Note, shall be made by check mailed to the Person whose
name appears as the Holder of this Note (or one or more Predecessor Notes) on
the Note Register as of the close of business on each Record Date, except that
with respect to Notes registered on the Record Date in the name of the nominee
of the Clearing Agency (initially, such nominee to be Cede & Co.), payments will
be made by wire transfer in immediately available funds to the account
designated by such nominee. Such checks shall be mailed to the Person entitled
thereto at the address of such Person as it appears on the Note Register as of
the applicable Record Date without requiring that this Note be
A-2-5
<PAGE>
submitted for notation of payment. Any reduction in the principal amount of this
Note (or any one or more Predecessor Notes) effected by any payments made on any
Distribution Date shall be binding upon all future Holders of this Note and of
any Note issued upon the registration of transfer hereof or in exchange hereof
or in lieu hereof, whether or not noted hereon. If funds are expected to be
available, as provided in the Indenture, for payment in full of the then
remaining unpaid principal amount of this Note on a Distribution Date, then the
Trustee, in the name of and on behalf of the Issuer, will notify the Person who
was the Holder hereof as of the Record Date preceding such Distribution Date by
notice mailed prior to such Distribution Date and the amount then due and
payable shall be payable only upon presentation and surrender of this Note at
the Trustee's principal Corporate Trust Office or at the office of the Trustee's
agent appointed for such purposes located in Columbus, Ohio.
The Issuer shall pay interest on overdue installments of interest at
the Class A-2 Interest Rate to the extent lawful.
As provided in the Indenture, the Notes may be redeemed (a) in whole,
but not in part, at the option of the Servicer (with the consent of the Security
Insurer under certain circumstances), on any Distribution Date on or after the
date on which the Pool Balance is less than or equal to 10% of the Original Pool
Balance, and (b) in part, on a pro rata basis, on the Distribution Date on or
immediately following the last day of the Funding Period.
As provided in the Indenture and subject to certain limitations set
forth therein, the transfer of this Note may be registered on the Note Register
upon surrender of this Note for registration of transfer at the office or agency
designated by the Issuer pursuant to the Indenture, (i) duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Trustee duly executed by, the Holder hereof or his attorney duly authorized in
writing, with such signature guaranteed by an "eligible guarantor institution"
meeting the requirements of the Note Registrar which requirements include
membership or participation in Securities Transfer Agents Medallion Program
("Stamp") or such other "signature guarantee program" as may be determined by
the Note Registrar in addition to, or in substitution for, Stamp, all in
accordance with the Exchange Act, and (ii) accompanied by such other documents
as the Trustee may require, and thereupon one or more new Notes of authorized
denominations and in the same aggregate principal amount will be issued to the
designated transferee or transferees. No service charge will be charged for any
registration of transfer or exchange of this Note, but the transferor may be
required to pay a sum sufficient to cover any tax or other governmental charge
that may be imposed in connection with any such registration of transfer or
exchange.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case
of a Note Owner, a beneficial interest in a Note covenants and agrees that no
recourse may be taken, directly or indirectly, with respect to the obligations
of the Issuer, the Owner Trustee or the Trustee on the Notes or under the
Indenture or any certificate or other writing delivered in connection therewith,
against (i) the Seller, the Servicer, the General Partner, the Trustee or the
Owner Trustee in its individual capacity, (ii) any owner of a beneficial
interest in the Issuer or (iii) any partner, owner, beneficiary, agent, officer,
director or employee of the Seller, the Servicer, the General Partner, the
Trustee or the Owner Trustee in its individual capacity, any holder of a
beneficial interest in the Issuer, the Seller, the Servicer, the General
Partner, the Owner Trustee or the Trustee or of any successor or assign of the
Seller, the Servicer, the
A-2-6
<PAGE>
General Partner, the Trustee or the Owner Trustee in its individual capacity,
except as any such Person may have expressly agreed (it being understood that
the Trustee and the Owner Trustee have no such obligations in their individual
capacity) and except that any such partner, owner or beneficiary shall be fully
liable, to the extent provided by applicable law, for any unpaid consideration
for stock, unpaid capital contribution or failure to pay any installment or call
owing to such entity.
Prior to the due presentment for registration of transfer of this
Note, the Issuer, the Trustee and the Security Insurer and any agent of the
Issuer, the Trustee or the Security Insurer may treat the Person in whose name
this Note (as of the day of determination or as of such other date as may be
specified in the Indenture) is registered as the owner hereof for all purposes,
whether or not this Note be overdue, and neither the Issuer, the Trustee nor any
such agent shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders of the Notes under the Indenture at any
time by the Issuer with the consent of the Security Insurer and of the
Noteholders representing a majority of the Outstanding Amount of all Notes at
the time Outstanding. The Indenture also contains provisions permitting the
Noteholders representing specified percentages of the Outstanding Amount of the
Notes, on behalf of the Holders of all the Notes, to waive compliance by the
Issuer with certain provisions of the Indenture and certain past defaults under
the Indenture and their consequences. Any such consent or waiver by the Holder
of this Note (or any one of more Predecessor Notes) shall be conclusive and
binding upon such Holder and upon all future Holders of this Note and of any
Note issued upon the registration of transfer hereof or in exchange hereof or in
lieu hereof whether or not notation of such consent or waiver is made upon this
Note. The Indenture also permits the Trustee to amend or waive certain terms
and conditions set forth in the Indenture without the consent of Holders of the
Notes issued thereunder.
The term "Issuer" as used in this Note includes any successor to the
Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain circumstances,
to merge or consolidate, subject to the rights of the Trustee and the
Noteholders under the Indenture.
The Notes are issuable only in registered form in denominations as
provided in the Indenture, subject to certain limitations therein set forth.
This Note and the Indenture shall be construed in accordance with the
laws of the State of New York, without reference to its conflict of law
provisions, and the obligations, rights and remedies of the parties hereunder
and thereunder shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place, and rate, and in the coin or currency herein prescribed.
A-2-7
<PAGE>
Anything herein to the contrary notwithstanding, except as expressly
provided in the Indenture or the Basic Documents, neither Bankers Trust
(Delaware) in its individual capacity, any owner of a beneficial interest in the
Issuer, nor any of their respective partners, beneficiaries, agents, officers,
directors, employees or successors or assigns shall be personally liable for,
nor shall recourse be had to any of them for, the payment of principal of or
interest on, or performance of, or omission to perform, any of the covenants,
obligations or indemnifications contained in this Note or the Indenture, it
being expressly understood that said covenants, obligations and indemnifications
have been made by the Owner Trustee for the sole purposes of binding the
interests of the Owner Trustee in the assets of the Issuer. The Holder of this
Note by the acceptance hereof agrees that except as expressly provided in the
Indenture or the Basic Documents, in the case of an Event of Default under the
Indenture, the Holder shall have no claim against any of the foregoing for any
deficiency, loss or claim therefrom; provided, however, that nothing contained
-------- -------
herein shall be taken to prevent recourse to, and enforcement against, the
assets of the Issuer for any and all liabilities, obligations and undertakings
contained in the Indenture or in this Note.
A-2-8
<PAGE>
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto ________________________________
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints, attorney, to transfer said Note on the books kept for registration
thereof, with full power of substitution in the premises.
Dated_____________________________ ___________________________________:/1/
Signature Guaranteed:
_____________________________ ___________________________________
______________________________________
/1/ NOTE: The signature to this assignment must correspond with the name
of the registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatsoever.
A-2-9
<PAGE>
EXHIBIT A-3
REGISTERED $___________
No. RB-3-1
SEE REVERSE FOR CERTAIN DEFINITIONS
CUSIP NO. ____________
Unless this Note is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Issuer or its
agent for registration of transfer, exchange or payment, and any Note issued is
registered in the name of Cede & Co. or in such other name as is 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.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME
MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
AMERICREDIT AUTOMOBILE RECEIVABLES TRUST 1999-B
CLASS A-3 5.780% ASSET BACKED NOTE
AmeriCredit Automobile Receivables Trust 1999-B, a business trust
organized and existing under the laws of the State of Delaware (herein referred
to as the "Issuer"), for value received, hereby promises to pay to CEDE & CO.,
or registered assigns, the principal sum of _________________DOLLARS payable on
each Distribution Date in an amount equal to the result obtained by multiplying
(i) a fraction the numerator of which is $___________ and the denominator of
which is $___________ by (ii) the aggregate amount, if any, payable from the
Note Distribution Account in respect of principal on the Class A-3 Notes
pursuant to the Indenture; provided, however, that the entire unpaid principal
-------- -------
amount of this Note shall be due and payable on the May 2003 Insured
Distribution Date (the "Final Scheduled Distribution Date"). The Issuer will
pay interest on this Note at the rate per annum shown above on each Distribution
Date until the principal of this Note is paid or made available for payment.
Interest on this Note will accrue for each Distribution Date from the most
recent Distribution Date on which interest has been paid to but excluding such
Distribution Date or, if no interest has yet been paid, from May 20, 1999.
Interest will be computed on the basis of a 360-day year of twelve 30-day
months. Such principal of and interest on this Note shall be paid in the manner
specified on the reverse hereof.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and
A-3-1
<PAGE>
private debts. All payments made by the Issuer with respect to this Note shall
be applied first to interest due and payable on this Note as provided above and
then to the unpaid principal of this Note.
The Notes are entitled to the benefits of a financial guaranty
insurance policy (the "Note Policy") issued by Financial Security Assurance Inc.
(the "Security Insurer"), pursuant to which the Security Insurer has
unconditionally guaranteed payments of the Noteholders' Interest Distributable
Amount and the Noteholders' Principal Distributable Amount with respect to each
Distribution Date will be paid on or prior to the related Insured Distribution
Date, all as more fully set forth in the Indenture and the related Sale and
Servicing Agreement. The Record Date applicable to any Insured Distribution
Date is the Record Date applicable to the related Distribution Date.
Reference is made to the further provisions of this Note set forth on
the reverse hereof, which shall have the same effect as though fully set forth
on the face of this Note.
Unless the certificate of authentication hereon has been executed by
the Trustee whose name appears below by manual signature, this Note shall not be
entitled to any benefit under the Indenture referred to on the reverse hereof,
or be valid or obligatory for any purpose.
A-3-2
<PAGE>
IN WITNESS WHEREOF, the Issuer has caused this instrument to be
signed, manually or in facsimile, by its Authorized Officer as of the date set
forth below.
AMERICREDIT AUTOMOBILE RECEIVABLES TRUST 1999-B
by
BANKERS TRUST (DELAWARE), not in its individual
capacity but solely as Owner Trustee under the
Trust Agreement
by________________________________________
Name:
Title:
A-3-3
<PAGE>
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
Date: May 20, 1999 BANK ONE, N.A., not in its individual capacity but
solely as Trustee
by____________________________________________
Authorized Signer
A-3-4
<PAGE>
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its Class A-3 5.780% Asset Backed Notes (herein called the "Class
A-3 Notes"), all issued under an Indenture dated as of May 12, 1999 (such
indenture, as supplemented or amended, is herein called the "Indenture"),
between the Issuer and Bank One, N.A., as trustee (the "Trustee", which term
includes any successor Trustee under the Indenture) and as trust collateral
agent (the "Trust Collateral Agent"), which term includes any successor Trust
Collateral Agent) to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights and
obligations thereunder of the Issuer, the Trustee and the Holders of the Notes.
The Notes are subject to all terms of the Indenture. All terms used in this
Note that are defined in the Indenture, as supplemented or amended, shall have
the meanings assigned to them in or pursuant to the Indenture, as so
supplemented or amended.
The Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes, and the
Class A -4 Notes (together, the "Notes") are and will be equally and ratably
secured by the collateral pledged as security therefor as provided in the
Indenture.
Principal of the Class A-3 Notes will be payable on each Distribution
Date in an amount described on the face hereof. "Distribution Date" means the
fifth day of each month, or, if any such date is not a Business Day, the next
succeeding Business Day, provided, that such day for payment shall in no event
be earlier than the third Business Day of the month, commencing June 7, 1999.
The term "Distribution Date," shall be deemed to include the Final Scheduled
Distribution Date.
As described above, the entire unpaid principal amount of this Note
shall be due and payable on the earlier of the Final Scheduled Distribution Date
and the Redemption Date, if any, pursuant to the Indenture. As described above,
a portion of the unpaid principal balance of this Note shall be due and payable
on the Redemption Date. Notwithstanding the foregoing, the entire unpaid
principal amount of the Notes shall be due and payable (i) on the date on which
an Event of Default shall have occurred and be continuing so long as an Insurer
Default shall not have occurred and be continuing or (ii) if an Insurer Default
shall have occurred and be continuing, on the date on which an Event of Default
shall have occurred and be continuing and the Trustee or the Holders of the
Notes representing at least 66-2/3% of the Outstanding Amount of the Notes have
declared the Notes to be immediately due and payable in the manner provided in
the Indenture. All principal payments on the Class A-3 Notes shall be made pro
rata to the Class A-3 Noteholders entitled thereto.
Payments of interest on this Note due and payable on each Distribution
Date, together with the installment of principal, if any, to the extent not in
full payment of this Note, shall be made by check mailed to the Person whose
name appears as the Holder of this Note (or one or more Predecessor Notes) on
the Note Register as of the close of business on each Record Date, except that
with respect to Notes registered on the Record Date in the name of the nominee
of the Clearing Agency (initially, such nominee to be Cede & Co.), payments will
be made by wire transfer in immediately available funds to the account
designated by such nominee. Such checks shall be mailed to the Person entitled
thereto at the address of such Person as it appears on the Note Register as of
the applicable Record Date without requiring that this Note be
A-3-5
<PAGE>
submitted for notation of payment. Any reduction in the principal amount of this
Note (or any one or more Predecessor Notes) effected by any payments made on any
Distribution Date shall be binding upon all future Holders of this Note and of
any Note issued upon the registration of transfer hereof or in exchange hereof
or in lieu hereof, whether or not noted hereon. If funds are expected to be
available, as provided in the Indenture, for payment in full of the then
remaining unpaid principal amount of this Note on a Distribution Date, then the
Trustee, in the name of and on behalf of the Issuer, will notify the Person who
was the Holder hereof as of the Record Date preceding such Distribution Date by
notice mailed prior to such Distribution Date and the amount then due and
payable shall be payable only upon presentation and surrender of this Note at
the Trustee's principal Corporate Trust Office or at the office of the Trustee's
agent appointed for such purposes located in Columbus, Ohio.
The Issuer shall pay interest on overdue installments of interest at
the Class A-3 Interest Rate to the extent lawful.
As provided in the Indenture, the Notes may be redeemed (a) in whole,
but not in part, at the option of the Servicer (with the consent of the Security
Insurer under certain circumstances), on any Distribution Date on or after the
date on which the Pool Balance is less than or equal to 10% of the Original Pool
Balance, and (b) in part, on a pro rata basis, on the Distribution Date on or
immediately following the last day of the Funding Period.
As provided in the Indenture and subject to certain limitations set
forth therein, the transfer of this Note may be registered on the Note Register
upon surrender of this Note for registration of transfer at the office or agency
designated by the Issuer pursuant to the Indenture, (i) duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Trustee duly executed by, the Holder hereof or his attorney duly authorized in
writing, with such signature guaranteed by an "eligible guarantor institution"
meeting the requirements of the Note Registrar which requirements include
membership or participation in Securities Transfer Agents Medallion Program
("Stamp") or such other "signature guarantee program" as may be determined by
the Note Registrar in addition to, or in substitution for, Stamp, all in
accordance with the Exchange Act, and (ii) accompanied by such other documents
as the Trustee may require, and thereupon one or more new Notes of authorized
denominations and in the same aggregate principal amount will be issued to the
designated transferee or transferees. No service charge will be charged for any
registration of transfer or exchange of this Note, but the transferor may be
required to pay a sum sufficient to cover any tax or other governmental charge
that may be imposed in connection with any such registration of transfer or
exchange.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case
of a Note Owner, a beneficial interest in a Note covenants and agrees that no
recourse may be taken, directly or indirectly, with respect to the obligations
of the Issuer, the Owner Trustee or the Trustee on the Notes or under the
Indenture or any certificate or other writing delivered in connection therewith,
against (i) the Seller, the Servicer, the General Partner, the Trustee or the
Owner Trustee in its individual capacity, (ii) any owner of a beneficial
interest in the Issuer or (iii) any partner, owner, beneficiary, agent, officer,
director or employee of the Seller, the Servicer, the General Partner, the
Trustee or the Owner Trustee in its individual capacity, any holder of a
beneficial interest in the Issuer, the Seller, the Servicer, the
A-3-6
<PAGE>
General Partner, the Owner Trustee or the Trustee or of any successor or assign
of the Seller, the Servicer, the General Partner, the Trustee or the Owner
Trustee in its individual capacity, except as any such Person may have expressly
agreed (it being understood that the Trustee and the Owner Trustee have no such
obligations in their individual capacity) and except that any such partner,
owner or beneficiary shall be fully liable, to the extent provided by applicable
law, for any unpaid consideration for stock, unpaid capital contribution or
failure to pay any installment or call owing to such entity.
Prior to the due presentment for registration of transfer of this
Note, the Issuer, the Trustee and the Security Insurer and any agent of the
Issuer, the Trustee or the Security Insurer may treat the Person in whose name
this Note (as of the day of determination or as of such other date as may be
specified in the Indenture) is registered as the owner hereof for all purposes,
whether or not this Note be overdue, and neither the Issuer, the Trustee nor any
such agent shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders of the Notes under the Indenture at any
time by the Issuer with the consent of the Security Insurer and of the
Noteholders representing a majority of the Outstanding Amount of all Notes at
the time Outstanding. The Indenture also contains provisions permitting the
Noteholders representing specified percentages of the Outstanding Amount of the
Notes, on behalf of the Holders of all the Notes, to waive compliance by the
Issuer with certain provisions of the Indenture and certain past defaults under
the Indenture and their consequences. Any such consent or waiver by the Holder
of this Note (or any one of more Predecessor Notes) shall be conclusive and
binding upon such Holder and upon all future Holders of this Note and of any
Note issued upon the registration of transfer hereof or in exchange hereof or in
lieu hereof whether or not notation of such consent or waiver is made upon this
Note. The Indenture also permits the Trustee to amend or waive certain terms
and conditions set forth in the Indenture without the consent of Holders of the
Notes issued thereunder.
The term "Issuer" as used in this Note includes any successor to the
Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain circumstances,
to merge or consolidate, subject to the rights of the Trustee and the
Noteholders under the Indenture.
The Notes are issuable only in registered form in denominations as
provided in the Indenture, subject to certain limitations therein set forth.
This Note and the Indenture shall be construed in accordance with the
laws of the State of New York, without reference to its conflict of law
provisions, and the obligations, rights and remedies of the parties hereunder
and thereunder shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place, and rate, and in the coin or currency herein prescribed.
A-3-7
<PAGE>
Anything herein to the contrary notwithstanding, except as expressly
provided in the Indenture or the Basic Documents, neither Bankers Trust
(Delaware) in its individual capacity, any owner of a beneficial interest in the
Issuer, nor any of their respective partners, beneficiaries, agents, officers,
directors, employees or successors or assigns shall be personally liable for,
nor shall recourse be had to any of them for, the payment of principal of or
interest on, or performance of, or omission to perform, any of the covenants,
obligations or indemnifications contained in this Note or the Indenture, it
being expressly understood that said covenants, obligations and indemnifications
have been made by the Owner Trustee for the sole purposes of binding the
interests of the Owner Trustee in the assets of the Issuer. The Holder of this
Note by the acceptance hereof agrees that except as expressly provided in the
Indenture or the Basic Documents, in the case of an Event of Default under the
Indenture, the Holder shall have no claim against any of the foregoing for any
deficiency, loss or claim therefrom; provided, however, that nothing contained
-------- -------
herein shall be taken to prevent recourse to, and enforcement against, the
assets of the Issuer for any and all liabilities, obligations and undertakings
contained in the Indenture or in this Note.
A-3-8
<PAGE>
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto ________________________________
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints, attorney, to transfer said Note on the books kept for registration
thereof, with full power of substitution in the premises.
Dated____________________________ ___________________________________:/1/
Signature Guarnateed:
_________________________________ ___________________________________
_________________________________
/1/ NOTE: The signature to this assignment must correspond with the name
of the registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatsoever.
A-3-9
<PAGE>
EXHIBIT A-4
REGISTERED $__________
No. RB-4-1
SEE REVERSE FOR CERTAIN DEFINITIONS
CUSIP NO. ____________
Unless this Note is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Issuer or its
agent for registration of transfer, exchange or payment, and any Note issued is
registered in the name of Cede & Co. or in such other name as is 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.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME
MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
AMERICREDIT AUTOMOBILE RECEIVABLES TRUST 1999-B
CLASS A-4 5.960% ASSET BACKED NOTE
AmeriCredit Automobile Receivables Trust 1999-B, a business trust
organized and existing under the laws of the State of Delaware (herein referred
to as the "Issuer"), for value received, hereby promises to pay to CEDE & CO.,
or registered assigns, the principal sum of ____________________________________
DOLLARS payable on each Distribution Date in an amount equal to the result
obtained by multiplying (i) a fraction the numerator of which is $___________
and the denominator of which is $___________ by (ii) the aggregate amount, if
any, payable from the Note Distribution Account in respect of principal on the
Class A-4 Notes pursuant to the Indenture; provided, however, that the entire
-------- -------
unpaid principal amount of this Note shall be due and payable on the March 2006
Insured Distribution Date (the "Final Scheduled Distribution Date"). The Issuer
will pay interest on this Note at the rate per annum shown above on each
Distribution Date until the principal of this Note is paid or made available for
payment. Interest on this Note will accrue for each Distribution Date from the
most recent Distribution Date on which interest has been paid to but excluding
such Distribution Date or, if no interest has yet been paid, from May 20, 1999.
Interest will be computed on the basis of a 360-day year of twelve 30-day
months. Such principal of and interest on this Note shall be paid in the manner
specified on the reverse hereof.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and
A-4-1
<PAGE>
private debts. All payments made by the Issuer with respect to this Note shall
be applied first to interest due and payable on this Note as provided above and
then to the unpaid principal of this Note.
The Notes are entitled to the benefits of a financial guaranty
insurance policy (the "Note Policy") issued by Financial Security Assurance Inc.
(the "Security Insurer"), pursuant to which the Security Insurer has
unconditionally guaranteed payments of the Noteholders' Interest Distributable
Amount and the Noteholders' Principal Distributable Amount with respect to each
Distribution Date will be paid on or prior to the related Insured Distribution
Date, all as more fully set forth in the Indenture and the related Sale and
Servicing Agreement. The Record Date applicable to any Insured Distribution
Date is the Record Date applicable to the related Distribution Date.
Reference is made to the further provisions of this Note set forth on
the reverse hereof, which shall have the same effect as though fully set forth
on the face of this Note.
Unless the certificate of authentication hereon has been executed by
the Trustee whose name appears below by manual signature, this Note shall not be
entitled to any benefit under the Indenture referred to on the reverse hereof,
or be valid or obligatory for any purpose.
A-4-2
<PAGE>
IN WITNESS WHEREOF, the Issuer has caused this instrument to be
signed, manually or in facsimile, by its Authorized Officer as of the date set
forth below.
AMERICREDIT AUTOMOBILE RECEIVABLES TRUST 1999-B
by
BANKERS TRUST (DELAWARE), not in its individual
capacity but solely as Owner Trustee under the
Trust Agreement
by_________________________________________
Name:
Title:
A-4-3
<PAGE>
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
Date: May 20, 1999 BANK ONE, N.A., not in its individual capacity but
solely as Trustee
by________________________________________________
Authorized Signer
A-4-4
<PAGE>
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its Class A-4 5.960% Asset Backed Notes (herein called the "Class
A-4 Notes"), all issued under an Indenture dated as of May 12, 1999 (such
indenture, as supplemented or amended, is herein called the "Indenture"),
between the Issuer and Bank One, N.A., as trustee (the "Trustee", which term
includes any successor Trustee under the Indenture) and as trust collateral
agent (the "Trust Collateral Agent"), which term includes any successor Trust
Collateral Agent) to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights and
obligations thereunder of the Issuer, the Trustee and the Holders of the Notes.
The Notes are subject to all terms of the Indenture. All terms used in this
Note that are defined in the Indenture, as supplemented or amended, shall have
the meanings assigned to them in or pursuant to the Indenture, as so
supplemented or amended.
The Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes, and the
Class A-4 Notes (together, the "Notes") are and will be equally and ratably
secured by the collateral pledged as security therefor as provided in the
Indenture.
Principal of the Class A-4 Notes will be payable on each Distribution
Date in an amount described on the face hereof. "Distribution Date" means the
fifth day of each month, or, if any such date is not a Business Day, the next
succeeding Business Day, provided, that such day for payment shall in no event
be earlier than the third Business Day of the month, commencing June 7, 1999.
The term "Distribution Date," shall be deemed to include the Final Scheduled
Distribution Date.
As described above, the entire unpaid principal amount of this Note
shall be due and payable on the earlier of the Final Scheduled Distribution Date
and the Redemption Date, if any, pursuant to the Indenture. As described above,
a portion of the unpaid principal balance of this Note shall be due and payable
on the Redemption Date. Notwithstanding the foregoing, the entire unpaid
principal amount of the Notes shall be due and payable (i) on the date on which
an Event of Default shall have occurred and be continuing so long as an Insurer
Default shall not have occurred and be continuing or (ii) if an Insurer Default
shall have occurred and be continuing, on the date on which an Event of Default
shall have occurred and be continuing and the Trustee or the Holders of the
Notes representing at least 66-2/3% of the Outstanding Amount of the Notes have
declared the Notes to be immediately due and payable in the manner provided in
the Indenture. All principal payments on the Class A-4 Notes shall be made pro
rata to the Class A-4 Noteholders entitled thereto.
Payments of interest on this Note due and payable on each Distribution
Date, together with the installment of principal, if any, to the extent not in
full payment of this Note, shall be made by check mailed to the Person whose
name appears as the Holder of this Note (or one or more Predecessor Notes) on
the Note Register as of the close of business on each Record Date, except that
with respect to Notes registered on the Record Date in the name of the nominee
of the Clearing Agency (initially, such nominee to be Cede & Co.), payments will
be made by wire transfer in immediately available funds to the account
designated by such nominee. Such checks shall be mailed to the Person entitled
thereto at the address of such Person as it appears on the Note Register as of
the applicable Record Date without requiring that this Note be
A-4-5
<PAGE>
submitted for notation of payment. Any reduction in the principal amount of this
Note (or any one or more Predecessor Notes) effected by any payments made on any
Distribution Date shall be binding upon all future Holders of this Note and of
any Note issued upon the registration of transfer hereof or in exchange hereof
or in lieu hereof, whether or not noted hereon. If funds are expected to be
available, as provided in the Indenture, for payment in full of the then
remaining unpaid principal amount of this Note on a Distribution Date, then the
Trustee, in the name of and on behalf of the Issuer, will notify the Person who
was the Holder hereof as of the Record Date preceding such Distribution Date by
notice mailed prior to such Distribution Date and the amount then due and
payable shall be payable only upon presentation and surrender of this Note at
the Trustee's principal Corporate Trust Office or at the office of the Trustee's
agent appointed for such purposes located in Columbus, Ohio.
The Issuer shall pay interest on overdue installments of interest at
the Class A-4 Interest Rate to the extent lawful.
As provided in the Indenture, the Notes may be redeemed (a) in whole,
but not in part, at the option of the Servicer (with the consent of the Security
Insurer under certain circumstances), on any Distribution Date on or after the
date on which the Pool Balance is less than or equal to 10% of the Original Pool
Balance, and (b) in part, on a pro rata basis, on the Distribution Date on or
immediately following the last day of the Funding Period.
As provided in the Indenture and subject to certain limitations set
forth therein, the transfer of this Note may be registered on the Note Register
upon surrender of this Note for registration of transfer at the office or agency
designated by the Issuer pursuant to the Indenture, (i) duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Trustee duly executed by, the Holder hereof or his attorney duly authorized in
writing, with such signature guaranteed by an "eligible guarantor institution"
meeting the requirements of the Note Registrar which requirements include
membership or participation in Securities Transfer Agents Medallion Program
("Stamp") or such other "signature guarantee program" as may be determined by
the Note Registrar in addition to, or in substitution for, Stamp, all in
accordance with the Exchange Act, and (ii) accompanied by such other documents
as the Trustee may require, and thereupon one or more new Notes of authorized
denominations and in the same aggregate principal amount will be issued to the
designated transferee or transferees. No service charge will be charged for any
registration of transfer or exchange of this Note, but the transferor may be
required to pay a sum sufficient to cover any tax or other governmental charge
that may be imposed in connection with any such registration of transfer or
exchange.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case
of a Note Owner, a beneficial interest in a Note covenants and agrees that no
recourse may be taken, directly or indirectly, with respect to the obligations
of the Issuer, the Owner Trustee or the Trustee on the Notes or under the
Indenture or any certificate or other writing delivered in connection therewith,
against (i) the Seller, the Servicer, the General Partner, the Trustee or the
Owner Trustee in its individual capacity, (ii) any owner of a beneficial
interest in the Issuer or (iii) any partner, owner, beneficiary, agent, officer,
director or employee of the Seller, the Servicer, the General Partner, the
Trustee or the Owner Trustee in its individual capacity, any holder of a
beneficial interest in the Issuer, the Seller, the Servicer, the
A-4-6
<PAGE>
General Partner, the Owner Trustee or the Trustee or of any successor or assign
of the Seller, the Servicer, the General Partner, the Trustee or the Owner
Trustee in its individual capacity, except as any such Person may have expressly
agreed (it being understood that the Trustee and the Owner Trustee have no such
obligations in their individual capacity) and except that any such partner,
owner or beneficiary shall be fully liable, to the extent provided by applicable
law, for any unpaid consideration for stock, unpaid capital contribution or
failure to pay any installment or call owing to such entity.
Prior to the due presentment for registration of transfer of this
Note, the Issuer, the Trustee and the Security Insurer and any agent of the
Issuer, the Trustee or the Security Insurer may treat the Person in whose name
this Note (as of the day of determination or as of such other date as may be
specified in the Indenture) is registered as the owner hereof for all purposes,
whether or not this Note be overdue, and neither the Issuer, the Trustee nor any
such agent shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders of the Notes under the Indenture at any
time by the Issuer with the consent of the Security Insurer and of the
Noteholders representing a majority of the Outstanding Amount of all Notes at
the time Outstanding. The Indenture also contains provisions permitting the
Noteholders representing specified percentages of the Outstanding Amount of the
Notes, on behalf of the Holders of all the Notes, to waive compliance by the
Issuer with certain provisions of the Indenture and certain past defaults under
the Indenture and their consequences. Any such consent or waiver by the Holder
of this Note (or any one of more Predecessor Notes) shall be conclusive and
binding upon such Holder and upon all future Holders of this Note and of any
Note issued upon the registration of transfer hereof or in exchange hereof or in
lieu hereof whether or not notation of such consent or waiver is made upon this
Note. The Indenture also permits the Trustee to amend or waive certain terms
and conditions set forth in the Indenture without the consent of Holders of the
Notes issued thereunder.
The term "Issuer" as used in this Note includes any successor to the
Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain circumstances,
to merge or consolidate, subject to the rights of the Trustee and the
Noteholders under the Indenture.
The Notes are issuable only in registered form in denominations as
provided in the Indenture, subject to certain limitations therein set forth.
This Note and the Indenture shall be construed in accordance with the
laws of the State of New York, without reference to its conflict of law
provisions, and the obligations, rights and remedies of the parties hereunder
and thereunder shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place, and rate, and in the coin or currency herein prescribed.
A-4-7
<PAGE>
Anything herein to the contrary notwithstanding, except as expressly
provided in the Indenture or the Basic Documents, neither Bankers Trust
(Delaware) in its individual capacity, any owner of a beneficial interest in the
Issuer, nor any of their respective partners, beneficiaries, agents, officers,
directors, employees or successors or assigns shall be personally liable for,
nor shall recourse be had to any of them for, the payment of principal of or
interest on, or performance of, or omission to perform, any of the covenants,
obligations or indemnifications contained in this Note or the Indenture, it
being expressly understood that said covenants, obligations and indemnifications
have been made by the Owner Trustee for the sole purposes of binding the
interests of the Owner Trustee in the assets of the Issuer. The Holder of this
Note by the acceptance hereof agrees that except as expressly provided in the
Indenture or the Basic Documents, in the case of an Event of Default under the
Indenture, the Holder shall have no claim against any of the foregoing for any
deficiency, loss or claim therefrom; provided, however, that nothing contained
-------- -------
herein shall be taken to prevent recourse to, and enforcement against, the
assets of the Issuer for any and all liabilities, obligations and undertakings
contained in the Indenture or in this Note.
A-4-8
<PAGE>
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto ________________________________
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints, attorney, to transfer said Note on the books kept for registration
thereof, with full power of substitution in the premises.
Dated_______________________________ __________________________________/1/
Signature Guaranteed:
____________________________________ ______________________________________
______________________________________
/1/ NOTE: The signature to this assignment must correspond with the name
of the registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatsoever.
A-4-9
<PAGE>
Exhibit 4.2
<PAGE>
EXHIBIT 4.2
================================================================================
AMENDED AND RESTATED
TRUST AGREEMENT
between
AFS FUNDING CORP.
and
BANKERS TRUST (DELAWARE)
Owner Trustee
Dated as of May 12, 1999
================================================================================
<PAGE>
TABLE OF CONTENTS
-----------------
<TABLE>
<S> <C>
ARTICLE I. DEFINITIONS...................................................................... 2
SECTION 1.1 Capitalized Terms................................................. 2
SECTION 1.2. Other Definitional Provisions..................................... 3
ARTICLE II. ORGANIZATION .................................................................. 4
SECTION 2.1. Name.............................................................. 4
SECTION 2.2. Office............................................................ 4
SECTION 2.3. Purposes and Powers............................................... 4
SECTION 2.4. Appointment of Owner Trustee...................................... 5
SECTION 2.5. Initial Capital Contribution of Trust Estate...................... 5
SECTION 2.6. Declaration of Trust.............................................. 5
SECTION 2.7. Title to Trust Property........................................... 5
SECTION 2.8. Situs of Trust.................................................... 5
SECTION 2.9. Representations and Warranties of the Depositor................... 6
SECTION 2.10. Covenants of the Certificateholder................................ 7
SECTION 2.11. Federal income tax treatment of the Trust......................... 7
ARTICLE III. CERTIFICATE AND TRANSFER OF INTEREST........................................... 7
SECTION 3.1. Initial Ownership................................................. 7
SECTION 3.2. The Certificate................................................... 8
SECTION 3.3. Authentication of Certificate..................................... 8
SECTION 3.4. Registration of Transfer and Exchange of Certificate.............. 9
SECTION 3.5. Mutilated, Destroyed, Lost or Stolen Certificates................. 9
SECTION 3.6. Persons Deemed Certificateholders................................. 10
SECTION 3.7. Maintenance of Office or Agency................................... 10
SECTION 3.8. Disposition In Whole But Not In Part.............................. 10
SECTION 3.9. ERISA Restrictions................................................ 10
ARTICLE IV. VOTING RIGHTS AND OTHER ACTIONS................................................. 10
SECTION 4.1. Prior Notice to Holder with Respect to Certain Matters............ 10
SECTION 4.2. Action by Certificateholder with Respect to Certain Matters....... 11
SECTION 4.3. Restrictions on Certificateholder's Power......................... 11
SECTION 4.4. Rights of Security Insurer........................................ 11
ARTICLE V. AUTHORITY AND DUTIES OF OWNER TRUSTEE............................................ 12
SECTION 5.1. General Authority................................................. 12
SECTION 5.2. General Duties.................................................... 12
SECTION 5.3. Action upon Instruction........................................... 12
SECTION 5.4. No Duties Except as Specified in this Agreement or in Instructions 13
SECTION 5.5. No Action Except under Specified Documents or Instructions........ 14
SECTION 5.6. Restrictions...................................................... 14
</TABLE>
i
<PAGE>
<TABLE>
<S> <C>
ARTICLE VI. CONCERNING THE OWNER TRUSTEE.................................................... 14
SECTION 6.1. Acceptance of Trusts and Duties................................... 15
SECTION 6.2. Furnishing of Documents........................................... 15
SECTION 6.3. Representations and Warranties.................................... 15
SECTION 6.4. Reliance; Advice of Counsel....................................... 16
SECTION 6.5. Not Acting in Individual Capacity................................. 16
SECTION 6.6. Owner Trustee Not Liable for Certificate or Receivables........... 16
SECTION 6.7. Owner Trustee May Own Notes....................................... 17
SECTION 6.8. Payments from Owner Trust Estate.................................. 17
SECTION 6.9. Doing Business in Other Jurisdictions............................. 17
ARTICLE VII. COMPENSATION OF OWNER TRUSTEE.................................................. 18
SECTION 7.1. Owner Trustee's Fees and Expenses................................. 18
SECTION 7.2. Indemnification................................................... 18
SECTION 7.3. Payments to the Owner Trustee..................................... 18
SECTION 7.4. Non-recourse Obligations.......................................... 18
ARTICLE VIII. TERMINATION OF TRUST AGREEMENT................................................ 19
SECTION 8.1. Termination of Trust Agreement.................................... 19
ARTICLE IX. SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES.......................... 20
SECTION 9.1. Eligibility Requirements for Owner Trustee........................ 20
SECTION 9.2. Resignation or Removal of Owner Trustee........................... 20
SECTION 9.3. Successor Owner Trustee........................................... 21
SECTION 9.4. Merger or Consolidation of Owner Trustee.......................... 21
SECTION 9.5. Appointment of Co-Trustee or Separate Trustee..................... 22
ARTICLE X. MISCELLANEOUS .................................................................. 23
SECTION 10.1. Supplements and Amendments........................................ 23
SECTION 10.2. No Legal Title to Owner Trust Estate in Certificateholder......... 24
SECTION 10.3. Limitations on Rights of Others................................... 24
SECTION 10.4. Notices........................................................... 25
SECTION 10.5. Severability...................................................... 25
SECTION 10.6. Separate Counterparts............................................. 25
SECTION 10.7. Assignments; Security Insurer..................................... 25
SECTION 10.8. No Recourse....................................................... 25
SECTION 10.9. Headings.......................................................... 25
SECTION 10.10. GOVERNING LAW..................................................... 25
SECTION 10.11. Servicer.......................................................... 25
</TABLE>
EXHIBITS
--------
Exhibit A Form of Certificate
Exhibit B Form of Certificate of Trust
ii
<PAGE>
This AMENDED AND RESTATED TRUST AGREEMENT dated as of May 12, 1999
between AFS FUNDING CORP., a Nevada corporation (the "Seller"), and BANKERS
TRUST (DELAWARE), a Delaware banking corporation, as Owner Trustee, amends and
restates in its entirety that certain Trust Agreement dated as of May 12, 1999
between the Seller and the Owner Trustee.
ARTICLE I.
Definitions
-----------
SECTION 1.1. Capitalized Terms. For all purposes of this Agreement,
-----------------
the following terms shall have the meanings set forth below:
"AmeriCredit" shall mean AmeriCredit Financial Services, Inc.
"Agreement" shall mean this Trust Agreement, as the same may be
amended and supplemented from time to time.
"Basic Documents" shall mean this Agreement, the Certificate of Trust,
the Sale and Servicing Agreement, the Spread Account Agreement, the Spread
Account Agreement Supplement, the Insurance Agreement, the Indenture and the
other documents and certificates delivered in connection therewith.
"Benefit Plan" shall have the meaning assigned to such term in Section
3.9.
"Business Trust Statute" shall mean Chapter 38 of Title 12 of the
Delaware Code, 12 Del. Code (S) 3801 et. seq. as the same may be amended from
--------- -- ---
time to time.
"Certificate" means a trust certificate evidencing the beneficial
interest of a Certificateholder in the Trust, substantially in the form of
Exhibit A attached hereto.
"Certificate of Trust" shall mean the Certificate of Trust in the form
of Exhibit B to be filed for the Trust pursuant to Section 3810(a) of the
Business Trust Statute.
"Certificate Register" and "Certificate Registrar" shall mean the
register mentioned and the registrar appointed pursuant to Section 3.4.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time, and Treasury Regulations promulgated thereunder.
"Corporate Trust Office" shall mean, with respect to the Owner
Trustee, the principal corporate trust office of the Owner Trustee located at
E.A. Delle Donne Corporate Center, Montgomery Building, 1011 Centre Road, Suite
200, Wilmington, Delaware 19805, with a copy of all notices and other documents
to be also furnished to Bankers Trust Company, 4 Albany Street, New York, New
York 10006, Attention: Corporate Trust and Agency Group, Structured Finance,
10th floor, or at such other address as the Owner Trustee may designate by
notice to the Depositor, or the principal corporate trust office of any
successor Owner Trustee (the address of which the successor owner trustee will
notify the Depositor).
<PAGE>
"Depositor" shall mean the Seller in its capacity as Depositor
hereunder.
"Distribution Date" shall have the meaning set forth in the Sale and
Servicing Agreement.
"ERISA" shall have the meaning assigned to such term in Section 3.9.
"Expenses" shall have the meaning assigned to such term in Section
7.2.
"Holder" or "Certificateholder" shall mean the person in whose name a
Certificate is registered on the Certificate Register.
"Indemnified Parties" shall have the meaning assigned to such term in
Section 7.2.
"Indenture" shall mean the Indenture dated as of May 12, 1999, among
the Issuer and Bank One, N.A., as Trust Collateral Agent and Trustee, as the
same may be amended and supplemented from time to time.
"Owner Trust Estate" shall mean all right, title and interest of the
Trust in and to the property and rights assigned to the Trust pursuant to
Article II of the Sale and Servicing Agreement, all funds on deposit from time
to time in the Trust Accounts and all other property of the Trust from time to
time, including any rights of the Owner Trustee and the Trust pursuant to the
Sale and Servicing Agreement and the Spread Account Agreement.
"Owner Trustee" shall mean Bankers Trust (Delaware), a Delaware
banking corporation, not in its individual capacity but solely as owner trustee
under this Agreement, and any successor Owner Trustee hereunder.
"Record Date" shall mean with respect to any Distribution Date, the
close of business on the last Business Day immediately preceding such
Distribution Date.
"Responsible Officer" shall mean, with respect to the Owner Trustee,
any officer within the Corporate Trust Administration office of the Owner
Trustee with direct responsibility for the administration of the Trust and also,
with respect to a particular matter, any other officer to whom such matter is
referred because of such officer's knowledge of and familiarity with the
particular subject.
"Sale and Servicing Agreement" shall mean the Sale and Servicing
Agreement among the Trust, the Seller, AmeriCredit Financial Services, Inc. and
the Trust Collateral Agent, dated as of May 12, 1999, as the same may be amended
and supplemented from time to time.
"Secretary of State" shall mean the Secretary of State of the State of
Delaware.
"Security Insurer" shall mean Financial Security Assurance Inc., or
its successor in interest.
2
<PAGE>
"Spread Account" shall mean the Series Spread Account established and
maintained pursuant to the Spread Account Agreement.
"Spread Account Agreement" shall mean the Spread Account Agreement,
dated as of December 1, 1994 as amended and restated dated as of May 11, 1998,
among the Seller, the Security Insurer, and the Trust Collateral Agent, as the
same may be amended, supplemented or otherwise modified in accordance with the
terms thereof.
"Treasury Regulations" shall mean regulations, including proposed or
temporary regulations, promulgated under the Code. References herein to
specific provisions of proposed or temporary regulations shall include analogous
provisions of final Treasury Regulations or other successor Treasury
Regulations.
"Trust" shall mean the trust established by this Agreement.
"Trust Collateral Agent" shall mean, initially, Bank One, N.A, in its
capacity as collateral agent, including its successors in interest, until and
unless a successor Person shall have become the Trust Collateral Agent pursuant
to the Sale and Servicing Agreement, and thereafter "Trust Collateral Agent"
shall mean such successor Person.
SECTION 1.2. Other Definitional Provisions.
-----------------------------
(a) Capitalized terms used herein and not otherwise defined have the
meanings assigned to them in the Sale and Servicing Agreement or, if not defined
therein, in the Spread Account Agreement or in the Indenture.
(b) All terms defined in this Agreement shall have the defined
meanings when used in any certificate or other document made or delivered
pursuant hereto unless otherwise defined therein.
(c) As used in this Agreement and in any certificate or other
document made or delivered pursuant hereto or thereto, accounting terms not
defined in this Agreement or in any such certificate or other document, and
accounting terms partly defined in this Agreement or in any such certificate or
other document to the extent not defined, shall have the respective meanings
given to them under generally accepted accounting principles as in effect on the
date of this Agreement or any such certificate or other document, as applicable.
To the extent that the definitions of accounting terms in this Agreement or in
any such certificate or other document are inconsistent with the meanings of
such terms under generally accepted accounting principles, the definitions
contained in this Agreement or in any such certificate or other document shall
control.
(d) The words "hereof," "herein," "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement; Section and Exhibit
references contained in this Agreement are references to Sections and Exhibits
in or to this Agreement unless otherwise specified; and the term "including"
shall mean "including without limitation."
3
<PAGE>
(e) The definitions contained in this Agreement are applicable to the
singular as well as the plural forms of such terms and to the masculine as well
as to the feminine and neuter genders of such terms.
ARTICLE II.
Organization
------------
SECTION 2.1. Name. There is hereby formed a trust to be known as
----
"AmeriCredit Automobile Receivables Trust 1999-B", in which name the Owner
Trustee may conduct the business of the Trust, make and execute contracts and
other instruments on behalf of the Trust and sue and be sued.
SECTION 2.2. Office. The office of the Trust shall be in care of
------
the Owner Trustee at the Corporate Trust Office or at such other address as the
Owner Trustee may designate by written notice to the Certificateholder.
SECTION 2.3. Purposes and Powers.
-------------------
(a) The purpose of the Trust is, and the Trust shall have the power
and authority, to engage in the following activities:
(i) to issue the Notes pursuant to the Indenture and the
Certificate pursuant to this Agreement, and to sell the Notes;
(ii) with the proceeds of the sale of the Notes, to fund
the Pre-Funding Account, the Capitalized Interest Account and the Spread
Account and to pay the organizational, start-up and transactional expenses
of the Trust and to pay the balance to the Depositor pursuant to the Sale
and Servicing Agreement;
(iii) to assign, grant, transfer, pledge, mortgage and
convey the Trust Estate to the Trust Collateral Agent pursuant to the
Indenture for the benefit of the Security Insurer and the Indenture Trustee
on behalf of the Noteholders and to hold, manage and distribute to the
Certificateholder pursuant to the terms of the Sale and Servicing Agreement
any portion of the Trust Estate released from the Lien of, and remitted to
the Trust pursuant to, the Indenture;
(iv) to enter into and perform its obligations under the
Basic Documents to which it is a party;
(v) to engage in those activities, including entering into
agreements, that are necessary, suitable or convenient to accomplish the
foregoing or are incidental thereto or connected therewith; and
(vi) subject to compliance with the Basic Documents, to
engage in such other activities as may be required in connection with
conservation of the Owner Trust Estate and the making of distributions to
the Certificateholder and the Noteholders.
4
<PAGE>
The Trust is hereby authorized to engage in the foregoing activities. The Trust
shall not engage in any activity other than in connection with the foregoing or
other than as required or authorized by the terms of this Agreement or the Basic
Documents.
SECTION 2.4. Appointment of Owner Trustee. The Depositor hereby
----------------------------
appoints the Owner Trustee as trustee of the Trust effective as of the date
hereof, to have all the rights, powers and duties set forth herein.
SECTION 2.5. Initial Capital Contribution of Trust Estate. The
--------------------------------------------
Owner Trustee hereby acknowledges receipt in trust from the Depositor of the sum
of $1,000 which contribution shall constitute the initial Owner Trust Estate.
The Depositor shall pay organizational expenses of the Trust as they may arise.
SECTION 2.6. Declaration of Trust. The Owner Trustee hereby
--------------------
declares that it will hold the Owner Trust Estate in trust upon and subject to
the conditions set forth herein for the use and benefit of the Holder, subject
to the obligations of the Trust under the Basic Documents. It is the intention
of the parties hereto that the Trust constitute a business trust under the
Business Trust Statute and that this Agreement constitute the governing
instrument of such business trust. Effective as of the date hereof, the Owner
Trustee shall have all rights, powers and duties set forth herein and to the
extent not inconsistent herewith, in the Business Trust Statute with respect to
accomplishing the purposes of the Trust. The Owner Trustee shall file the
Certificate of Trust with the Secretary of State.
The Holder shall not have any personal liability for any liability or
obligation of the Trust.
SECTION 2.7. Title to Trust Property.
-----------------------
(a) Legal title to all the Owner Trust Estate shall be vested at all
times in the Trust as a separate legal entity except where applicable law in any
jurisdiction requires title to any part of the Owner Trust Estate to be vested
in a trustee or trustees, in which case title shall be deemed to be vested in
the Owner Trustee, a co-trustee and/or a separate trustee, as the case may be.
(b) The Holder shall not have legal title to any part of the Trust
Property. The Holder shall be entitled to receive distributions with respect to
its undivided ownership interest therein only in accordance with Article VIII.
No transfer, by operation of law or otherwise, of any right, title or interest
by the Certificateholder of its ownership interest in the Owner Trust Estate
shall operate to terminate this Agreement or the trusts hereunder or entitle any
transferee to an accounting or to the transfer to it of legal title to any part
of the Trust Property.
SECTION 2.8. Situs of Trust. The Trust will be located and
--------------
administered in the State of Delaware. All bank accounts maintained by the Owner
Trustee on behalf of the Trust shall be located in the State of Delaware, the
State of Ohio or the State of New York. Payments will be received by the Trust
only in Delaware or New York and payments will be made by the Trust only from
Delaware or New York. The Trust shall not have any employees in any state other
than Delaware; provided, however, that nothing herein shall restrict or prohibit
-------- -------
the Owner Trustee, the Servicer or any agent of the Trust from having employees
within or
5
<PAGE>
without the State of Delaware. The only office of the Trust will be at the
Corporate Trust Office located in Delaware.
SECTION 2.9. Representations and Warranties of the Depositor. The
-----------------------------------------------
Depositor makes the following representations and warranties on which the Owner
Trustee relies in accepting the Owner Trust Estate in trust and issuing the
Certificate and upon which the Security Insurer relies in issuing the Note
Policy.
(a) Organization and Good Standing. The Depositor is duly organized
------------------------------
and validly existing as a Nevada corporation with power and authority to own its
properties and to conduct its business as such properties are currently owned
and such business is presently conducted and is proposed to be conducted
pursuant to this Agreement and the Basic Documents.
(b) Due Qualification. It is duly qualified to do business as a
-----------------
foreign corporation in good standing, and has obtained all necessary licenses
and approvals, in all jurisdictions in which the ownership or lease of its
property, the conduct of its business and the performance of its obligations
under this Agreement and the Basic Documents requires such qualification.
(c) Power and Authority. The Depositor has the corporate power and
-------------------
authority to execute and deliver this Agreement and to carry out its terms; the
Depositor has full power and authority to sell and assign the property to be
sold and assigned to and deposited with the Trust and the Depositor has duly
authorized such sale and assignment and deposit to the Trust by all necessary
corporate action; and the execution, delivery and performance of this Agreement
has been duly authorized by the Depositor by all necessary corporate action.
(d) No Consent Required. No consent, license, approval or
-------------------
authorization or registration or declaration with, any Person or with any
governmental authority, bureau or agency is required in connection with the
execution, delivery or performance of this Agreement and the Basic Documents,
except for such as have been obtained, effected or made.
(e) No Violation. The consummation of the transactions contemplated
------------
by this Agreement and the fulfillment of the terms hereof do not conflict with,
result in any breach of any of the terms and provisions of, or constitute (with
or without notice or lapse of time) a default under, the certificate of
incorporation or by-laws of the Depositor, or any material indenture, agreement
or other instrument to which the Depositor is a party or by which it is bound;
nor result in the creation or imposition of any Lien upon any of its properties
pursuant to the terms of any such indenture, agreement or other instrument
(other than pursuant to the Basic Documents); nor violate any law or, to the
best of the Depositor's knowledge, any order, rule or regulation applicable to
the Depositor of any court or of any Federal or state regulatory body,
administrative agency or other governmental instrumentality having jurisdiction
over the Depositor or its properties.
(f) No Proceedings. There are no proceedings or investigations
--------------
pending or, to its knowledge threatened against it before any court, regulatory
body, administrative agency or other tribunal or governmental instrumentality
having jurisdiction over it or its properties (A) asserting the invalidity of
this Agreement or any of the Basic Documents, (B) seeking to prevent
6
<PAGE>
the issuance of the Certificate or the Notes or the consummation of any of the
transactions contemplated by this Agreement or any of the Basic Documents, (C)
seeking any determination or ruling that might materially and adversely affect
its performance of its obligations under, or the validity or enforceability of,
this Agreement or any of the Basic Documents, or (D) seeking to adversely affect
the federal income tax or other federal, state or local tax attributes of the
Certificate.
SECTION 2.10. Covenants of the Certificateholder. The
----------------------------------
Certificateholder agrees:
(a) to be bound by the terms and conditions of the Certificate of
which the Holder is the beneficial owner and of this Agreement, including any
supplements or amendments hereto and to perform the obligations of a Holder as
set forth therein or herein, in all respects as if it were a signatory hereto.
This undertaking is made for the benefit of the Trust, the Owner Trustee and the
Security Insurer; and
(b) until the completion of the events specified in Section 8.1(d),
not to, for any reason, institute proceedings for the Trust to be adjudicated a
bankrupt or insolvent, or consent to the institution of bankruptcy or insolvency
proceedings against the Trust, or file a petition seeking or consenting to
reorganization or relief under any applicable federal or state law relating to
bankruptcy, or consent to the appointment of a receiver, liquidator, assignee,
trustee, sequestrator (or other similar official) of the Trust or a substantial
part of its property, or cause or permit the Trust to make any assignment for
the benefit of its creditors, or admit in writing its inability to pay its debts
generally as they become due, or declare or effect a moratorium on its debt or
take any action in furtherance of any such action.
SECTION 2.11. Federal income tax treatment of the Trust.
------------------------------------------
(a) For so long as the Trust has a single owner for federal income
tax purposes, it will, pursuant to Treasury Regulations promulgated under
section 7701 of the Code, be disregarded as an entity distinct from the
Certificateholder for all federal income tax purposes. Accordingly, for federal
income tax purposes, the Certificateholder will be treated as (i) owning all
assets owned by the Trust, (ii) having incurred all liabilities incurred by the
Trust, and (iii) all transactions between the Trust and the Certificateholder
will be disregarded.
(b) In the event that the Trust has two equity owners for federal
income tax purposes, the Trust will be treated as a partnership. At any such
time that the Trust has two equity owners, this Agreement will be amended, in
accordance with Section 10.1 herein, and appropriate provisions will be added so
as to provide for treatment of the Trust as a partnership.
ARTICLE III.
Certificate and Transfer of Interest
------------------------------------
SECTION 3.1. Initial Ownership. Upon the formation of the Trust by
-----------------
the contribution by the Depositor pursuant to Section 2.5 and until the issuance
of the Certificate, the Depositor shall be the sole beneficiary of the Trust.
7
<PAGE>
SECTION 3.2. The Certificate. The Certificate shall be executed on
---------------
behalf of the Trust by manual or facsimile signature of an authorized officer of
the Owner Trustee. A Certificate bearing the manual or facsimile signatures of
individuals who were, at the time when such signatures shall have been affixed,
authorized to sign on behalf of the Trust, shall be validly issued and entitled
to the benefit of this Agreement, notwithstanding that such individuals or any
of them shall have ceased to be so authorized prior to the authentication and
delivery of such Certificate or did not hold such offices at the date of
authentication and delivery of such Certificate. A transferee of a Certificate
shall become a Certificateholder, and shall be entitled to the rights and
subject to the obligations of a Certificateholder hereunder, upon due
registration of such Certificate in such transferee's name pursuant to Section
3.4.
SECTION 3.3. Authentication of Certificate. Concurrently with the
-----------------------------
initial sale of the Receivables to the Trust pursuant to the Sale and Servicing
Agreement, the Owner Trustee shall cause the Certificate to be executed on
behalf of the Trust, authenticated and delivered to or upon the written order of
the Depositor, signed by its chairman of the board, its president or any vice
president, its treasurer or any assistant treasurer without further corporate
action by the Depositor, in authorized denominations. No Certificate shall
entitle its holder to any benefit under this Agreement, or shall be valid for
any purpose, unless there shall appear on such Certificate a certificate of
authentication substantially in the form set forth in Exhibit A, executed by the
Owner Trustee or Bankers Trust Company as the Owner Trustee's authentication
agent, by manual signature; such authentication shall constitute conclusive
evidence that such Certificate shall have been duly authenticated and delivered
hereunder. The Certificate shall be dated the date of its authentication.
SECTION 3.4. Registration of Transfer and Exchange of Certificate.
----------------------------------------------------
The Certificate Registrar shall keep or cause to be kept, at the office or
agency maintained pursuant to Section 3.7, a Certificate Register in which,
subject to such reasonable regulations as it may prescribe, the Owner Trustee
shall provide for the registration of the Certificate and of transfers and
exchanges of the Certificate as herein provided. Bankers Trust Company shall be
the initial Certificate Registrar.
The Certificate Registrar shall provide the Trust Collateral Agent
with the name and address of the Certificateholder on the Closing Date. Upon any
transfers of the Certificate, the Certificate Registrar shall notify the Trust
Collateral Agent of the name and address of the transferee in writing, by
facsimile, on the day of such transfer.
Upon surrender for registration of transfer of the Certificate at the
office or agency maintained pursuant to Section 3.7, the Owner Trustee shall
execute, authenticate and deliver (or shall cause Bankers Trust Company as its
authenticating agent to authenticate and deliver), in the name of the designated
transferee, a new Certificate dated the date of authentication by the Owner
Trustee or any authenticating agent.
A Certificate presented or surrendered for registration of transfer or
exchange shall be accompanied by a written instrument of transfer in form
satisfactory to the Owner Trustee and the Certificate Registrar duly executed by
the Certificateholder or his attorney duly authorized in writing, with such
signature guaranteed by an "eligible guarantor institution" meeting the
requirements of the Certificate Registrar, which requirements include membership
or
8
<PAGE>
participation in the Securities Transfer Agent's Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Certificate
Registrar in addition to, or in substitution for, STAMP, all in accordance with
the Exchange Act. Each Certificate surrendered for registration of transfer or
exchange shall be canceled and subsequently disposed of by the Owner Trustee in
accordance with its customary practice.
No service charge shall be made for any registration of transfer or
exchange of the Certificate, but the Owner Trustee or the Certificate Registrar
may require payment of a sum sufficient to cover any tax or governmental charge
that may be imposed in connection with any transfer or exchange of the
Certificate.
SECTION 3.5. Mutilated, Destroyed, Lost or Stolen Certificates. If
-------------------------------------------------
(a) any mutilated Certificate shall be surrendered to the Certificate Registrar,
or if the Certificate Registrar shall receive evidence to its satisfaction of
the destruction, loss or theft of any Certificate and (b) there shall be
delivered to the Certificate Registrar, the Owner Trustee and (unless an Insurer
Default shall have occurred and be continuing) the Security Insurer, such
security or indemnity as may be required by them to save each of them harmless,
then in the absence of notice that such Certificate shall have been acquired by
a bona fide purchaser, the Owner Trustee on behalf of the Trust shall execute
and the Owner Trustee, or Bankers Trust Company, as the Owner Trustee's
authenticating agent, shall authenticate and deliver, in exchange for or in lieu
of any such mutilated, destroyed, lost or stolen Certificate, a new Certificate
of like class, tenor and denomination. In connection with the issuance of any
new Certificate under this Section, the Owner Trustee or the Certificate
Registrar may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection therewith. Any duplicate
Certificate issued pursuant to this Section shall constitute conclusive evidence
of an ownership interest in the Trust, as if originally issued, whether or not
the lost, stolen or destroyed Certificate shall be found at any time.
SECTION 3.6. Persons Deemed Certificateholders. Every Person by
---------------------------------
virtue of becoming a Certificateholder in accordance with this Agreement shall
be deemed to be bound by the terms of this Agreement. Prior to due presentation
of the Certificate for registration of transfer, the Owner Trustee, the
Certificate Registrar and the Security Insurer and any agent of the Owner
Trustee, the Certificate Registrar and the Security Insurer, may treat the
person in whose name any Certificate shall be registered in the Certificate
Register as the owner of such Certificate for the purpose of receiving
distributions pursuant to the Sale and Servicing Agreement and for all other
purposes whatsoever, and none of the Owner Trustee, the Certificate Registrar or
the Security Insurer nor any agent of the Owner Trustee, the Certificate
Registrar or the Security Insurer shall be bound by any notice to the contrary.
SECTION 3.7. Maintenance of Office or Agency. The Owner Trustee
-------------------------------
shall maintain in New York, an office or offices or agency or agencies where the
Certificate may be surrendered for registration of transfer or exchange and
where notices and demands to or upon the Owner Trustee in respect of the
Certificate and the Basic Documents may be served. The Owner Trustee initially
designates Bankers Trust Company, 4 Albany Street, New York, New York 10006, as
its principal corporate trust office for such purposes. The Owner Trustee shall
give prompt written notice to the Depositor, the Certificateholder and (unless
an Insurer Default
9
<PAGE>
shall have occurred and be continuing) the Security Insurer of any change in the
location of the Certificate Register or any such office or agency.
SECTION 3.8. Disposition In Whole But Not In Part. The Certificate
------------------------------------
may be transferred in whole but not in part. Any attempted transfer of the
Certificate that would divide the ownership of the Trust Estate shall be void.
The Certificate is only transferable (i) to an Affiliate of AmeriCredit Corp.
whose stock has been pledged to the Security Insurer or (ii) to another entity
with the prior written consent of the Security Insurer in its sole discretion.
The Owner Trustee shall cause any Certificate issued to contain a legend stating
"THIS CERTIFICATE IS NOT TRANSFERABLE, EXCEPT UNDER THE LIMITED CONDITIONS
SPECIFIED IN THE TRUST AGREEMENT".
SECTION 3.9. ERISA Restrictions. The Certificate may not be
------------------
acquired by or for the account of (i) an employee benefit plan (as defined in
Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended
("ERISA")) that is subject to the provisions of Title I of ERISA, (ii) a plan
described in Section 4975(e)(1) of the Internal Revenue Code of 1986, as
amended, or (iii) any entity whose underlying assets include plan assets by
reason of a plan's investment in the entity (each, a "Benefit Plan"). By
accepting and holding its beneficial ownership interest in its Certificate, the
Holder thereof shall be deemed to have represented and warranted that it is not
a Benefit Plan.
ARTICLE IV.
Voting Rights and Other Actions
-------------------------------
SECTION 4.1. Prior Notice to Holder with Respect to Certain
----------------------------------------------
Matters. With respect to the following matters, the Owner Trustee shall not take
action unless at least 30 days before the taking of such action, the Owner
Trustee shall have notified the Certificateholder in writing of the proposed
action and the Certificateholder shall not have notified the Owner Trustee in
writing prior to the 30th day after such notice is given that the
Certificateholder has withheld consent or provided alternative direction:
(a) the election by the Trust to file an amendment to the Certificate
of Trust (unless such amendment is required to be filed under the Business Trust
Statute or unless such amendment would not materially and adversely affect the
interests of the Holder);
(b) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is required;
(c) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is not required and such
amendment materially adversely affects the interest of the Certificateholder; or
(d) except pursuant to Section 12.1(b) of the Sale and Servicing
Agreement, the amendment, change or modification of the Sale and Servicing
Agreement, except to cure any ambiguity or defect or to amend or supplement any
provision in a manner that would not materially adversely affect the interests
of the Certificateholder.
10
<PAGE>
The Owner Trustee shall notify the Certificateholder in writing of any
appointment of a successor Note Registrar or Trust Collateral Agent within five
Business Days after receipt of notice thereof.
SECTION 4.2. Action by Certificateholder with Respect to Certain
---------------------------------------------------
Matters. The Owner Trustee shall not have the power, except upon the direction
- -------
of the Certificateholder or the Security Insurer in accordance with the Basic
Documents, to (a) remove the Servicer under the Sale and Servicing Agreement
pursuant to Section 7.1 thereof or (b) except as expressly provided in the Basic
Documents, sell the Receivables after the termination of the Indenture. The
Owner Trustee shall take the actions referred to in the preceding sentence only
upon written instructions signed by the Certificateholder and the furnishing of
indemnification satisfactory to the Owner Trustee by the Certificateholder.
SECTION 4.3. Restrictions on Certificateholder's Power.
-----------------------------------------
(a) The Certificateholder shall not direct the Owner Trustee to take
or refrain from taking any action if such action or inaction would be contrary
to any obligation of the Trust or the Owner Trustee under this Agreement or any
of the Basic Documents or would be contrary to Section 2.3 nor shall the Owner
Trustee be obligated to follow any such direction, if given.
(b) The Certificateholder shall not have any right by virtue or by
availing itself of any provisions of this Agreement to institute any suit,
action, or proceeding in equity or at law upon or under or with respect to this
Agreement or any Basic Document, unless the Certificateholder is the Instructing
Party pursuant to Section 5.3 and unless the Certificateholder previously shall
have given to the Owner Trustee a written notice of default and of the
continuance thereof, as provided in this Agreement, and also unless
Certificateholder shall have made written request upon the Owner Trustee to
institute such action, suit or proceeding in its own name as Owner Trustee under
this Agreement and shall have offered to the Owner Trustee such reasonable
indemnity as it may require against the costs, expenses and liabilities to be
incurred therein or thereby, and the Owner Trustee, for 30 days after its
receipt of such notice, request, and offer of indemnity, shall have neglected or
refused to institute any such action, suit, or proceeding, and during such 30-
day period no request or waiver inconsistent with such written request has been
given to the Owner Trustee pursuant to and in compliance with this Section or
Section 5.3. For the protection and enforcement of the provisions of this
Section, the Certificateholder and the Owner Trustee shall be entitled to such
relief as can be given either at law or in equity.
SECTION 4.4. Rights of Security Insurer. Notwithstanding anything
--------------------------
to the contrary in the Basic Documents, without the prior written consent of the
Security Insurer (so long as no Insurer Default shall have occurred and be
continuing), the Owner Trustee shall not (i) remove the Servicer, (ii) initiate
any claim, suit or proceeding by the Trust or compromise any claim, suit or
proceeding brought by or against the Trust, other than with respect to the
enforcement of any Receivable or any rights of the Trust thereunder, (iii)
authorize the merger or consolidation of the Trust with or into any other
business trust or other entity (other than in accordance with Section 3.10 of
the Indenture) or (iv) amend the Certificate of Trust.
11
<PAGE>
ARTICLE V.
Authority and Duties of Owner Trustee
-------------------------------------
SECTION 5.1. General Authority.
-----------------
(a) The Owner Trustee is authorized and directed to execute and
deliver the Basic Documents to which the Trust is named as a party and each
certificate or other document attached as an exhibit to or contemplated by the
Basic Documents to which the Trust is named as a party and any amendment
thereto, in each case, in such form as the Depositor shall approve as evidenced
conclusively by the Owner Trustee's execution thereof, and on behalf of the
Trust, to direct the Indenture Trustee to authenticate and deliver Class A-1
Notes in the aggregate principal amount of $140,000,000, Class A-2 Notes in the
aggregate principal amount of $435,000,000, Class A-3 Notes in the aggregate
principal amount of $130,000,000, and Class A-4 Notes in the aggregate principal
amount of $295,000,000. In addition to the foregoing, the Owner Trustee is
authorized, but shall not be obligated, to take all actions required of the
Trust pursuant to the Basic Documents. The Owner Trustee is further authorized
from time to time to take such action as the Instructing Party recommends with
respect to the Basic Documents so long as such activities are consistent with
the terms of the Basic Documents.
(b) The Owner Trustee shall sign on behalf of the Trust any
applicable tax returns of the Trust, unless applicable law requires a
Certificateholder to sign such documents.
SECTION 5.2. General Duties. It shall be the duty of the Owner
--------------
Trustee to discharge (or cause to be discharged) all of its responsibilities
pursuant to the terms of this Agreement and the Sale and Servicing Agreement and
to administer the Trust in the interest of the Holder, subject to the Basic
Documents and in accordance with the provisions of this Agreement.
Notwithstanding the foregoing, the Owner Trustee shall be deemed to have
discharged its duties and responsibilities hereunder and under the Basic
Documents to the extent the Servicer has agreed in the Sale and Servicing
Agreement to perform any act or to discharge any duty of the Trust or the Owner
Trustee hereunder or under any Basic Document, and the Owner Trustee shall not
be liable for the default or failure of the Servicer to carry out its
obligations under the Sale and Servicing Agreement.
SECTION 5.3. Action upon Instruction.
-----------------------
(a) Subject to Article IV and the terms of the Spread Account
Agreement, the Security Insurer (so long as an Insurer Default shall not have
occurred and be continuing) or the Certificateholder (if an Insurer Default
shall have occurred and be continuing) (the "Instructing Party") shall have the
exclusive right to direct the actions of the Owner Trustee in the management of
the Trust, so long as such instructions are not inconsistent with the express
terms set forth herein or in any Basic Document. The Instructing Party shall not
instruct the Owner Trustee in a manner inconsistent with this Agreement or the
Basic Documents.
(b) The Owner Trustee shall not be required to take any action
hereunder or under any Basic Document if the Owner Trustee shall have reasonably
determined, or shall have been advised by counsel, that such action is likely to
result in liability on the part of the Owner
12
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Trustee or is contrary to the terms hereof or of any Basic Document or is
otherwise contrary to law.
(c) Whenever the Owner Trustee is unable to decide between
alternative courses of action permitted or required by the terms of this
Agreement or any Basic Document, the Owner Trustee shall promptly give notice
(in such form as shall be appropriate under the circumstances) to the
Instructing Party requesting instruction as to the course of action to be
adopted, and to the extent the Owner Trustee acts in good faith in accordance
with any written instruction of the Instructing Party received, the Owner
Trustee shall not be liable on account of such action to any Person. If the
Owner Trustee shall not have received appropriate instruction within ten days of
such notice (or within such shorter period of time as reasonably may be
specified in such notice or may be necessary under the circumstances) it may,
but shall be under no duty to, take or refrain from taking such action, not
inconsistent with this Agreement or the Basic Documents, as it shall deem to be
in the best interests of the Certificateholder, and shall have no liability to
any Person for such action or inaction.
(d) In the event that the Owner Trustee is unsure as to the
application of any provision of this Agreement or any Basic Document or any such
provision is ambiguous as to its application, or is, or appears to be, in
conflict with any other applicable provision, or in the event that this
Agreement permits any determination by the Owner Trustee or is silent or is
incomplete as to the course of action that the Owner Trustee is required to take
with respect to a particular set of facts, the Owner Trustee may give notice (in
such form as shall be appropriate under the circumstances) to the Instructing
Party requesting instruction and, to the extent that the Owner Trustee acts or
refrains from acting in good faith in accordance with any such instruction
received, the Owner Trustee shall not be liable, on account of such action or
inaction, to any Person. If the Owner Trustee shall not have received
appropriate instruction within 10 days of such notice (or within such shorter
period of time as reasonably may be specified in such notice or may be necessary
under the circumstances) it may, but shall be under no duty to, take or refrain
from taking such action, not inconsistent with this Agreement or the Basic
Documents, as it shall deem to be in the best interests of the
Certificateholder, and shall have no liability to any Person for such action or
inaction.
SECTION 5.4. No Duties Except as Specified in this Agreement or in
-----------------------------------------------------
Instructions. The Owner Trustee shall not have any duty or obligation to manage,
- ------------
make any payment with respect to, register, record, sell, dispose of, or
otherwise deal with the Owner Trust Estate, or to otherwise take or refrain from
taking any action under, or in connection with, any document contemplated hereby
to which the Owner Trustee is a party, except as expressly provided by the terms
of this Agreement or in any document or written instruction received by the
Owner Trustee pursuant to Section 5.3; and no implied duties or obligations
shall be read into this Agreement or any Basic Document against the Owner
Trustee. The Owner Trustee shall have no responsibility for filing any financing
or continuation statement in any public office at any time or to otherwise
perfect or maintain the perfection of any security interest or lien granted to
it hereunder or to prepare or file any Commission filing for the Trust or to
record this Agreement or any Basic Document. The Owner Trustee nevertheless
agrees that it will, at its own cost and expense, promptly take all action as
may be necessary to discharge any Liens on any part of the Owner Trust Estate
that result from actions by, or claims against, the Owner
13
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Trustee (solely in its individual capacity) and that are not related to the
ownership or the administration of the Owner Trust Estate.
SECTION 5.5. No Action Except under Specified Documents or
---------------------------------------------
Instructions. The Owner Trustee shall not manage, control, use, sell, dispose of
- ------------
or otherwise deal with any part of the Owner Trust Estate except (i) in
accordance with the powers granted to and the authority conferred upon the Owner
Trustee pursuant to this Agreement, (ii) in accordance with the Basic Documents
and (iii) in accordance with any document or instruction delivered to the Owner
Trustee pursuant to Section 5.3.
SECTION 5.6. Restrictions. The Owner Trustee shall not take any
------------
action (a) that is inconsistent with the purposes of the Trust set forth in
Section 2.3 or (b) that, to the actual knowledge of the Owner Trustee, would
result in the Trust's becoming taxable as a corporation for Federal income tax
purposes. The Certificateholder shall not direct the Owner Trustee to take
action that would violate the provisions of this Section.
ARTICLE VI.
Concerning the Owner Trustee
----------------------------
SECTION 6.1. Acceptance of Trusts and Duties. The Owner Trustee
-------------------------------
accepts the trusts hereby created and agrees to perform its duties hereunder
with respect to such trusts but only upon the terms of this Agreement. The Owner
Trustee also agrees to disburse all moneys actually received by it constituting
part of the Owner Trust Estate upon the terms of the Basic Documents and this
Agreement. The Owner Trustee shall not be answerable or accountable hereunder or
under any Basic Document under any circumstances, except (i) for its own willful
misconduct, bad faith or negligence, (ii) in the case of the inaccuracy of any
representation or warranty contained in Section 6.3 expressly made by the Owner
Trustee, (iii) for liabilities arising from the failure of the Owner Trustee to
perform obligations expressly undertaken by it in the last sentence of Section
5.4 hereof, (iv) for any investments issued by the Owner Trustee or any branch
or affiliate thereof in its commercial capacity or (v) for taxes, fees or other
charges on, based on or measured by, any fees, commissions or compensation
received by the Owner Trustee. In particular, but not by way of limitation (and
subject to the exceptions set forth in the preceding sentence):
(a) the Owner Trustee shall not be liable for any error of judgment
made by a Responsible Officer of the Owner Trustee;
(b) the Owner Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in accordance with the instructions of the
Instructing Party, the Servicer or the Certificateholder;
(c) no provision of this Agreement or any Basic Document shall
require the Owner Trustee to expend or risk funds or otherwise incur any
financial liability in the performance of any of its rights or powers hereunder
or under any Basic Document if the Owner Trustee shall have reasonable grounds
for believing that repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured or provided to it;
14
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(d) under no circumstances shall the Owner Trustee be liable for
indebtedness evidenced by or arising under any of the Basic Documents, including
the principal of and interest on the Notes;
(e) the Owner Trustee shall not be responsible for or in respect of
the validity or sufficiency of this Agreement or for the due execution hereof by
the Depositor or for the form, character, genuineness, sufficiency, value or
validity of any of the Owner Trust Estate or for or in respect of the validity
or sufficiency of the Basic Documents, other than the certificate of
authentication on the Certificate, and the Owner Trustee shall in no event
assume or incur any liability, duty or obligation to the Security Insurer,
Trustee, Trust Collateral Agent, the Collateral Agent, any Noteholder or to any
Certificateholder, other than as expressly provided for herein and in the Basic
Documents;
(f) the Owner Trustee shall not be liable for the default or
misconduct of the Security Insurer, the Trustee, the Trust Collateral Agent or
the Servicer under any of the Basic Documents or otherwise and the Owner Trustee
shall have no obligation or liability to perform the obligations under this
Agreement or the Basic Documents that are required to be performed by the
Trustee under the Indenture or the Trust Collateral Agent or the Servicer under
the Sale and Servicing Agreement; and
(g) the Owner Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Agreement, or to institute, conduct or
defend any litigation under this Agreement or otherwise or in relation to this
Agreement or any Basic Document, at the request, order or direction of the
Instructing Party or the Certificateholder, unless such Instructing Party or
Certificateholder has offered to the Owner Trustee security or indemnity
satisfactory to it against the costs, expenses and liabilities that may be
incurred by the Owner Trustee therein or thereby. The right of the Owner Trustee
to perform any discretionary act enumerated in this Agreement or in any Basic
Document shall not be construed as a duty, and the Owner Trustee shall not be
answerable for other than its negligence, bad faith or willful misconduct in the
performance of any such act.
SECTION 6.2. Furnishing of Documents. The Owner Trustee shall
-----------------------
furnish to the Certificateholder promptly upon receipt of a written request
therefor, duplicates or copies of all reports, notices, requests, demands,
certificates, financial statements and any other instruments furnished to the
Owner Trustee under the Basic Documents.
SECTION 6.3. Representations and Warranties. The Owner Trustee
------------------------------
hereby represents and warrants to the Depositor, the Holder and the Security
Insurer (which shall have relied on such representations and warranties in
issuing the Note Policy), that:
(a) It is a Delaware banking corporation, duly organized and validly
existing in good standing under the laws of the State of Delaware. It has all
requisite corporate power and authority to execute, deliver and perform its
obligations under this Agreement.
(b) It has taken all corporate action necessary to authorize the
execution and delivery by it of this Agreement, and this Agreement will be
executed and delivered by one of its officers who is duly authorized to execute
and deliver this Agreement on its behalf.
15
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(c) Neither the execution nor the delivery by it of this Agreement,
nor the consummation by it of the transactions contemplated hereby nor
compliance by it with any of the terms or provisions hereof will contravene any
federal or Delaware state law, governmental rule or regulation governing the
banking or trust powers of the Owner Trustee or any judgment or order binding on
it, or constitute any default under its charter documents or by-laws or any
indenture, mortgage, contract, agreement or instrument to which it is a party or
by which any of its properties may be bound.
SECTION 6.4. Reliance; Advice of Counsel.
---------------------------
(a) The Owner Trustee shall incur no liability to anyone in acting
upon any signature, instrument, notice, resolution, request, consent, order,
certificate, report, opinion, bond or other document or paper believed by it to
be genuine and believed by it to be signed by the proper party or parties. The
Owner Trustee may accept a certified copy of a resolution of the board of
directors or other governing body of any corporate party as conclusive evidence
that such resolution has been duly adopted by such body and that the same is in
full force and effect. As to any fact or matter the method of the determination
of which is not specifically prescribed herein, the Owner Trustee may for all
purposes hereof rely on a certificate, signed by the president or any vice
president or by the treasurer, secretary or other authorized officers of the
relevant party, as to such fact or matter, and such certificate shall constitute
full protection to the Owner Trustee for any action taken or omitted to be taken
by it in good faith in reliance thereon.
(b) In the exercise or administration of the trusts hereunder and in
the performance of its duties and obligations under this Agreement or the Basic
Documents, the Owner Trustee (i) may act directly or through its agents or
attorneys pursuant to agreements entered into with any of them, and the Owner
Trustee shall not be liable for the conduct or misconduct of such agents or
attorneys if such agents or attorneys shall have been selected by the Owner
Trustee with reasonable care, and (ii) may consult with counsel, accountants and
other skilled persons to be selected with reasonable care and employed by it.
The Owner Trustee shall not be liable for anything done, suffered or omitted in
good faith by it in accordance with the written opinion or advice of any such
counsel, accountants or other such persons and according to such opinion not
contrary to this Agreement or any Basic Document.
SECTION 6.5. Not Acting in Individual Capacity. Except as provided
---------------------------------
in this Article VI, in accepting the trust hereby created Bankers Trust
(Delaware) acts solely as Owner Trustee hereunder and not in its individual
capacity and all Persons having any claim against the Owner Trustee by reason of
the transactions contemplated by this Agreement or any Basic Document shall look
only to the Owner Trust Estate for payment or satisfaction thereof.
SECTION 6.6. Owner Trustee Not Liable for Certificate or
-------------------------------------------
Receivables. The recitals contained herein and in the Certificate (other than
- -----------
the signature and countersignature of the Owner Trustee on the Certificate)
shall be taken as the statements of the Depositor and the Owner Trustee assumes
no responsibility for the correctness thereof. The Owner Trustee makes no
representations as to the validity or sufficiency of this Agreement, of any
Basic Document or of the Certificate (other than the signature and
countersignature of the Owner Trustee on the Certificate) or the Notes, or of
any Receivable or related documents. The Owner Trustee shall at no time have any
responsibility or liability for or with respect to the legality, validity and
16
<PAGE>
enforceability of any Receivable, or the perfection and priority of any security
interest created by any Receivable in any Financed Vehicle or the maintenance of
any such perfection and priority, or for or with respect to the sufficiency of
the Owner Trust Estate or its ability to generate the payments to be distributed
to Certificateholder under this Agreement or the Noteholders under the
Indenture, including, without limitation: the existence, condition and ownership
of any Financed Vehicle; the existence and enforceability of any insurance
thereon; the existence and contents of any Receivable on any computer or other
record thereof; the validity of the assignment of any Receivable to the Trust or
of any intervening assignment; the completeness of any Receivable; the
performance or enforcement of any Receivable; the compliance by the Depositor,
the Servicer or any other Person with any warranty or representation made under
any Basic Document or in any related document or the accuracy of any such
warranty or representation or any action of the Trustee or the Servicer or any
subservicer taken in the name of the Owner Trustee.
SECTION 6.7. Owner Trustee May Own Notes. The Owner Trustee in its
---------------------------
individual or any other capacity may become the owner or pledgee of the Notes
and may deal with the Depositor, the Trustee and the Servicer in banking
transactions with the same rights as it would have if it were not Owner Trustee.
SECTION 6.8. Payments from Owner Trust Estate. All payments to be
--------------------------------
made by the Owner Trustee under this Agreement or any of the Basic Documents to
which the Trust or the Owner Trustee is a party shall be made only from the
income and proceeds of the Owner Trust Estate and only to the extent that the
Owner Trust shall have received income or proceeds from the Owner Trust Estate
to make such payments in accordance with the terms hereof. Bankers Trust
(Delaware), or any successor thereto, in its individual capacity, shall not be
liable for any amounts payable under this Agreement or any of the Basic
Documents to which the Trust or the Owner Trustee is a party.
SECTION 6.9. Doing Business in Other Jurisdictions. Notwithstanding
-------------------------------------
anything contained herein to the contrary, neither Bankers Trust (Delaware) or
any successor thereto, nor the Owner Trustee shall be required to take any
action in any jurisdiction other than in the State of Delaware if the taking of
such action will, even after the appointment of a co-trustee or separate trustee
in accordance with Section 9.5 hereof, (i) require the consent or approval or
authorization or order of or the giving of notice to, or the registration with
or the taking of any other action in respect of, any state or other governmental
authority or agency of any jurisdiction other than the State of Delaware; (ii)
result in any fee, tax or other governmental charge under the laws of the State
of Delaware becoming payable by Bankers Trust (Delaware) (or any successor
thereto); or (iii) subject Bankers Trust (Delaware) (or any successor thereto)
to personal jurisdiction in any jurisdiction other than the State of Delaware
for causes of action arising from acts unrelated to the consummation of the
transactions by Bankers Trust (Delaware) (or any successor thereto) or the Owner
Trustee, as the case may be, contemplated hereby.
17
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ARTICLE VII.
Compensation of Owner Trustee
-----------------------------
SECTION 7.1. Owner Trustee's Fees and Expenses. The Owner Trustee
---------------------------------
shall receive as compensation for its services hereunder such fees as have been
separately agreed upon before the date hereof between AmeriCredit and the Owner
Trustee, and the Owner Trustee shall be entitled to be reimbursed by the
Depositor for its other reasonable expenses hereunder, including the reasonable
compensation, expenses and disbursements of such agents, representatives,
experts and counsel as the Owner Trustee may employ in connection with the
exercise and performance of its rights and its duties hereunder and under the
Basic Documents.
SECTION 7.2. Indemnification. The Depositor shall be liable as
---------------
primary obligor for, and shall indemnify the Owner Trustee and its officers,
directors, successors, assigns, agents and servants (collectively, the
"Indemnified Parties") from and against, any and all liabilities, obligations,
losses, damages, taxes, claims, actions and suits, and any and all reasonable
costs, expenses and disbursements (including reasonable legal fees and expenses)
of any kind and nature whatsoever (collectively, "Expenses") which may at any
time be imposed on, incurred by, or asserted against the Owner Trustee or any
Indemnified Party in any way relating to or arising out of this Agreement, the
Basic Documents, the Owner Trust Estate, the administration of the Owner Trust
Estate or the action or inaction of the Owner Trustee hereunder, except only
that the Depositor shall not be liable for or required to indemnify the Owner
Trustee from and against Expenses arising or resulting from any of the matters
described in the third sentence of Section 6.1. The indemnities contained in
this Section and the rights under Section 7.1 shall survive the resignation or
termination of the Owner Trustee or the termination of this Agreement. In any
event of any claim, action or proceeding for which indemnity will be sought
pursuant to this Section, the Owner Trustee's choice of legal counsel shall be
subject to the approval of the Depositor which approval shall not be
unreasonably withheld.
SECTION 7.3. Payments to the Owner Trustee. Any amounts paid to the
-----------------------------
Owner Trustee pursuant to this Article VII shall be deemed not to be a part of
the Owner Trust Estate immediately after such payment.
SECTION 7.4. Non-recourse Obligations. Notwithstanding anything in
------------------------
this Agreement or any Basic Document, the Owner Trustee agrees in its individual
capacity and in its capacity as Owner Trustee for the Trust that all obligations
of the Trust to the Owner Trustee individually or as Owner Trustee for the Trust
shall be with recourse to the Owner Trust Estate only and specifically shall be
without recourse to the assets of the Holder.
18
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ARTICLE VIII.
Termination of Trust Agreement
------------------------------
SECTION 8.1. Termination of Trust Agreement.
------------------------------
(a) This Agreement and the Trust shall terminate and be of no further
force or effect upon the latest of (i) the maturity or other liquidation of the
last Receivable (including the purchase by the Servicer at its option of the
corpus of the Trust as described in Section 10.1 of the Sale and Servicing
Agreement) and the subsequent distribution of amounts in respect of such
Receivables as provided in the Basic Documents, or (ii) the payment to the
Certificateholder of all amounts required to be paid to it pursuant to this
Agreement and the payment to the Security Insurer of all amounts payable or
reimbursable to it pursuant to the Sale and Servicing Agreement; provided,
--------
however, that the rights to indemnification under Section 7.2 and the rights
- -------
under Section 7.1 shall survive the termination of the Trust. The Servicer shall
promptly notify the Owner Trustee and the Security Insurer of any prospective
termination pursuant to this Section. The bankruptcy, liquidation, dissolution,
death or incapacity of the Certificateholder, shall not (x) operate to terminate
this Agreement or the Trust, nor (y) entitle the Certificateholder's legal
representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of all or any part of the
Trust or Owner Trust Estate nor (z) otherwise affect the rights, obligations and
liabilities of the parties hereto.
(b) Neither the Depositor nor the Certificateholder shall be entitled
to revoke or terminate the Trust.
(c) Notice of any termination of the Trust, specifying the
Distribution Date upon which the Certificateholder shall surrender the
Certificate to the Trust Collateral Agent for payment of the final distribution
and cancellation, shall be given by the Owner Trustee by letter to the
Certificateholder mailed within five Business Days of receipt of notice of such
termination from the Servicer given pursuant to Section 10.1(c) of the Sale and
Servicing Agreement, stating (i) the Distribution Date upon or with respect to
which final payment of the Certificate shall be made upon presentation and
surrender of the Certificate at the office of the Trust Collateral Agent therein
designated, (ii) the amount of any such final payment, (iii) that the Record
Date otherwise applicable to such Distribution Date is not applicable, payments
being made only upon presentation and surrender of the Certificate at the office
of the Trust Collateral Agent therein specified and (iv) interest will cease to
accrue on the Certificate. The Owner Trustee shall give such notice to the Trust
Collateral Agent at the time such notice is given to the Certificateholder. Upon
presentation and surrender of the Certificate, the Trust Collateral Agent shall
cause to be distributed to the Certificateholder amounts distributable on such
Distribution Date pursuant to Section 5.7 of the Sale and Servicing Agreement.
In the event that the Certificateholder shall not surrender the
Certificate for cancellation within six months after the date specified in the
above mentioned written notice, the Owner Trustee shall give a second written
notice to the Certificateholder to surrender the Certificate for cancellation
and receive the final distribution with respect thereto. If within one year
after the second notice all the Certificate shall not have been surrendered for
cancellation, the Owner Trustee may take appropriate steps, or may appoint an
agent to take appropriate steps,
19
<PAGE>
to contact the Certificateholder concerning surrender of its Certificate, and
the cost thereof shall be paid out of the funds and other assets that shall
remain subject to this Agreement. Any funds remaining in the Trust after
exhaustion of such remedies shall be distributed, subject to applicable escheat
laws, by the Owner Trustee to the Holder.
(d) Upon the winding up of the Trust and its termination, the Owner
Trustee shall cause the Certificate of Trust to be canceled by filing a
certificate of cancellation with the Secretary of State in accordance with the
provisions of Section 3810 of the Business Trust Statute.
ARTICLE IX.
Successor Owner Trustees and Additional Owner Trustees
------------------------------------------------------
SECTION 9.1. Eligibility Requirements for Owner Trustee. The Owner
------------------------------------------
Trustee shall at all times be a corporation (i) satisfying the provisions of
Section 3807(a) of the Business Trust Statute; (ii) authorized to exercise
corporate trust powers; (iii) having a combined capital and surplus of at least
$50,000,000 and subject to supervision or examination by Federal or State
authorities; and (iv) acceptable to the Security Insurer in its sole discretion,
so long as an Insurer Default shall not have occurred and be continuing. If such
corporation shall publish reports of condition at least annually, pursuant to
law or to the requirements of the aforesaid supervising or examining authority,
then for the purpose of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. In case at any time the
Owner Trustee shall cease to be eligible in accordance with the provisions of
this Section, the Owner Trustee shall resign immediately in the manner and with
the effect specified in Section 9.2.
SECTION 9.2. Resignation or Removal of Owner Trustee. The Owner
---------------------------------------
Trustee may at any time resign and be discharged from the trusts hereby created
by giving written notice thereof to the Depositor, the Security Insurer and the
Servicer. Upon receiving such notice of resignation, the Depositor shall
promptly appoint a successor Owner Trustee by written instrument, in duplicate,
one copy of which instrument shall be delivered to the resigning Owner Trustee
and one copy to the successor Owner Trustee, provided that the Depositor shall
have received written confirmation from each of the Rating Agencies that the
proposed appointment will not result in an increased capital charge to the
Security Insurer by either of the Rating Agencies. If no successor Owner Trustee
shall have been so appointed and have accepted appointment within 30 days after
the giving of such notice of resignation, the resigning Owner Trustee or the
Security Insurer may petition any court of competent jurisdiction for the
appointment of a successor Owner Trustee.
If at any time the Owner Trustee shall cease to be eligible in
accordance with the provisions of Section 9.1 and shall fail to resign after
written request therefor by the Depositor, or if at any time the Owner Trustee
shall be legally unable to act, or shall be adjudged bankrupt or insolvent, or a
receiver of the Owner Trustee or of its property shall be appointed, or any
public officer shall take charge or control of the Owner Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation, then the Depositor with the consent of the Security Insurer (so
long as an Insurer Default shall not have occurred and be continuing)
20
<PAGE>
may remove the Owner Trustee. If the Depositor shall remove the Owner Trustee
under the authority of the immediately preceding sentence, the Depositor shall
promptly appoint a successor Owner Trustee by written instrument, in duplicate,
one copy of which instrument shall be delivered to the outgoing Owner Trustee so
removed, one copy to the Security Insurer and one copy to the successor Owner
Trustee and payment of all fees owed to the outgoing Owner Trustee.
Any resignation or removal of the Owner Trustee and appointment of a
successor Owner Trustee pursuant to any of the provisions of this Section shall
not become effective until acceptance of appointment by the successor Owner
Trustee pursuant to Section 9.3 and payment of all fees and expenses owed to the
outgoing Owner Trustee. The Depositor shall provide notice of such resignation
or removal of the Owner Trustee to each of the Rating Agencies.
SECTION 9.3. Successor Owner Trustee. Any successor Owner Trustee
-----------------------
appointed pursuant to Section 9.2 shall execute, acknowledge and deliver to the
Depositor, the Servicer, the Security Insurer and to its predecessor Owner
Trustee an instrument accepting such appointment under this Agreement, and
thereupon the resignation or removal of the predecessor Owner Trustee shall
become effective and such successor Owner Trustee, without any further act, deed
or conveyance, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor under this Agreement, with like effect as if
originally named as Owner Trustee. The predecessor Owner Trustee shall upon
payment of its fees and expenses deliver to the successor Owner Trustee all
documents and statements and monies held by it under this Agreement; and the
Depositor and the predecessor Owner Trustee shall execute and deliver such
instruments and do such other things as may reasonably be required for fully and
certainly vesting and confirming in the successor Owner Trustee all such rights,
powers, duties and obligations.
No successor Owner Trustee shall accept appointment as provided in
this Section unless at the time of such acceptance such successor Owner Trustee
shall be eligible pursuant to Section 9.1.
Upon acceptance of appointment by a successor Owner Trustee pursuant
to this Section, the Servicer shall mail notice of the successor of such Owner
Trustee to the Certificateholder, the Trustee, the Noteholders and the Rating
Agencies. If the Servicer shall fail to mail such notice within 10 days after
acceptance of appointment by the successor Owner Trustee, the successor Owner
Trustee shall cause such notice to be mailed at the expense of the Servicer.
SECTION 9.4. Merger or Consolidation of Owner Trustee. Any
----------------------------------------
corporation into which the Owner Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Owner Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Owner Trustee, shall be the successor of the Owner Trustee
hereunder, provided such corporation shall be eligible pursuant to Section 9.1,
without the execution or filing of any instrument or any further act on the part
of any of the parties hereto, anything herein to the contrary notwithstanding;
provided further that the Owner Trustee shall mail notice of such merger or
consolidation to the Rating Agencies.
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SECTION 9.5. Appointment of Co-Trustee or Separate Trustee.
---------------------------------------------
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Owner Trust Estate or any Financed Vehicle may at the time be located,
the Servicer and the Owner Trustee acting jointly shall have the power and shall
execute and deliver all instruments to appoint one or more Persons approved by
the Owner Trustee and the Security Insurer to act as co-trustee, jointly with
the Owner Trustee, or separate trustee or separate trustees, of all or any part
of the Owner Trust Estate, and to vest in such Person, in such capacity, such
title to the Trust, or any part thereof, and, subject to the other provisions of
this Section, such powers, duties, obligations, rights and trusts as the
Servicer and the Owner Trustee may consider necessary or desirable. If the
Servicer shall not have joined in such appointment within 15 days after the
receipt by it of a request so to do, the Owner Trustee subject, unless an
Insurer Default shall have occurred and be continuing, to the approval of the
Security Insurer (which approval shall not be unreasonably withheld) shall have
the power to make such appointment. No co-trustee or separate trustee under this
Agreement shall be required to meet the terms of eligibility as a successor
trustee pursuant to Section 9.1 and no notice of the appointment of any co-
trustee or separate trustee shall be required pursuant to Section 9.3.
Each separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and conditions:
(i) all rights, powers, duties and obligations conferred or
imposed upon the Owner Trustee shall be conferred upon and exercised or
performed by the Owner Trustee and such separate trustee or co-trustee
jointly (it being understood that such separate trustee or co-trustee is
not authorized to act separately without the Owner Trustee joining in such
act), except to the extent that under any law of any jurisdiction in which
any particular act or acts are to be performed, the Owner Trustee shall be
incompetent or unqualified to perform such act or acts, in which event such
rights, powers, duties and obligations (including the holding of title to
the Trust or any portion thereof in any such jurisdiction) shall be
exercised and performed singly by such separate trustee or co-trustee, but
solely at the direction of the Owner Trustee;
(ii) no trustee under this Agreement shall be personally liable
by reason of any act or omission of any other trustee under this Agreement;
and
(iii) the Servicer and the Owner Trustee acting jointly may at
any time accept the resignation of or remove any separate trustee or co-trustee.
Any notice, request or other writing given to the Owner Trustee shall
be deemed to have been given to each of the then separate trustees and co-
trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article. Each separate trustee and co-trustee, upon its
acceptance of the trusts conferred, shall be vested with the estates or property
specified in its instrument of appointment, either jointly with the Owner
Trustee or separately, as may be provided therein, subject to all the provisions
of this Agreement, specifically including every provision of this Agreement
relating to the conduct of, affecting the liability of, or affording
22
<PAGE>
protection to, the Owner Trustee. Each such instrument shall be filed with the
Owner Trustee and a copy thereof given to the Servicer and the Security Insurer.
Any separate trustee or co-trustee may at any time appoint the Owner
Trustee, its agent or attorney-in-fact with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Owner Trustee, to the extent permitted by law, without the appointment of a new
or successor trustee.
ARTICLE X.
Miscellaneous
-------------
SECTION 10.1. Supplements and Amendments.
--------------------------
(a) This Agreement may be amended by the Depositor and the Owner
Trustee, with the prior written consent of the Security Insurer (so long as an
Insurer Default shall not have occurred and be continuing) and with prior
written notice to the Rating Agencies, without the consent of any of the
Noteholders or the Certificateholder, (i) to cure any ambiguity or defect or
(ii) to correct, supplement or modify any provisions in this Agreement;
provided, however, that such action shall not, as evidenced by an Opinion of
- -------- -------
Counsel which may be based upon a certificate of the Servicer, adversely affect
in any material respect the interests of any Noteholder or Certificateholder.
(b) This Agreement may also be amended from time to time, with the
prior written consent of the Security Insurer (so long as an Insurer Default
shall not have occurred and be continuing) by the Depositor and the Owner
Trustee, with prior written notice to the Rating Agencies, to the extent such
amendment materially and adversely affects the interests of the Noteholders,
with the consent of the Noteholders evidencing not less than a majority of the
Outstanding Amount of the Notes, and the consent of the Certificateholder (which
consent of any Holder of a Certificate or Note given pursuant to this Section or
pursuant to any other provision of this Agreement shall be conclusive and
binding on such Holder) for the purpose of adding any provisions to or changing
in any manner or eliminating any of the provisions of this Agreement or of
modifying in any manner the rights of the Noteholders or the Certificateholder;
provided, however, that, subject to the express rights of the Security Insurer
- -------- -------
under the Basic Documents, no such amendment shall (a) increase or reduce in any
manner the amount of, or accelerate or delay the timing of, collections of
payments on Receivables or distributions that shall be required to be made for
the benefit of the Noteholders or the Certificateholder or (b) reduce the
aforesaid percentage of the Outstanding Amount of the Notes and the Certificate
Balance required to consent to any such amendment, without the consent of the
Holders of all the outstanding Notes and the Certificateholder.
Promptly after the execution of any such amendment or consent, the
Owner Trustee shall furnish written notification of the substance of such
amendment or consent to the Certificateholder, the Trustee and each of the
Rating Agencies.
23
<PAGE>
It shall not be necessary for the consent of Certificateholder, the
Noteholders or the Trustee pursuant to this Section to approve the particular
form of any proposed amendment or consent, but it shall be sufficient if such
consent shall approve the substance thereof. The manner of obtaining such
consents (and any other consents of the Certificateholder provided for in this
Agreement or in any other Basic Document) and of evidencing the authorization of
the execution thereof by Certificateholder shall be subject to such reasonable
requirements as the Owner Trustee may prescribe. Promptly after the execution of
any amendment to the Certificate of Trust, the Owner Trustee shall cause the
filing of such amendment with the Secretary of State.
Prior to the execution of any amendment to this Agreement or the
Certificate of Trust, the Owner Trustee shall be entitled to receive and rely
upon an Opinion of Counsel stating that the execution of such amendment is
authorized or permitted by this Agreement and that all conditions precedent to
the execution and delivery of such amendment have been satisfied. The Owner
Trustee may, but shall not be obligated to, enter into any such amendment which
affects the Owner Trustee's own rights, duties or immunities under this
Agreement or otherwise.
SECTION 10.2. No Legal Title to Owner Trust Estate in
---------------------------------------
Certificateholder . The Certificateholder shall not have legal title to any part
- ----------------
of the Owner Trust Estate. The Certificateholder shall be entitled to receive
distributions in accordance with Articles VIII. No transfer, by operation of law
or otherwise, of any right, title or interest of the Certificateholder to and in
its ownership interest in the Owner Trust Estate shall operate to terminate this
Agreement or the trust hereunder or entitle any transferee to an accounting or
to the transfer to it of legal title to any part of the Owner Trust Estate.
SECTION 10.3. Limitations on Rights of Others. The provisions of
-------------------------------
this Agreement are solely for the benefit of the Owner Trustee, the Depositor,
the Certificateholder, the Servicer and, to the extent expressly provided
herein, the Security Insurer, the Trustee and the Noteholders, and nothing in
this Agreement, whether express or implied, shall be construed to give to any
other Person any legal or equitable right, remedy or claim in the Owner Trust
Estate or under or in respect of this Agreement or any covenants, conditions or
provisions contained herein.
SECTION 10.4. Notices.
-------
(a) Unless otherwise expressly specified or permitted by the terms
hereof, all notices shall be in writing and shall be deemed given upon receipt
personally delivered, delivered by overnight courier or mailed first class mail
or certified mail, in each case return receipt requested, and shall be deemed to
have been duly given upon receipt, if to the Owner Trustee, addressed to the
Corporate Trust Office; if to the Depositor, addressed to AFS Funding Corp.,
1325 Airmotive Way, Reno, Nevada 89502; if to the Security Insurer, addressed to
Security Insurer, Financial Security Assurance Inc., 350 Park Avenue, New York,
NY 10022, Attention: Transaction Oversight Department, Telex No.: (212) 688-
3101, Confirmation: (212) 826-0100, Telecopy Nos.: (212) 339-3518, (212) 339-
3529 (in each case in which notice or other communication to Financial Security
refers to an Event of Default, a claim on the Note Policy or with respect to
which failure on the part of Financial Security to respond shall be deemed to
constitute consent or acceptance, then a copy of such notice or other
communication should also be sent to the attention of the General Counsel and
the Head-Financial Guaranty Group
24
<PAGE>
"URGENT MATERIAL ENCLOSED"); or, as to each party, at such other address as
- -------------------------
shall be designated by such party in a written notice to each other party.
(b) Any notice required or permitted to be given to a
Certificateholder shall be given by first-class mail, postage prepaid, at the
address of the Holder. Any notice so mailed within the time prescribed in this
Agreement shall be conclusively presumed to have been duly given, whether or not
the Certificateholder receives such notice.
SECTION 10.5. Severability. Any provision of this Agreement that is
------------
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
SECTION 10.6. Separate Counterparts. This Agreement may be executed
---------------------
by the parties hereto in separate counterparts, each of which when so executed
and delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
SECTION 10.7. Assignments; Security Insurer. This Agreement shall
-----------------------------
inure to the benefit of and be binding upon the parties hereto and their
respective successors and permitted assigns.
SECTION 10.8. No Recourse. The Certificateholder by accepting a
-----------
Certificate acknowledges that the Certificate represents a beneficial interest
in the Trust only and do not represent interests in or obligations of the
Seller, the Servicer, the Owner Trustee, the Trustee, the Security Insurer or
any Affiliate thereof and no recourse may be had against such parties or their
assets, except as may be expressly set forth or contemplated in this Agreement,
the Certificate or the Basic Documents.
SECTION 10.9. Headings. The headings of the various Articles and
--------
Sections herein are for convenience of reference only and shall not define or
limit any of the terms or provisions hereof.
SECTION 10.10. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY,
-------------
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE, WITHOUT
REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
SECTION 10.11. Servicer. The Servicer is authorized to prepare, or
--------
cause to be prepared, execute and deliver on behalf of the Trust all such
documents, reports, filings, instruments, certificates and opinions as it shall
be the duty of the Trust or Owner Trustee to prepare, file or deliver pursuant
to the Basic Documents. Upon written request, the Owner Trustee shall execute
and deliver to the Servicer a limited power of attorney appointing the Servicer
the Trust's agent and attorney-in-fact to prepare, or cause to be prepared,
execute and deliver all such documents, reports, filings, instruments,
certificates and opinions.
25
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Trust
Agreement to be duly executed by their respective officers hereunto duly
authorized as of the day and year first above written.
BANKERS TRUST (DELAWARE)
Owner Trustee
/s/ M. Lisa Wilkins
By:_____________________________
Name: /s/ M. Lisa Wilkins
Title: Assistant Secretary
AFS FUNDING CORP.
Depositor
/s/ Preston A. Miller
By:_____________________________
Name: Preston A. Miller
Title: Executive Vice President and
Treasurer
<PAGE>
EXHIBIT A
NUMBER
R-
SEE REVERSE FOR CERTAIN DEFINITIONS
THIS CERTIFICATE IS NOT TRANSFERABLE,
EXCEPT UNDER THE LIMITED CONDITIONS
SPECIFIED IN THE TRUST AGREEMENT
_________________________________
ASSET BACKED CERTIFICATE
evidencing a beneficial ownership interest in certain distributions of the
Trust, as defined below, the property of which includes a pool of retail
installment sale contracts secured by new or used automobiles, vans or light
duty trucks and sold to the Trust by AFS Funding Corp.
(This Certificate does not represent an interest in or obligation of AFS Funding
Corp. or any of its Affiliates, except to the extent described below.)
THIS CERTIFIES THAT AFS Funding Corp. is the registered owner of a
nonassessable, fully-paid, beneficial ownership interest in certain
distributions of AmeriCredit Automobile Receivables Trust 1999-B (the "Trust")
formed by AFS Funding Corp., a Nevada corporation (the "Seller").
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is the Certificate referred to in the within-mentioned Trust
Agreement.
BANKERS TRUST (DELAWARE) BANKERS TRUST (DELAWARE)
not in its individual not in its individual
capacity but solely as capacity but solely as
Owner Trustee or Owner Trustee
By BANKERS TRUST COMPANY,
by:________________________________ Authenticating Agent
by:________________________________
The Trust was created pursuant to a Trust Agreement dated as of May 12,
1999, as amended and restated as of May 12, 1999 (the "Trust Agreement"),
between the Seller and
<PAGE>
Bankers Trust (Delaware), as owner trustee (the "Owner Trustee"), a summary of
certain of the pertinent provisions of which is set forth below. To the extent
not otherwise defined herein, the capitalized terms used herein have the
meanings assigned to them in the Trust Agreement.
This is the duly authorized Certificate designated as "Asset Backed
Certificate" (herein called the "Certificate"). Also issued under the Indenture
dated as of May 12, 1999, among the Trust, Bank One, N.A., as trustee and
indenture collateral agent, are four classes of Notes designated as "Class A-1
4.9166% Asset Backed Notes" (the "Class A-1 Notes"), "Class A-2 5.304% Asset
Backed Notes" (the "Class A-2 Notes"), "Class A-3 5.780% Asset Backed Notes"
(the "Class A-3 Notes"), and "Class A-4 5.960% Asset Backed Notes" (the
"Class A-4 Notes," and together with the Class A-1 Notes, the Class A-2 Notes
and the Class A-3 Notes, the "Notes"). This Certificate is issued under and is
subject to the terms, provisions and conditions of the Trust Agreement, to which
Trust Agreement the holder of this Certificate by virtue of the acceptance
hereof assents and by which such holder is bound. The property of the Trust
includes a pool of retail installment sale contracts secured by new and used
automobiles, vans or light duty trucks (the "Receivables"), all monies due
thereunder on or after Initial Cutoff Date, security interests in the vehicles
financed thereby, certain bank accounts and the proceeds thereof, proceeds from
claims on certain insurance policies and certain other rights under the Trust
Agreement and the Sale and Servicing Agreement, all right, to and interest of
the Seller in and to the Purchase Agreement dated as of May 12, 1999 among
AmeriCredit Financial Services, Inc., CP Funding Corp. and the Seller and all
proceeds of the foregoing.
Under the Trust Agreement, there will be distributed on the 5th day of each
month or, if such 5th day is not a Business Day, the next Business Day (the
"Distribution Date"), provided, that such day for payment shall in no event be
earlier than the third Business Day of such month, commencing on June 7, 1999,
to the Person in whose name is on this Certificate the amount to be distributed
to the Certificateholder on such Distribution Date. No principal will be paid on
the Certificate until the Class A-4 Notes have been paid in full.
The holder of this Certificate acknowledges and agrees that its rights to
receive distributions in respect of this Certificate are subordinated to the
rights of the Noteholders as described in the Sale and Servicing Agreement, the
Indenture and the Trust Agreement, as applicable.
Distributions on this Certificate will be made as provided in the Trust
Agreement by the Owner Trustee by wire transfer or check mailed to the
Certificateholder without the presentation or surrender of this Certificate or
the making of any notation hereon. Except as otherwise provided in the Trust
Agreement and notwithstanding the above, the final distribution on this
Certificate will be made after due notice by the Owner Trustee of the pendency
of such distribution and only upon presentation and surrender of this
Certificate at the office or agency maintained for the purpose by the Owner
Trustee in the Borough of Manhattan, The City of New York.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
<PAGE>
Unless the certificate of authentication hereon shall have been executed by
an authorized officer of the Owner Trustee, by manual signature, this
Certificate shall not entitle the holder hereof to any benefit under the Trust
Agreement or the Sale and Servicing Agreement or be valid for any purpose.
THIS CERTIFICATE SHALL BE GOVERNED BY, CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW
PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
<PAGE>
IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust and not in
its individual capacity, has caused this Certificate to be duly executed.
AMERICREDIT AUTOMOBILE RECEIVABLES
TRUST 1999-B
By: BANKERS TRUST (DELAWARE)
not in its individual capacity but
solely as Owner Trustee
Dated: By:___________________________
<PAGE>
(Reverse of Certificate)
The Certificate does not represent an obligation of, or an interest in, the
Seller, the Servicer, the Owner Trustee or any Affiliates of any of them and no
recourse may be had against such parties or their assets, except as may be
expressly set forth or contemplated herein or in the Trust Agreement, the
Indenture or the Basic Documents. In addition, this Certificate is not
guaranteed by any governmental agency or instrumentality and is limited in right
of payment to certain collections with respect to the Receivables, all as more
specifically set forth herein and in the Sale and Servicing Agreement. A copy of
each of the Sale and Servicing Agreement and the Trust Agreement may be examined
during normal business hours at the principal office of the Seller, and at such
other places, if any, designated by the Seller, by any Certificateholder upon
written request.
The Trust Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Seller under the Trust Agreement at any time by the Seller and the Owner Trustee
with the consent of the Note Majority and the Certificateholder. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and on all future Holders of this Certificate and of any Certificate
issued upon the transfer hereof or in exchange hereof or in lieu hereof whether
or not notation of such consent is made upon this Certificate. The Trust
Agreement also permits the amendment thereof, in certain limited circumstances,
without the consent of the Certificateholder.
As provided in the Trust Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registerable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices or agencies of the Certificate Registrar maintained by
the Owner Trustee in the Borough of Manhattan, The City of New York, accompanied
by a written instrument of transfer in form satisfactory to the Owner Trustee
and the Certificate Registrar duly executed by the holder hereof or such
holder's attorney duly authorized in writing, and thereupon a new Certificate
evidencing the same aggregate interest in the Trust will be issued to the
designated transferee. The initial Certificate Registrar appointed under the
Trust Agreement is Bankers Trust Company. No service charge will be made for any
such registration of transfer or exchange, but the Owner Trustee or the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or governmental charge payable in connection therewith.
The Owner Trustee, the Security Insurer and any agent of the Owner Trustee
or the Security Insurer may treat the person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Owner Trustee,
the Security Insurer nor any such agent shall be affected by any notice to the
contrary.
The obligations and responsibilities created by the Trust Agreement and the
Trust created thereby shall terminate upon the payment to the Certificateholder
of all amounts required to be paid to it pursuant to the Trust Agreement and the
Sale and Servicing Agreement and the disposition of all property held as part of
the Trust. The Servicer of the Receivables may at its option purchase the corpus
of the Trust at a price specified in the Sale and Servicing Agreement, and such
purchase of the Receivables and other property of the Trust will effect early
retirement
<PAGE>
of the Certificate; however, such right of purchase is exercisable, subject to
certain restrictions, only as of the last day of any Monthly Period as of which
the Pool Balance is 10% or less of the Original Pool Balance. The Certificate is
also subject to mandatory prepayment, pro rata on the basis of the initial
Certificate Balance, on the Distribution Date on or immediately following the
last day of the Funding Period in the event that any portion of the Pre-Funded
Amount remains on deposit in the Pre-Funding Account after giving effect to the
purchase of all Subsequent Receivables, including any purchase of Subsequent
Receivables on such date. The aggregate principal amount of the Certificate to
be prepaid will be an amount equal to the Certificate Prepayment Amount.
The Certificate may not be acquired by (a) an employee benefit plan (as
defined in Section 3(3) of ERISA) that is subject to the provisions of Title I
of ERISA, (b) a plan described in Section 4975(e) (1) of the Code or (c) any
entity whose underlying assets include plan assets by reason of a plan's
investment in the entity (each, a "Benefit Plan"). By accepting and holding this
Certificate, the Holder hereof shall be deemed to have represented and warranted
that it is not a Benefit Plan.
The recitals contained herein shall be taken as the statements of the
Depositor or the Servicer, as the case may be, and the Owner Trustee assumes no
responsibility for the correctness thereof. The Owner Trustee makes no
representations as to the validity or sufficiency of this Certificate or of any
Receivable or related document.
Unless the certificate of authentication hereon shall have been executed by an
authorized officer of the Owner Trustee, by manual or facsimile signature, this
Certificate shall not entitle the Holder hereof to any benefit under the Trust
Agreement or the Sale and Servicing Agreement or be valid for any purpose.
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
________________________________________________________________________
(Please print or type name and address, including postal zip code, of assignee)
________________________________________________________________________
the within Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
______________________________ Attorney to transfer said Certificate on the
books of the Certificate Registrar, with full power of substitution in the
premises.
Dated: __________________________________*
Signature
Guaranteed: __________________________________*
_________________________
* NOTICE: The signature to this assignment must correspond with the name of
the registered owner as it appears on the face of the within Certificate in
every particular, without alteration, enlargement or any change whatever.
Such signature must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Certificate Registrar, which requirements
include membership or participation in STAMP or such other "signature
guarantee program" as may be determined by the Certificate Registrar in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
<PAGE>
EXHIBIT B
FORM OF
CERTIFICATE OF TRUST
OF
AMERICREDIT AUTOMOBILE RECEIVABLES TRUST 1999-B
THIS Certificate of Trust of AMERICREDIT AUTOMOBILE RECEIVABLES TRUST
1999-B (the "Trust") is being duly executed and filed on behalf of the Trust by
the undersigned, as trustee, to form a business trust under the Delaware
Business Trust Act (12 Del. C. (S) 3801 et seq.) (the "Act").
------- -- ---
1. Name. The name of the business trust formed by this Certificate of
----
Trust is "AmeriCredit Automobile Receivables Trust 1999-B".
2. Delaware Trustee. The name and business address of the trustee of
----------------
the Trust in the State of Delaware is Bankers Trust (Delaware), 1011 Centre
Road, Suite 200, Wilmington, Delaware 19805-1266.
3. Effective Date. This Certificate of Trust shall be effective upon
-------------
filing.
IN WITNESS WHEREOF, the undersigned has duly executed this Certificate
of Trust in accordance with Section 3811(a)(1) of the Act.
BANKERS TRUST (DELAWARE), not in its
individual capacity but solely as trustee of the
Trust
By:______________________________
Name:
Title:
<PAGE>
Exhibit 4.3
<PAGE>
EXHIBIT 4.3
- --------------------------------------------------------------------------------
SALE AND SERVICING
AGREEMENT
among
AMERICREDIT AUTOMOBILE RECEIVABLES TRUST 1999-B,
Issuer,
AFS FUNDING CORP.,
Seller,
AMERICREDIT FINANCIAL SERVICES, INC.,
Servicer
and
BANK ONE, N.A.,
Backup Servicer and Trust Collateral Agent
Dated as of May 12, 1999
- --------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE I DEFINITIONS.................................................................................. 1
SECTION 1.1. Definitions....................................................................... 1
SECTION 1.2. Other Definitional Provisions..................................................... 21
ARTICLE II CONVEYANCE OF RECEIVABLES................................................................... 22
SECTION 2.1. Conveyance of Initial Receivables................................................. 22
SECTION 2.2. Conveyance of Subsequent Receivables.............................................. 23
SECTION 2.3. Further Encumbrance of Trust Property............................................. 26
ARTICLE III THE RECEIVABLES............................................................................ 26
SECTION 3.1. Representations and Warranties of Seller.......................................... 26
SECTION 3.2. Repurchase upon Breach............................................................ 26
SECTION 3.3. Custody of Receivables Files...................................................... 27
ARTICLE IV ADMINISTRATION AND SERVICING OF RECEIVABLES................................................. 28
SECTION 4.1. Duties of the Servicer............................................................ 28
SECTION 4.2. Collection of Receivable Payments; Modifications of Receivables;
Lockbox Agreements.............................................................. 29
SECTION 4.3. Realization upon Receivables...................................................... 32
SECTION 4.4. Insurance......................................................................... 33
SECTION 4.5. Maintenance of Security Interests in Vehicles..................................... 34
SECTION 4.6. Covenants, Representations, and Warranties of Servicer............................ 35
SECTION 4.7. Purchase of Receivables upon Breach of Covenant................................... 36
SECTION 4.8. Total Servicing Fee; Payment of Certain Expenses by Servicer...................... 37
SECTION 4.9. Preliminaryservicer's Certificate and Servicer's Certificate...................... 37
SECTION 4.10. Annual Statement as to Compliance, Notice of Servicer Termination Event........... 38
SECTION 4.11. Annual Independent Accountants' Report............................................ 39
SECTION 4.12. Access to Certain Documentation and Information Regarding Receivables............. 39
SECTION 4.13. Monthly Tape...................................................................... 39
SECTION 4.14. Retention and Termination of Servicer............................................. 40
SECTION 4.15. Fidelity Bond and Errors and Omissions Policy..................................... 40
ARTICLE V TRUST ACCOUNTS; DISTRIBUTIONS; STATEMENTS TO NOTEHOLDERS..................................... 41
SECTION 5.1. Establishment of Trust Accounts................................................... 41
SECTION 5.2. Capitalized Interest Account...................................................... 43
SECTION 5.3. Certain Reimbursements to the Servicer............................................ 44
SECTION 5.4. Application of Collections........................................................ 44
SECTION 5.5. Withdrawals from Spread Account................................................... 44
SECTION 5.6. Additional Deposits............................................................... 45
SECTION 5.7. Distributions..................................................................... 45
SECTION 5.8. Note Distribution Account......................................................... 47
SECTION 5.9. Pre-Funding Account............................................................... 48
SECTION 5.10. Statements to Noteholders......................................................... 49
SECTION 5.11. Optional Deposits by the Insurer.................................................. 50
SECTION 5.12. [ Reserved ]...................................................................... 50
ARTICLE VI THE NOTE POLICY............................................................................. 50
SECTION 6.1. Claims Under Note Policy.......................................................... 50
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C>
SECTION 6.2. Preference Claims................................................................. 51
SECTION 6.3. Surrender of Policy............................................................... 52
ARTICLE VII THE SELLER................................................................................. 52
SECTION 7.1. Representations of Seller......................................................... 52
SECTION 7.2. Corporate Existence............................................................... 54
SECTION 7.3. Liability of Seller; Indemnities.................................................. 54
SECTION 7.4. Merger or Consolidation of, or Assumption of the Obligations of, Seller........... 55
SECTION 7.5. Limitation on Liability of Seller and Others...................................... 56
SECTION 7.6. Seller May Own Certificates or Notes.............................................. 56
ARTICLE VIII THE SERVICER.............................................................................. 56
SECTION 8.1. Representations of Servicer....................................................... 56
SECTION 8.2. Liability of Servicer; Indemnities................................................ 58
SECTION 8.3. Merger or Consolidation of, or Assumption of the Obligations of the
Servicer or Backup Servicer..................................................... 59
SECTION 8.4. Limitation on Liability of Servicer, Backup Servicer and Others................... 60
SECTION 8.5. Delegation of Duties.............................................................. 61
SECTION 8.6. Servicer and Backup Servicer not to Resign........................................ 62
ARTICLE IX DEFAULT..................................................................................... 62
SECTION 9.1. Servicer Termination Event........................................................ 62
SECTION 9.2. Consequences of a Servicer Termination Event...................................... 64
SECTION 9.3. Appointment of Successor.......................................................... 65
SECTION 9.4. Notification to Noteholders....................................................... 66
SECTION 9.5. Waiver of Past Defaults........................................................... 66
ARTICLE X TERMINATION.................................................................................. 66
SECTION 10.1. Optional Purchase of all Receivables.............................................. 66
ARTICLE XI ADMINISTRATIVE DUTIES OF THE SERVICER....................................................... 67
SECTION 11.1. Administrative Duties............................................................. 67
SECTION 11.2. Records........................................................................... 69
SECTION 11.3. Additional Information to be Furnished to the Issuer.............................. 69
ARTICLE XII MISCELLANEOUS PROVISIONS................................................................... 69
SECTION 12.1. Amendment......................................................................... 69
SECTION 12.2. Protection of Title to Trust...................................................... 70
SECTION 12.3. Notices........................................................................... 72
SECTION 12.4. Assignment........................................................................ 73
SECTION 12.5. Limitations on Rights of Others................................................... 73
SECTION 12.6. Severability...................................................................... 73
SECTION 12.7. Separate Counterparts............................................................. 73
SECTION 12.8. Headings.......................................................................... 73
SECTION 12.9. Governing Law..................................................................... 73
SECTION 12.10. Assignment to Trustee............................................................. 74
SECTION 12.11. Nonpetition Covenants............................................................. 74
SECTION 12.12. Limitation of Liability of Owner Trustee and Trustee.............................. 74
SECTION 12.13. Independence of the Servicer...................................................... 75
SECTION 12.14. No Joint Venture.................................................................. 75
SECTION 12.15. [ Reserved ]...................................................................... 75
</TABLE>
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Page
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Schedule A Schedules of Receivables
Schedule B Representations and Warranties of the Seller
Schedule C Servicing Policies and Procedures
EXHIBITS
Exhibit A - Form of Subsequent Transfer Agreement
Exhibit B - Form of Servicer's Certificate
Exhibit C - Form of Preliminary Servicer's Certificate
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SALE AND SERVICING AGREEMENT dated as of May 12, 1999, among AMERICREDIT
AUTOMOBILE RECEIVABLES TRUST 1999-B, a Delaware business trust (the "Issuer"),
AFS FUNDING CORP., a Nevada corporation (the "Seller"), and AMERICREDIT
FINANCIAL SERVICES, INC., a Delaware corporation (the "Servicer"), and BANK ONE,
N.A., a national banking association, in its capacity as Backup Servicer and
Trust Collateral Agent.
WHEREAS the Issuer desires to purchase a portfolio of receivables arising
in connection with motor vehicle retail installment sale contracts acquired by
AmeriCredit Financial Services, Inc. through motor vehicle dealers;
WHEREAS the Seller has purchased such receivables from AmeriCredit
Financial Services, Inc. and CP Funding Corp. and is willing to sell such
receivables to the Issuer;
WHEREAS the Issuer desires to purchase additional receivables arising in
connection with motor vehicle retail installment sale contracts to be acquired
by AmeriCredit Financial Services, Inc. through motor vehicle dealers;
WHEREAS the Seller has an agreement to purchase such additional receivables
from AmeriCredit Financial Services, Inc. and CP Funding Corp. and is willing to
sell such receivables to the Issuer;
WHEREAS the Servicer is willing to service all such receivables;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the parties hereto agree as follows:
ARTICLE I
Definitions
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SECTION 1.1. Definitions. Whenever used in this Agreement, the following
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words and phrases shall have the following meanings:
"Accelerated Payment Amount Shortfall" means, with respect to any
Distribution Date, the excess, if any, of (i) the greater of (a) the excess, if
any, on such Distribution Date of the Pro Forma Note Balance for such
Distribution Date over the Required Pro Forma Note Balance for such Distribution
Date and (b) the amount necessary (after taking into account the distributions
to be made on such Distribution Date pursuant to Section 5.7(b)(i) through (vi))
to reduce the principal balance of the Class A-1 Notes to zero, over (ii) the
excess of amount of Available Funds (but net of any net Investment Earnings on
deposit in the Collection Account) on such Distribution Date over the amounts
payable on such Distribution Date pursuant to Section 5.7(b)(i) through (vi).
"Accelerated Payment Shortfall Notice" means, with respect to any
Distribution Date, a written notice specifying the Accelerated Payment Amount
Shortfall for such Distribution Date.
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"Accelerated Principal Amount" for a Distribution Date will equal the
lesser of
(x) the sum of (i) excess, if any, of the amount of Available
Funds on such Distribution Date over the amounts payable on such
Distribution Date pursuant to clauses (i) through (vi) of Section 5.7(b)
hereof plus (ii) amounts, if any, available in accordance with the terms of
the Spread Account Agreement; and
(y) the greater of (a) the excess, if any, on such Distribution
Date of (i) the Pro Forma Note Balance for such Distribution Date over (ii)
the Required Pro Forma Note Balance for such Distribution Date and (b) the
amount necessary (after taking into account all other distributions to be
made on such date) to reduce the principal balance of the Class A-1 Notes
to zero.
"Accountants' Report" means the report of a firm of nationally recognized
independent accountants described in Section 4.11.
"Accounting Date" means, with respect to any Collection Period the last day
of such Collection Period.
"Addition Notice" means, with respect to any transfer of Subsequent
Receivables to the Trust pursuant to Section 2.2 of this Agreement, notice of
the Seller's election to transfer Subsequent Receivables to the Trust, such
notice to designate the related, Subsequent Cutoff Date, Subsequent Transfer
Date and the approximate principal amount of Subsequent Receivables to be
transferred on such Subsequent Transfer Date.
"Additional Funds Available" means, with respect to any Insured
Distribution Date, the sum of (i) the Deficiency Claim Amount, if any, received
by the Trust Collateral Agent with respect to such Insured Distribution Date
plus (ii) the Insurer Optional Deposit, if any, received by the Trust Collateral
Agent with respect to such Insured Distribution Date.
"Administrative Receivable" means, with respect to any Collection Period, a
Receivable which the Servicer is required to purchase pursuant to Section 4.7 or
which the Servicer has elected to purchase pursuant to Section 4.4(c) on the
Determination Date with respect to such Collection Period.
"Affiliate" means, with respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified Person.
For the purposes of this definition, "control" when used with respect to any
Person means the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Aggregate Principal Balance" means, with respect to any date of
determination, the sum of the Principal Balances for all Receivables (other than
(i) any Receivable that became a Liquidated Receivable prior to the end of the
related Collection Period and (ii) any Receivable that became a Purchased
Receivable prior to the end of the related Collection Period) as of the date of
determination.
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"Agreement" means this Sale and Servicing Agreement, as the same may be
amended and supplemented from time to time.
"AmeriCredit" means AmeriCredit Financial Services, Inc.
"Amount Financed" means, with respect to a Receivable, the aggregate amount
advanced under such Receivable toward the purchase price of the Financed Vehicle
and any 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" of a Receivable means the annual
percentage rate of finance charges or service charges, as stated in the related
Contract.
"Available Funds" means, with respect to any Distribution Date, the sum of
(i) the Collected Funds for the related Collection Period, (ii) all Purchase
Amounts deposited in the Collection Account during the related Collection
Period, plus Investment Earnings with respect to the Trust Accounts for the
related Collection Period, (iii) the Monthly Capitalized Interest Amount with
respect to such Distribution Date, (iv) following the acceleration of the Notes
pursuant to Section 5.2 of the Indenture, the amount of money or property
collected pursuant to Section 5.7 of the Indenture since the preceding
Distribution Date by the Trust Collateral Agent or Controlling Party for
distribution pursuant to Section 5.6 and Section 5.8 hereof, (v) if the
Distribution Date which immediately follows such Collection Period immediately
precedes the Mandatory Redemption Date, any Pre-Funded Amount to be deposited
into the Collection Account on such Distribution Date pursuant to Section 5.7(a)
hereof, and (vi) the proceeds of any purchase or sale of the assets of the Trust
described in Section 10.1 hereof.
"Backup Servicer" means Bank One, N.A.
"Base Servicing Fee" means, 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 Servicing Fee Rate multiplied by the
Pool Balance as of the opening of business on the first day of such Collection
Period.
"Basic Documents" means this Agreement, the Certificate of Trust, the Trust
Agreement, the Indenture, the Spread Account Agreement, the Spread Account
Agreement Supplement and other documents and certificates delivered in
connection therewith.
"Business Day" means a day other than a Saturday, a Sunday or other day on
which commercial banks located in the states of Delaware, Texas, New York or
Ohio are authorized or obligated to be closed.
"Calculation Date" means the close of business on the last day of each
Collection Period.
"Calendar Quarter" means the three-month period ending on the last day of
March, June, September or December.
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"Capitalized Interest Account" means the account designated as such,
established and maintained pursuant to Section 5.2.
"Capitalized Interest Account Initial Deposit" means $1,806,000.04
deposited on the Closing Date.
"Certificate" means the trust certificate evidencing the beneficial
interest of the Certificateholder in the Trust.
"Certificateholder" means the Person in whose name the Certificate is
registered.
"Class" means the Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes
or the Class A-4 Notes, as the context requires.
"Class A-1 Notes" has the meaning assigned to such term in the Indenture.
"Class A-2 Notes" has the meaning assigned to such term in the Indenture.
"Class A-3 Notes" has the meaning assigned to such term in the Indenture.
"Class A-4 Notes" has the meaning assigned to such term in the Indenture.
"Closing Date" means May 20, 1999.
"Collateral Agent" means Bank One, N.A., in its capacity as Collateral
Agent under the Spread Account Agreement.
"Collateral Insurance" shall have the meaning set forth in Section 4.4(a).
"Collected Funds" means, with respect to any Collection Period, the amount
of funds in the Collection Account representing collections on the Receivables
during such Collection Period, including all Net Liquidation Proceeds collected
during such Collection Period (but excluding any Purchase Amounts).
"Collection Account" means the account designated as such, established and
maintained pursuant to Section 5.1.
"Collection Period" means, with respect to the first Distribution Date, the
period beginning on the close of business on May 11, 1999 and ending on the
close of business on May 31, 1999. 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" means all manually prepared or computer generated
records relating to collection efforts or payment histories with respect to the
Receivables.
"Computer Tape" means the computer tapes or other electronic media
furnished by AFS Funding Corp. to the Issuer and its assigns describing certain
characteristics of the Initial
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Receivables as of the Cutoff Date and of Subsequent Receivables as of the
related Subsequent Cutoff Date.
"Contract" means a motor vehicle retail installment sale contract.
"Controlling Party" means the Insurer, so long as no Insurer Default shall
have occurred and be continuing and the Trust Collateral Agent for the benefit
of the Noteholders, in the event the Insurer Default shall have occurred and be
continuing.
"Corporate Trust Office" means (i) with respect to the Owner Trustee, the
principal corporate trust office of the Owner Trustee, which at the time of
execution of this agreement is E.A. Delle Donne Corporate Center, Montgomery
Building, 1011 Centre Road, Suite 200, Wilmington, Delaware 19801, Attention:
Corp. Trust Dept., and (ii) with respect to the Trustee, the Trust Collateral
Agent and the Collateral Agent, the principal office thereof at which at any
particular time its corporate trust business shall be administered, which at the
time of execution of this agreement is 100 East Broad Street, Columbus, Ohio
43215, Attention: Indenture Trust Administration.
"CP Funding" means CP Funding Corp., a Nevada corporation.
"Cram Down Loss" means, with respect to a Receivable, if a court of
appropriate jurisdiction in a proceeding related to an Insolvency Event shall
have issued an order reducing the amount owed on a Receivable or otherwise
modifying or restructuring the Scheduled Receivables Payments to be made on a
Receivable, an amount equal to (i) the excess of the principal balance of such
Receivable immediately prior to such order over the principal balance of such
Receivable as so reduced and/or (ii) if such court shall have issued an order
reducing the effective rate of interest on such Receivable, the excess of the
principal balance of such Receivable immediately prior to such order over 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 Receivables Payments as so modified or restructured. A
"Cram Down Loss" shall be deemed to have occurred on the date of issuance of
such order.
"Custodian" means AmeriCredit and any other Person named from time to time
as custodian in any Custodian Agreement acting as agent for the Trust Collateral
Agent, which Person must be acceptable to the Controlling Party (the Custodian
as of the Closing Date is acceptable to the Insurer as of the Closing Date).
"Custodian Agreement" means any Custodian Agreement from time to time in
effect between the Custodian named therein and the Trust Collateral Agent, 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).
"Dealer" means a dealer who sold a Financed Vehicle and who originated and
assigned the respective Receivable to AmeriCredit under a Dealer Agreement or
pursuant to a Dealer Assignment.
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"Dealer Agreement" means any agreement between a Dealer and AmeriCredit
relating to the acquisition of Receivables from a Dealer by AmeriCredit.
"Dealer Assignment" means, 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" means with respect to any Determination Date,
after taking into account the application on the related Distribution Date of
the Available Funds for the related Collection Period, an amount equal to the
sum of, without duplication, (i) any shortfall in the payment of the full
amounts described in clauses (i),(ii), (iii) and (v) of Section 5.7(b) herein,
(ii) the Noteholders' Parity Deficit Amount, if any, for such Distribution Date
and (iii) if the related Distribution Date is the Final Scheduled Distribution
Date of any class, any remaining outstanding principal balance of such class, to
the extent that such amount is available on the related Insured Distribution
Date in accordance with the terms of the Spread Account Agreement.
"Deficiency Claim Date" means, with respect to any Insured Distribution
Date, the fourth Business Day immediately preceding such Insured Distribution
Date.
"Deficiency Notice" shall have the meaning set forth in Section 5.5.
"Delivery" when used with respect to Trust Account Property means:
(a) with respect to bankers' acceptances, commercial paper, negotiable
certificates of deposit and other obligations that constitute "instruments"
within the meaning of Section 9-105(1)(i) of the UCC and are susceptible of
physical delivery, transfer thereof to the Trust Collateral Agent or its nominee
or custodian by physical delivery to the Trust Collateral Agent or its nominee
or custodian endorsed to, or registered in the name of, the Trust Collateral
Agent or its nominee or custodian or endorsed in blank, and, with respect to a
certificated security (as defined in Section 8-102 of the UCC), transfer thereof
(i) by delivery of such certificated security endorsed to, or registered in the
name of, the Trust Collateral Agent or its nominee or custodian or endorsed in
blank to a financial intermediary (as defined in Section 8-313 of the UCC) and
the making by such financial intermediary of entries on its books and records
identifying such certificated securities as belonging to the Trust Collateral
Agent or its nominee or custodian and the sending by such financial intermediary
of a confirmation of the purchase of such certificated security by the Trust
Collateral Agent or its nominee or custodian, or (ii) by delivery thereof to a
"clearing corporation" (as defined in Section 8-102(3) of the UCC) and the
making by such clearing corporation of appropriate entries on its books reducing
the appropriate securities account of the transferor and increasing the
appropriate securities account of a financial intermediary by the amount of such
certificated security, the identification by the clearing corporation of the
certificated securities for the sole and exclusive account of the financial
intermediary, the maintenance of such certificated securities by such clearing
corporation or a "custodian bank" (as defined in Section 8-102(4) of the UCC) or
the nominee of either subject to the clearing corporation's exclusive control,
the sending of a confirmation by the financial
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intermediary of the purchase by the Trust Collateral Agent or its nominee or
custodian of such securities and the making by such financial intermediary of
entries on its books and records identifying such certificated securities as
belonging to the Trust Collateral Agent or its nominee or custodian (all of the
foregoing, "Physical Property"), and, in any event, any such Physical Property
in registered form shall be in the name of the Trust Collateral Agent or its
nominee or custodian; and such additional or alternative procedures as may
hereafter become appropriate to effect the complete transfer of ownership of any
such Trust Account Property to the Trust Collateral Agent or its nominee or
custodian, consistent with changes in applicable law or regulations or the
interpretation thereof;
(b) with respect to any security issued by the U.S. Treasury, the Federal
Home Loan Mortgage Corporation or by the Federal National Mortgage Association
that is a book-entry security held through the Federal Reserve System pursuant
to federal book-entry regulations, the following procedures, all in accordance
with applicable law, including applicable Federal regulations and Articles 8 and
9 of the UCC: book-entry registration of such Trust Account Property to an
appropriate book-entry account maintained with a Federal Reserve Bank by a
financial intermediary which is also a "depository" pursuant to applicable
Federal regulations and issuance by such financial intermediary of a deposit
advice or other written confirmation of such book-entry registration to the
Trust Collateral Agent or its nominee or custodian of the purchase by the Trust
Collateral Agent or its nominee or custodian of such book-entry securities; the
making by such financial intermediary of entries in its books and records
identifying such book-entry security held through the Federal Reserve System
pursuant to Federal book-entry regulations as belonging to the Trust Collateral
Agent or its nominee or custodian and indicating that such custodian holds such
Trust Account Property solely as agent for the Trust Collateral Agent or its
nominee or custodian; and such additional or alternative procedures as may
hereafter become appropriate to effect complete transfer of ownership of any
such Trust Account Property to the Trust Collateral Agent or its nominee or
custodian, consistent with changes in applicable law or regulations or the
interpretation thereof; and
(c) with respect to any item of Trust Account Property that is an
uncertificated security under Article 8 of the UCC and that is not governed by
clause (b) above, registration on the books and records of the issuer thereof in
the name of the financial intermediary, the sending of a confirmation by the
financial intermediary of the purchase by the Trust Collateral Agent or its
nominee or custodian of such uncertificated security, the making by such
financial intermediary of entries on its books and records identifying such
uncertificated certificates as belonging to the Trust Collateral Agent or its
nominee or custodian.
"Depositor" shall mean the Seller in its capacity as Depositor under the
Trust Agreement.
"Determination Date" means, with respect to any Collection Period, the
earlier of (i) the fourth Business Day preceding the Insured 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 Date" means, with respect to each Collection Period,
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(x) for so long as AmeriCredit is the Servicer, the fifth day of
the following calendar month, or, if such day is not a Business Day, the
immediately following Business Day; provided, that such day for payment
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shall in no event be earlier than the third Business Day of the following
month, commencing June 7, 1999, or
(y) if the Backup Servicer or other successor Servicer becomes
the Servicer, the twelfth day of the following calendar month, or, if such
day is not a Business Day, the immediately following Business Day.
"Draw Date" means, with respect to any Insured Distribution Date, the third
Business Day immediately preceding such Insured Distribution Date.
"Electronic Ledger" means the electronic master record of the retail
installment sales contracts or installment loans of the Servicer.
"Eligible Deposit Account" means either (a) a segregated account with a
depository institution acceptable to the Insurer and rated "A-1" by Standard &
Poor's, for so long as the Class A-1 Notes are outstanding, or (b) a segregated
trust account with the corporate trust department of a depository institution
acceptable to the Insurer organized under the laws of the United States of
America or any one of the states thereof or the District of Columbia (or any
domestic branch of a foreign bank), having corporate trust powers and acting as
trustee for funds deposited in such account, so long as any of the securities of
such depository institution have a credit rating from each Rating Agency in one
of its generic rating categories which signifies investment grade.
"Eligible Investments" mean book-entry securities, negotiable instruments
or securities represented by instruments in bearer or registered form which
evidence:
(d) direct obligations of, and obligations fully guaranteed as to timely
payment by, the United States of America;
(e) demand deposits, time deposits or certificates of deposit of any
depository institution or trust company incorporated under the laws of the
United States of America or any state thereof or the District of Columbia (or
any domestic branch of a foreign bank) and subject to supervision and
examination by federal or state banking or depository institution authorities
(including depository receipts issued by any such institution or trust company
as custodian with respect to any obligation referred to in clause (a) above or
portion of such obligation for the benefit of the holders of such depository
receipts); provided, however, that at the time of the investment or contractual
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commitment to invest therein (which shall be deemed to be made again each time
funds are reinvested following each Distribution Date), the commercial paper or
other short-term senior unsecured debt obligations (other than such obligations
the rating of which is based on the credit of a Person other than such
depository institution or trust company) of such depository institution or trust
company shall have a credit rating from Standard & Poor's of A-1+ and from
Moody's of P-1;
(f) commercial paper and demand notes investing solely in commercial paper
having, at the time of the investment or contractual commitment to invest
therein, a rating from Standard & Poor's of A-1+ and from Moody's of P-1;
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(g) investments in money market funds (including funds for which the Trust
Collateral Agent or the Owner Trustee in each of their individual capacities or
any of their respective Affiliates is investment manager, controlling party or
advisor) having a rating from Standard & Poor's of AAA-m or AAAm-G and from
Moody's of Aaa and having been approved by the Insurer;
(h) bankers' acceptances issued by any depository institution or trust
company referred to in clause (b) above;
(i) repurchase obligations with respect to any security that is a direct
obligation of, or fully guaranteed by, the United States of America or any
agency or instrumentality thereof the obligations of which are backed by the
full faith and credit of the United States of America, in either case entered
into with a depository institution or trust company (acting as principal)
referred to in clause (b) above; and
(j) any other investment which would satisfy the Rating Agency Condition
and is consistent with the ratings of the Securities and which, so long as no
Insurer Default shall have occurred and be continuing, has been approved by the
Insurer.
Any of the foregoing Eligible Investments may be purchased by or through
the Owner Trustee or the Trust Collateral Agent or any of their respective
Affiliates.
"FDIC" means the Federal Deposit Insurance Corporation.
"Final Scheduled Distribution Date" means with respect to (i) the Class A-1
Notes, the June 2000 Insured Distribution Date, (ii) the Class A-2 Notes, the
October 2002 Insured Distribution Date, (iii) the Class A-3 Notes, the May 2003
Insured Distribution Date, and (iv) the Class A-4 Notes, the March 2006 Insured
Distribution Date.
"Financed Vehicle" means an automobile or light-duty truck van or minivan,
together with all accessions thereto, securing an Obligor's indebtedness under
the respective Receivable.
"Force-Placed Insurance" has the meaning ascribed thereto in Section 4.4
hereof.
"Funding Period" means the period beginning on and including the Closing
Date and ending on the first to occur of (a) the first date on which the amount
on deposit in the Pre-Funding Account (after giving effect to any transfers
therefrom in connection with the transfer of Subsequent Receivables to the
Issuer on such date) is less than $100,000, (b) the date on which an Event of
Default or a Servicer Termination Event occurs and (c) July 31, 1999.
"Indenture" means the Indenture dated as of May 12, 1999 , among the Issuer
and Bank One, N.A., as Trust Collateral Agent and Trustee, as the same may be
amended and supplemented from time to time.
"Initial Cutoff Date" means, with respect to any Initial Receivable, the
earlier of (x) May 12, 1999 and (y) the date of origination of such Initial
Receivable.
"Initial Receivables" means any Receivable conveyed to the Trust on the
Closing Date.
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"Insolvency Event" means, with respect to a specified Person, (a) the
filing of a petition against such Person or the entry of a decree or order for
relief by a court having jurisdiction in the premises in respect of such Person
or any substantial part of its property in an involuntary case under any
applicable federal or state bankruptcy, insolvency or other similar law now or
hereafter in effect, or appointing a receiver, liquidator, assignee, custodian,
trustee, sequestrator, or similar official for such Person or for any
substantial part of its property, or ordering the winding-up or liquidation or
such Person's affairs, and such petition, decree or order shall remain unstayed
and in effect for a period of 60 consecutive days; or (b) the commencement by
such Person of a voluntary case under any applicable federal or state
bankruptcy, insolvency or other similar law now or hereafter in effect, or the
consent by such Person to the entry of an order for relief in an involuntary
case under any such law, or the consent by such Person to the appointment of or
taking possession by, a receiver, liquidator, assignee, custodian, trustee,
sequestrator, or similar official for such Person or for any substantial part of
its property, or the making by such Person of any general assignment for the
benefit of creditors, or the failure by such Person generally to pay its debts
as such debts become due, or the taking of action by such Person in furtherance
of any of the foregoing.
"Insurance Add-On Amount" means the premium charged to the Obligor in the
event that the Servicer obtains Force-Placed Insurance pursuant to Section 4.4.
"Insurance Agreement" means the Insurance and Indemnity Agreement, dated as
of May 12, 1999, among the Insurer, the Trust, the Seller, AmeriCredit Corp. and
AmeriCredit.
"Insurance Agreement Event of Default" means an "Event of Default" as
defined in the Insurance Agreement.
"Insurance Policy" means, with respect to a Receivable, any insurance
policy (including the insurance policies described in Section 4.4 hereof)
benefiting the holder of the Receivable providing loss or physical damage,
credit life, credit disability, theft, mechanical breakdown or similar coverage
with respect to the Financed Vehicle or the Obligor.
"Insured Distribution Date" means the twelfth day of each month, or, if
such twelfth day is not a Business Day, the next following Business Day. In the
event that, on any Distribution Date, the Noteholders did not receive the full
amount of the Scheduled Payment (as defined in the Note Policy) then due to
them, such shortfall (together with, in the case of an interest shortfall,
interest thereon at the related Interest Rate) shall be due and payable and
shall be funded on the Insured Distribution Date either from the Spread Account
or from the proceeds of a drawing under the Note Policy. The Record Date
applicable to an Insured Distribution Date shall be the Record Date applicable
to the related Distribution Date.
"Insurer" means 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 Note Policy.
"Insurer Default" means the occurrence and continuance of any of the
following events:
(a) the Insurer shall have failed to make a payment required under the
Note Policy in accordance with its terms;
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(b) The 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 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 Insurer (or the taking of possession of all or any
material portion of the property of the Insurer).
"Insurer Optional Deposit" means, with respect to any Insured Distribution
Date, an amount delivered by the Insurer pursuant to Section 5.11, at its sole
option, other than amounts in respect of a Note Policy Claim Amount, to the
Trust Collateral Agent 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 Insured
Distribution Date; or (ii) to include such amount as part of the Distribution
Amount for such Insured Distribution Date to the extent that without such amount
a draw would be required to be made on the Note Policy.
"Interest Period" means, with respect to any Distribution Date, the period
from and including the most recent Distribution Date on which interest has been
paid (or in the case of the first Distribution Date, from and including the
Closing Date) to, but excluding, the following Distribution Date. In the case
of the first Distribution Date, the Interest Period shall be nine days.
"Interest Rate" means, with respect to (i) the Class A-1 Notes, 4.9166% per
annum (computed on the basis of the actual number of days elapsed in a 360-day
year), (ii) the Class A-2 Notes, 5.304% per annum (computed on the basis of the
actual number of days elapsed in a 360-day year), (iii) the Class A-3 Notes,
5.780% per annum (computed on the basis of a 360-day year consisting of twelve
30-day months), and (iv) the Class A-4 Notes, 5.960% per annum (computed on the
basis of a 360-day year consisting of twelve 30-day months).
"Investment Earnings" means, with respect to any date of determination and
Trust Account, the investment earnings on amounts on deposit in such Trust
Account on such date.
"Issuer" means AmeriCredit Automobile Receivables Trust 1999-B.
"Lien" means a security interest, lien, charge, pledge, equity, or
encumbrance of any kind, other than tax liens, mechanics' liens and any liens
that attach to the respective Receivable by operation of law as a result of any
act or omission by the related Obligor.
"Lien Certificate" means, 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
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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" means, with respect to any Collection Period, a
Receivable as to which (i) 90 days have elapsed since the Servicer repossessed
the Financed Vehicle provided, however, that in no case shall 5% or more of a
Scheduled Receivable Payment have become 210 or more days delinquent in the case
of a repossessed 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 Receivables Payment shall have become 120 or more days
delinquent, except in the case of a repossessed Financed Vehicle.
"Lockbox Account" means an account maintained on behalf of the Trust
Collateral Agent by the Lockbox Bank pursuant to Section 4.2(d).
"Lockbox Agreement" means the Tri-Party Remittance Processing Agreement,
dated as of May 12, 1999, by and among AmeriCredit, Bank One, Texas, N.A. and
the Trust Collateral Agent, as such agreement may be amended or supplemented
from time to time, unless the Trust Collateral Agent 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 Trust
Collateral Agent and the Lockbox Bank.
"Lockbox Bank" means a depository institution named by the Servicer and
acceptable to the Controlling Party.
"Mandatory Redemption Date" means the earlier of (i) the Distribution Date
in August 1999 and (ii) if the last day of the Funding Period occurs on or prior
to the Calculation Date occuring in June or July 1999, then the Distribution
Date relating to such Calculation Date
"Monthly Capitalized Interest Amount" means in the case of the June, july
or August 1999 Distribution Dates, an amount equal to the difference between (i)
the product of (x) a fraction the numerator of which is the actual number of
days elapsed in the related Interest Period and the denominator of which is 360,
(y) the weighted average of each Interest Rate and (z) the difference between
(A) the average daily aggregate principal amount of the Notes during the period
since the prior Distribution Date and (B) the Pool Balance as of the last day of
the second preceding Collection Period, or in the case of the June 1999
Distribution Date, as of the Closing Date and (ii) the Pre-Funding Earnings for
such Distribution Date.
"Monthly Extension Rate" means, with respect to any Accounting Date, the
fraction, expressed as a percentage, the numerator of which is the aggregate
Principal Balance of Receivables whose payments are extended during the related
Collection Period and the denominator of which is the aggregate Principal
Balance of Receivables as of the immediately preceding Accounting Date.
"Monthly Records" means all records and data maintained by the Servicer
with respect to the Receivables, including the following with respect to each
Receivable: the account number;
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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 Receivables Payment; current Insurance Policy
expiration date; and past due late charges.
"Moody's" means Moody's Investors Service, Inc., or its successor.
"Net Liquidation Proceeds" means, 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 Note 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.
"Note Distribution Account" means the account designated as such,
established and maintained pursuant to Section 5.1.
"Note Majority" means a majority by principal amount of the Noteholders.
"Note Policy" means the financial guaranty insurance policy issued by the
Insurer to the Trust Collateral Agent, as agent for the Trustee, for the benefit
of the Noteholders.
"Note Policy Claim Amount" means, for any Insured Distribution Date, the
sum of (x) the excess, if any (without duplication) of (i) the sum of the
Noteholders' Interest Distributable Amount and the Noteholders' Parity Deficit
Amount for the related Distribution Date, together with, (a) if such related
Distribution Date was the Mandatory Redemption Date, the Note Prepayment Amount,
and (b) if such related Distribution Date was the Final Scheduled Distribution
Date for any Class, the unpaid principal balance of such Class over (ii) the sum
of (a) the amount actually deposited into the Note Distribution Account on such
related Distribution Date and (b) the Additional Funds Available, if any, for
such Insured Distribution Date plus (y) the Noteholders' Interest Carryover
Amount, if any, which has accrued since the related Distribution Date.
"Note Pool Factor" for each Class of Notes as of the close of business on
any date of determination means a seven-digit decimal figure equal to the
outstanding principal amount of such Class of Notes divided by the original
outstanding principal amount of such Class of Notes.
"Note Prepayment Amount" means, as of the Distribution Date on or
immediately following the last day of the Funding Period, after giving effect to
any transfer of Subsequent Receivables on such date, an amount equal to the
Noteholders' pro rata share (based on the respective current outstanding
principal balance of each Class of Notes) of the Pre-Funded Amount as of such
Distribution Date; provided, that if the aggregate remaining amount in the Pre-
Funding Account is $100,000 or less, such amount will be applied exclusively to
reduce the
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outstanding principal balance of the Class of Notes then entitled to receive
distributions of principal.
"Noteholders' Accelerated Principal Amount" means, with respect to any
Distribution Date, the Noteholders' Percentage of the Accelerated Principal
Amount on such Distribution Date, if any.
"Noteholders' Distributable Amount" means, with respect to any Distribution
Date, the sum of the Noteholders' Principal Distributable Amount and the
Noteholders' Interest Distributable Amount.
"Noteholders' Interest Carryover Amount" means, with respect to any Class
of Notes and any date of determination, all or any portion of the Noteholders'
Monthly Interest Distributable Amount for the immediately preceding Distribution
Date and any outstanding Noteholders' Interest Carryover Amount on such
immediately preceding Distribution Date, which remains unpaid as of such date of
determination, plus interest on such unpaid amount, to the extent permitted by
law, at the respective Interest Rate borne by each Class of Notes from such
immediately preceding Distribution Date to but excluding such date of
determination.
"Noteholders' Interest Distributable Amount" means, with respect to any
Distribution Date, the sum of the Noteholders' Monthly Interest Distributable
Amount for such Distribution Date and the Noteholders' Interest Carryover
Amount, if any for such Distribution Date. Interest shall be computed on the
basis of (i) the actual number of days elapsed in a 360-day year in the case of
the Class A-1 Notes and the Class A-2 Notes and (ii) a 360-day year of twelve
30-day months in the case of the Class A-3 Notes and the Class A-4 Notes.
"Noteholders' Monthly Interest Distributable Amount" means, with respect to
any Distribution Date and any Class of Notes, interest accrued during the
applicable Interest Period on the principal amount of the Notes of each Class
outstanding as of the end of the prior Distribution Date (or, in the case of the
first Distribution Date, as of the Closing Date); provided, that if such
principal balance is further reduced by a payment of principal on the Insured
Distribution Date which immediately follows such prior Distribution Date, then
such interest shall accrue (i) from and including such prior Distribution Date
to, but excluding, such related Insured Distribution Date, on the principal
balance outstanding as of the end of the prior Distribution Date (or, in the
case of the first Distribution Date, as of the Closing Date) and (ii) from and
including such Insured Distribution Date, to, but excluding, the following
Distribution Date, on the principal balance outstanding as of the end of such
Insured Distribution Date, calculated on the basis of a 360-day year and the
actual number of days elapsed, in the case of the Class A-1 Notes, the Class A-2
Notes and the Class A-3 Notes and the Class A-4 Notes.
"Noteholders' Monthly Principal Distributable Amount" means, with respect
to any Distribution Date, the Noteholders' Percentage of the Principal
Distributable Amount.
"Noteholders' Parity Deficit Amount" means, with respect to any
Distribution Date, the excess, if any, of (x) the aggregate remaining principal
balance of the Notes outstanding on such Distribution Date, after giving effect
to all reductions in such aggregate principal balance from
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sources other than (i) the Spread Account and (ii) the Note Policy over (y) the
sum of the Pool Balance and the Pre-Funded Amount at the end of the prior
calendar month.
"Noteholders' Percentage" means with respect to any Determination Date (i)
relating to a Distribution Date prior to the Distribution Date on which the
principal amount of the Class A-4 Notes is reduced to zero, 100%; (ii) relating
to the Distribution Date on which the principal amount of the Class A-4 Notes is
reduced to zero, the percentage equivalent of a fraction, the numerator of which
is the principal amount of the Class A-4 Notes immediately prior to such
Distribution Date, and the denominator of which is the Principal Distributable
Amount; and (iii) relating to any other Distribution Date, 0%.
"Noteholders' Principal Carryover Amount" means, as of any date of
determination, all or any portion of the Noteholders' Monthly Principal
Distributable Amount and any outstanding Noteholders' Principal Carryover Amount
from the preceding Distribution Date which remains unpaid as of such date of
determination.
"Noteholders' Principal Distributable Amount" means, with respect to any
Distribution Date, (other than the Final Scheduled Distribution Date for any
Class of Notes), the sum of the Noteholders' Monthly Principal Distributable
Amount for such Distribution Date and the Noteholders' Principal Carryover
Amount, if any, as of the close of the preceding Distribution Date. The
Noteholders' Principal Distributable Amount on the Final Scheduled Distribution
Date for any Class of Notes will equal the sum of (i) the Noteholders' Monthly
Principal Distributable Amount for such Distribution Date, (ii) the Noteholders'
Principal Carryover Amount as of the such Distribution Date, and (iii) the
excess of the outstanding principal amount of such Class of Notes, if any, over
the amounts described in clauses (i) and (ii).
"Noteholders' Remaining Parity Deficit Amount" means, with respect to any
Distribution Date, the Noteholders' Parity Deficit Amount for such Distribution
Date minus any reduction in the aggregate principal balance of the Notes to be
made on the related Insured Distribution Date with funds withdrawn from the
Spread Account.
"Obligor" on a Receivable means the purchaser or co-purchasers of the
Financed Vehicle and any other Person who owes payments under the Receivable.
"Officers' Certificate" means a certificate signed by the chairman of the
board, the president, any executive vice president or any vice president, any
treasurer, assistant treasurer, secretary or assistant secretary of the Seller
or the Servicer, as appropriate.
"Opinion of Counsel" means a written opinion of counsel reasonably
acceptable to the Insurer, which opinion is satisfactory in form and substance
to the Trust Collateral Agent and, if such opinion or a copy thereof is required
by the provisions of this Agreement to be delivered to the Insurer, to the
Insurer.
"Original Pool Balance" means the sum, as of any date, of the Pool Balance
as of the Initial Cutoff Date, plus the aggregate Principal Balance of the
Subsequent Receivables, if any, sold to the Trust, as of their respective
Subsequent Cutoff Dates.
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"Other Conveyed Property" means all property conveyed by the Seller to the
Trust pursuant to Section 2.1(b) through (h) of this Agreement.
"Overfunded Capitalized Interest Amount" means:
With respect to the June 1999 Distribution Date, the excess of (a) the
amount on deposit in the Capitalized Interest Account on such Distribution Date
(after giving effect to the transfer of the Monthly Capitalized Interest Amount
to the Collection Account on such date) over (b) the product of (i) 1/360, (ii)
2.5%, (iii) 60 and (iv) the amount on deposit in the Pre-Funding Account
(excluding Pre-Funding Earnings) at the close of business on July 31, 1999.
With respect to the August 1999 Distribution Date, the excess of (a) the
amount on deposit in the Capitalized Interest Account on such Distribution Date
(after giving effect to the transfer of the Monthly Capitalized Interest Amount
to the Collection Account on such date) over (b) the product of (i) 1/360, (ii)
2.5%, (iii) 30 and (iv) the amount on deposit in the Pre-Funding Account
(excluding Pre-Funding Earnings) at the close of business on July 31, 1999.
With respect to the May 1999 Distribution Date, the amount on deposit in
the Capitalized Interest Account on such Distribution Date (after giving effect
to the transfer of the Monthly Capitalized Interest Amount to the Collection
Account on such date).
"Owner Trust Estate" has the meaning assigned to such term in the Trust
Agreement.
"Owner Trustee" means Bankers Trust (Delaware), not in its individual
capacity but solely as Owner Trustee under the Trust Agreement, its successors
in interest or any successor Owner Trustee under the Trust Agreement.
"Person" means any individual, corporation, estate, partnership, joint
venture, association, joint stock company, trust (including any beneficiary
thereof), unincorporated organization or government or any agency or political
subdivision thereof.
"Physical Property" has the meaning assigned to such term in the definition
of "Delivery" above.
"Pool Balance" means, as of any date of determination, the aggregate
Principal Balance of the Receivables (excluding Purchased Receivables and
Liquidated Receivables).
"Pre-Funded Amount" means, with respect to any Distribution Date, the
amount on deposit in the Pre-Funding Account, (exclusive of Pre-Funding
Earnings) which initially shall be $300,000,007.01.
"Pre-Funding Account" has the meaning specified in Section 5.1.
"Pre-Funding Earnings" means any Investment Earnings on amounts on deposit
in the Pre-Funding Account.
"Preliminary Determination Date" means, with respect to any Collection
Period, the second Business Day preceding the Distribution Date in the next
calendar month.
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"Preliminary Servicer's Certificate" means an Officers' Certificate of the
Servicer delivered pursuant to Section 4.9(a), substantially in the form of
Exhibit C.
"Prepayment Amount" means the amount deposited in the Collection Account
from the Pre-Funding Account on the Mandatory Redemption Date pursuant to
Section 5.7(a)(ii) hereof.
"Principal Balance" means, with respect to any Receivable, as of any date,
the sum of (x) 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 plus (y) the accrued and unpaid interest on such Receivable.
"Principal Distributable Amount" means, with respect to any Distribution
Date, the amount equal to the excess, if any, of (x) the sum of (i) the
principal portion of all Collected Funds received during the immediately
preceding Collection Period (other than Liquidated Receivables and Purchased
Receivables), (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 Amounts
received with respect to all Receivables that became Purchased Receivables
during the related Collection Period, (iv) in the sole discretion of the
Insurer, the Principal Balance of all the Receivables that were required to be
purchased pursuant to Sections 3.2 and 4.7, during such Collection Period but
were not purchased, (v) the aggregate amount of Cram Down Losses that shall have
occurred during the related Collection Period; and (vi) following the
acceleration of the Notes pursuant to Section 5.2 of the Indenture, the amount
of money or property collected pursuant to Section 5.4 of the Indenture since
the preceding Determination Date by the Trust Collateral Agent or Controlling
Party for distribution pursuant to Section 5.7 hereof over (y) the Step-Down
Amount, if any, for such Distribution Date.
"Pro Forma Note Balance" means, with respect to any Distribution Date, the
aggregate remaining principal balance of the Notes outstanding on such
Distribution Date, after giving effect to distributions pursuant to clauses (i)
through (iv) of Section 5.7(b) hereof.
"Purchase Agreement" means the Purchase Agreement among the Seller, CP
Funding and AmeriCredit, dated as of May 12, 1999, pursuant to which the Seller
acquired the Initial Receivables, as such Agreement may be amended from time to
time.
"Purchase Amount" means, with respect to a Receivable, the Principal
Balance and all accrued and unpaid interest on the Receivable, after giving
effect to the receipt of any moneys collected (from whatever source) on such
Receivable, if any.
"Purchased Receivable" means a Receivable purchased as of the close of
business on the last day of a Collection Period by the Servicer pursuant to
Section 4.7 or repurchased by the Seller, CP Funding or AmeriCredit pursuant to
Section 3.2 or Section 10.1(a).
"Rating Agency" means Moody's and Standard & Poor's. If no such
organization or successor maintains a rating on the Securities, "Rating Agency"
shall be a nationally recognized statistical rating organization or other
comparable Person designated by the Seller and acceptable to the Insurer (so
long as an Insurer Default shall not have occurred and be continuing), notice of
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which designation shall be given to the Trust Collateral Agent, the Owner
Trustee and the Servicer.
"Rating Agency Condition" means, with respect to any action, that each
Rating Agency shall have been given 10 days (or such shorter period as shall be
acceptable to each Rating Agency) prior notice thereof and that each of the
Rating Agencies shall have notified the Seller, the Servicer, the Insurer, the
Owner Trustee and the Trust Collateral Agent in writing that such action will
not result in a reduction or withdrawal of the then current rating of any Class
of Notes.
"Realized Losses" means, with respect to any Receivable that becomes a
Liquidated Receivable, the excess of the Principal Balance of such Liquidated
Receivable over Net Liquidation Proceeds to the extent allocable to principal.
"Receivable" means any Contract listed on Schedule A, as such Schedule
shall be amended to reflect the transfer of Subsequent Receivables to the Trust
(which Schedule may be in the form of microfiche or a disk).
"Receivable Files" means the documents specified in Section 3.3.
"Record Date" means, with respect to each Distribution Date, the Business
Day immediately preceding such Distribution Date, unless otherwise specified in
the Agreement. The "Record Date" for any Insured Distribution Date shall be the
"Record Date" applicable to the related Distribution Date.
"Registrar of Titles" means, 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.
"Required Pro Forma Note Balance" means, with respect to any Distribution
Date, a dollar amount equal to the product of (x) 90% and (y) the sum of the
Pool Balance and the Pre-Funded Amount as of the end of the prior Collection
Period.
"Schedule of Receivables" means 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" means the Schedule of Representations and
Warranties attached hereto as Schedule B.
"Scheduled Receivables Payment" means, 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 Receivables Payment with respect to such Collection Period
shall refer to the Obligor's payment obligation with respect to such Collection
Period as so modified.
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"Seller" means AFS Funding Corp., a Nevada corporation, and its successors
in interest to the extent permitted hereunder.
"Service Contract" means, with respect to a Financed Vehicle, the
agreement, if any, financed under the related Receivable that provides for the
repair of such Financed Vehicle.
"Servicer" means AmeriCredit Financial Services, Inc., as the servicer of
the Receivables, and each successor Servicer pursuant to Section 9.3.
"Servicer Termination Event" means an event specified in Section 9.1.
"Servicer's Certificate" means an Officers' Certificate of the Servicer
delivered pursuant to Section 4.9(b), substantially in the form of Exhibit B.
"Servicing Fee" has the meaning specified in Section 4.8.
"Servicing Fee Rate" means 2.25% per annum.
"Simple Interest Method" means 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 Requisite Amount" means 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.
"Specified Spread Account Requisite Amount" has the meaning specified in
the Spread Account Agreement Supplement.
"Spread Account" means the account designated as such, established and
maintained pursuant to the Spread Account Agreement Supplement.
"Spread Account Agreement" means the Spread Account Agreement dated as of
December 1, 1994, as amended and restated as of May 11, 1998 among the Insurer,
the Seller and the Collateral Agent, as the same may be modified, supplemented
or otherwise amended in accordance with the terms thereof.
"Spread Account Agreement Supplement" means the Series 1999-B Spread
Account Agreement Supplement dated as of May 12, 1999 among the Insurer, the
Seller and the Collateral Agent, as the same may be modified, supplemented or
otherwise amended in accordance with the terms thereof.
"Spread Account Initial Deposit" means an amount equal to 3.0% of the
aggregate principal balance of the Initial Receivables on the Closing Date
(which is equal to $20,999,999.79).
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"Standard & Poor's" means Standard & Poor's Ratings Services, or its
successor.
"Step-Down Amount" means, with respect to any Distribution Date, the
excess, if any, of (x) the Required Pro Forma Note Balance over (y) the Pro
Forma Note Balance on such Distribution Date, calculated for this purpose only
without deduction for any Step-Down Amount (i.e., assuming that the entire
amount described in clause (x) of the definition of "Principal Distributable
Amount" is distributed as principal on the Notes).
"Subsequent Cutoff Date" means the date specified in the related Subsequent
Transfer Agreement, provided, however that such date shall be on or before the
Subsequent Transfer Date.
"Subsequent Purchase Agreement" means an agreement by and between the
Seller, CP Funding and AmeriCredit pursuant to which the Seller will acquire
Subsequent Receivables.
"Subsequent Receivables" means the Receivables transferred to the Issuer
pursuant to Section 2.2, which shall be listed on Schedule A to the related
Subsequent Transfer Agreement.
"Subsequent Spread Account Deposit" means, with respect to each Subsequent
Transfer Date, an amount equal to 3.0% of the aggregate principal balance of
Subsequent Receivables as of the related Subsequent Cutoff Date transferred to
the Trust on such Subsequent Transfer Date from amounts released from the Pre-
Funding Account.
"Subsequent Transfer Agreement" means the agreement among the Issuer, the
Seller and the Servicer, substantially in the form of Exhibit A.
"Subsequent Transfer Date" means, with respect to Subsequent Receivables,
any date, occurring not more frequently than once a month, during the Funding
Period on which Subsequent Receivables are to be transferred to the Trust
pursuant to this Agreement, and a Subsequent Transfer Agreement is executed and
delivered to the Trust.
"Supplemental Servicing Fee" means, with respect to any Collection Period,
all administrative fees, expenses and charges paid by or on behalf of Obligors,
including late fees, prepayment fees and liquidation fees collected on the
Receivables during such Collection Period but excluding any fees or expenses
related to extensions.
"Trigger Event" has the meaning assigned thereto in the Spread Account
Agreement Supplement.
"Trust" means the Issuer.
"Trust Account Property" means the Trust Accounts, all amounts and
investments held from time to time in any Trust Account (whether in the form of
deposit accounts, Physical Property, book-entry securities, uncertificated
securities or otherwise), and all proceeds of the foregoing.
"Trust Accounts" has the meaning assigned thereto in Section 5.1.
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"Trust Agreement" means the Trust Agreement dated as of May 12, 1999,
between the Seller and the Owner Trustee, as amended and restated as of May 12,
1999, as the same may be amended and supplemented from time to time.
"Trust Collateral Agent" means the Person acting as Trust Collateral Agent
hereunder, its successors in interest and any successor Trust Collateral Agent
hereunder.
"Trust Officer" means, (i) in the case of the Trust Collateral Agent, the
chairman or vice-chairman of the board of directors, any managing director, the
chairman or vice-chairman of the executive committee of the board of directors,
the president, any vice president, assistant vice president, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any trust officer or assistant trust officer, the controller
and any assistant controller or any other officer of the Trust Collateral Agent
customarily performing functions similar to those performed by any of the above
designated officers and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of such
officer's knowledge of and familiarity with the particular subject, and (ii) in
the case of the Owner Trustee, any officer in the corporate trust office of the
Owner Trustee or any agent of the Owner Trustee under a power of attorney with
direct responsibility for the administration of this Agreement or any of the
Basic Documents on behalf of the Owner Trustee.
"Trust Property" means the property and proceeds conveyed pursuant to
Section 2.1, together with certain monies paid on or after the Initial Cut-off
Date, the Note Policy, the Collection Account (including all Eligible
Investments therein and all proceeds therefrom), the Lockbox Account and certain
other rights under this Agreement. Although the Seller has pledged the Spread
Account to the Trust Collateral Agent and the 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" means the Person acting as Trustee under the Indenture, its
successors in interest and any successor trustee under the Indenture.
"UCC" means the Uniform Commercial Code as in effect in the relevant
jurisdiction on the date of the Agreement.
SECTION 1.2. Other Definitional Provisions.
------------------------------
(a) Capitalized terms used herein and not otherwise defined herein have
meanings assigned to them in the Indenture, or, if not defined therein, in the
Trust Agreement.
(b) All terms defined in this Agreement shall have the defined meanings
when used in any instrument governed hereby and in any certificate or other
document made or delivered pursuant hereto unless otherwise defined therein.
(c) As used in this Agreement, in any instrument governed hereby and in
any certificate or other document made or delivered pursuant hereto or thereto,
accounting terms not defined in this Agreement or in any such instrument,
certificate or other document, and accounting terms partly defined in this
Agreement or in any such instrument, certificate or other document to the extent
not defined, shall have the respective meanings given to them under generally
accepted
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accounting principles as in effect on the date of this Agreement or any such
instrument, certificate or other document, as applicable. To the extent that the
definitions of accounting terms in this Agreement or in any such instrument,
certificate or other document are inconsistent with the meanings of such terms
under generally accepted accounting principles, the definitions contained in
this Agreement or in any such instrument, certificate or other document shall
control.
(d) The words "hereof," "herein," "hereunder" and words of similar import
when used in this Agreement shall refer to this Agreement as a whole and not to
any particular provision of this Agreement; Section, Schedule and Exhibit
references contained in this Agreement are references to Sections, Schedules and
Exhibits in or to this Agreement unless otherwise specified; and the term
"including" shall mean "including without limitation."
(e) The definitions contained in this Agreement are applicable to the
singular as well as the plural forms of such terms and to the masculine as well
as to the feminine and neuter genders of such terms.
(f) Any agreement, instrument or statute defined or referred to herein or
in any instrument or certificate delivered in connection herewith means such
agreement, instrument or statute as from time to time amended, modified or
supplemented and includes (in the case of agreements or instruments) references
to all attachments thereto and instruments incorporated therein; references to a
Person are also to its permitted successors and assigns.
ARTICLE II
Conveyance of Receivables
-------------------------
SECTION 2.1. Conveyance of Initial Receivables. In consideration of the
---------------------------------
Issuer's delivery to or upon the order of the Seller on the Closing Date of the
net proceeds from the sale of the Notes and the other amounts to be distributed
from time to time to the Seller in accordance with the terms of this Agreement,
the Seller does hereby sell, transfer, assign, set over and otherwise convey to
the Issuer, without recourse (subject to the obligations set forth herein), all
right, title and interest of the Seller in and to:
(a) the Initial Receivables and all moneys received thereon after the
Initial Cutoff Date;
(b) an assignment of the security interests in the Financed Vehicles
granted by Obligors pursuant to the Initial Receivables and any other interest
of the Seller in such Financed Vehicles;
(c) any proceeds and the right to receive proceeds with respect to the
Initial Receivables from claims on any physical damage, credit life or
disability insurance policies covering Financed Vehicles or Obligors and any
proceeds from the liquidation of the Initial Receivables;
(d) all rights of the Seller against Dealers pursuant to Dealer
Agreements;
(e) all rights under any Service Contracts on the related Financed
Vehicles;
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(f) the related Receivables Files;
(g) all of the Seller's right, title and interest in its rights and
benefits, but none of its obligations or burdens, under the Purchase Agreement,
including the Seller's rights under the Purchase Agreement, and the delivery
requirements, representations and warranties and the cure and repurchase
obligations of AmeriCredit and CP Funding under the Purchase Agreement; and
(h) the proceeds of any and all 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 Trust Property from the Seller to the Issuer and the beneficial interest
in and title to the Receivables and the other Trust 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 security
interest in the property referred to in this Section for the benefit of the
Noteholders and the Insurer.
SECTION 2.2. Conveyance of Subsequent Receivables.
-------------------------------------
(a) Subject to the conditions set forth in paragraph (b) below, in
consideration of the Issuer's delivery on each related Subsequent Transfer Date
to or upon the order of the Seller of the amount described in Section 5.9(a) to
be delivered to the Seller, the Seller does hereby sell, transfer, assign, set
over and otherwise convey to the Issuer without recourse (subject to the
obligations set forth herein), all right, title and interest of the Seller in
and to:
(i) the Subsequent Receivables listed on Schedule A to the related
Subsequent Transfer Agreement;
(ii) the security interests in the Financed Vehicles granted by
Obligors pursuant to such Subsequent Receivables and any other interest of
the Seller in such Financed Vehicles;
(iii) any proceeds and the right to receive proceeds with respect to
such Subsequent Receivables from claims on any physical damage, credit life
or disability insurance policies covering the related Financed Vehicles or
Obligors and any proceeds from the liquidation of such Subsequent
Receivables;
(iv) all rights of the Seller against the Dealers pursuant to Dealer
Agreements;
(v) all rights under any Service Contracts on the related Financed
Vehicles:
(vi) the related Receivables Files;
(vii) all of the Seller's right, title and interest in its rights and
benefits, but none of its obligations or burdens, under each of the
Subsequent Purchase Agreements, including the Seller's rights under each of
the Subsequent Purchase Agreements, and the delivery requirements,
representations and warranties and the cure and repurchase obligations of
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AmeriCredit and CP Funding under each of the Subsequent Purchase
Agreements, on or after the related Subsequent Cutoff Date; and
(viii) the proceeds of any and all of the foregoing.
(b) The Seller shall transfer to the Issuer the Subsequent Receivables and
the other property and rights related thereto described in paragraph (a) above
only upon the satisfaction of each of the following conditions on or prior to
the related Subsequent Transfer Date:
(i) the Seller shall have provided the Trust Collateral Agent, the
Owner Trustee, the Insurer and the Rating Agencies with an Addition Notice
not later than five days prior to such Subsequent Transfer Date and shall
have provided any information reasonably requested by any of the foregoing
with respect to the Subsequent Receivables;
(ii) the Seller shall have delivered to the Owner Trustee and the
Trust Collateral Agent a duly executed Subsequent Transfer Agreement which
shall include supplements to Schedule A, listing the Subsequent
Receivables;
(iii) the Seller shall, to the extent required by Section 4.2, have
deposited in the Collection Account all collections in respect of the
Subsequent Receivables;
(iv) as of each Subsequent Transfer Date, (A) the Seller shall not
be insolvent and shall not become insolvent as a result of the transfer of
Subsequent Receivables on such Subsequent Transfer Date, (B) the Seller
shall not intend to incur or believe that it shall incur debts that would
be beyond its ability to pay as such debts mature, (C) such transfer shall
not have been made with actual intent to hinder, delay or defraud any
Person and (D) the assets of the Seller shall not constitute unreasonably
small capital to carry out its business as conducted;
(v) the Funding Period shall not have terminated;
(vi) after giving effect to any transfer of Subsequent Receivables
on a Subsequent Transfer Date, the Receivables transferred to the Trust
pursuant hereto shall meet the following criteria (based on the
characteristics of the Initial Receivables on the Initial Cutoff Date and
the Subsequent Receivables on the related Subsequent Cutoff Dates) as such
information is provided to the Trust Collateral Agent by the Servicer: (i)
the weighted average APR of the Receivables transferred to the Trust shall
not be less than 18%, unless, with the prior consent of the Rating Agencies
and the Insurer, the Seller increases the Spread Account Initial Deposit
with respect to such Subsequent Receivables by the amount required by the
Insurer; (ii) the weighted average remaining term of the Receivables
transferred to the Trust shall not be greater than 72 months; and (iii) not
more than 35% of the Aggregate Principal Balance shall have Obligors whose
mailing addresses are in Texas and California;
(vii) each of the representations and warranties made by the Seller
pursuant to Section 3.1 with respect to the Subsequent Receivables to be
transferred on such Subsequent Transfer Date shall be true and correct as
of the related Subsequent Transfer Date, and
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the Seller shall have performed all obligations to be performed by it
hereunder on or prior to such Subsequent Transfer Date;
(viii) the Seller shall, at its own expense, on or prior to the
Subsequent Transfer Date indicate in its computer files that the Subsequent
Receivables identified in the Subsequent Transfer Agreement have been sold
to the Trust pursuant to this Agreement;
(ix) the Seller shall have taken any action required to maintain the
first priority perfected ownership interest of the Trust in the Owner Trust
Estate and the first perfected security interest of the Trust Collateral
Agent in the Collateral;
(x) no selection procedures adverse to the interests of the
Noteholders or the Insurer shall have been utilized in selecting the
Subsequent Receivables;
(xi) the addition of any such Subsequent Receivables shall not result
in a material adverse tax consequence to the Trust or the Noteholders;
(xii) the Seller shall have delivered (A) to the Rating Agencies and
the Insurer an Opinion of Counsel with respect to the transfer of such
Subsequent Receivables substantially in the form of the Opinion of Counsel
delivered to the Rating Agencies and the Insurer on the Closing Date and
(B) to the Trust Collateral Agent the Opinion of Counsel required by
Section 12.2(i)(1);
(xiii) Standard & Poor's shall have confirmed in writing to the Trust
Collateral Agent that the rating on the Notes shall not be withdrawn or
reduced as a result of the transfer of such Subsequent Receivables to the
Trust;
(xiv) the Insurer (so long as no Insurer Default shall have occurred
and be continuing), in its absolute and sole discretion, shall have
approved the transfer of such Subsequent Receivables to the Trust and the
Insurer shall have been reimbursed for any fees and expenses incurred by
the Insurer in connection with the granting of such approval;
(xv) the Seller shall simultaneously transfer the Subsequent Spread
Account Deposit to the Trust Collateral Agent with respect to the
Subsequent Receivables transferred on such Subsequent Transfer Date; and
(xvi) the Seller shall have delivered to the Insurer and the Trust
Collateral Agent an Officers' Certificate confirming the satisfaction of
each condition precedent specified in this paragraph (b).
The Seller covenants that in the event any of the foregoing conditions
precedent are not satisfied with respect to any Subsequent Receivable on the
date required as specified above, the Seller will immediately repurchase such
Subsequent Receivable from the Trust, at a price equal to the Purchase Amount
thereof, in the manner specified in Section 4.7.
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SECTION 2.3. Further Encumbrance of Trust Property.
--------------------------------------
(a) Immediately upon the conveyance to the Trust by the Seller of any item
of the Trust Property pursuant to Section 2.01, all right, title and interest of
the Seller in and to such item of Trust Property shall terminate, and all such
right, title and interest shall vest in the Trust, in accordance with the Trust
Agreement and Sections 3802 and 3805 of the Business Trust Statute (as defined
in the Trust Agreement).
(b) Immediately upon the vesting of the Trust Property in the Trust, the
Trust shall have the sole right to pledge or otherwise encumber, such Trust
Property. Pursuant to the Indenture, the Trust shall grant a security interest
in the Trust Property to the Trust Collateral Agent secure the repayment of the
Notes. The Certificates shall represent the beneficial ownership interest in the
Trust Property, and the Certificateholders shall be entitled to receive
distributions with respect thereto as set forth herein.
(c) Following the payment in full of the Notes and the release and
discharge of the Indenture, all covenants of the Issuer under Article III of the
Indenture shall, until payment in full of the Certificates, remain as covenants
of the Issuer for the benefit of the Certificateholders, enforceable by the
Certificateholders to the same extent as such covenants were enforceable by the
Noteholders prior to the discharge of the Indenture. Any rights of the Trustee
under Article III of the Indenture, following the discharge of the Indenture,
shall vest in Certificateholders.
(d) The Trust Collateral Agent shall, at such time as there are no
Securities outstanding and all sums due to (i) the Trustee pursuant to the
Indenture and (ii) the Trust Collateral Agent pursuant to this Agreement, have
been paid, release any remaining portion of the Trust Property to the Seller.
ARTICLE III
The Receivables
---------------
SECTION 3.1. Representations and Warranties of Seller. The Seller hereby
----------------------------------------
represents and warrants that each of the representations and warranties set
forth on the Schedule of Representations attached hereto as Schedule B is true
and correct on which the Issuer is deemed to have relied in acquiring the
Receivables and upon which the Insurer shall be deemed to rely in issuing the
Note Policy. Such representations and warranties speak as of the execution and
delivery of this Agreement and as of the Closing Date in the case of the Initial
Receivables, and as of the related Subsequent Transfer Date in case of the
Subsequent Receivables, but shall survive the sale, transfer and assignment of
the Receivables to the Issuer and the pledge thereof to the Trustee pursuant to
the Indenture.
SECTION 3.2. Repurchase upon Breach.
----------------------
(a) The Seller, the Servicer, the Insurer, the Trust Collateral Agent or
the Owner Trustee, as the case may be, shall inform the other parties to this
Agreement promptly, notice in writing, upon the discovery of any breach of the
Seller's representations and warranties made pursuant to Section 3.1. As of the
last day of the second (or, if the Seller so elects, the first)
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month following the discovery by the Seller or receipt by the Seller of notice
of such breach, unless such breach is cured by such date, the Seller shall have
an obligation to repurchase any Receivable in which the interests of the
Noteholders or the Insurer are materially and adversely affected by any such
breach as of such date. The "second month" shall mean the month following the
month in which discovery occurs or notice is given, and the "first month" shall
mean the month in which discovery occurs or notice is given. In consideration of
and simultaneously with the repurchase of the Receivable, the Seller shall
remit, or cause AmeriCredit to remit, to the Collection Account the Purchase
Amount in the manner specified in Section 5.6 and the Issuer shall execute such
assignments and other documents reasonably requested by such person in order to
effect such repurchase. The sole remedy of the Issuer, the Owner Trustee, the
Trust Collateral Agent, the Trustee or the Noteholders with respect to a breach
of representations and warranties pursuant to Section 3.1 and the agreement
contained in this Section shall be the repurchase of Receivables pursuant to
this Section, subject to the conditions contained herein or to enforce the
obligation of AmeriCredit to the Seller to repurchase such Receivables pursuant
to the Purchase Agreement. Neither the Owner Trustee, the Trust Collateral Agent
nor the Trustee shall have a duty to conduct any affirmative investigation as to
the occurrence of any conditions requiring the repurchase of any Receivable
pursuant to this Section.
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 Trust Collateral Agent,
Collateral Agent and the officers, directors, agents and employees thereof, the
Insurer, and the Noteholders against all costs, expenses, losses, damages,
claims and liabilities, including reasonable fees and expenses of counsel, which
may be asserted against or incurred by any of them as a result of third party
claims arising out of the events or facts giving rise to such breach.
(b) Pursuant to Section 2.1 of this Agreement, the Seller conveyed to the
Trust all of the Seller's right, title and interest in its rights and benefits,
but none of its obligations or burdens, under the Purchase Agreement including
the Seller's rights under the Purchase Agreement and the delivery requirements,
representations and warranties and the cure or repurchase obligations of
AmeriCredit and CP Funding thereunder. The Seller hereby represents and warrants
to the Trust that such assignment is valid, enforceable and effective to permit
the Trust to enforce such obligations of AmeriCredit and CP Funding under the
Purchase Agreement.
SECTION 3.3. Custody of Receivables Files.
-----------------------------
(a) In connection with the sale, transfer and assignment of the
Receivables and the Other Conveyed Property to the Trust pursuant to this
Agreement and simultaneously with the execution and delivery of this Agreement,
the Trust Collateral Agent shall enter into the Custodian Agreement with the
Custodian, dated as of May 12, 1999, pursuant to which the Trust Collateral
Agent shall revocably appoint the Custodian, and the Custodian shall accept such
appointment, to act as the agent of the Trust Collateral Agent as custodian of
the following documents or instruments in its possession which shall be
delivered to the Custodian as agent of the Trust Collateral Agent on or before
the Closing Date (with respect to each Receivable):
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(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 Trust Collateral Agent may act as the Custodian, in which case the
Trust Collateral Agent 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 3.2 or 4.7.
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,
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complying with the terms of the Lockbox Agreement, accounting for collections
and furnishing monthly and annual statements to the Trust Collateral Agent, the
Trustee and the Insurer with respect to distributions, monitoring the status of
Insurance Policies with respect to the Financed Vehicles and performing the
other duties specified herein.
The Servicer shall also administer and enforce all rights and
responsibilities of the holder of the Receivables provided for in the Dealer
Agreements (and shall maintain possession of the Dealer Agreements, to the
extent it is necessary to do so), the Dealer Assignments and the Insurance
Policies, to the extent that such Dealer Agreements, Dealer Assignments and
Insurance Policies relate to the Receivables, the Financed Vehicles or the
Obligors. To the extent consistent with the standards, policies and procedures
otherwise required hereby, the Servicer shall follow its customary standards,
policies, and procedures and shall have full power and authority, acting alone,
to do any and all things in connection with such managing, servicing,
administration and collection that it may deem necessary or desirable. Without
limiting the generality of the foregoing, the Servicer is hereby authorized and
empowered by the Trust to execute and deliver, on behalf of the Trust, any and
all instruments of satisfaction or cancellation, or of partial or full release
or discharge, and all other comparable instruments, with respect to the
Receivables and with respect to the Financed Vehicles; provided, however, that
notwithstanding the foregoing, the Servicer shall not, except pursuant to an
order from a court of competent jurisdiction, release an Obligor from payment of
any unpaid amount under any Receivable or waive the right to collect the unpaid
balance of any Receivable from the Obligor.
The Servicer is hereby authorized to commence, in it's own name or in the
name of the Trust, 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 Trust Collateral Agent and the Owner
Trustee shall furnish the Servicer with any limited 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
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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 Receivables Payments on the Receivable following a partial
prepayment of principal, 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.
(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) The average Monthly Extension Rate for any three consecutive
calendar months shall not exceed 4%; and
(iv) 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 Insurer or a Note Majority (if an Insurer Default shall have occurred
and be continuing).
With respect to clause (iii) of this Section 4.2(c), in the event the
average of the Monthly Extension Rates calculated with respect to three
consecutive calendar months exceeds 4% (which information shall be set forth in
the related Servicer's Certificate), the Servicer shall, on the third such
Accounting Date, purchase from the Trust the Receivables with respect to which
payment had been extended (starting with the Receivables most recently so
extended) in an aggregate Principal Balance equal to the product of (i) the
difference between such average of Monthly Extension Rates and 4% and (ii) the
Aggregate Principal Balance, and pay the related Purchase Amount on the related
Preliminary Determination Date; provided, however, that in the event the Backup
-------- -------
Servicer shall be acting as Servicer hereunder, the foregoing sentence shall
apply only in respect of Receivables as to which payments had been extended by
such Backup Servicer.
(d) The Servicer shall use its best efforts to notify or direct Obligors
to make all payments on the Receivables, whether by check or by direct debit of
the Obligor's bank account, to be made directly to one or more Lockbox Banks,
acting as agent for the Trust pursuant to a Lockbox Agreement. The Servicer
shall use its best efforts to notify or direct any Lockbox Bank
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to deposit all payments on the Receivables in the Lockbox Account no later than
the Business Day after receipt, and to cause all amounts credited to the Lockbox
Account on account of such payments to be transferred to the Collection Account
no later than the second Business Day after receipt of such payments. The
Lockbox Account shall be a demand deposit account held by the Lockbox Bank, or
at the request of the Controlling Party, an Eligible Account.
Prior to the Closing Date, the Servicer shall have notified each Obligor
that makes its payments on the Receivables by check to make such payments
thereafter directly to the Lockbox Bank (except in the case of Obligors that
have already been making such payments to the Lockbox Bank), and shall have
provided each such Obligor with remittance invoices in order to enable such
Obligors to make such payments directly to the Lockbox Bank for deposit into the
Lockbox Account, and the Servicer will continue, not less often than every three
months, to so notify those Obligors who have failed to make payments to the
Lockbox Bank. If and to the extent requested by the Controlling Party, the
Servicer shall request each Obligor that makes payment on the Receivables by
direct debit of such Obligor's bank account, to execute a new authorization for
automatic payment which in the judgment of the Controlling Party is sufficient
to authorize direct debit by the Lockbox Bank on behalf of the Trust. If at any
time, the Lockbox Bank is unable to directly debit an Obligor's bank account
that makes payment on the Receivables by direct debit and if such inability is
not cured within 15 days or cannot be cured by execution by the Obligor of a new
authorization for automatic payment, the Servicer shall notify such Obligor that
it cannot make payment by direct debit and must thereafter make payment by
check.
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, the Trust Collateral Agent and Noteholders 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 subject to the terms hereof. 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 Trust Collateral Agent, 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 Insurer (so long as an Insurer Default shall not
have occurred and be continuing) or a Note 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 Insurer (so long as an Insurer Default shall
not have occurred and be
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continuing) or a Note Majority (if an Insurer Default shall have occurred and be
continuing) to the Trust Collateral Agent or a successor Lockbox Bank, all
documents and records relating to the Receivables and all amounts held (or
thereafter received) by the Lockbox Bank (together with an accounting of such
amounts) and shall otherwise use its best efforts to effect the orderly and
efficient transfer of the lockbox arrangements and the Servicer shall notify the
Obligors to make payments to the Lockbox established by the successor.
(e) The Servicer shall remit all payments by or on behalf of the Obligors
received directly by the Servicer to the 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 Receivables Payment has become 91 days
delinquent; provided, however, that the Servicer may elect not to repossess a
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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 Collection Account without deposit into any intervening account as soon as
practicable, but in no event later than the Business Day after receipt thereof.
The Servicer shall be entitled to recover all reasonable expenses incurred by it
in the course of repossessing and liquidating a Financed Vehicle into cash
proceeds, but only out of the cash proceeds of such Financed Vehicle, any
deficiency obtained from the Obligor or any amounts received from the related
Dealer, 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 Net Liquidation Proceeds
with respect to such Receivable.
(b) If the Servicer elects to commence a legal proceeding to enforce a
Dealer Agreement or Dealer Assignment, the act of commencement shall be deemed
to be an automatic assignment from the Trust to the Servicer of the rights under
such Dealer Agreement and Dealer Assignment
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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 Owner
Trustee and/or the Trust Collateral Agent, at the Servicer's expense, or the
Seller, at the Seller's expense, shall take such steps as the Servicer deems
reasonably 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 Owner Trustee and/or the Trust Collateral Agent for the benefit of the
Noteholders. All amounts recovered shall be remitted directly by the Servicer as
provided in Section 4.2(e).
SECTION 4.4. Insurance.
----------
(a) The Servicer shall require, in accordance with its customary servicing
policies and procedures, that each Financed Vehicle be insured by the related
Obligor under the Insurance Policies referred to in Paragraph 24 of the Schedule
of Representations and Warranties and shall monitor the status of such physical
loss and damage insurance coverage thereafter, in accordance with its customary
servicing procedures. Each Receivable requires the Obligor to maintain such
physical loss and damage insurance, naming AmeriCredit and its successors and
assigns as additional insureds, and permits the holder of such Receivable to
obtain physical loss and damage insurance at the expense of the Obligor if the
Obligor fails to maintain such insurance. If the Servicer shall determine that
an Obligor has failed to obtain or maintain a physical loss and damage Insurance
Policy covering the related Financed Vehicle which satisfies the conditions set
forth in clause (i)(a) of such Paragraph 24 (including, without limitation,
during the repossession of such Financed Vehicle) the Servicer may enforce the
rights of the holder of the Receivable under the Receivable to require the
Obligor to obtain such physical loss and damage insurance in accordance with its
customary servicing policies and procedures. The Servicer may maintain a
vendor's single interest or other collateral protection insurance policy with
respect to all Financed Vehicles ("Collateral Insurance") which policy shall by
its terms insure against physical loss and damage in the event any Obligor fails
to maintain physical loss and damage insurance with respect to the related
Financed Vehicle. All policies of Collateral Insurance shall be endorsed with
clauses providing for loss payable to the Servicer. Costs incurred by the
Servicer in maintaining such Collateral Insurance shall be paid by the Servicer.
(b) The Servicer may, if an Obligor fails to obtain or maintain a physical
loss and damage Insurance Policy, obtain insurance with respect to the related
Financed Vehicle and advance on behalf of such Obligor, as required under the
terms of the insurance policy, the premiums for such insurance (such insurance
being referred to herein as "Force-Placed Insurance"). All policies of Force-
Placed Insurance shall be endorsed with clauses providing for loss payable to
the Servicer. Any cost incurred by the Servicer in maintaining such Force-Placed
Insurance shall only be recoverable out of premiums paid by the Obligors or Net
Liquidation Proceeds with respect to the Receivable, as provided in Section
4.4(c).
(c) In connection with any Force-Placed Insurance obtained hereunder, the
Servicer may, in the manner and to the extent permitted by applicable law,
require the Obligors to repay the entire premium to the Servicer. In no event
shall the Servicer include the amount of the premium in the Amount Financed
under the Receivable. For all purposes of this Agreement, the Insurance Add-On
Amount with respect to any Receivable having Force-Placed Insurance will
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be treated as a separate obligation of the Obligor and will not be added to the
Principal Balance of such Receivable, and amounts allocable thereto will not be
available for distribution on the Notes and the Certificates. The Servicer shall
retain and separately administer the right to receive payments from Obligors
with respect to Insurance Add-On Amounts or rebates of Forced-Placed Insurance
premiums. If an Obligor makes a payment with respect to a Receivable having
Force-Placed Insurance, but the Servicer is unable to determine whether the
payment is allocable to the Receivable or to the Insurance Add-On Amount, the
payment shall be applied first to any unpaid Scheduled Receivables Payments and
then to the Insurance Add-On Amount. Net Liquidation Proceeds on any Receivable
will be used first to pay the Principal Balance and accrued interest on such
Receivable and then to pay the related Insurance Add-On Amount. If an Obligor
under a Receivable with respect to which the Servicer has placed Force-Placed
Insurance fails to make scheduled payments of such Insurance Add-On Amount as
due, and the 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
Determination Date. Any such Receivable, and any Receivable with respect to
which the Servicer has placed Force-Placed Insurance which has been paid in full
(excluding any Insurance Add-On Amounts) will be assigned to the Servicer.
(d) The Servicer may 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 Owner Trustee and/or the Trust Collateral Agent, 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 Owner Trustee and/or the Trust
Collateral Agent for the benefit of the Noteholders.
(e) The Servicer will cause itself and may cause the Trust Collateral
Agent to be named as named insured under all policies of Collateral Insurance.
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 Trust Collateral Agent 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,
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to perfect a security interest in the related Financed Vehicle in favor of the
Trust, the Servicer hereby agrees that AmeriCredit's designation as the secured
party on the certificate of title is in its capacity as Servicer as agent of the
Trust.
(b) Upon the occurrence of an Insurance Agreement Event of Default, the
Insurer may (so long as an Insurer Default shall not have occurred and be
continuing) instruct the Trust Collateral Agent 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 Trust Collateral Agent 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 Trust 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 Trust Collateral Agent 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 Trust, 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
Trust Collateral Agent in connection with such action shall be reimbursed to the
Servicer or the Trust Collateral Agent, as applicable, by the Controlling Party.
AmeriCredit and CP Funding hereby appoint the Trust Collateral Agent as their
attorney-in-fact to take any and all steps required to be performed by
AmeriCredit or CP Funding pursuant to this Section 4.5(b) (it being understood
that and agreed that the Trust Collateral Agent shall have no obligation to take
such steps, except as pursuant to the Basic Documents to which it is a party),
including execution of certificates of title or any other documents in the name
and stead of AmeriCredit or CP Funding, and the Trust Collateral Agent hereby
accepts such appointment.
SECTION 4.6. Covenants, Representations, and Warranties of Servicer. By its
------------------------------------------------------
execution and delivery of this Agreement, the Servicer makes the following
representations, warranties and covenants on which the Trust Collateral Agent
relies in accepting the Receivables, on which the Trustee relies in
authenticating the Notes and on which the Insurer relies in issuing the Note
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 Noteholders in the Receivables, the Dealer
Agreements, the Dealer Assignments, the
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Insurance Policies or the Other Conveyed Property except as otherwise
expressly provided herein;
(iii) No Amendments. The Servicer shall not extend or otherwise amend
-------------
the terms of any Receivable, except in accordance with Section 4.2; and
(iv) Restrictions on Liens. The Servicer shall not (i) create,
---------------------
incur or suffer to exist, or agree to create, incur or suffer to exist, or
consent to cause or permit in the future (upon the happening of a
contingency or otherwise) the creation, incurrence or existence of any Lien
or restriction on transferability of the Receivables except for the Lien in
favor of the Trust Collateral Agent for the benefit of the Noteholders and
Insurer, the Lien imposed by the Spread Account Agreement Supplement in
favor of the Collateral Agent for the benefit of the Trust Collateral Agent
and 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 Trust Collateral Agent, for the
benefit of the Noteholders and the Insurer.
(b) The Servicer represents, warrants and covenants as of the Closing Date
as to itself that 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.
SECTION 4.7. Purchase of Receivables Upon Breach of Covenant. Upon
-----------------------------------------------
discovery by any of the Servicer, the Insurer, a Responsible Officer of the
Trust Collateral Agent, the Owner Trustee or a Responsible Officer of 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. 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 Noteholders or the 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 Determination 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 Insurer, the Noteholders, the Owner Trustee or the Trust
Collateral Agent; provided, however, that AmeriCredit shall indemnify the Trust,
-------- -------
the Backup Servicer, the Collateral Agent, the Insurer, the Owner Trustee, the
Trust Collateral Agent, the Trustee and the Noteholders from and against all
costs, expenses, losses, damages, claims and liabilities, including reasonable
fees and expenses of counsel, which may be asserted against or incurred by any
of them as a result of third party claims arising out of the events or facts
giving rise to such breach. This section shall survive the termination of this
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Agreement and the earlier removal or resignation of the Trustee and/or the Trust
Collateral Agent and/or the Backup Servicer.
SECTION 4.8. Total Servicing Fee; Payment of Certain Expenses by Servicer.
------------------------------------------------------------
On each Distribution Date, the Servicer shall be entitled to receive out of the
Collection Account the Basic Servicing Fee and any Supplemental Servicing Fee
for the related Collection Period pursuant to Section 5.7. The Servicer shall be
required to pay all expenses incurred by it in connection with its activities
under this Agreement (including taxes imposed on the Servicer, expenses incurred
in connection with distributions and reports made by the Servicer to Noteholders
or the Insurer and all other fees and expenses of the Owner Trustee, the
Collateral Agent, the Backup Servicer, the Trust Collateral Agent or the
Trustee, except taxes levied or assessed against the Trust, and claims against
the Trust in respect of indemnification, which taxes and claims in respect of
indemnification against the Trust are expressly stated to be for the account of
AmeriCredit). The Servicer shall be liable for the fees and expenses of the
Owner Trustee, the Backup Servicer, the Trust Collateral Agent, 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 including the backup servicer permitted by
Section 9.3 shall not be liable for taxes levied or assessed against the Trust
or claims against the Trust in respect of indemnification, or the fees and
expenses referred to above.
SECTION 4.9. Preliminary Servicer's Certificate and Servicer's Certificate.
-------------------------------------------------------------
(a) No later than 10:00 am. Eastern time on each Preliminary Determination
Date, the Servicer shall deliver (facsimile delivery being acceptable) to the
Trustee, the Owner Trustee, the Trust Collateral Agent, the Collateral Agent,
the Backup Servicer, the Insurer, the Collateral Agent and each Rating Agency a
Preliminary Servicer's Certificate executed by a Responsible Officer of the
Servicer containing among other things, all information necessary to enable the
Trust Collateral Agent to give any notice required by Section 5.5(b) and to make
the distributions required by Sections 5.7(a) and 5.7(b).
(b) No later than 10:00 am. Eastern time on each Determination Date, the
Servicer shall deliver (facsimile delivery being acceptable) to the Trustee, the
Owner Trustee, the Trust Collateral Agent, the Backup Servicer, the 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 Trust Collateral Agent to make any
withdrawal and deposit required by Section 5.5 and to make the distributions
required by Section 5.7(c), (ii) a listing of all Purchased Receivables and
Administrative Receivables purchased as of the related Accounting Date,
identifying the Receivables so purchased, (iii) all information necessary to
enable the Trust Collateral Agent to send the statements to Noteholders and the
Insurer required by Section 5.10, and (iv) all information necessary to enable
the Trust Collateral Agent to reconcile the aggregate cash flows, the Collection
Account for the related Collection Period, Distribution Date and Insured
Distribution Date, including the accounting required by Section 5.10.
Receivables purchased by the Servicer or by the Seller on the related Accounting
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). In addition to the
information set forth in the preceding sentence, the Servicer's
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Certificate shall also contain the following information: (a) the Delinquency
Ratio, Average Delinquency Ratio, Cumulative Default Ratio and Cumulative Net
Loss Ratio (as such terms are defined in the Spread Account Agreement) for such
Determination Date; (b) whether any Trigger Event 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.
(c) In the event that the Distribution Date is the date described in
clause (y) of the definition of "Distribution Date" (i.e., if AmeriCredit is no
longer the Servicer), then the information required by the Preliminary
Servicer's Certificate shall be added to the information required by the
Servicer's Certificate, and the expanded Servicer's Certificate shall be
delivered as required by paragraph (b) above.
SECTION 4.10. Annual Statement as to Compliance, Notice of Servicer
-----------------------------------------------------
Termination Event.
- -----------------
(a) The Servicer shall deliver to the Trustee, the Owner Trustee, the
Trust Collateral Agent, the Backup Servicer, the 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, 1999, 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 Owner Trustee, the
Trust Collateral Agent, the Backup Servicer, the Insurer, 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 9.1(a).
The Seller or the Servicer shall deliver to the Trustee, the Owner Trustee, the
Trust Collateral Agent, the Backup Servicer, the 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 9.1.
SECTION 4.11. Annual Independent Accountants' Report.
---------------------------------------
The Servicer shall cause a firm of nationally recognized independent
certified public accountants (the "Independent Accountants"), who may also
render other services to the Servicer or to the Seller, to deliver to the
Trustee, the Owner Trustee, the Trust Collateral Agent, the
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Backup Servicer, the 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, 1999, 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 Owner Trustee, the Trust
Collateral Agent, the Backup Servicer and to the Insurer, to the effect that
such firm has audited the books and records of AmeriCredit Corp., in which the
Servicer is included as a consolidated subsidiary, and issued its report thereon
in connection with the audit report on the consolidated financial statements of
AmeriCredit Corp. and that (1) such audit was made in accordance with generally
accepted auditing standards, and accordingly included such tests of the
accounting records and such other auditing procedures as such firm considered
necessary in the circumstances; (2) the firm is independent of the 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.
SECTION 4.12. Access to Certain Documentation and Information Regarding
---------------------------------------------------------
Receivables. The Servicer shall provide to representatives of the Trustee, the
- -----------
Owner Trustee, the Trust Collateral Agent, the Backup Servicer and the 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 affect the
obligation of the Servicer to observe any applicable law prohibiting disclosure
of information regarding the Obligors, and the failure of the Servicer to
provide access 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 Insured Distribution Date,
------------
but in no event later than the seventh calendar day, of each month, the Servicer
will deliver to the Trust Collateral Agent and the Backup Servicer a computer
tape and a diskette (or any other electronic transmission acceptable to the
Trust Collateral Agent and the Backup Servicer) in a format acceptable to the
Trust Collateral Agent 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 preceding
Determination Date and necessary to determine the application of collections as
provided in Section 5.4. The Backup Servicer shall use such tape or diskette (or
other electronic transmission acceptable to the Trust Collateral Agent 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 and shall
notify the Servicer and the Controlling Party of any discrepancies, in each
case, on or before the second Business Day following the Insured Distribution
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 next succeeding 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 next succeeding Distribution
Date. In the event that the Backup Servicer and the Servicer are unable to
reconcile discrepancies with respect to a Servicer's Certificate by the next
succeeding Distribution Date,
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the Servicer shall cause the Independent Accountants, at the Servicer's expense,
to audit the Servicer's Certificate and, prior to the last day of the month
after the month in which such Servicer's Certificate was delivered, reconcile
the discrepancies. The effect, if any, of such reconciliation shall be reflected
in the Preliminary Servicer's Certificate for the next succeeding Distribution
Date, and/or 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 June 30, 1999, which term shall be
subject to extension by the Controlling Party for successive quarterly terms
ending on each successive September 30, December 31, March 31 and June 30 (or,
pursuant to revocable written standing instructions from time to time to the
Servicer and the Trust Collateral Agent for any specified number of terms
greater than one), until the Notes and the Securities 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 Insurer to the Trust Collateral Agent 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 Trust Collateral Agent
agrees that if as of the fifteenth day prior to the last day of any term of the
Servicer the Trust Collateral Agent shall not have received any Servicer
Extension Notice from the Insurer, the Trust Collateral Agent will, within five
days thereafter, give written notice of such non-receipt to the 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
Trust Accounts; Distributions;
-----------------------------
Statements to Noteholders
-------------------------
SECTION 5.1. Establishment of Trust Accounts.
-------------------------------
(a) (i) The Trust Collateral Agent, on behalf of the Noteholders and the
Insurer, shall establish and maintain in its own name an Eligible Deposit
Account (the "Collection Account"), bearing a designation clearly
indicating that the funds deposited therein are held for the benefit of the
Trust Collateral Agent on behalf of the Noteholders and the Insurer. The
Collection Account shall initially be established with the Trust Collateral
Agent.
(ii) The Trust Collateral Agent, on behalf of the Noteholders, shall
establish and maintain in its own name an Eligible Deposit Account (the "Note
Distribution Account"), bearing a designation clearly indicating that the funds
deposited therein are held for the benefit of the Trust Collateral Agent on
behalf of the Noteholders and the Insurer. The Note Distribution Account shall
initially be established with the Trust Collateral Agent.
(iii) The Trust Collateral Agent, on behalf of the Noteholders and the
Insurer, shall establish and maintain in its own name an Eligible Deposit
Account (the "Pre-Funding Account"), bearing a designation clearly indicating
that the funds deposited therein are held for the benefit of the Trust
Collateral Agent on behalf of the Noteholders and the Insurer. The Pre-Funding
Account shall initially be established with the Trust Collateral Agent.
(b) Funds on deposit in the Collection Account, the Pre-Funding Account,
the Note Distribution Account and the Capitalized Interest Account
(collectively, the "Trust Accounts") and the Lockbox Accounts shall be invested
by the Trust Collateral Agent (or any custodian with respect to funds on deposit
in any such account) in Eligible Investments selected in writing by the Servicer
(pursuant to standing instructions or otherwise). All such Eligible Investments
shall be held by or on behalf of the Trust Collateral Agent for the benefit of
the Noteholders and the Insurer, as applicable. Other than as permitted by the
Rating Agencies and the Insurer, funds on deposit in any Account shall be
invested in Eligible Investments that will mature so that such funds will be
available at the close of business on the Business Day immediately preceding the
following Distribution Date or, if earlier, on the following Insured
Distribution Date. Funds deposited in a Trust Account on the day immediately
preceding a Distribution Date or an Insured Distribution Date upon the maturity
of any Eligible Investments are not required to be invested overnight. All
Eligible Investments will be held to maturity.
(c) All investment earnings of moneys deposited in the Trust Accounts
shall be deposited (or caused to be deposited) by the Trust Collateral Agent in
the Collection Account, and any loss resulting from such investments shall be
charged to such account. The Servicer will not direct the Trust Collateral Agent
to make any investment of any funds held in any of the Trust Accounts unless the
security interest granted and perfected in such account will continue to be
perfected in such investment, in either case without any further action by any
Person, and, in
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connection with any direction to the Trust Collateral Agent to make any such
investment, if requested by the Trust Collateral Agent, the Servicer shall
deliver to the Trust Collateral Agent an Opinion of Counsel, acceptable to the
Trust Collateral Agent, to such effect.
(d) The Trust Collateral Agent shall not in any way be held liable by
reason of any insufficiency in any of the Trust Accounts resulting from any loss
on any Eligible Investment included therein except for losses attributable to
the Trust Collateral Agent's negligence or bad faith or its failure to make
payments on such Eligible Investments issued by the Trust Collateral Agent, in
its commercial capacity as principal obligor and not as trustee, in accordance
with their terms.
(e) If (i) the Servicer shall have failed to give investment directions in
writing for any funds on deposit in the Trust Accounts to the Trust Collateral
Agent by 1:00 p.m. Eastern Time (or such other time as may be agreed by the
Issuer and Trust Collateral Agent) on any Business Day; or (ii) a Default or
Event of Default shall have occurred and be continuing with respect to the Notes
but the Notes shall not have been declared due and payable, or, if such Notes
shall have been declared due and payable following an Event of Default, amounts
collected or receivable from the Trust Property are being applied as if there
had not been such a declaration; then the Trust Collateral Agent shall, to the
fullest extent practicable, invest and reinvest funds in the Trust Accounts in
the investment described in clause (g) of the definition of Eligible
Investments.
(f) (i) The Trust Collateral Agent shall possess all right, title and
interest in all funds on deposit from time to time in the Trust Accounts and in
all proceeds thereof (excluding all Investment Earnings on the Collection
Account) and all such funds, investments, proceeds and income shall be part of
the Owner Trust Estate. Except as otherwise provided herein, the Trust Accounts
shall be under the sole dominion and control of the Trust Collateral Agent for
the benefit of the Noteholders, as the case may be, and the Insurer. If, at any
time, any of the Trust Accounts ceases to be an Eligible Deposit Account, the
Trust Collateral Agent (or the Servicer on its behalf) shall within five
Business Days (or such longer period as to which each Rating Agency and the
Insurer may consent) establish a new Trust Account as an Eligible Deposit
Account and shall transfer any cash and/or any investments to such new Trust
Account. In connection with the foregoing, the Servicer agrees that, in the
event that any of the Trust Accounts are not accounts with the Trust Collateral
Agent, the Servicer shall notify the Trust Collateral Agent in writing promptly
upon any of such Trust Accounts ceasing to be an Eligible Deposit Account.
(ii) With respect to the Trust Account Property, the Trust Collateral
Agent agrees that:
(A) any Trust Account Property that is held in deposit
accounts shall be held solely in the Eligible Deposit Accounts;
and, except as otherwise provided herein, each such Eligible
Deposit Account shall be subject to the exclusive custody and
control of the Trust Collateral Agent, and the Trust Collateral
Agent shall have sole signature authority with respect thereto;
(B) any Trust Account Property that constitutes Physical
Property shall be delivered to the Trust Collateral Agent in
accordance with paragraph (a) of the definition of "Delivery" and
shall be held, pending maturity or disposition, solely
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by the Trust Collateral Agent or a financial intermediary (as
such term is defined in Section 8-313(4) of the UCC) acting
solely for the Trust Collateral Agent;
(C) any Trust Account Property that is a book-entry
security held through the Federal Reserve System pursuant to
Federal book-entry regulations shall be delivered in accordance
with paragraph (b) of the definition of "Delivery" and shall be
maintained by the Trust Collateral Agent, pending maturity or
disposition, through continued book-entry registration of such
Trust Account Property as described in such paragraph; and
(D) any Trust Account Property that is an "uncertificated
security" under Article 8 of the UCC and that is not governed by
clause (C) above shall be delivered to the Trust Collateral Agent
in accordance with paragraph (c) of the definition of "Delivery"
and shall be maintained by the Trust Collateral Agent, pending
maturity or disposition, through continued registration of the
Trust Collateral Agent's (or its nominee's) ownership of such
security.
(g) The Servicer shall have the power, revocable by the Insurer or, with
the consent of the Insurer by the Trustee or by the Owner Trustee with the
consent of the Trustee, to instruct the Trust Collateral Agent to make
withdrawals and payments from the Trust Accounts for the purpose of permitting
the Servicer and the Trust Collateral Agent to carry out its respective duties
hereunder.
SECTION 5.2. Capitalized Interest Account.
----------------------------
(a) The Servicer shall cause the Trust Collateral Agent to establish and
maintain an Eligible Deposit Account (the "Capitalized Interest Account") with
the Trust Collateral Agent, bearing a designation clearly indicating that the
funds deposited therein are held in trust for the benefit of the Noteholders and
the Insurer.
On or prior to the Closing Date, the Seller shall deposit an amount equal
to the Capitalized Interest Account Initial Deposit into the Capitalized
Interest Account.
(b) (i) On the Distribution Dates occurring in June, July and August of
1999 the Trust Collateral Agent shall withdraw at the written direction of the
Servicer from the Capitalized Interest Account the Monthly Capitalized Interest
Amount for such Distribution Date and deposit such amount in the Collection
Account as further provided in Section 5.7.
(ii) On the Distribution Dates occurring in June, July and August of 1999
the Servicer shall instruct the Trust Collateral Agent in writing to withdraw
from the Capitalized Interest Account and pay to the Seller on such Distribution
Date an amount equal to the Overfunded Capitalized Interest Amount for such
Distribution Date. Any amounts remaining in the Capitalized Interest Account on
the Distribution Date which immediately follows the end of the Funding Period
after taking into account the transfer pursuant to Section 5.7(a)(i) shall be
remitted by the Trust Collateral Agent to the Seller. Upon any such
distributions to the Seller, the Noteholders, the Certificateholders and the
Insurer will have no further rights in, or claims to, such amounts.
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SECTION 5.3. Certain Reimbursements to the Servicer. 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 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 5.7(b)(i) upon certification by the
Servicer of such amounts and the provision of such information to the Trust
Collateral Agent and the Insurer as may be necessary in the opinion of the
Insurer to verify the accuracy of such certification. In the event that the
Insurer has not received evidence satisfactory to it of the Servicer's
entitlement to reimbursement pursuant to this Section, the Insurer shall (unless
an Insurer Default shall have occurred and be continuing) give the Trust
Collateral Agent notice in writing to such effect, following receipt of which
the Trust Collateral Agent shall not make a distribution to the Servicer in
respect of such amount pursuant to Section 5.7, or if the Servicer prior thereto
has been reimbursed pursuant to Section 5.7, the Trust Collateral Agent shall
withhold such amounts from amounts otherwise distributable to the Servicer on
the next succeeding Distribution Date.
SECTION 5.4. Application of Collections. All collections for the
--------------------------
Collection Period shall be applied by the Servicer as follows:
With respect to each Receivable (other than a Purchased Receivable),
payments by or on behalf of the Obligor, (other than 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.
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 5.7(b).
SECTION 5.5. Withdrawals from Spread Account.
-------------------------------
(a) In the event that the Servicer's Certificate with respect to any
Determination Date shall state that there is a Deficiency Claim Amount then on
the Deficiency Claim Date immediately preceding the related Insured Distribution
Date, the Trust Collateral Agent shall deliver to the Collateral Agent, the
Owner Trustee, the Insurer and the Servicer, by hand delivery or facsimile
transmission, a written notice (a "Deficiency Notice") specifying the Deficiency
Claim Amount for such Insured Distribution Date and the Note Policy Claim
Amount, if any. 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 Trust Collateral
Agent for deposit in the Collection Account on the related Insured Distribution
Date.
Any Deficiency shall be delivered by 12:00 noon, Eastern time, on the
fourth Business Day preceding such Insured Distribution Date.
(b) In the event that the Preliminary Servicer's Certificate with respect
to any Preliminary Determination Date shall state that there shall be an
Accelerated Payment Amount Shortfall with respect to the related Distribution
Date, then on the Business Day preceding such
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Distribution Date, then on the Business Day preceding such Distribution Date,
the Trust Collateral Agent shall deliver to the Collateral Agent, the Insurer
and the Servicer, by hand delivery or facsimile transmission, an Accelerated
Payment Shortfall Notice. Such Accelerated Payment Shortfall Notice shall direct
the Collateral Agent to remit such Accelerated Payment Amount Shortfall to the
Trust Collateral Agent (to the extent of funds available to be distributed in
the Spread Account Agreement) for deposit in the Collection Account on the
related Distribution Date. Any Accelerated Payment Shortfall Notice shall be
delivered by 2:00 p.m. Eastern time, on the Business Day preceding such
Distribution Date.
(c) The amounts distributed by the Collateral Agent to the Trust
Collateral Agent pursuant to a Deficiency Notice or Accelerated Payment
Shortfall Notice shall be deposited by the Trust Collateral Agent into the
Collection Account pursuant to Section 5.6.
SECTION 5.6. Additional Deposits.
-------------------
(a) The Servicer and the Seller, as applicable, shall deposit or cause to
be deposited in the Collection Account on the Preliminary Determination Date on
which such obligations are due the aggregate Purchase Amount with respect to
Purchased Receivables. On or before each Draw Date, the Trust Collateral Agent
shall remit to the Collection Account any amounts delivered to the Trust
Collateral Agent by the Collateral Agent.
(b) The proceeds of any purchase or sale of the assets of the Trust
described in Section 10.1 hereof shall be deposited in the Collection Account.
SECTION 5.7. Distributions.
-------------
(a) No later than 11:00 a.m. New York time on each Distribution Date, the
Trust Collateral Agent shall (based solely on the information contained in the
Preliminary Servicer's Certificate delivered on the related Preliminary
Determination Date) cause to be made the following transfers and distributions
in the amounts set forth in the Preliminary Servicer's Certificate for such
Distribution Date:
(i) During the Funding Period, from the Capitalized Interest
Account to the Collection Account, in immediately available funds, the
Monthly Capitalized Interest Amount for such Distribution Date; and
(ii) If such Distribution Date is the Mandatory Redemption Date,
from the Pre-Funding Account to the Collection Account, in immediately
available funds, the Pre-Funded Amount after giving effect to the purchase
of Subsequent Receivables, if any, on the Mandatory Redemption Date.
(b) On each Distribution Date, the Trust Collateral Agent shall (based
solely on the information contained in the Preliminary Servicer's Certificate
delivered with respect to the related Preliminary Determination Date) distribute
the following amounts from the Collection Account unless otherwise specified, to
the extent of the sources of funds stated to be available therefor, and in the
following order of priority:
(i) from the Available Funds, to the Servicer, the Base Servicing
Fee for the related Collection Period, any Supplemental Servicing Fees for
the related Collection Period, and
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any amounts specified in Section 5.3, to the extent the Servicer has not
reimbursed itself in respect of such amounts pursuant to Section 5.3 and to
the extent not retained by the Servicer;
(ii) from the Available Funds, to each of the Lockbox Banks, the
Trustee and the Owner Trustee, their respective accrued and unpaid
trustees' fees and expenses and any accrued and unpaid fees and expenses of
the Trust Collateral Agent (in each case, to the extent such fees have not
been previously paid by the Servicer and provided that such fees shall not
exceed $300,000 in the aggregate in any calendar year);
(iii) from the Available Funds to the Note Distribution Account, the
Noteholders' Interest Distributable Amount;
(iv) from the Available Funds to the Note Distribution Account, the
Noteholders' Principal Distributable Amount plus, on the Mandatory
Redemption Date, the Note Prepayment Amount;
(v) from the Available Funds, to the Insurer, to the extent of any
amounts owing to the Insurer under the Insurance Agreement and not paid;
(vi) from Available Funds (minus the amount of Investment Earnings
relating to the Collection Account (provided, that such amount so remaining
after deduction of such Investment Earnings shall not be less than zero)),
to the Spread Account, an amount, if necessary, required to increase the
amount therein to its then required level;
(vii) from Available Funds (minus the amount of Investment Earnings
relating to the Collection Account (provided, that such amount so remaining
after deduction of such Investment Earnings shall not be less than zero)) and
amounts, if any, received by the Trust Collateral Agent in respect of the
Accelerated Payment Amount Shortfall, to the Note Distribution Account, the
Noteholders' Accelerated Principal Amount; and
(viii) from Available Funds, any remaining Available Funds to the
Collateral Agent for deposit in the Spread Account;
provided, however, that, (A) following an acceleration of the Notes or, (B) if
- -------- -------
an Insurer Default shall have occurred and be continuing and an Event of Default
pursuant to Section 5.1(i), 5.1(ii), 5.1(iv), 5.1(v) or 5.1(vi) of the Indenture
shall have occurred and be continuing, or (C) the receipt of Insolvency Proceeds
pursuant to Section 10.1(b), amounts deposited in the Note Distribution Account
(including any such Insolvency Proceeds) shall be paid to the Noteholders,
pursuant to Section 5.6 of the Indenture.
(c) On each Insured Distribution Date, the Trust Collateral Agent shall
(based solely on the information contained in the Servicer's Certificate
delivered with respect to the related Determination Date, unless the Insurer
shall have notified the Trust Collateral Agent in writing of any errors or
deficiencies with respect thereto) distribute from the Collection Account the
Additional Funds Available, if any, plus the Note Policy Claim Amount, if any,
in each case then on deposit in the Collection Account, and deposit in the Note
Distribution Account any excess of the Scheduled Payments (as defined in the
Note Policy) due on such Insured Distribution Date
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over the amount of all Available Funds previously deposited in the Note
Distribution Account with respect to the related Distribution Date, which amount
shall be applied solely to the payment of amounts then due and unpaid on the
Notes in accordance with the priorities set forth in Section 5.8(a).
(d) In the event that the Collection Account is maintained with an
institution other than the Trust Collateral Agent, the Servicer shall instruct
and cause such institution to make all deposits and distributions pursuant to
Sections 5.7(b) and 5.7(c) on the related Distribution Date and the related
Insured Distribution Date, as applicable.
SECTION 5.8. Note Distribution Account.
-------------------------
(a) On each Distribution Date (based solely on the information contained in
the Preliminary Servicer's Certificate) and each Insured Distribution Date
(based solely on the information in the Servicer's Certificate), as applicable,
the Trust Collateral Agent shall distribute all amounts on deposit in the Note
Distribution Account to Noteholders in respect of the Notes to the extent of
amounts due and unpaid on the Notes for principal and interest in the following
amounts and in the following order of priority:
(i) accrued and unpaid interest on the Notes; provided that if
--------
there are not sufficient funds in the Note Distribution Account to pay the
entire amount of accrued and unpaid interest then due on each Class of
Notes, the amount in the Note Distribution Account shall be applied to the
payment of such interest on each Class of Notes pro rata on the basis of
the amount of accrued and unpaid interest due on each Class of Notes;
(ii) any amounts deposited in the Note Distribution Account with
respect to the Note Prepayment Amount, shall be distributed to the Holders
of the Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes and the
Class A-4 Notes, based upon the pro rata share as represented by the
relative Outstanding Amount of each Class of Notes; provided, that if the
aggregate remaining amount in the Pre-Funding Account is $100,000 or less,
such amount will be applied exclusively to reduce the outstanding principal
balance of the Class of Notes then entitled to receive distributions of
principal;
(iii) to the Holders of the Class A-1 Notes, the Noteholders'
Principal Distributable Amount and the Accelerated Principal Amount until
the outstanding principal balance of the Class A-1 Notes is reduced to
zero;
(iv) to the Holders of the Class A-2 Notes, the Noteholders'
Principal Distributable Amount and the Accelerated Principal Amount until
the outstanding principal balance of the Class A-2 Notes is reduced to
zero;
(v) to the Holders of the Class A-3 Notes, the Noteholders'
Principal Distributable Amount and the Accelerated Principal Amount until
the outstanding principal balance of the Class A-3 Notes is reduced to
zero; and
(vi) to the Holders of the Class A-4 Notes, the Noteholders'
Principal Distributable Amount and the Accelerated Principal Amount until
the outstanding principal balance of the Class A-4 Notes is reduced to
zero.
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(b) On each Insured Distribution Date, the Trust Collateral Agent shall
send to each Noteholder the statement provided to the Trust Collateral Agent by
the Servicer pursuant to Section 5.10 hereof on such Insured Distribution Date.
(c) In the event that any withholding tax is imposed on the Trust's payment
(or allocations of income) to a Noteholder, such tax shall reduce the amount
otherwise distributable to the Noteholder in accordance with this Section. The
Trust Collateral Agent is hereby authorized and directed to retain from amounts
otherwise distributable to the Noteholders sufficient funds for the payment of
any tax attributable to the Trust (but such authorization shall not prevent the
Trust Collateral Agent from contesting any such tax in appropriate proceedings,
and withholding payment of such tax, if permitted by law, pending the outcome of
such proceedings). The amount of any withholding tax imposed with respect to a
Noteholder shall be treated as cash distributed to such Noteholder at the time
it is withheld by the Trust and remitted to the appropriate taxing authority. If
there is a possibility that withholding tax is payable with respect to a
distribution (such as a distribution to a non-US Noteholder), the Trust
Collateral Agent may in its sole discretion withhold such amounts in accordance
with this clause (c). In the event that a Noteholder wishes to apply for a
refund of any such withholding tax, the Trust Collateral Agent shall reasonably
cooperate with such Noteholder in making such claim so long as such Noteholder
agrees to reimburse the Trust Collateral Agent for any out-of-pocket expenses
(including legal fees and expenses) incurred.
(d) Distributions required to be made to Noteholders on any Distribution
Date or any Insured Distribution Date shall be made to each Noteholder of record
on the preceding Record Date either by (i) wire transfer, in immediately
available funds, to the account of such Holder at a bank or other entity having
appropriate facilities therefor, if such Noteholder shall have provided to the
Note Registrar appropriate written instructions at least five Business Days
prior to such Distribution Date and such Holder's Notes in the aggregate
evidence a denomination of not less than $1,000,000 or (ii) by check mailed to
such Noteholder at the address of such holder appearing in the Note Register.
Notwithstanding the foregoing, the final distribution in respect of any Note
(whether on the Final Scheduled Distribution Date or otherwise) will be payable
only upon presentation and surrender of such Note at the office or agency
maintained for that purpose by the Note Registrar pursuant to Section 2.4 of the
Indenture.
(e) Subject to Section 5.1 and this section, monies received by the Trust
Collateral Agent hereunder need not be segregated in any manner except to the
extent required by law and may be deposited under such general conditions as may
be prescribed by law, and the Trust Collateral Agent shall not be liable for any
interest thereon.
SECTION 5.9. Pre-Funding Account.
-------------------
(a) On the Closing Date, the Trust Collateral Agent will deposit, on behalf
of and at the written direction of the Seller, in the Pre-Funding Account
$300,000,007.01.
(b) from the proceeds of the sale of the Notes. On each Subsequent Transfer
Date, the Servicer shall instruct the Trust Collateral Agent in writing to
withdraw from the Pre-Funding Account (i) an amount equal to 97% of the
Principal Balance of the Subsequent Receivables transferred to the Issuer on
such Subsequent Transfer Date and to distribute such amount to or
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upon the order of the Seller upon satisfaction of the conditions set forth in
this Agreement with respect to such transfer and (ii) an amount equal to the
Subsequent Spread Account Deposit on such Subsequent Transfer Date upon
satisfaction of the conditions set forth in this Agreement with respect to such
transfer.
(c) If the Pre-Funded Amount has not been reduced to zero on the date on
which the Funding Period ends after giving effect to any reductions in the Pre-
Funded Amount on such date, the Servicer shall instruct the Trust Collateral
Agent in writing to withdraw from the Pre-Funding Account on the Mandatory
Redemption Date the Pre-Funded Amount (exclusive of any Pre-Funding Earnings)
and deposit an amount equal to the Note Prepayment Amount in the Note
Distribution Account.
SECTION 5.10. Statements to Noteholders. On or prior to each Distribution
-------------------------
Date, the Trust Collateral Agent shall provide each Noteholder of record (with a
copy to the Insurer and the Rating Agencies) a statement setting forth at least
the following information as to the Notes to the extent applicable:
(i) the amount of such distribution allocable to principal of each
Class of Notes;
(ii) the amount of such distribution allocable to interest on or
with respect to each Class of Notes;
(iii) the amount of such distribution payable out of amounts
withdrawn from the Spread Account or pursuant to a claim on the Note
Policy;
(iv) the Pool Balance as of the close of business on the last day of
the preceding Collection Period;
(v) the aggregate outstanding principal amount of each Class of the
Notes and the Note Pool Factor for each such Class after giving effect to
payments allocated to principal reported under (i) above;
(vi) the amount of the Servicing Fee paid to the Servicer with
respect to the related Collection Period and/or due but unpaid with respect
to such Collection Period or prior Collection Periods, as the case may be;
(vii) the Noteholders' Interest Carryover Amount and the Noteholders'
Principal Carryover Amount;
(viii) the amount of the aggregate Realized Losses, if any, for the
second preceding Collection Period;
(ix) the aggregate Purchase Amounts for Receivables, if any, that
were repurchased in such period;
(x) for Distribution Dates during the Funding Period, if any, the
remaining Pre-Funded Amount; and
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(xi) for the final Subsequent Transfer Date, the amount of any
remaining Pre-Funded Amount that has not been used to fund the purchase of
Subsequent Receivables and is passed through as principal to Noteholders.
Each amount set forth pursuant to paragraph (i), (ii), (iii), (vi) and (vii)
above shall be expressed as a dollar amount per $1,000 of the initial principal
balance of the Notes (or Class thereof).
SECTION 5.11. Optional Deposits by the Insurer. The Insurer shall at any
--------------------------------
time, and from time to time, with respect to an Insured Distribution Date, have
the option (but shall not be required, except in accordance with the terms of
the Note Policy) to deliver amounts to the Trust Collateral Agent 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 Insured Distribution Date, or (ii) to include
such amount to the extent that without such amount a draw would be required to
be made on the Note Policy.
SECTION 5.12. [ Reserved ]
ARTICLE VI
The Note Policy
---------------
SECTION 6.1. Claims Under Note Policy.
------------------------
(a) In the event that the Trust Collateral Agent has delivered a Deficiency
Notice with respect to any Determination Date pursuant to Section 5.5 hereof,
the Trust Collateral Agent shall on the related Draw Date determine the Note
Policy Claim Amount for the related Insured Distribution Date. If the Note
Policy Claim Amount for such Insured Distribution Date is greater than zero, the
Trust Collateral Agent shall furnish to the Insurer no later than 12:00 noon
Eastern time on the related Draw Date a completed Notice of Claim (as defined in
(b) below) in the amount of the Note Policy Claim Amount. Amounts paid by the
Insurer pursuant to a claim submitted under this Section shall be deposited by
the Trust Collateral Agent into the Note Distribution Account for payment to
Noteholders on the related Insured Distribution Date.
(b) Any notice delivered by the Trust Collateral Agent to the Insurer
pursuant to subsection 6.1(a) shall specify the Note Policy Claim Amount claimed
under the Note Policy and shall constitute a "Notice of Claim" under the Note
Policy. In accordance with the provisions of the Note Policy, the Insurer is
required to pay to the Trust Collateral Agent the Note Policy Claim Amount
properly claimed thereunder by 10:00 a.m., Eastern 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 Insured Distribution Date. Any payment made by the
Insurer under the Note Policy shall be applied solely to the payment of the
Notes, and for no other purpose.
(c) The Trust Collateral Agent shall (i) receive as attorney-in-fact of
each Noteholder any Note Policy Claim Amount from the Insurer and (ii) deposit
the same in the Collection Account for distribution to Noteholders. Any and all
Note Policy Claim Amounts disbursed by the Trust Collateral Agent from claims
made under the Note Policy shall not be considered payment by the Trust or from
the Spread Account with respect to such Notes, and shall not
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discharge the obligations of the Trust with respect thereto. The Insurer shall,
to the extent it makes any payment with respect to the Notes, 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 Notes by or on
behalf of the Insurer, the Trust Collateral Agent shall assign to the Insurer
all rights to the payment of interest or principal with respect to the Notes
which are then due for payment to the extent of all payments made by the
Insurer, and the Insurer may exercise any option, vote, right, power or the like
with respect to the Notes to the extent that it has made payment pursuant to the
Note Policy. To evidence such subrogation, the Note Registrar shall note the
Insurer's rights as subrogee upon the register of Noteholders upon receipt from
the Insurer of proof of payment by the Insurer of any Noteholders' Interest
Distributable Amount or Noteholders' Principal Distributable Amount. The
foregoing subrogation shall in all cases be subject to the rights of the
Noteholders to receive all Scheduled Payments (as defined in the Note Policy) in
respect of the Notes.
(d) The Trust Collateral Agent shall keep a complete and accurate record of
all funds deposited by the Insurer into the Collection Account and the
allocation of such funds to payment of interest on and principal paid in respect
of any Note. The Insurer shall have the right to inspect such records at
reasonable times upon one Business Day's prior notice to the Trust Collateral
Agent.
(e) The Trust Collateral Agent shall be entitled to enforce on behalf of
the Noteholders the obligations of the Insurer under the Note Policy.
Notwithstanding any other provision of this Agreement or any Basic Document, the
Noteholders are not entitled to institute proceedings directly against the
Insurer.
SECTION 6.2. Preference Claims.
-----------------
(a) In the event that the Trust Collateral Agent has received a certified
copy of an order of the appropriate court that any Scheduled Payment (as defined
in the Note Policy) paid on a Note has been avoided in whole or in part as a
preference payment under applicable bankruptcy law, the Trust Collateral Agent
shall so notify the Insurer, shall comply with the provisions of the Note Policy
to obtain payment by the Insurer of such avoided payment, and shall, at the time
it provides notice to the Insurer, notify Holders of the Notes by mail that, in
the event that any Noteholder's payment is so recoverable, such Noteholder will
be entitled to payment pursuant to the terms of the Note Policy. The Trust
Collateral Agent shall furnish to the Insurer its records evidencing the
payments of principal of and interest on Notes, if any, which have been made by
the Trust Collateral Agent and subsequently recovered from Noteholders, and the
dates on which such payments were made. Pursuant to the terms of the Note
Policy, the Insurer will make such payment on behalf of the Noteholder to the
receiver, conservator, debtor-in-possession or trustee in bankruptcy named in
the Order (as defined in the Note Policy) and not to the Trust Collateral Agent
or any Noteholder directly (unless a Noteholder has previously paid such payment
to the receiver, conservator, debtor-in-possession or trustee in bankruptcy, in
which case the Insurer will make such payment to the Trust Collateral Agent for
distribution to such Noteholder upon proof of such payment reasonably
satisfactory to the Insurer).
(b) The Trust Collateral Agent shall promptly notify the Insurer of any
proceeding or the institution of any action (of which a Responsible Officer of
the Trust Collateral Agent has actual
51
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knowledge) seeking the avoidance as a preferential transfer under applicable
bankruptcy, insolvency, receivership, rehabilitation or similar law (a "Note
Preference Claim") of any distribution made with respect to the Notes. Each
Holder, by its purchase of Notes, and the Trust Collateral Agent hereby agree
that so long as an Insurer Default shall not have occurred and be continuing,
the 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, supersedes
as or performance bond pending any such appeal at the expense of the Insurer,
but subject to reimbursement as provided in the Insurance Agreement. In
addition, and without limitation of the foregoing, as set forth in Section
6.1(c), the Insurer shall be subrogated to, and each Noteholder and the Trust
Collateral Agent hereby delegate and assign, to the fullest extent permitted by
law, the rights of the trustee and each Noteholder 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.
SECTION 6.3. Surrender of Policy. The Trust Collateral Agent shall
-------------------
surrender the Note Policy to the Insurer for cancellation upon the expiration of
such policy in accordance with the terms thereof.
ARTICLE VII
The Seller
----------
SECTION 7.1. Representations of Seller. The Seller makes the following
-------------------------
representations on which the Insurer shall be deemed to have relied in executing
and delivering the Note Policy and on which the Issuer is deemed to have relied
in acquiring the Receivables and on which the Trustee, Collateral Agent, Trust
Collateral Agent and Backup Servicer may rely. The representations speak as of
the execution and delivery of this Agreement and as of the Closing Date, in the
case of Initial Receivables, and as of the applicable Subsequent Transfer Date,
in the case of Subsequent Receivables, and shall survive the sale of the
Receivables to the Issuer and the pledge thereof to the Trustee pursuant to the
Indenture.
(a) Schedule of Representations. The representations and warranties set
---------------------------
forth on the Schedule of Representations attached hereto as Schedule B are true
and correct.
(b) Organization and Good Standing. The 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
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transfer the Receivables and the Other Conveyed Property to the Trust pursuant
to this Agreement, or the validity or enforceability of the Receivables and the
Other Conveyed Property or to perform Seller's obligations hereunder and under
the Seller's Basic Documents.
(d) Power and Authority. The Seller has the power and authority to execute
-------------------
and deliver this Agreement and its Basic Documents and to carry out its terms
and their terms, respectively; the 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 Basic
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 Basic 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 Basic Documents and the fulfillment of the terms of this
Agreement and the Basic Documents shall not conflict with, result in any breach
of any of the terms and provisions of or constitute (with or without notice,
lapse of time or both) a default under the certificate of incorporation or by-
laws of the 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 Basic Documents, (B)
seeking to prevent the issuance of the Securities or the consummation of any of
the transactions contemplated by this Agreement or any of the Basic Documents,
(C) seeking any determination or ruling that might materially and adversely
affect the performance by the Seller of its obligations under, or the validity
or enforceability of, this Agreement or any of the Basic Documents, or (D)
seeking to adversely affect the federal income tax or other federal, state or
local tax attributes of the Securities.
(h) Chief Executive Office. The chief executive office of the Seller is at
----------------------
1325 Airmotive Way, Reno, Nevada 89502.
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SECTION 7.2. Corporate Existence.
-------------------
(a) During the term of this Agreement, the Seller will keep in full force
and effect its existence, rights and franchises as a corporation under the laws
of the jurisdiction of its incorporation and will obtain and preserve its
qualification to do business in each jurisdiction in which such qualification is
or shall be necessary to protect the validity and enforceability of this
Agreement, any Subsequent Transfer Agreement, the Basic Documents and each other
instrument or agreement necessary or appropriate to the proper administration of
this Agreement and the transactions contemplated hereby.
(b) During the term of this Agreement, the Seller shall observe the
applicable legal requirements for the recognition of the Seller as a legal
entity separate and apart from its Affiliates, including as follows:
(i) the Seller shall maintain corporate records and books of
account separate from those of its Affiliates;
(ii) except as otherwise provided in this Agreement, the Seller
shall not commingle its assets and funds with those of its Affiliates;
(iii) the Seller shall hold such appropriate meetings of its Board of
Directors as are necessary to authorize all the Seller's corporate actions
required by law to be authorized by the Board of Directors, shall keep
minutes of such meetings and of meetings of its stockholder(s) and observe
all other customary corporate formalities (and any successor Seller not a
corporation shall observe similar procedures in accordance with its
governing documents and applicable law);
(iv) the Seller shall at all times hold itself out to the public
under the Seller's own name as a legal entity separate and distinct from
its Affiliates; and
(v) all transactions and dealings between the Seller and its
Affiliates will be conducted on an arm's-length basis.
SECTION 7.3. Liability of Seller; Indemnities. The Seller shall be liable
--------------------------------
in accordance herewith only to the extent of the obligations specifically
undertaken by the Seller under this Agreement.
(a) The Seller shall indemnify, defend and hold harmless the Issuer, the
Owner Trustee, the Trust, the Insurer, the Trustee, Backup Servicer, Collateral
Agent and the Trust Collateral Agent and its officers, directors, employees and
agents from and against any taxes that may at any time be asserted against any
such Person with respect to the transactions contemplated in this Agreement and
any of the Basic Documents (except any income taxes arising out of fees paid to
the Owner Trustee, the Trust Collateral Agent, the Trustee and the Insurer and
except any taxes to which the Owner Trustee, the Trust Collateral Agent or the
Trustee may otherwise be subject to), including any sales, gross receipts,
general corporation, tangible personal property, privilege or license taxes
(but, in the case of the Issuer, not including any taxes asserted with respect
to, federal or other income taxes arising out of distributions on the Notes) and
costs and expenses in defending against the same.
54
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(b) The Seller shall indemnify, defend and hold harmless the Issuer, the
Owner Trustee, the Trustee, Backup Servicer, Collateral Agent and the Trust
Collateral Agent and the officers, directors, employees and agents thereof, the
Insurer and the Noteholders from and against any loss, liability or expense
incurred by reason of (i) the Seller's willful misfeasance, bad faith or
negligence in the performance of its duties under this Agreement, or by reason
of reckless disregard of its obligations and duties under this Agreement and
(ii) the Seller's or the Issuer's violation of federal or state securities laws
in connection with the offering and sale of the Notes.
(c) The Seller shall indemnify, defend and hold harmless the Owner Trustee,
Trustee, Trust Collateral Agent, Collateral Agent and Backup Servicer and the
officers, directors, employees and agents thereof from and against any and all
costs, expenses, losses, claims, damages and liabilities arising out of, or
incurred in connection with the acceptance or performance of the trusts and
duties set forth herein and in the Basic Documents except to the extent that
such cost, expense, loss, claim, damage or liability shall be due to the willful
misfeasance, bad faith or negligence (except for errors in judgment) of the
Owner Trustee, Trustee, Trust Collateral Agent, Collateral Agent and Backup
Servicer respectively.
Indemnification under this Section shall survive the resignation or removal
of the Owner Trustee, the Trustee or the Trust Collateral Agent and the
termination of this Agreement or the Indenture or the Trust Agreement, as
applicable, and shall include reasonable fees and expenses of counsel and other
expenses of litigation. If the Seller shall have made any indemnity payments
pursuant to this Section and the Person to or on behalf of whom such payments
are made thereafter shall collect any of such amounts from others, such Person
shall promptly repay such amounts to the Seller, without interest.
SECTION 7.4. Merger or Consolidation of, or Assumption of the Obligations
------------------------------------------------------------
of, Seller. Any Person (a) into which the Seller may be merged or consolidated,
- ----------
(b) which may result from any merger or consolidation to which the Seller shall
be a party or (c) which may succeed to the properties and assets of the Seller
substantially as a whole, which Person in any of the foregoing cases executes an
agreement of assumption to perform every obligation of the Seller under this
Agreement, shall be the successor to the Seller hereunder without the execution
or filing of any document or any further act by any of the parties to this
Agreement; provided, however, that (i) the Seller shall have received the
written consent of the Insurer prior to entering into any such transaction, (ii)
immediately after giving effect to such transaction, no representation or
warranty made pursuant to Section 3.1 shall have been breached and no Servicer
Termination Event, and no event which, after notice or lapse of time, or both,
would become a Servicer Termination Event shall have happened and be continuing,
(iii) the Seller shall have delivered to the Owner Trustee, the Trust Collateral
Agent, the Trustee and the Insurer an Officers' Certificate and an Opinion of
Counsel each stating that such consolidation, merger or succession and such
agreement of assumption comply with this Section and that all conditions
precedent, if any, provided for in this Agreement relating to such transaction
have been complied with, (iv) the Rating Agency Condition shall have been
satisfied with respect to such transaction and (v) the Seller shall have
delivered to the Owner Trustee, the Trust Collateral Agent, the Backup Servicer,
the Collateral Agent, the Trustee and the Insurer an Opinion of Counsel stating
that, in the opinion of such counsel, either (A) all financing statements and
continuation statements and amendments thereto have been executed and filed that
are necessary fully to preserve and protect the interest of the Trust Collateral
Agent, the Owner Trustee and the Trustee, respectively, in the
55
<PAGE>
Receivables and reciting the details of such filings or (B) no such action shall
be necessary to preserve and protect such interest. Notwithstanding anything
herein to the contrary, the execution of the foregoing agreement of assumption
and compliance with clauses (i), (ii), (iii), (iv) and (v) above shall be
conditions to the consummation of the transactions referred to in clauses (a),
(b) or (c) above.
SECTION 7.5. 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 any Basic Document. The Seller shall not be under any obligation to appear
in, prosecute or defend any legal action that shall not be incidental to its
obligations under this Agreement, and that in its opinion may involve it in any
expense or liability.
SECTION 7.6. Seller May Own Certificates or Notes. The Seller and any
------------------------------------
Affiliate thereof may in its individual or any other capacity become the owner
or pledgee of Certificates or Notes with the same rights as it would have if it
were not the Seller or an Affiliate thereof, except as expressly provided herein
or in any Basic Document. Notes or Certificates so owned by the Seller or such
Affiliate shall have an equal and proportionate benefit under the provisions of
the Basic Documents, without preference, priority, or distinction as among all
of the Notes or Certificates; provided, however, that any Notes or Certificates
-------- -------
owned by the Seller or any Affiliate thereof, during the time such Notes or
Certificates are owned by them, shall be without voting rights for any purpose
set forth in the Basic Documents and will not be entitled to the benefits of the
Note Policy. The Seller shall notify the Owner Trustee, the Trustee, the Trust
Collateral Agent and the Insurer promptly after it or any of its Affiliates
become the owner of a Certificate or a Note.
ARTICLE VIII
The Servicer
------------
SECTION 8.1. Representations of Servicer. The Servicer makes the
---------------------------
following representations on which the Insurer shall be deemed to have relied in
executing and delivering the Note Policy and on which the Issuer is deemed to
have relied in acquiring the Receivables. The representations speak as of the
execution and delivery of this Agreement and as of the Closing Date, in the case
of the Initial Receivables, and as of the applicable Subsequent Transfer Date,
in the case of the Subsequent Receivables, and shall survive the sale of the
Receivables to the Issuer and the pledge thereof to the Trustee pursuant to the
Indenture.
(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 or CP Funding respectively;
(ii) Organization and Good Standing. The Servicer has been duly
------------------------------
organized and is validly existing and in good standing under the laws of
its jurisdiction of organization,
56
<PAGE>
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 Basic Documents and to carry
out its terms and their terms, respectively, and the execution, delivery
and performance of this Agreement and the Servicer's Basic Documents have
been duly authorized by the Servicer by all necessary corporate action;
(v) Binding Obligation. This Agreement and the Servicer's Basic
------------------
Documents shall constitute legal, valid and binding obligations of the
Servicer enforceable in accordance with their respective terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization, or
other similar laws affecting the enforcement of creditors' rights generally
and by equitable limitations on the availability of specific remedies,
regardless of whether such enforceability is considered in a proceeding in
equity or at law;
(vi) No Violation. The consummation of the transactions contemplated
------------
by this Agreement and the Servicer's Basic Documents, and the fulfillment
of the terms of this Agreement and the Servicer's Basic Documents, shall
not conflict with, result in any breach of any of the terms and provisions
of, or constitute (with or without notice or lapse of time) a default
under, the articles of incorporation or bylaws of the Servicer, or any
indenture, agreement, mortgage, deed of trust or other instrument to which
the Servicer is a party or by which it is bound, or result in the creation
or imposition of any Lien upon any of its properties pursuant to the terms
of any such indenture, agreement, mortgage, deed of trust or other
instrument, other than this Agreement, or violate any law, order, rule or
regulation applicable to the Servicer of any court or of any federal or
state regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Servicer or any of its
properties;
(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
Basic Documents, (B) seeking to prevent the issuance of the Securities or
the consummation of any of the transactions contemplated by this Agreement
or any of the Basic Documents, or (C) seeking any determination or ruling
that might materially and adversely affect the performance by the Servicer
of its obligations under, or the validity or enforceability of, this
Agreement or any of the Basic
57
<PAGE>
Documents or (D) seeking to adversely affect the federal income tax or
other federal, state or local tax attributes of the Securities;
(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 8.2. 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 Trust Collateral Agent, the Owner Trustee, the Backup Servicer, the
Insurer, their respective officers, directors, agents and employees, and the
Noteholders 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 (when the Servicer is AmeriCredit) shall indemnify, defend
and hold harmless the Trust, the Trustee, the Trust Collateral Agent, the Owner
Trustee, the Backup Servicer, the Insurer, their respective officers, directors,
agents and employees and the Noteholders 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 Securities) and costs and expenses in defending against the
same;
The Servicer (when the Servicer is not AmeriCredit) shall indemnify, defend
and hold harmless the Trust, the Trustee, the Trust Collateral Agent, the Owner
Trustee, the Backup Servicer, the Insurer, their respective officers, directors,
agents and employees and the Noteholders from and against any taxes with respect
to the sale of Receivables in connection with servicing hereunder that may at
any time be asserted against any of such parties with respect to the
transactions contemplated in this Agreement, including, without limitation, any
sales, gross receipts, tangible or intangible personal property, privilege or
license taxes (but not including any federal or other income taxes, including
franchise taxes asserted with respect to, and as of the date of, the sale of the
Receivables and the Other Conveyed Property to the Trust or the issuance and
original sale of the Securities) and costs and expenses in defending against the
same; and
(d) The Servicer shall indemnify, defend and hold harmless the Trust, the
Trustee, the Trust Collateral Agent, the Owner Trustee, the Backup Servicer, the
Insurer, their respective
58
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officers, directors, agents and employees and the Noteholders 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 Trust Collateral Agent, the
Backup Servicer, the Insurer or the Noteholders 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) AmeriCredit shall indemnify, defend and hold harmless the Trust, the
Trustee, the Trust Collateral Agent, the Owner Trustee, the Backup Servicer, the
Insurer, their respective officers, directors, agents and employees and the
Noteholders from and against any loss, liability or 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 Securities. This section
shall survive the termination of this Agreement, or the earlier removal or
resignation of the Trustee, Trust Collateral Agent, Backup Servicer or the
Collateral Agent.
(f) AmeriCredit shall indemnify the Trustee, the Trust Collateral Agent,
the Collateral Agent and the Backup Servicer, and the respective officers,
directors, agents and employees thereof against any and all loss, liability or
expense, (other than overhead and expenses incurred in the normal course of
business) incurred by each of them in connection with the acceptance or
administration of the Trust and the performance of their duties under the Basic
Documents other than if such loss, liability or expense was incurred by the
Trustee, Trust Collateral Agent or Collateral Agent as a result of any such
entity's willful misconduct, bad faith or negligence.
(g) 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 8.3. 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
59
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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 to
the Owner Trustee, the Trust Collateral Agent, the Noteholders, the 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 Owner Trustee, the Trust Collateral
Agent, Trustee, Backup Servicer and Collateral Agent, the Rating Agencies and
the 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 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 Owner Trustee, the Trust Collateral
Agent, the Rating Agencies and the 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.
(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 8.4. 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 Noteholders, except as provided in this
Agreement, for any action taken or for refraining from the taking of any action
pursuant to this Agreement; provided, however, that this provision shall not
-------- -------
protect 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 Trust Collateral Agent and the
Owner Trustee for costs, taxes, expenses, claims, liabilities, losses or damages
paid by the Trust Collateral Agent and the Owner Trustee, in their individual
capacities. 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
60
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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 or for any errors of the Servicer contained
in any computer tape, certificate or other data or document delivered to the
Backup Servicer hereunder or on which the Backup Servicer must rely in order to
perform its obligations hereunder, and the Owner Trustee, the Trustee, the Trust
Collateral Agent, the Collateral Agent, the Backup Servicer, the Seller and the
Insurer and the Noteholders shall look only to the Servicer to perform such
obligations. The Backup Servicer, Trust Collateral Agent, the Trustee, the
Collateral Agent, the Owner Trustee and the Custodian shall have no
responsibility and shall not be in default hereunder or incur any liability for
any failure, error, malfunction or any delay in carrying out any of their
respective duties under this Agreement if such failure or delay results from the
Backup Servicer acting in accordance with information prepared or supplied by a
Person other than the Backup Servicer (or contractual agents) or the failure of
any such other Person to prepare or provide such information. The Backup
Servicer shall have no responsibility, shall not be in default and shall incur
no liability for (i) any act or failure to act of any third party (other than
its contractual agents), including the Servicer or the Controlling Party, (ii)
any inaccuracy or omission in a notice or communication received by the Backup
Servicer from any third party (other than its contractual agents), (iii) the
invalidity or unenforceability of any Receivable under applicable law, (iv) the
breach or inaccuracy of any representation or warranty made with respect to any
Receivable, or (v) the acts or omissions of any successor Backup Servicer.
(c) The parties expressly acknowledge and consent to Bank One, N.A. acting
in the possible dual capacity of Backup Servicer or successor Servicer and in
the capacity as Trust Collateral Agent. Bank One, N.A. may, in such dual or
other capacity, discharge its separate functions fully, without hindrance 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 Bank One, N.A. of express duties set forth in the this
Agreement in any of such capacities, all of which defenses, claims or assertions
are hereby expressly waived by the other parties hereto and the Noteholders
except in the case of gross negligence and willful misconduct by Bank One, N.A.
SECTION 8.5. Delegation of Duties. The Servicer may delegate duties under
--------------------
this Agreement to an Affiliate of AmeriCredit with the prior written consent of
the Insurer (unless an Insurer Default shall have occurred and be continuing),
the Trust Collateral Agent, the Owner 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 Liquidated Receivables, in each case, without the consent of the 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 Insurer; provided, however, that no such delegation or sub-
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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 Insurer, the Trustee and the Backup Servicer.
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SECTION 8.6. Servicer and Backup Servicer Not to Resign. Subject to the
------------------------------------------
provisions of Section 8.3, 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 Insurer (so long as an Insurer Default shall not have
occurred and be continuing) or a Note 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 Trust Collateral Agent, the Owner Trustee and the 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 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 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
(i) in the event a successor Backup Servicer is not appointed within 60 days
after the Backup Servicer has given notice of its resignation and has provided
the Opinion of Counsel required by this Section, the Backup Servicer may
petition a court for its removal, (ii) the Backup Servicer may resign with the
written consent of the Insurer and (iii) if Bank One, N.A. resigns as the
Trustee under the Indenture it will no longer be the Backup Servicer.
ARTICLE IX
Default
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SECTION 9.1. 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 Trust Collateral Agent
for distribution to Noteholders any proceeds or payment required to be so
delivered under the terms of this Agreement that continues unremedied for a
period of two Business Days (one Business Day with respect to payment of
Purchase Amounts) after written notice is received by the Servicer from the
Trust Collateral Agent or (unless an Insurer Default shall have occurred and be
continuing) the Insurer or after discovery of such failure by a Responsible
Officer of the Servicer;
(b) Failure by the Servicer to deliver to the Trust Collateral Agent and
(so long as an Insurer Default shall not have occurred and be continuing) the
Insurer the Servicer's Certificate
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by the fourth Business Day prior to the Insured Distribution Date, or failure on
the part of the Servicer to observe its covenants and agreements set forth in
Section 8.3(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 Noteholders
(determined without regard to the availability of funds under the Note Policy),
or of the 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 Trust Collateral Agent or the Insurer (or, if an Insurer Default
shall have occurred and be continuing by any Noteholder);
(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
(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, and the incorrectness of such representation, warranty or
statement has a material adverse effect on the Trust or the Noteholders and,
within 30 days after knowledge thereof by the Servicer or after written notice
thereof shall have been given to the Servicer by the Trust Collateral Agent or
the Insurer (or, if an Insurer Default shall have occurred and be continuing, a
Noteholder), 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 Insurer shall not have delivered a Servicer Extension Notice
pursuant to Section 4.14; or
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(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 Note Policy.
SECTION 9.2. Consequences of a Servicer Termination Event. If a Servicer
--------------------------------------------
Termination Event shall occur and be continuing, the Insurer (or, if an Insurer
Default shall have occurred and be continuing either the Trust Collateral Agent,
(to the extent it has knowledge thereof) a Note Majority), by notice given in
writing to the Servicer (and to the Trust Collateral Agent if given by the
Insurer or the Noteholders) or by non-extension of the term of the Servicer as
referred to in Section 4.14 may terminate all of the rights and obligations of
the Servicer under this Agreement. On or after the receipt by the Servicer of
such written notice or upon termination of the term of the Servicer, all
authority, power, obligations and responsibilities of the Servicer under this
Agreement, whether with respect to the Notes, the Certificates or the 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
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the successor Servicer shall have no liability with respect to any obligation
which was required to be performed by the terminated Servicer prior to the date
that the successor Servicer becomes the Servicer or any claim of a third party
based on any alleged action or inaction of the terminated Servicer. 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 Trust Collateral
Agent, the successor Servicer and the Controlling Party reasonable access to the
terminated Servicer's premises at the terminated Servicer's expense.
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SECTION 9.3. Appointment of Successor.
-------------------------
(a) On and after the time the Servicer receives a notice of termination
pursuant to Section 9.2, upon non-extension of the servicing term as referred to
in Section 4.14, or upon the resignation of the Servicer pursuant to Section
8.6, the Backup Servicer (unless the Insurer shall have exercised its option
pursuant to Section 9.3(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 Trust Collateral Agent 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 9.2 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 as Backup Servicer at the time, and (without limiting its obligations
under the Note Policy) shall have no liability to the Trust Collateral Agent,
AmeriCredit, CP Funding, the Seller, the Person then serving as Backup Servicer,
any Noteholders 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 Trust Collateral Agent or a Note 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 8.6, 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 9.2, the resignation of the Servicer pursuant to
Section 8.6 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 9.2 or the resignation of the Servicer pursuant to Section 8.6, 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 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 provided, however, it being understood and agreed that the
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Insurer shall give prior notice to the Backup Servicer with respect to the
appointment of such successor and the payment of additional compensation, if
any. If any successor Servicer is appointed for any reason other than the Backup
Servicer's refusal to act as
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Servicer although legally able to do so, the 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 9.4. Notification to Noteholders. Upon any termination of, or
---------------------------
appointment of a successor to, the Servicer, the Trust Collateral Agent shall
give prompt written notice thereof to each Noteholder and to the Rating
Agencies.
SECTION 9.5. Waiver of Past Defaults. So long as no Insurer Default shall
-----------------------
have occurred and be continuing, the Insurer (or, if an Insurer Default shall
have occurred and be continuing, the Note Majority) may, on behalf of all
Noteholders, 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 default shall cease to exist, and any Servicer Termination Event
arising therefrom shall be deemed to have been remedied for every purpose of
this Agreement. No such waiver shall extend to any subsequent or other default
or impair any right consequent thereto.
ARTICLE X
Termination
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SECTION 10.1. Optional Purchase of All Receivables.
-------------------------------------
(a) On the last day of any Collection Period as of which the Pool Balance
shall be less than or equal to 10% of the Original Pool Balance, the Servicer
and the Seller each shall have the option to purchase the Owner Trust Estate,
other than the Trust Accounts (with the consent of the Insurer if such purchase
would result in a claim on the Note Policy or would result in any amount owing
to the Insurer under the Insurance Agreement remaining unpaid); provided,
--------
however, that the amount to be paid for such purchase (as set forth in the
- -------
following sentence) shall be sufficient to pay the full amount of principal,
premium, if any, and interest then due and payable on the Notes and the
Certificates. To exercise such option, the Servicer or the Seller, as the case
may be, shall deposit pursuant to Section 5.6 in the Collection Account an
amount equal to the aggregate Purchase Amount for the Receivables (including
Liquidated Receivables), plus the appraised value of any other property held by
the Trust, such value to be determined by an appraiser mutually agreed upon by
the Servicer, the Insurer and the Trust Collateral Agent, and shall succeed to
all interests in and to the Trust.
(b) Upon any sale of the assets of the Trust pursuant to Section 8.1 of the
Trust Agreement, the Servicer shall instruct the Trust Collateral Agent to
deposit the proceeds from such sale after all payments and reserves therefrom
(including the expenses of such sale) have been made (the "Insolvency Proceeds")
in the Collection Account.
(c) Notice of any termination of the Trust shall be given by the Servicer
to the Owner Trustee, the Trustee, the Collateral Agent, the Backup Servicer,
the Trust Collateral Agent, the Insurer and the Rating Agencies as soon as
practicable after the Servicer has received notice thereof.
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(d) Following the satisfaction and discharge of the Indenture and the
payment in full of the principal of and interest on the Notes, the
Certificateholders will succeed to the rights of the Noteholders hereunder and
the Owner Trustee will succeed to the rights of, and assume the obligations of,
the Trust Collateral Agent pursuant to this Agreement.
ARTICLE XI
Administrative Duties of the Servicer
-------------------------------------
SECTION 11.1. Administrative Duties.
---------------------
(a) Duties with Respect to the Indenture. The Servicer shall perform all
------------------------------------
its duties and the duties of the Issuer under the Indenture. In addition, the
Servicer shall consult with the Owner Trustee as the Servicer deems appropriate
regarding the duties of the Issuer under the Indenture. The Servicer shall
monitor the performance of the Issuer and shall advise the Owner Trustee when
action is necessary to comply with the Issuer's duties under the Indenture. The
Servicer shall prepare for execution by the Issuer or shall cause the
preparation by other appropriate Persons of all such documents, reports,
filings, instruments, certificates and opinions as it shall be the duty of the
Issuer to prepare, file or deliver pursuant to the Indenture. In furtherance of
the foregoing, the Servicer shall take all necessary action that is the duty of
the Issuer to take pursuant to the Indenture, including, without limitation,
pursuant to Sections 2.7, 3.5, 3.6, 3.7, 3.9, 3.10, 3.17, 5.1, 5.4, 7.3, 8.3,
9.2, 9.3, 11.1 and 11.15 of the Indenture.
(b) Duties with Respect to the Issuer.
---------------------------------
(i) In addition to the duties of the Servicer set forth in this
Agreement or any of the Basic Documents, the Servicer shall perform such
calculations and shall prepare for execution by the Issuer or the Owner
Trustee or shall cause the preparation by other appropriate Persons of all
such documents, reports, filings, instruments, certificates and opinions as
it shall be the duty of the Issuer or the Owner Trustee to prepare, file or
deliver pursuant to this Agreement or any of the Basic Documents or under
state and federal tax and securities laws, and at the request of the Owner
Trustee shall take all appropriate action that it is the duty of the Issuer
to take pursuant to this Agreement or any of the Basic Documents,
including, without limitation, pursuant to Sections 2.6 and 2.11 of the
Trust Agreement. In accordance with the directions of the Issuer or the
Owner Trustee, the Servicer shall administer, perform or supervise the
performance of such other activities in connection with the Collateral
(including the Basic Documents) as are not covered by any of the foregoing
provisions and as are expressly requested by the Issuer or the Owner
Trustee and are reasonably within the capability of the Servicer.
(ii) Notwithstanding anything in this Agreement or any of the Basic
Documents to the contrary, the Servicer shall be responsible for promptly
notifying the Owner Trustee and the Trust Collateral Agent in the event
that any withholding tax is imposed on the Issuer's payments (or
allocations of income) to an Owner (as defined in the Trust Agreement) as
contemplated this Agreement. Any such notice shall be in writing and
specify the
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amount of any withholding tax required to be withheld by the Owner Trustee
or the Trust Collateral Agent pursuant to such provision.
(iii) Notwithstanding anything in this Agreement or the Basic
Documents to the contrary, the Servicer shall be responsible for
performance of the duties of the Issuer set forth in Section 5.1(a), (b),
(c) and (d) of the Trust Agreement with respect to, among other things,
accounting and reports to Owners (as defined in the Trust Agreement);
provided, however, that once prepared by the Servicer the Owner Trustee
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shall retain responsibility for the distribution of the Schedule K-1s
necessary to enable the Certificateholder to prepare its federal and state
income tax returns.
(iv) The Servicer shall perform the duties of the Servicer specified
in Section 9.2 of the Trust Agreement required to be performed in
connection with the resignation or removal of the Owner Trustee, and any
other duties expressly required to be performed by the Servicer under this
Agreement or any of the Basic Documents.
(v) In carrying out the foregoing duties or any of its other
obligations under this Agreement, the Servicer may enter into transactions
with or otherwise deal with any of its Affiliates; provided, however, that
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the terms of any such transactions or dealings shall be in accordance with
any directions received from the Issuer and shall be, in the Servicer's
opinion, no less favorable to the Issuer in any material respect.
(c) Tax Matters. The Servicer shall prepare and file, on behalf of the
-----------
Seller, all tax returns, tax elections, financial statements and such annual or
other reports attributable to the activities engaged in by the Issuer as are
necessary for preparation of tax reports, including without limitation forms
1099. All tax returns will be signed by the Seller.
(d) Non-Ministerial Matters. With respect to matters that in the
-----------------------
reasonable judgment of the Servicer are non-ministerial, the Servicer shall not
take any action pursuant to this Article unless within a reasonable time before
the taking of such action, the Servicer shall have notified the Owner Trustee
and the Trustee of the proposed action and the Owner Trustee and, with respect
to items (A), (B), (C) and (D) below, the Trustee shall not have withheld
consent or provided an alternative direction. For the purpose of the preceding
sentence, "non-ministerial matters" shall include:
(A) the amendment of or any supplement to the Indenture;
(B) the initiation of any claim or lawsuit by the Issuer
and the compromise of any action, claim or lawsuit brought by
or against the Issuer (other than in connection with the
collection of the Receivables);
(C) the amendment, change or modification of this Agreement
or any of the Basic Documents;
(D) the appointment of successor Note Registrars, successor
Paying Agents and successor Trustees pursuant to the Indenture
or the appointment of Successor Servicers or the consent to the
assignment by the Note Registrar, Paying Agent or Trustee of
its obligations under the Indenture; and
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(E) the removal of the Trustee or the Trust Collateral
Agent.
(e) Exceptions. Notwithstanding anything to the contrary in this
----------
Agreement, except as expressly provided herein or in the other Basic Documents,
the Servicer, in its capacity hereunder, shall not be obligated to, and shall
not, (1) make any payments to the Noteholders or Certificateholders under the
Basic Documents, (2) sell the Indenture Trust Property pursuant to Section 5.5
of the Indenture, (3) take any other action that the Issuer directs the Servicer
not to take on its behalf or (4) in connection with its duties hereunder assume
any indemnification obligation of any other Person.
(f) The Backup Servicer or any successor Servicer shall not be responsible
for any obligations or duties of the servicer under this Section 11.1. 11.2.
Records
SECTION 11.2. Records. The Servicer shall maintain appropriate books of
-------
account and records relating to services performed under this Agreement, which
books of account and records shall be accessible for inspection by the Issuer at
any time during normal business hours.
SECTION 11.3. Additional Information to be Furnished to the Issuer. The
----------------------------------------------------
Servicer shall furnish to the Issuer from time to time such additional
information regarding the Collateral as the Issuer shall reasonably request.
ARTICLE XII
Miscellaneous Provisions
------------------------
SECTION 12.1. Amendment.
---------
(a) This Agreement may be amended from time to time by the parties hereto,
with the consent of the Trustee (which consent may not be unreasonably
withheld), with the prior written consent of the Insurer (so long as no Insurer
Default has occurred and is continuing) but without the consent of any of the
Noteholders, to cure any ambiguity, to correct or supplement any provisions in
this Agreement, to comply with any changes in the Code, or to make any other
provisions with respect to matters or questions arising under this Agreement
which shall not be inconsistent with the provisions of this Agreement or the
Insurance Agreement; provided, however, that such action shall not, as evidenced
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by an Opinion of Counsel delivered to Owner Trustee and the Trustee, adversely
affect in any material respect the interests of any Noteholder; provided further
that if an Insurer Default has occurred and is continuing, such action shall not
materially adversely affect the interests of the Insurer.
This Agreement may also be amended from time to time by the parties hereto,
with the consent of the Insurer, the consent of the Trustee, the consent of the
Holders of Notes evidencing not less than a majority of the outstanding
principal amount of the Notes for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement or
of modifying in any manner the rights of the Noteholders; provided, however,
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that no such amendment shall (a) increase or reduce in any manner the amount of,
or accelerate or delay the timing of, collections of payments on Receivables or
distributions that shall be required to be made for the benefit of the
Noteholders or (b) reduce the aforesaid percentage of the
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outstanding principal amount of the Notes, the Holders of which are required to
consent to any such amendment, without the consent of the Holders of all the
outstanding Notes of each class affected thereby; provided further, that if an
Insurer Default has not occurred and is continuing, such action shall not
materially adversely affect the interest of the Insurer.
Promptly after the execution of any such amendment or consent, the Trust
Collateral Agent shall furnish written notification of the substance of such
amendment or consent to each Noteholder and the Rating Agencies.
It shall not be necessary for the consent of Noteholders pursuant to this
Section to approve the particular form of any proposed amendment or consent, but
it shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents (and any other consents of Noteholders
provided for in this Agreement) and of evidencing the authorization of any
action by Noteholders shall be subject to such reasonable requirements as the
Trustee or the Owner Trustee, as applicable, may prescribe.
Prior to the execution of any amendment to this Agreement, the Owner
Trustee and the Trustee, Trust Collateral Agent, Collateral Agent and Backup
Servicer shall be entitled to receive and conclusively rely upon an Opinion of
Counsel stating that the execution of such amendment is authorized or permitted
by this Agreement and the Opinion of Counsel referred to in Section 12.2(h)(1)
has been delivered. The Owner Trustee, the Trust Collateral Agent, the Backup
Servicer and the Trustee may, but shall not be obligated to, enter into any such
amendment which affects the Issuer's, the Owner Trustee's, the Trust Collateral
Agent's, the Backup Servicer's or the Trustee's, as applicable, own rights,
duties or immunities under this Agreement or otherwise.
(b) Notwithstanding anything to the contrary contained in Section 12.1(a)
above, the provisions of the Agreement relating to (i) the Spread Account
Agreement Supplement, the Spread Account, the Specified Spread Account
Requirement, a Trigger Event or any component definition of a Trigger Event and
(ii) any additional sources of funds which may be added to the Spread Account or
uses of funds on deposit in the Spread Account may be amended in any respect by
the Seller, the Servicer, the Insurer and the Collateral Agent (the consent of
which shall not be withheld or delayed with respect to any amendment that does
not adversely affect the Collateral Agent) without the consent of, or notice to,
the Noteholders.
SECTION 12.2. Protection of Title to Trust.
----------------------------
(a) The Seller shall execute and file such financing statements and cause
to be executed and filed such continuation statements, all in such manner and in
such places as may be required by law fully to preserve, maintain and protect
the interest of the Issuer and the interests of the Trust Collateral Agent in
the Receivables and in the proceeds thereof. The Seller shall deliver (or cause
to be delivered) to the Insurer, the Owner Trustee and the Trust Collateral
Agent 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
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statement filed in accordance with paragraph (a) above seriously misleading
within the meaning of 9-402(7) of the UCC, unless it shall have given the
Insurer, the Owner Trustee, the Trust Collateral Agent and the Trustee at least
five days' prior written notice thereof and shall have promptly filed
appropriate amendments to all previously filed financing statements or
continuation statements. Promptly upon such filing, the Seller or the Servicer,
as the case may be, shall deliver an Opinion of Counsel in form and substance
reasonably satisfactory to the Insurer, stating either (A) all financing
statements and continuation statements have been executed and filed that are
necessary fully to preserve and protect the interest of the Trust and the Trust
Collateral Agent in the Receivables, and reciting the details of such filings or
referring to prior Opinions of Counsel in which such details are given, or (B)
no such action shall be necessary to preserve and protect such interest.
(c) Each of the Seller and the Servicer shall have an obligation to give
the Insurer, the Owner Trustee, the Trust Collateral Agent 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 and shall promptly file
any such amendment. The Servicer shall at all times maintain each office from
which it shall service Receivables, and its principal executive office, within
the United States of America.
(d) The Servicer shall maintain accounts and records as to each Receivable
accurately and in sufficient detail to permit (i) the reader thereof to know at
any time the status of such Receivable, including payments and recoveries made
and payments owing (and the nature of each) and (ii) reconciliation between
payments or recoveries on (or with respect to) each Receivable and the amounts
from time to time deposited in the Collection Account in respect of such
Receivable.
(e) The Servicer shall maintain its computer systems so that, from and
after the time of sale under this Agreement of the Receivables to the Issuer,
the Servicer's master computer records (including any backup archives) that
refer to a Receivable shall indicate clearly the interest of the Trust in such
Receivable and that such Receivable is owned by the Trust. Indication of the
Trust's interest in a Receivable shall be deleted from or modified on the
Servicer's computer systems when, and only when, the related Receivable shall
have been paid in full or repurchased.
(f) If at any time the Seller or the Servicer shall propose to sell, grant
a security interest in or otherwise transfer any interest in automotive
receivables to any prospective purchaser, lender or other transferee, the
Servicer shall give to such prospective purchaser, lender or other transferee
computer tapes, records or printouts (including any restored from backup
archives) that, if they shall refer in any manner whatsoever to any Receivable,
shall indicate clearly that such Receivable has been sold and is owned by the
Trust.
(g) Upon request, the Servicer shall furnish to the Insurer, the Owner
Trustee or to the Trustee, within five Business Days, a list of all Receivables
(by contract number and name of Obligor) 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.
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(h) The Servicer shall deliver to the Insurer, the Owner Trustee and the
Trustee:
(1) promptly after the execution and delivery of the Agreement
and, if required pursuant to Section 12.1, of each amendment, an Opinion of
Counsel stating that, in the opinion of such Counsel, in form and substance
reasonably satisfactory to the Insurer, either (A) all financing statements
and continuation statements have been executed and filed that are necessary
fully to preserve and protect the interest of the Trust and 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) no such
action shall be necessary to preserve and protect such interest; and
(2) within 90 days after the beginning of each calendar year
beginning with the first calendar year beginning more than three months
after the Cutoff Date, an Opinion of Counsel, dated as of a date during
such 90-day period, stating that, in the opinion of such counsel, either
(A) all financing statements and continuation statements have been executed
and filed that are necessary fully to preserve and protect the interest of
the Trust and 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) no such action shall be necessary to preserve and
protect such interest.
Each Opinion of Counsel referred to in clause (1) or (2) above shall
specify any action necessary (as of the date of such opinion) to be taken in the
following year to preserve and protect such interest.
SECTION 12.3. Notices. All demands, notices and communications upon or to
-------
the Seller, the Servicer, the Owner Trustee, the Trustee or the Rating Agencies
under this Agreement shall be in writing, personally delivered, or mailed by
certified mail, return receipt requested, and shall be deemed to have been duly
given upon receipt (a) in the case of the Seller to AFS Funding Corp., 1325
Airmotive Way, Reno, Nevada 89502, (b) in the case of the Servicer to
AmeriCredit Financial Services, Inc., 200 Bailey Avenue, Fort Worth, Texas
76107-1220, Attention: Chief Financial Officer, (c) in the case of the Issuer or
the Owner Trustee, at the Corporate Trust Office of the Owner Trustee, Bankers
Trust (Delaware), E.A. Delle Donne Corporate Center, Montgomery Building, 1011
Centre Road, Suite 200, Wilmington Delaware, 19805-1266, Attention: Corporate
Trust with a copy to Bankers Trust Company, 4 Albany Street, New York, New York
10006, Attention: Corporate Trust Agency, Structured Finance, 10th floor, (d) in
the case of the Trustee, the Trust Collateral Agent or the Collateral Agent, at
the Corporate Trust Office, (e) in the case of the Insurer, to Financial
Security Assurance Inc., 350 Park Avenue, New York, New York 10022; Attention:
Senior Vice President, Surveillance (in each case in which notice or other
communication to the Insurer refers to a Servicer Termination Event, a claim on
the Note Policy, a Deficiency Notice pursuant to Section 5.5 of this Agreement
or with respect to which failure on the part of the Insurer to respond shall be
deemed to constitute consent or acceptance, then a copy of such notice or other
communication should also be sent to the attention of each of the General
Counsel and the Head-Financial Guaranty Group and shall be marked to indicate
"URGENT MATERIAL ENCLOSED"); (f) in the case of Moody's, to Moody's Investors
Service, Inc., ABS Monitoring Department, 99 Church Street, New York, New York
10007; and (g) in the case of Standard & Poor's, to Standard & Poor's Ratings
Group, 25 Broadway - 15th Floor, New York, New York 10004, Attention: Asset
Backed Surveillance
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Department. Any notice required or permitted to be mailed to a Noteholder shall
be given by first class mail, postage prepaid, at the address of such Holder as
shown in the Note Register. Any notice so mailed within the time prescribed in
the Agreement shall be conclusively presumed to have been duly given, whether or
not the Noteholder shall receive such notice.
SECTION 12.4. Assignment. This Agreement shall inure to the benefit of
----------
and be binding upon the parties hereto and their respective successors and
permitted assigns. Notwithstanding anything to the contrary contained herein,
except as provided in Sections 7.4 and 8.3 and as provided in the provisions of
this Agreement concerning the resignation of the Servicer, this Agreement may
not be assigned by the Seller or the Servicer without the prior written consent
of the Owner Trustee, the Trust Collateral Agent, the Backup Servicer, the
Trustee and the Insurer (or if an Insurer Default shall have occurred and be
continuing the Holders of Notes evidencing not less than 66% of the principal
amount of the outstanding Notes).
SECTION 12.5. Limitations on Rights of Others. The provisions of this
-------------------------------
Agreement are solely for the benefit of the parties hereto, the Trustee and the
Noteholders, as third-party beneficiaries. The 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, any right of the Insurer to direct,
appoint, consent to, approve of, or take any action under this Agreement, shall
be a right exercised by the Insurer in its sole and absolute discretion. The
Insurer may disclaim any of its rights and powers under this Agreement (but not
its duties and obligations under the Note Policy) upon delivery of a written
notice to the Owner Trustee. Nothing in this Agreement, whether express or
implied, shall be construed to give to any other Person any legal or equitable
right, remedy or claim in the Owner Trust Estate or under or in respect of this
Agreement or any covenants, conditions or provisions contained herein.
SECTION 12.6. Severability. Any provision of this Agreement that is
------------
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
SECTION 12.7. Separate Counterparts. This Agreement may be executed by
---------------------
the parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
SECTION 12.8. Headings. The headings of the various Articles and Sections
--------
herein are for convenience of reference only and shall not define or limit any
of the terms or provisions hereof.
SECTION 12.9. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
-------------
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS,
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RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE
WITH SUCH LAWS.
SECTION 12.10. Assignment to Trustee. The Seller hereby acknowledges and
---------------------
consents to any mortgage, pledge, assignment and grant of a security interest by
the Issuer to the Trustee pursuant to the Indenture for the benefit of the
Noteholders of all right, title and interest of the Issuer in, to and under the
Receivables and/or the assignment of any or all of the Issuer's rights and
obligations hereunder to the Trustee.
SECTION 12.11. Nonpetition Covenants.
---------------------
(a) Notwithstanding any prior termination of this Agreement, the Servicer
and the Seller shall not, prior to the date which is one year and one day after
the termination of this Agreement with respect to the Issuer, acquiesce,
petition or otherwise invoke or cause the Issuer to invoke the process of any
court or government authority for the purpose of commencing or sustaining a case
against the Issuer under any federal or state bankruptcy, insolvency or similar
law or appointing a receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of the Issuer or any substantial part of
its property, or ordering the winding up or liquidation of the affairs of the
Issuer.
(b) Notwithstanding any prior termination of this Agreement, the Servicer
shall not, prior to the date that is one year and one day after the termination
of this Agreement with respect to the Seller, acquiesce to, petition or
otherwise invoke or cause the Seller to invoke the process of any court or
government authority for the purpose of commencing or sustaining a case against
the Seller under any federal or state bankruptcy, insolvency or similar law,
appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator,
or other similar official of the Seller or any substantial part of its property,
or ordering the winding up or liquidation of the affairs of the Seller.
SECTION 12.12. Limitation of Liability of Owner Trustee and Trustee.
----------------------------------------------------
(a) Notwithstanding anything contained herein to the contrary, this
Agreement has been countersigned by Bankers Trust (Delaware) not in its
individual capacity but solely in its capacity as Owner Trustee of the Issuer
and in no event shall Bankers Trust (Delaware) in its individual capacity or,
except as expressly provided in the Trust Agreement, as Owner Trustee have any
liability for the representations, warranties, covenants, agreements or other
obligations of the Issuer hereunder or in any of the certificates, notices or
agreements delivered pursuant hereto, as to all of which recourse shall be had
solely to the assets of the Issuer. For all purposes of this Agreement, in the
performance of its duties or obligations hereunder or in the performance of any
duties or obligations of the Issuer hereunder, the Owner Trustee shall be
subject to, and entitled to the benefits of, the terms and provisions of
Articles V, VI and VII of the Trust Agreement.
(b) Notwithstanding anything contained herein to the contrary, this
Agreement has been executed and delivered by Bank One, N.A., not in its
individual capacity but solely as Trust Collateral Agent and Backup Servicer and
in no event shall Bank One, N.A., have any liability for the representations,
warranties, covenants, agreements or other obligations of the Issuer
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<PAGE>
hereunder or in any of the certificates, notices or agreements delivered
pursuant hereto, as to all of which recourse shall be had solely to the assets
of the Issuer.
(c) In no event shall Bank One, N.A., in any of its capacities hereunder,
be deemed to have assumed any duties of the Owner Trustee under the Delaware
Business Trust Statute, common law, or the Trust Agreement.
SECTION 12.13. Independence of the Servicer. For all purposes of this
----------------------------
Agreement, the Servicer shall be an independent contractor and shall not be
subject to the supervision of the Issuer, the Trust Collateral Agent and Backup
Servicer or the Owner Trustee with respect to the manner in which it
accomplishes the performance of its obligations hereunder. Unless expressly
authorized by this Agreement, the Servicer shall have no authority to act for or
represent the Issuer or the Owner Trustee in any way and shall not otherwise be
deemed an agent of the Issuer or the Owner Trustee.
SECTION 12.14. No Joint Venture. Nothing contained in this Agreement (i)
----------------
shall constitute the Servicer and either of the Issuer or the Owner Trustee as
members of any partnership, joint venture, association, syndicate,
unincorporated business or other separate entity, (ii) shall be construed to
impose any liability as such on any of them or (iii) shall be deemed to confer
on any of them any express, implied or apparent authority to incur any
obligation or liability on behalf of the others.
SECTION 12.15. [Reserved]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their respective duly authorized officers as of
the day and the year first above written.
AMERICREDIT AUTOMOBILE RECEIVABLES TRUST 1999-B
by BANKERS TRUST (DELAWARE) not in its
individual capacity but solely as Owner
Trustee on behalf of the Trust,
by /s/ Louis Bodi
-------------------------------
Name: Louis Bodi
Title: Attorney-in-fact
AFS FUNDING CORP., Seller,
by /s/ Preston A. Miller
-------------------------------
Name: Preston A. Miller
Title: Executive Vice President and
Treasurer
AMERICREDIT FINANCIAL SERVICES, INC., Servicer,
by /s/ Preston A. Miller
-------------------------------
Name: Preston A. Miller
Title: Executive Vice President and
Treasurer
[Sale and Servicing Agreement]
<PAGE>
BANK ONE, N.A.,
not in its individual capacity but solely as
Backup Servicer
by /s/ John J. Rothrock
-------------------------------
Name: John J. Rothrock
Title: Authorized
Acknowledged and accepted by
BANK ONE, N.A.,
not in its individual capacity but solely as
Trust Collateral Agent
by /s/ John J. Rothrock
-------------------------------
Name: John J. Rothrock
Title: Authorized Signer
[Sale and Servicing Agreement]
<PAGE>
SCHEDULE A
SCHEDULE OF RECEIVABLES
-----------------------
<PAGE>
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 Collection Period and the
payment in the final Collection Period of the Receivable may be minimally
different from the normal period and level payment) which, if made when due,
shall fully amortize the Amount Financed over the original term and (D) has not
been amended or collections with respect to which waived, other than as
evidenced in the Receivable File relating thereto.
2. Fraud or Misrepresentation. Each Receivable was originated by a
--------------------------
Dealer and was sold by the Dealer to AmeriCredit and by AmeriCredit or CP
Funding 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" (including amendments to the
Federal Reserve's Official Staff Commentary to Regulation Z, effective October
1, 1998, concerning negative equity loans), the Soldiers' and Sailors' Civil
Relief Act of 1940, each applicable state Motor Vehicle Retail Installment Sales
Act, and state adaptations of the National Consumer Act and of the Uniform
Consumer Credit Code and other consumer credit laws and equal credit opportunity
and disclosure laws) in respect of the Receivables and the Financed Vehicles,
have been complied with in all material respects, and each Receivable and the
sale of the Financed Vehicle evidenced by each Receivable complied at the time
it was originated or made and now complies in all material respects with all
applicable legal requirements.
4. Origination. Each Receivable 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 Soldiers' and Sailors'
Civil Relief Act of 1940, as
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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 related 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 related
Cutoff Date.
9. Marking Records. By the Closing Date or Subsequent Transfer Date, as
---------------
applicable, 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 Sale and Servicing
Agreement.
10. Computer Tape. The Computer Tape made available by the Seller to the
-------------
Trust on the Closing Date or Subsequent Transfer Date, as applicable, was
complete and accurate as of the related 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 Noteholders
-----------------
or the Insurer were utilized in selecting the Receivables from those receivables
owned by the Seller which met the selection criteria contained in the Sale 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 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.
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<PAGE>
16. Lawful Assignment. No Receivable was originated in, or is subject to
-----------------
the laws of, any jurisdiction the laws of which would make unlawful, void or
voidable the sale, transfer and assignment of such Receivable under this
Agreement or pursuant to transfers of the Securities.
17. Good Title. Immediately prior to the conveyance of the Receivables to
----------
the Trust pursuant to this Agreement or Subsequent Transfer Agreement, as
applicable, 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 Trust 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 or Subsequent Transfer Date, as applicable, 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 and 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 related 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 Trust 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. 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
Insurer, the Trustee, the Trust Collateral Agent and the Noteholders in any
Receivable or the proceeds thereof.
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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 related 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 related Cutoff Date.
25. Past Due. At the related Cutoff Date no Receivable was more than 30
--------
days past due.
26. Remaining Principal Balance. At the related Cutoff Date the Principal
---------------------------
Balance of each Receivable set forth in the Schedule of Receivables is true and
accurate in all material respects.
27. Certain Characteristics of Initial Receivables. (A) Each Initial
----------------------------------------------
Receivable had a remaining maturity, as of the Initial Cutoff Date, of not more
than 72 months; (B) each Receivable had an original maturity of not more than 72
months; (C) each Initial Receivable had a remaining Principal Balance as of the
Initial Cutoff Date of at least $250 and not more than $60,000; (D) each Initial
Receivable has an Annual Percentage Rate of at least 8.00% and not more than
32%; (E) no Initial Receivable was more than 30 days past due as of the Initial
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 Initial Receivable
to qualify under clause (E) above.
4
<PAGE>
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 an Officer.
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.
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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 an Officer.
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.
2
<PAGE>
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 an Officer.
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 an Officer 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.
3
<PAGE>
EXHIBIT A
SUBSEQUENT TRANSFER AGREEMENT
Transfer No. of Subsequent Receivables pursuant to a Sale and
Servicing Agreement dated as of May 12, 1999, among THE AMERICREDIT AUTOMOBILE
RECEIVABLES TRUST 1999-B, a Delaware business trust (the "Issuer"), AFS FUNDING
CORP., a Nevada corporation (the "Seller"), AMERICREDIT FINANCIAL SERVICES, INC.
a Delaware corporation (the "Servicer"), and BANK ONE, N.A., an Ohio corporation
(the "Trust Collateral Agent").
W I T N E S S E T H:
WHEREAS pursuant to the Sale and Servicing Agreement, the Seller wishes to
convey the Subsequent Receivables to the Issuer; and
WHEREAS, the Issuer is willing to accept such conveyance subject to the
terms and conditions hereof.
NOW, THEREFORE, the Issuer, the Seller, the Servicer and the Trust
Collateral Agent hereby agree as follows:
1. Defined Terms. Capitalized terms used herein shall have the meanings
-------------
ascribed to them in the Sale and Servicing Agreement unless otherwise defined
herein.
"Subsequent Cutoff Date" shall mean, with respect to the Subsequent
Receivables conveyed hereby, _______________, 1999.
"Subsequent Transfer Date" shall mean. with respect to the Subsequent
Receivables conveyed hereby, _____________, 1999.
2. Schedule of Receivables. Annexed hereto is a supplement to Schedule A
-----------------------
to the Sale and Servicing Agreement listing the Receivables that constitute the
Subsequent Receivables to be conveyed pursuant to this Agreement on the
Subsequent Transfer Date.
3. Conveyance of Subsequent Receivables. In consideration of the
------------------------------------
Issuer's delivery to or upon the order of the Seller of $____________, the
Seller does hereby sell, transfer, assign, set over and otherwise convey to the
Issuer, without recourse (except as expressly provided in the Sale and Servicing
Agreement), all right, title and interest of the Seller in and to: (a) the
Subsequent Receivables and all moneys received thereon, on and after the related
Subsequent Cutoff Date;
(b) the security interests in the Financed Vehicles granted by Obligors
pursuant to the Subsequent Receivables and any other interest of the Seller in
such Financed Vehicles;
A-1
<PAGE>
(c) any proceeds and the right to receive proceeds with respect to the
Subsequent Receivables from claim and the right to receive proceeds on any
physical damage, credit life or disability insurance policies covering Financed
Vehicles or Obligors;
(d) all rights of the Seller against the Dealers;
(e) any proceeds with respect to the Subsequent Receivables from recourse
to Dealers in respect to which the Servicer has determined in accordance with
its customary servicing procedures that eventual payment in full is unlikely;
(f) the related Receivables Files;
(g) its rights and benefits, but none of its obligations or burdens, under
the Subsequent Transfer Agreement, including the delivery requirements,
representations and warranties and the cure and repurchase obligations of
AmeriCredit and CP Funding under the Subsequent Purchase Agreement, on or after
the Subsequent Cutoff Date; and
(h) the proceeds of any and all of the foregoing.
4. Representations and Warranties of the Seller. The Seller hereby
--------------------------------------------
represents and warrants to the Issuer as of the date of this Agreement and as of
the Subsequent Transfer Date that:
(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 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 Basic Documents.
(d) Power and Authority. The Seller has the power and authority to
-------------------
execute and deliver this Agreement and its Basic Documents and to carry out its
terms and their terms, respectively; the 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 Basic
Documents have been duly authorized by the Seller by all necessary corporate
action.
A-2
<PAGE>
(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 Basic 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 Basic Documents and the fulfillment of the terms of this
Agreement and the Basic Documents shall not conflict with, result in any breach
of any of the terms and provisions of or constitute (with or without notice,
lapse of time or both) a default under the certificate of incorporation or by-
laws of the 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 Basic Documents, (B)
seeking to prevent the issuance of the Securities or the consummation of any of
the transactions contemplated by this Agreement or any of the Basic Documents,
(C) seeking any determination or ruling that might materially and adversely
affect the performance by the Seller of its obligations under, or the validity
or enforceability of, this Agreement or any of the Basic Documents, or (D)
seeking to adversely affect the federal income tax or other federal, state or
local tax attributes of the Securities.
(h) Chief Executive Office. The chief executive office of the Seller is
----------------------
at 1325 Airmotive Way, Reno, Nevada 89502.
(i) Principal Balance. The aggregate Principal Balance of the Receivables
-----------------
listed on the supplement to Schedule A annexed hereto and conveyed to the Issuer
pursuant to this Agreement as of the Subsequent Cutoff Date is $____________.
5. Conditions Precedent. The obligation of the Issuer to acquire the
--------------------
Receivables hereunder is subject to the satisfaction, on or prior to the
Subsequent Transfer Date, of the following conditions precedent:
(j) Representations and Warranties. Each of the representations and
------------------------------
warranties made by the Seller in Section 4 of this Agreement and in Section 6.1
of the Sale and Servicing Agreement shall be true and correct as of the date of
this Agreement and as of the Subsequent Transfer Date.
A-3
<PAGE>
(k) Sale and Servicing Agreement Conditions. Each of the conditions set
---------------------------------------
forth in Section 2.2(b) to the Sale and Servicing Agreement shall have been
satisfied.
(l) Additional Information. The Seller shall have delivered to the Issuer
----------------------
such information as was reasonably requested by the Issuer to satisfy itself as
to (i) the accuracy of the representations and warranties set forth in Section 4
of this Agreement and in Section 6.1 of the Sale and Servicing Agreement and
(ii) the satisfaction of the conditions set forth in this Section 5.
6. Ratification of Agreement. As supplemented by this Agreement, the
-------------------------
Sale and Servicing Agreement is in all respects ratified and confirmed and the
Sale and Servicing Agreement as so supplemented by this Agreement shall be read,
taken and construed as one and the same instrument.
7. Counterparts. This Agreement may be executed in two or more
------------
counterparts (and by different parties in separate counterparts), each of which
shall be an original but all of which together shall constitute one and the same
instrument.
GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE
-------------
LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW
PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
A-4
<PAGE>
IN WITNESS WHEREOF, the Issuer, the Seller and the Servicer have caused
this Agreement to be duly executed and delivered by their respective duly
authorized officers as of day and the year first above written.
AMERICREDIT AUTOMOBILE RECEIVABLES TRUST 1999-B
by BANKERS TRUST (DELAWARE) not in its
individual capacity but solely as Owner
Trustee on behalf of the Trust,
by ___________________________
Title:
AFS FUNDING CORP., Seller,
by ___________________________
Title:
AMERICREDIT FINANCIAL SERVICES, INC., Servicer,
by ___________________________
Title:
Acknowledged and Accepted:
BANK ONE, N.A.,
not in its individual
capacity but solely as
Trust Collateral Agent
by ________________________________
Title:
<PAGE>
EXHIBIT B
SERVICER'S CERTIFICATE
----------------------
B-1
<PAGE>
EXHIBIT C
PRELIMINARY SERVICER'S CERTIFICATE
----------------------------------
C-1
<PAGE>
Exhibit 4.4
<PAGE>
EXHIBIT 4.4
FINANCIAL GUARANTY
INSURANCE POLICY
<TABLE>
<CAPTION>
<S> <C>
OBLIGOR: AmeriCredit Automobile Receivables Trust 1999-B Policy No.: 50809-N
OBLIGATIONS: $1,000,000,000 Asset Backed Notes, Classes A-1 through A-4, as Date of Issuance:
described in Endorsement No. 1 hereto May 20, 1999
</TABLE>
FINANCIAL SECURITY ASSURANCE INC. ("Financial Security"), for
consideration received, hereby UNCONDITIONALLY AND IRREVOCABLY GUARANTEES to
each Holder, subject only to the terms of this Policy (which includes each
endorsement hereto), the full and complete payment by the Obligor of Scheduled
Payments of principal of, and interest on, the Obligations.
For the further protection of each Holder, Financial Security
irrevocably and unconditionally guarantees:
(a) payment of the amount of any distribution of principal of, or
interest on, the Obligations 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 (such payment to be made by Financial Security
in accordance with Endorsement No. 1 hereto).
(b) payment of any amount required to be paid under this Policy by
Financial Security following Financial Security's receipt of notice as
described in Endorsement No. 1 hereto.
Financial Security shall be subrogated to the rights of each Holder to
receive payments under the Obligations to the extent of any payment by Financial
Security hereunder.
Except to the extent expressly modified by an endorsement hereto, the
following terms shall have the meanings specified for all purposes of this
Policy. "Holder" means the registered owner of any Obligation as indicated on
the registration books maintained by or on behalf of the Obligor for such
purpose or, if the Obligation is in bearer form, the holder of the Obligation.
"Scheduled Payments" means payments which are scheduled to be made during the
Term Of This Policy in accordance with the original terms of the Obligations
when issued and without regard to any amendment or modification of such
Obligations thereafter; payments which become due on an accelerated basis as a
result of (a) a default by the Obligor, (b) an election by the Obligor to pay
principal on an accelerated basis or (c) any other cause, shall not constitute
"Scheduled Payments" unless Financial Security shall elect, in its sole
discretion, to pay such principal due upon such acceleration together with any
accrued interest to the date of acceleration. "Term Of This Policy" shall have
the meaning 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, or by the merger,
consolidation or dissolution of the Obligor. Except to the extent expressly
modified by an endorsement hereto, the premiums paid in respect of this Policy
are nonrefundable for any reason whatsoever, including payment, or provision
being made for payment, of the Obligations prior to maturity. This Policy may
not be canceled or revoked during the Term Of This Policy. 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.
FINANCIAL SECURITY ASSURANCE INC.
/s/ Russell B. Brewer II
By_______________________________
Authorized Officer
A subsidiary of Financial Security Assurance Holdings Ltd.
350 Park Avenue, New York, N.Y. 10022-6022 (212) 826-0100
Form 100NY (5/89)
<PAGE>
ENDORSEMENT NO. 1
FINANCIAL SECURITY 350 Park Avenue
ASSURANCE INC. New York, New York 10022
OBLIGOR: AmeriCredit Automobile Receivables Trust 1999-B
OBLIGATIONS: $140,000,000 Class A-1 4.9166% Asset Backed Notes
$435,000,000 Class A-2 5.304% Asset Backed Notes
$130,000,000 Class A-3 5.780% Asset Backed Notes
$295,000,000 Class A-4 5.960% Asset Backed Notes
Policy No.: 50809-N
Date of Issuance: May 20, 1999
1. Definitions. For all purposes of this Policy, the terms specified
-----------
below shall have the meanings or constructions provided below. Capitalized
terms used herein and not otherwise defined herein shall have the meanings
provided in the Indenture or the Sale and Servicing Agreement unless otherwise
specified.
"Business Day" means any day other than a Saturday, Sunday, legal holiday
------------
or other day on which commercial banking institutions in Wilmington, Delaware,
New York City, New York or Columbus, Ohio or any other location of any successor
Servicer, successor Owner Trustee or successor Trust Collateral Agent are
authorized or obligated by law, executive order or governmental decree to be
closed.
"Holder" shall have the meaning set forth in the Indenture; provided,
------ --------
however Holder shall not include the Obligor or any affiliates or successors
- -------
thereof in the event the Obligor, or any such affiliate or successor, is a
registered or beneficial owner of the Obligation.
"Indenture" means the Indenture, dated as of May 12, 1999, between the
---------
Obligor and Bank One, N.A. as Trustee and Trust Collateral Agent, as amended
from time to time with the consent of Financial Security.
"Indenture Trustee" means Bank One, N.A. in its capacity as Trustee under
-----------------
the Indenture and any successor in such capacity.
"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,
<PAGE>
Policy No. 50809-N Date of Issuance: May 20, 1999
shall be deemed to be receipt on the next succeeding Business Day. If any notice
or certificate given hereunder by the Trust Collateral Agent 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 advise the Trust Collateral Agent and the Trust Collateral Agent may submit
an amended notice.
"Sale and Servicing Agreement" means the Sale and Servicing Agreement dated
----------------------------
as of May 12, 1999 among the Obligor, AmeriCredit Financial Services, Inc., as
Servicer, AFS Funding Corp., as Seller and Bank One, N.A., as Backup Servicer
and Trust Collateral Agent, as such agreement may be amended, supplemented or
otherwise modified from time to time in accordance with the terms thereof.
"Scheduled Payments" means, as to each Insured Distribution Date, payments
------------------
which are required to be made to Holders in accordance with the original terms
of the Obligations when issued and without regard to any subsequent amendment or
modification of the Obligations or of the Indenture except amendments or
modifications to which Financial Security has given its prior written consent,
which payments are (i) the Noteholders' Interest Distributable Amount with
respect to the related Distribution Date, (ii) the Noteholders' Remaining Parity
Deficit Amount with respect to the related Distribution Date and (iii) with
respect to the Final Scheduled Distribution Date for any class of Obligations,
the outstanding principal amount of such class on such Final Scheduled
Distribution Date, after taking into account reductions on such date of such
outstanding principal amount from all sources other than this Policy. Scheduled
Payments do not include payments which become due on an accelerated basis as a
result of (a) a default by the Obligor, (b) an election by the Obligor to pay
principal on an accelerated basis, (c) the occurrence of an Event of Default
under the Indenture or (d) any other cause, unless Financial Security elects, in
its sole discretion, to pay in whole or in part such principal due upon
acceleration, together with any accrued interest to the date of acceleration. In
the event Financial Security does not so elect, this Policy will continue to
guarantee payment on the Obligations in accordance with their original terms.
Scheduled Payments shall not include (x) any portion of a Noteholders' Interest
Distributable Amount due to Holders because the appropriate notice and
certificate for payment in proper form as required by paragraph 2 hereof was not
timely Received by Financial Security, (y) any portion of a Noteholders'
Interest Distributable Amount due to Holders representing interest on any
Noteholders' Interest Carryover Shortfall accrued from and including the date of
payment of the amount of such Noteholders' Interest Carryover Shortfall pursuant
hereto or (z) any Note Prepayment Amounts, unless Financial Security elects, in
its sole discretion, to pay such amount in whole or in part. Scheduled Payments
shall not include any amounts due in respect of the Obligations attributable to
any increase in interest rate, penalty or other sum payable by the Obligor by
reason of any default or event of default in respect of the Obligations, or by
reason of any deterioration of the credit worthiness of the Obligor, nor shall
Scheduled Payments include, nor shall coverage be provided under this Policy in
respect of, any taxes, withholding or other charge with respect to any Holder
imposed by any governmental authority due in connection with the payment of any
Scheduled Payment to a Holder.
2
<PAGE>
Policy No. 50809-N Date of Issuance: May 20, 1999
"Term Of This Policy" means the period from and including the Date of
-------------------
Issuance to and including the date on which (i) all Scheduled Payments have been
paid or deemed to be paid within the meaning of Section 4.1 of the Indenture;
(ii) any period during which any Scheduled Payment could have been avoided in
whole or in part as a preference payment under applicable bankruptcy,
insolvency, receivership or similar law shall have 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.
"Trust Collateral Agent" means Bank One, N.A. in its capacity as Trust
----------------------
Collateral Agent under the Indenture, acting as agent for the Indenture Trustee
in accordance with the terms of the Indenture, and any successor in such
capacity.
2. Notices and Conditions to Payment in Respect of Scheduled Payments.
------------------------------------------------------------------
Following Receipt by Financial Security of a notice and certificate from the
Trust Collateral Agent in the form attached as Exhibit A to this Endorsement,
Financial Security will pay any amount payable hereunder in respect of Scheduled
Payments on the Obligations 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 date on
which such payment is due on the Obligations. Payments due hereunder in respect
of Scheduled Payments will be disbursed to the Trust Collateral Agent by wire
transfer of immediately available funds.
Financial Security shall be entitled to pay any amount hereunder in respect
of Scheduled Payments on the Obligations, including any amount due on the
Obligations on an accelerated basis, whether or not any notice and certificate
shall have been Received by Financial Security as provided above; provided,
however, that by acceptance of this Policy the Trust Collateral Agent agrees to
provide upon request to Financial Security a notice and certificate in respect
of any such payments made by Financial Security. Financial Security shall be
entitled to pay hereunder any amount due on the Obligations on an accelerated
basis at any time or from time to time, in whole or in part, prior to the
scheduled date of payment thereof; Scheduled Payments insured hereunder shall
not include interest, in respect of principal paid hereunder on an accelerated
basis, accruing from and after the date of such payment of principal. Financial
Security's obligations hereunder in respect of Scheduled Payments shall be
discharged to the extent funds are disbursed by Financial Security as provided
herein whether or not such funds are properly applied by the Trust Collateral
Agent.
3. Notices and Conditions to Payment in Respect of Scheduled Payments
------------------------------------------------------------------
Avoided as Preference Payments. If any Scheduled Payment 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 Trust Collateral Agent of
(A) a certified copy of the order (the "Order")of the court or other
governmental body that exercised jurisdiction to the effect that the Holder is
required to return Scheduled Payments made with respect to the
3
<PAGE>
Policy No. 50809-N Date of Issuance: May 20, 1999
Obligations during the Term Of This Policy because such payments were avoidable
as preference payments under applicable bankruptcy law, (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 Obligations 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 Trust Collateral Agent
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 Trust Collateral Agent 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 Trust Collateral Agent
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 Trust Collateral
Agent 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 6.2 of the Sale 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 Trust Collateral Agent at the notice address
specified in the Indenture specifying the name and notice address of the Fiscal
Agent. From and after the date of receipt of such notice by the Trust Collateral
Agent, (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
the 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.
4
<PAGE>
Policy No. 50809-N Date of Issuance: May 20, 1999
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 - Transaction Oversight
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 Trust Collateral Agent.
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 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 Trust Collateral Agent 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. 1 to be executed by its Authorized Officer.
FINANCIAL SECURITY ASSURANCE INC.
/s/ Russell B. Brewer II
By_________________________________________
Authorized Officer
5
<PAGE>
Policy No. 50809-N Date of Issuance: May 20, 1999
EXHIBIT A
To Endorsement No. 1
NOTICE OF CLAIM AND CERTIFICATE
(Letterhead of Trust Collateral Agent)
Financial Security Assurance Inc.
350 Park Avenue
New York, NY 10022
Re: AmeriCredit Automobile Receivables Trust 1999-B
-----------------------------------------------
The undersigned, a duly authorized officer of Bank One, N.A. (the "Trust
Collateral Agent"), hereby certifies to Financial Security Assurance Inc.
("Financial Security"), with reference to Financial Guaranty Insurance Policy
No.50809-N dated May 20, 1999 (the "Policy") issued by Financial Security in
respect of the $140,000,000 Class A-1 4.9166% Asset Backed Notes, $435,000,000
Class A-2 5.304% Asset Backed Notes, $130,000,000 Class A-3 5.780% Asset Backed
Notes and $295,000,000 Class A-4 5.960% Asset Backed Notes of the above-
referenced Trust (the "Obligations"), that:
(i) The Trust Collateral Agent is the Trust Collateral Agent under the
Indenture.
(ii) The sum of all amounts on deposit (or scheduled to be on deposit) in
the Note Distribution Account and available for distribution to the Holders
pursuant to the Indenture will be $_________ (the "Shortfall") less than the
aggregate amount of Scheduled Payments due on ___________________.
(iii) The Trust Collateral Agent is making a claim under the Policy for
the Shortfall to be applied to the payment of Scheduled Payments.
(iv) The Trust Collateral Agent agrees that, following receipt of funds
from Financial Security, it shall (a) hold such amounts in trust and apply the
same directly to the payment of Scheduled Payments on the Obligations when due;
(b) not apply such funds for any other purpose; (c) not commingle such funds
with other funds held by the Trust Collateral Agent and (d) maintain an accurate
record of such payments with respect to each Obligation and the corresponding
claim on the Policy and proceeds thereof, and, if the Obligation is required to
be surrendered or presented for such payment, shall stamp on each such
Obligation the legend "$[insert applicable amount] paid by Financial Security
and the balance hereof has been cancelled and reissued" and then shall deliver
such Obligation to Financial Security.
A-1
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Policy No. 50809-N Date of Issuance: May 20, 1999
(v) The Trust Collateral Agent, on behalf of the Holders, hereby assigns
to Financial Security the rights of the Holders with respect to the Obligations
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 Obligations. 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 Scheduled Payments
in respect of the Obligations. The Trust Collateral Agent 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 Trust Collateral Agent, on behalf of the Holders, hereby appoints
Financial Security as agent and attorney-in-fact for the Trust Collateral Agent
and each such Holder in any legal proceeding with respect to the Obligations.
The Trust Collateral Agent hereby agrees that, so long as an Insurer Default (as
defined in the Indenture) shall not exist, Financial Security may at any time
during the continuation of any proceeding by or against the Obligor 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 Obligations (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 Trust Collateral
Agent hereby agrees that Financial Security shall be subrogated to, and the
Trust Collateral Agent on its behalf and on behalf of each Holder, hereby
delegates and assigns, to the fullest extent permitted by law, the rights of the
Trust Collateral Agent 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 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, capitalized terms used in this
Notice of Claim and Certificate and not defined herein shall have the meanings
provided in the Policy.
A-2
<PAGE>
Policy No. 50809-N Date of Issuance: May 20, 1999
IN WITNESS WHEREOF, the Trust Collateral Agent has executed and delivered
this Notice of Claim and Certificate as of the __th day of __________, ____.
BANK ONE, N.A.
as Trust Collateral Agent
By_________________________________
Title______________________________
- --------------------------------------
For Financial Security or Fiscal Agent Use Only
Wire transfer sent on ____________ By ___________________________
Confirmation Number _____________________.
A-3
<PAGE>
Exhibit 10.1
<PAGE>
EXHIBIT 10.1
PURCHASE AGREEMENT
between
AFS FUNDING CORP.
Purchaser
AMERICREDIT FINANCIAL SERVICES, INC.
Seller
and
CP FUNDING CORP.
Seller
dated as of
May 12, 1999
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
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<S> <C>
ARTICLE I. DEFINITIONS......................................................................... 1
SECTION 1.1 General............................................................................ 1
SECTION 1.2 Specific Terms..................................................................... 1
SECTION 1.3 Usage of Terms..................................................................... 3
SECTION 1.4 [Reserved]......................................................................... 3
SECTION 1.5 No Recourse........................................................................ 3
SECTION 1.6 Action by or Consent of Noteholders and Certificateholder.......................... 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 Initial Receivables and the Initial Other Conveyed
Property......................................................................... 4
SECTION 2.2 Conveyance of the Subsequent Receivables and the Subsequent Other
Conveyed Property................................................................ 4
ARTICLE III. REPRESENTATIONS AND WARRANTIES...................................................... 4
SECTION 3.1 Representations and Warranties of AFS.............................................. 4
SECTION 3.2 Representations and Warranties of CP Funding....................................... 6
SECTION 3.3 Representations and Warranties of Purchaser........................................ 8
ARTICLE IV. COVENANTS OF SELLERS................................................................ 10
SECTION 4.1 Protection of Title of Purchaser................................................... 10
SECTION 4.2 Other Liens or Interests........................................................... 11
SECTION 4.3 Costs and Expenses................................................................. 11
SECTION 4.4 Indemnification.................................................................... 11
ARTICLE V. REPURCHASES......................................................................... 13
SECTION 5.1 Repurchase of Receivables Upon Breach of Warranty.................................. 13
SECTION 5.2 Reassignment of Purchased Receivables.............................................. 15
SECTION 5.3 Waivers............................................................................ 15
ARTICLE VI. MISCELLANEOUS....................................................................... 15
SECTION 6.1 Liability of Sellers............................................................... 15
SECTION 6.2 Merger or Consolidation of Sellers or Purchaser.................................... 15
SECTION 6.3 Limitation on Liability of Sellers and Others...................................... 16
SECTION 6.4 Sellers May Own Notes or the Certificate........................................... 16
SECTION 6.5 Amendment.......................................................................... 16
SECTION 6.6 Notices............................................................................ 17
SECTION 6.7 Merger and Integration............................................................. 17
SECTION 6.8 Severability of Provisions......................................................... 17
SECTION 6.9 Intention of the Parties........................................................... 17
SECTION 6.10 Governing Law...................................................................... 18
SECTION 6.11 Counterparts....................................................................... 18
</TABLE>
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<TABLE>
<S> <C>
SECTION 6.12 Conveyance of the Receivables and the Other Conveyed Property to the
Issuer........................................................................... 18
SECTION 6.13 Nonpetition Covenant............................................................... 19
</TABLE>
SCHEDULES
Schedule A -- Schedule of Receivables from AFS
Schedule B -- Schedule of Receivables from CP Funding
Schedule C -- Representations and Warranties from AFS as to the Receivables
ii
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PURCHASE AGREEMENT
------------------
THIS PURCHASE AGREEMENT, dated as of May 12, 1999, executed among AFS
Funding Corp., a Nevada corporation, as purchaser ("Purchaser"), CP Funding
Corp., a Nevada corporation, as seller ("CP Funding") and AmeriCredit Financial
Services, Inc., a Delaware corporation, as seller ("AFS" and together with CP
Funding, the "Sellers").
W I T N E S S E T H :
--------------------
WHEREAS, Purchaser has agreed to purchase from the Sellers, and the
Sellers, pursuant to this Agreement, are transferring to Purchaser the Initial
Receivables and Other Conveyed Property and with respect to the Subsequent
Receivables will transfer on the related Subsequent Transfer Date the Subsequent
Receivables and the Subsequent 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 the Sellers, 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 Sale and Servicing Agreement dated as of
May 12, 1999, by and among AFS Funding Corp. (as Seller), AmeriCredit Financial
Services, Inc. (in its individual capacity and as Servicer), AmeriCredit
Automobile Receivables Trust 1999-B (as Issuer) and Bank One, N.A., as Backup
Servicer and Trust 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 Purchase Agreement and all amendments
---------
hereof and supplements hereto.
"Closing Date" means May 20, 1999.
------------
"Initial Other Conveyed Property" means all property conveyed by the
-------------------------------
Sellers to the Purchaser pursuant to this Agreement other than the Initial
Receivables.
"Initial Receivables" means the Receivables listed on the Schedules of
-------------------
Receivables attached hereto.
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"Issuer" means AmeriCredit Automobile Receivables Trust 1999-B.
------
"Other Conveyed Property" means all property conveyed by the Purchaser
-----------------------
to the Trust pursuant to Sections 2.1(b),(c),(d),(e),(f) and (h) of the Sale and
Servicing Agreement.
"Owner Trustee" means Bankers Trust (Delaware), as Owner Trustee
-------------
appointed and acting pursuant to the Trust Agreement.
"Receivables" means the Initial Receivables and the Subsequent
-----------
Receivables.
"Related Documents" means, with respect to the Subsequent Receivables,
-----------------
the Subsequent Purchase Agreement, the Notes, the Certificate, the Custodian
Agreement, the Sale and Servicing Agreement, the Indenture, the Trust 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 Sellers'
----------------
representations and warranties hereunder or any other event which requires the
repurchase of a Receivable by AFS under the Sale and Servicing Agreement.
"Sale and Servicing Agreement" means the Sale and Servicing Agreement
----------------------------
referred to in Section 1.1 hereof.
"Schedule of Representations" means the Schedule of Representations
---------------------------
and Warranties attached hereto as Schedule C.
"Schedules of Receivables" means the schedules of Initial Receivables
------------------------
sold and transferred pursuant to this Agreement which are attached hereto as
Schedules A and B.
"Subsequent Cutoff Date" means the date specified in the related
----------------------
Subsequent Transfer Agreement, provided, however that such date shall be on or
before the Subsequent Transfer Date.
"Subsequent Other Conveyed Property" means all property conveyed by
----------------------------------
the Sellers to the Purchaser pursuant to the Subsequent Purchase Agreement other
than the Subsequent Receivables.
"Subsequent Purchase Agreement" means an agreement by and between the
-----------------------------
Sellers and the Purchaser pursuant to which the Purchaser will acquire
Subsequent Receivables.
"Subsequent Receivables" means the Receivables transferred to the
----------------------
Purchaser pursuant to Section 2.2, which shall be listed on Schedules A and B to
the related Subsequent Purchase Agreement.
"Subsequent Transfer Date" means, with respect to Subsequent
------------------------
Receivables, any date, occurring not more frequently than once a month, during
the Funding Period on which
2
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Subsequent Receivables are to be transferred to the Purchaser pursuant to this
Agreement, and a Subsequent Purchase Agreement is executed and delivered.
"Trust Collateral Agent" means Bank One, N.A., as trust collateral
----------------------
agent and any successor trust collateral agent appointed and acting pursuant to
the Sale and Servicing Agreement.
"Trustee" means Bank One, N.A., as trustee and any successor Trustee
-------
appointed and acting pursuant to the Indenture.
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 Sale and
Servicing 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 1.4 [Reserved].
----------
SECTION 1.5 No Recourse. Without limiting the obligations of Sellers
-----------
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 Sellers,
or of any predecessor or successor of Sellers.
SECTION 1.6 Action by or Consent of Noteholders and
---------------------------------------
Certificateholder. Whenever any provision of this Agreement refers to action to
- -----------------
be taken, or consented to, by Noteholders or the Certificateholder, such
provision shall be deemed to refer to the Certificateholder or Noteholder, as
the case may be, of record as of the Record Date immediately preceding the date
on which such action is to be taken, or consent given, by Noteholders or the
Certificateholder. Solely for the purposes of any action to be taken, or
consented to, by Noteholders or the Certificateholder, any Note or Certificate
registered in the name of the Sellers or any Affiliate thereof shall be deemed
not to be outstanding; provided, however, that, solely for the purpose of
determining whether the Trustee or the Trust Collateral Agent is entitled to
rely upon any such action or consent, only Notes or Certificates which the Owner
Trustee, the Trustee or the Trust Collateral Agent, respectively, 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 Noteholders (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>
ARTICLE II.
CONVEYANCE OF THE RECEIVABLES
AND THE OTHER CONVEYED PROPERTY
SECTION 2.1 (a) Conveyance of the Initial Receivables and the
---------------------------------------------
Initial Other Conveyed Property. Subject to the terms and conditions of this
- -------------------------------
Agreement, Sellers hereby sell, transfer, assign, and otherwise convey to
Purchaser without recourse (but without limitation of its obligations in this
Agreement), and Purchaser hereby purchases, all right, title and interest of
Sellers in and to the Initial Receivables and the Initial Other Conveyed
Property. It is the intention of Sellers and Purchaser that the transfer and
assignment contemplated by this Agreement shall constitute a sale of the Initial
Receivables and the Initial Other Conveyed Property from Sellers to Purchaser,
conveying good title thereto free and clear of any liens, and the beneficial
interest in and title to the Initial Receivables and the Initial Other Conveyed
Property shall not be part of Sellers' estates in the event of the filing of a
bankruptcy petition by or against Sellers under any bankruptcy or similar law.
(b) Simultaneously with the conveyance of the Initial Receivables and
the Initial Other Conveyed Property to Purchaser, Purchaser has paid or
caused to be paid to or upon the order of (i) CP Funding an amount equal to
the book value of the Initial Receivables sold by CP Funding, as set forth
on the books and records of CP Funding, by wire transfer of immediately
available funds, and (ii) AFS, an amount equal to the book value of the
Initial Receivables sold by AFS, as set forth on the books and records of
AFS, a portion by wire transfer of immediately available funds and the
remainder as a contribution to the capital of the Purchaser (a wholly-owned
subsidiary of AFS).
SECTION 2.2 (a) Conveyance of the Subsequent Receivables and the
------------------------------------------------
Subsequent Other Conveyed Property. On each Subsequent Transfer Date and
- ----------------------------------
simultaneously with the execution and delivery of the related Subsequent
Purchase Agreement, the Sellers shall sell, transfer, assign, and otherwise
convey to Purchaser without recourse (but without limitation of its obligations
in this Agreement), and Purchaser shall purchase, all right, title and interest
of Sellers in and to the Subsequent Receivables and the Subsequent Other
Conveyed Property. It is the intention of Sellers and Purchaser that the
transfer and assignment contemplated by such Agreement shall constitute a sale
of the Subsequent Receivables and the Subsequent Other Conveyed Property from
Sellers to Purchaser, conveying good title thereto free and clear of any liens,
and the beneficial interest in and title to the Subsequent Receivables and the
Subsequent Other Conveyed Property shall not be part of Sellers' estates in the
event of the filing of a bankruptcy petition by or against Sellers under any
bankruptcy or similar law.
(b) Simultaneously with the conveyance of the Subsequent Receivables
and the Subsequent Other Conveyed Property to Purchaser, Purchaser shall
pay or cause to be paid to or upon the order of (i) CP Funding an amount
equal to the book value of the Subsequent Receivables sold by CP Funding,
as set forth on the books and records of CP Funding, by wire transfer of
immediately available funds, and (ii) AFS, an amount equal to the book
value of the Subsequent Receivables sold by AFS, as set forth on the books
and records of AFS, a portion by wire transfer of immediately available
funds and the remainder as a contribution to the capital of the Purchaser
(a wholly-owned subsidiary of
4
<PAGE>
AFS).
ARTICLE III.
REPRESENTATIONS AND WARRANTIES
SECTION 3.1 Representations and Warranties of AFS. AFS makes the
-------------------------------------
following representations and warranties as of the date hereof and as of the
Subsequent Transfer Date, as the case may be, 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 Sale and
Servicing Agreement and on which the Insurer will rely in issuing the Policies.
Such representations are made as of the execution and delivery of this Agreement
and as of the execution and delivery of any Subsequent Purchase Agreement, but
shall survive the sale, transfer and assignment of the Receivables and the Other
Conveyed Property hereunder and under any Subsequent Purchase Agreement, and the
sale, transfer and assignment thereof by Purchaser to the Issuer under the Sale
and Servicing Agreement. AFS 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 AFS in the Trustee's
own name on behalf of the Noteholders.
(a) Schedule of Representations. The representations and warranties
---------------------------
set forth on the Schedule of Representations with respect to the Initial
Receivables as of the date hereof, and with respect to the Subsequent
Receivables as of the related Subsequent Transfer Date, are true and
correct.
(b) Organization and Good Standing. AFS 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. AFS 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. AFS 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; AFS 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
AFS's Related Documents have been duly authorized by AFS by all necessary
corporate action.
5
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(e) Valid Sale; Binding Obligations. This Agreement and AFS'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 AFS and creditors
of and purchasers from AFS; and this Agreement and AFS's Related Documents
constitute legal, valid and binding obligations of AFS 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 AFS, or any indenture, agreement,
mortgage, deed of trust or other instrument to which AFS 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 Account Agreement, the Sale and Servicing Agreement
and the Indenture, or violate any law, order, rule or regulation applicable
to AFS of any court or of any federal or state regulatory body,
administrative agency or other governmental instrumentality having
jurisdiction over AFS or any of its properties.
(g) No Proceedings. There are no proceedings or investigations
--------------
pending or, to AFS's knowledge, threatened against AFS, before any court,
regulatory body, administrative agency or other tribunal or governmental
instrumentality having jurisdiction over AFS or its properties (i)
asserting the invalidity of this Agreement or any of the Related Documents,
(ii) seeking to prevent the issuance of the Notes 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 AFS 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 Sale and Servicing Agreement.
(h) Chief Executive Office. The chief executive office of AFS is
----------------------
located at 200 Bailey Avenue, Fort Worth, Texas 76107-1220.
SECTION 3.2 Representations and Warranties of CP Funding. CP Funding
--------------------------------------------
makes the following representations and warranties as of the date hereof and as
of the Subsequent Transfer Date, as the case may be, 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 Sale and Servicing Agreement and on which the
6
<PAGE>
Insurer will rely in issuing the Policies. Such representations are made as of
the execution and delivery of this Agreement and as of the execution and
delivery of any Subsequent Purchase Agreement, but shall survive the sale,
transfer and assignment of the Receivables and the Other Conveyed Property
hereunder and under any Subsequent Purchase Agreement, and the sale, transfer
and assignment thereof by Purchaser to the Issuer under the Sale and Servicing
Agreement. CP Funding 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 CP Funding in the Trustee's own
name on behalf of the Noteholders.
(a) Organization and Good Standing. CP Funding 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 to be transferred to
Purchaser.
(b) Power and Authority. CP Funding 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; CP Funding 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 CP Funding's Related Documents have been duly authorized
by CP Funding by all necessary corporate action.
(c) Due Qualification. CP Funding 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) Valid Sale; Binding Obligations. This Agreement and CP Funding'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 CP Funding and
creditors of and purchasers from CP Funding; and this Agreement and CP
Funding's Related Documents constitute legal, valid and binding obligations
of CP Funding 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.
(e) 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 CP Funding, or any indenture,
agreement, mortgage, deed of trust or other instrument to which CP Funding
is a party or
7
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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 Account Agreement, the Sale and Servicing Agreement
and the Indenture, or violate any law, order, rule or regulation applicable
to CP Funding of any court or of any federal or state regulatory body,
administrative agency or other governmental instrumentality having
jurisdiction over CP Funding or any of its properties.
(f) No Proceedings. There are no proceedings or investigations
--------------
pending or, to CP Funding's knowledge, threatened against CP Funding,
before any court, regulatory body, administrative agency or other tribunal
or governmental instrumentality having jurisdiction over CP Funding or its
properties (i) asserting the invalidity of this Agreement or any of the
Related Documents, (ii) seeking to prevent the issuance of the Notes 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 CP Funding 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 Sale and Servicing Agreement.
(g) Chief Executive Office. The chief executive office of CP Funding
----------------------
is located at 1325 Airmotive Way, Suite 130, Reno, Nevada 89502.
SECTION 3.3 Representations and Warranties of Purchaser. Purchaser
-------------------------------------------
makes the following representations and warranties, on which Sellers rely 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 Sale 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
Sale 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 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 Sale and
Servicing Agreement, or the validity or enforceability of the Receivables
and the Other
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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 Sale 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.
(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
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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 Sale and Servicing Agreement.
In the event of any breach of a representation and warranty made by
Purchaser hereunder, Sellers covenant and agree that they will not take any
action to pursue any remedy that they may have hereunder, in law, in equity or
otherwise, until a year and a day have passed since the date on which all Notes,
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. Sellers 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 Noteholders and Owner
Trustee on behalf of the Certificateholder.
ARTICLE IV.
COVENANTS OF SELLERS
SECTION 4.1 Protection of Title of Purchaser.
---------------------------------
(a) At or prior to the Closing Date, each Seller shall have filed or
caused to be filed a UCC-1 financing statement, executed by such Seller as
seller or debtor, naming Purchaser as purchaser or secured party and
describing the Initial Receivables and the Initial 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. At or prior to any Subsequent Transfer Date,
each Seller shall file or cause to be filed a UCC-1 financing statement
executed by such Seller, as seller or debtor, naming the Purchaser as
purchaser or secured party and describing the Subsequent Receivables and
the Subsequent Other Conveyed Property being sold by it to the Purchaser as
collateral, with the office of the Secretary of State of the State of Texas
and in such other locations as Purchaser shall require. From time to time
thereafter, Sellers 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 Sale and Servicing Agreement and of the Trust Collateral
Agent under the Indenture in the Receivables and the Other Conveyed
Property and in the proceeds thereof. Sellers shall deliver (or cause to be
delivered) to Purchaser, the Trust Collateral Agent and the 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 either
Seller fails to perform its obligations under this subsection, Purchaser,
Issuer or the Trust Collateral Agent may do so, at the expense of such
Seller.
(b) Sellers shall not change their name, identity, or corporate
structure in any manner that would, could or might make any financing
statement or continuation statement filed by Sellers (or by Purchaser,
Issuer or the Trust Collateral Agent on behalf of Sellers) in accordance
with paragraph (a) above seriously misleading within the meaning of (S) 9-
402(7) of the UCC, unless they shall have given Purchaser, Issuer and the
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Trust Collateral Agent at least 60 days' prior written notice thereof, and
shall promptly file appropriate amendments to all previously filed
financing statements and continuation statements.
(c) Sellers shall give Purchaser, the Issuer, the Insurer (so long as
an Insurer Default shall not have occurred and be continuing) and the Trust
Collateral Agent at least 60 days' prior written notice of any relocation
of their principal executive offices, 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. AFS 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 and with respect to Subsequent
Receivables, the Subsequent Transfer Date, AFS 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 and with respect to Subsequent Receivables, the Subsequent Transfer
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 and with respect to Subsequent
Receivables, the Subsequent Transfer Date. AFS 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, AFS'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 AFS'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 Sellers 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,
Sellers 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 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, Sellers 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 Sellers
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 Sellers.
SECTION 4.3 Costs and Expenses. Sellers shall pay all reasonable
------------------
costs and disbursements in connection with the performance of its obligations
hereunder and under its Related Documents.
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SECTION 4.4 Indemnification.
---------------
(a) Sellers shall defend, indemnify and hold harmless Purchaser, the
Issuer, the Trust Collateral Agent, the Trustee, the Backup Servicer, the
Owner Trustee, the Noteholders and the Certificateholder from and against
any and all costs, expenses, losses, damages, claims, and liabilities,
arising out of or resulting from any breach of any of Sellers'
representations and warranties contained herein.
(b) Sellers shall defend, indemnify and hold harmless Purchaser, the
Issuer, the Trust Collateral Agent, the Trustee, the Backup Servicer, the
Owner Trustee, the Noteholders and the Certificateholder 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 Sellers
or any affiliate thereof of a Financed Vehicle.
(c) Sellers shall defend, indemnify and hold harmless Purchaser, the
Issuer, the Trust Collateral Agent, the Trustee, the Backup Servicer, the
Owner Trustee, the Noteholders and the Certificateholder from and 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 Sale and Servicing Agreement.
(d) Sellers agree to pay, and shall defend, indemnify and hold
harmless Purchaser, the Issuer, the Trust Collateral Agent, the Trustee,
the Backup Servicer, the Owner Trustee, the Noteholders and the
Certificateholder from and against any taxes that may at any time be
asserted against Purchaser, the Issuer, the Trust Collateral Agent, the
Trustee, the Backup Servicer, the Owner Trustee, the Noteholders and the
Certificateholder 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 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 Notes or issuance of the Certificate,
or asserted with respect to ownership of the Receivables and Other Conveyed
Property which shall be indemnified by Sellers pursuant to clause (e)
below, or federal, state or other income taxes, arising out of
distributions on the Notes or the Certificate or transfer taxes arising in
connection with the transfer of the Notes or the Certificate) and costs and
expenses in defending against the same, arising by reason of the acts to be
performed by Sellers under this Agreement or imposed against such Persons.
(e) Sellers agree to pay, and to indemnify, defend and hold harmless
Purchaser, the Issuer, the Trust Collateral Agent, the Trustee, the Backup
Servicer, the Owner Trustee, the Noteholders and the Certificateholder
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 under any
Subsequent Purchase Agreement and the conveyance or ownership of the
Receivables under the Sale and Servicing Agreement or the issuance and
original sale of the Notes or the issuance of the Certificate, including,
without limitation, any sales, gross receipts,
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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 the
Notes or the Certificate) and costs and expenses in defending against the
same, arising by reason of the acts to be performed by Sellers under this
Agreement or imposed against such Persons.
(f) Sellers shall defend, indemnify, and hold harmless Purchaser, the
Issuer, the Trust Collateral Agent, the Trustee, the Backup Servicer, the
Owner Trustee, the Noteholders and the Certificateholder 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 Trust Collateral
Agent, the Trustee, the Backup Servicer, the Owner Trustee, the Noteholders
or the Certificateholder through the negligence, willful misfeasance, or
bad faith of Sellers in the performance of their duties under this
Agreement or by reason of reckless disregard of Sellers' obligations and
duties under this Agreement.
(g) Sellers shall indemnify, defend and hold harmless Purchaser, the
Issuer, the Trust Collateral Agent, the Trustee, the Backup Servicer, the
Owner Trustee, the Noteholders and the Certificateholder from and against
any loss, liability or expense incurred by reason of the violation by
Sellers of federal or state securities laws in connection with the
registration or the sale of the Notes.
(h) Sellers shall indemnify, defend and hold harmless Purchaser, the
Issuer, the Trust Collateral Agent, the Trustee, the Backup Servicer, the
Owner Trustee, the Noteholders and the Certificateholder from and against
any loss, liability or expense imposed upon, or incurred by, Purchaser, the
Issuer, the Trust Collateral Agent, the Trustee, the Backup Servicer, the
Owner Trustee, the Noteholders or the Certificateholder as result of the
failure of any Receivable, or the sale of the related Financed Vehicle, to
comply with all requirements of applicable law.
(i) Sellers 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 Sellers' trusts and duties as Servicer under the Sale 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.
(j) Sellers shall indemnify the Owner Trustee and its officers,
directors, successors, assigns, agents and servants jointly and severally
with the Purchaser pursuant to Section 7.2 of the Trust Agreement.
Indemnification under this Section 4.4 shall include reasonable fees
and expenses of counsel and expenses of litigation and shall survive payment of
the Notes and the Certificate. The indemnity obligations hereunder shall be in
addition to any obligation that Sellers may otherwise have.
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ARTICLE V.
REPURCHASES
SECTION 5.1 Repurchase of Receivables Upon Breach of Warranty. Upon
-------------------------------------------------
the occurrence of a Repurchase Event, AFS 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, simultaneously
with the repurchase of the Receivable, AFS shall deposit the Purchase Amount in
full, without deduction or offset, to the Collection Account, pursuant to
Section 3.2 of the Sale and Servicing Agreement. It is understood and agreed
that, except as set forth in Section 6.1 hereof, the obligation of AFS to
repurchase any Receivable, as to which a breach occurred and is continuing,
shall, if such obligation is fulfilled, constitute the sole remedy against AFS
for such breach available to Purchaser, the Issuer, the Insurer, the Backup
Servicer, the Noteholders, the Certificateholder, the Trust Collateral Agent on
behalf of the Noteholders or the Owner Trustee on behalf of the
Certificateholder. The provisions of this Section 5.1 are intended to grant the
Issuer and the Trust Collateral Agent a direct right against AFS to demand
performance hereunder, and in connection therewith, AFS 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 3.2 of
the Sale and Servicing Agreement. Notwithstanding any other provision of this
Agreement or the Sale and Servicing Agreement to the contrary, the obligation of
AFS under this Section shall not terminate upon a termination of AFS as Servicer
under the Sale 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 Sale and Servicing Agreement.
In addition to the foregoing and notwithstanding whether the related
Receivable shall have been purchased by AFS, AFS shall indemnify the Issuer, the
Trust Collateral Agent, the Trustee, the Backup Servicer, the Owner Trustee, the
Insurer, the Noteholders and the Certificateholder from and against all costs,
expenses, losses, damages, claims and liabilities, including reasonable fees and
expenses of counsel, which may be asserted against or incurred by any of them as
a result of third party claims arising out of the events or facts giving rise to
such Repurchase Events.
SECTION 5.2 Reassignment of Purchased Receivables. Upon deposit in
-------------------------------------
the Collection Account of the Purchase Amount of any Receivable repurchased by
AFS under Section 5.1 hereof, Purchaser and the Issuer shall take such steps as
may be reasonably requested by AFS in order to assign to AFS 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 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 AFS 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 AFS, take such steps as AFS
deems reasonably necessary to enforce the Receivable, including bringing suit in
Purchaser's or in the Issuer's name.
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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.
ARTICLE VI.
MISCELLANEOUS
SECTION 6.1 Liability of Sellers. Sellers shall be liable in
--------------------
accordance herewith only to the extent of the obligations in this Agreement
specifically undertaken by Sellers and the representations and warranties of
Sellers.
SECTION 6.2 Merger or Consolidation of Sellers or Purchaser. Any
-----------------------------------------------
corporation or other entity (i) into which Sellers or Purchaser may be merged or
consolidated, (ii) resulting from any merger or consolidation to which Sellers
or Purchaser is a party or (iii) succeeding to the business of Sellers 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 Sellers or Purchaser, as the case may be, under this Agreement and, whether
or not such assumption agreement is executed, shall be the successor to Sellers
or Purchaser, as the case may be, hereunder (without relieving Sellers or
Purchaser of their 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 Insurer. Sellers or Purchaser shall promptly inform the
other party, the Issuer, the Trust Collateral Agent, the Owner Trustee and, so
long as an Insurer Default shall not have occurred and be continuing, the
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, 3.2 and 3.3 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) Sellers 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 Trust Collateral
Agent 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) Sellers
or Purchaser, as applicable, shall have delivered to the Issuer and the Trust
Collateral Agent an Opinion of Counsel, stating, in the opinion of such counsel,
either (A) all financing statements and continuation statements and amendments
thereto have
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been executed and filed that are necessary to preserve and protect the interest
of the Issuer and the Trust Collateral Agent 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 Sellers and Others. Sellers
---------------------------------------------
and any director, officer, employee or agent thereof 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. Sellers 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 Sellers May Own Notes or the Certificate. Subject to the
----------------------------------------
provisions of the Sale and Servicing Agreement, Sellers and any Affiliate of
Sellers may in their individual or any other capacity become the owner or
pledgee of Notes or the Certificate with the same rights as they would have if
they were not Sellers or an Affiliate thereof.
SECTION 6.5 Amendment.
---------
(a) This Agreement may be amended by Sellers and Purchaser with the
prior written consent of the Insurer (so long as an Insurer Default shall
not have occurred and be continuing) but without the consent of the Trust
Collateral Agent, the Owner Trustee, the Certificateholder or any of the
Noteholders (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, the Owner Trustee and the
Trust Collateral Agent, adversely affect in any material respect the
interests of any Certificateholder or Noteholder.
(b) This Agreement may also be amended from time to time by Sellers
and Purchaser, with the prior written consent of the Insurer (so long as an
Insurer Default shall not have occurred and be continuing) and with the
consent of the Trust Collateral Agent and, if required, the
Certificateholder and the Noteholders, in accordance with the Sale 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
Certificateholder or Noteholders; provided, however, the Sellers provide
the Trust Collateral Agent with an Opinion of Counsel, (which may be
provided by the Sellers' internal counsel) 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 Note or Certificate.
(c) Prior to the execution of any such amendment or consent, Sellers
shall have furnished written notification of the substance of such
amendment or consent to each Rating Agency.
(d) It shall not be necessary for the consent of Certificateholder or
Noteholders 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
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manner of obtaining such consents and of evidencing the authorization of
the execution thereof by Certificateholder or Noteholders shall be subject
to such reasonable requirements as the Trust Collateral Agent may
prescribe, including the establishment of record dates. The consent of a
Holder of a Certificate or a Note 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 or
Note and of any Certificate or Note 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 or Note.
SECTION 6.6 Notices. All demands, notices and communications to
-------
Sellers 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 Sellers, to
AmeriCredit Financial Services, Inc., 200 Bailey Avenue, Fort Worth, Texas
76107-1220, Attention: Chief Financial Officer, or (b) in the 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, Owner Trustee or
the Trust Collateral Agent, 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 Sellers 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 Sellers to Purchaser, and that the Receivables and the Other
Conveyed Property shall not be a part of Sellers' estates in the event of the
bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding,
or other proceeding under any federal or state bankruptcy or similar law, or the
occurrence of another similar event, of, or with respect to Sellers. In the
event that such conveyance is determined to be made as security for a loan made
by Purchaser, the Issuer, the Noteholders or the Certificateholder to Sellers,
the parties intend that Sellers shall have granted to Purchaser a security
interest in all of Sellers' 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.
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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. Sellers acknowledge that Purchaser intends, pursuant to
- ----------------------
the Sale 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 and on the Subsequent Transfer Date in the case of Subsequent
Receivables. Sellers acknowledge and consent to such conveyance and pledge and
waive any further notice thereof and covenant and agree that the representations
and warranties of Sellers contained in this Agreement and the rights of
Purchaser hereunder are intended to benefit the Insurer, the Issuer, the Owner
Trustee, the Trust Collateral Agent, the Noteholders and the Certificateholder.
In furtherance of the foregoing, Sellers covenant and agree to perform their
duties and obligations hereunder, in accordance with the terms hereof for the
benefit of the Insurer, the Issuer, the Owner Trustee, the Trust Collateral
Agent, the Noteholders and the Certificateholder and that, notwithstanding
anything to the contrary in this Agreement, Sellers shall be directly liable to
the Issuer, the Owner Trustee, the Trust Collateral Agent, the Noteholders and
the Certificateholder (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 Trust Collateral Agent may
enforce the duties and obligations of Sellers under this Agreement against
Sellers for the benefit of the Insurer, the Owner Trustee, the Trust Collateral
Agent, the Noteholders and the Certificateholder.
SECTION 6.13 Nonpetition Covenant. Neither Purchaser nor Sellers
--------------------
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 property, or ordering the winding up or
liquidation of the affairs of the Purchaser or the Issuer.
18
<PAGE>
IN WITNESS WHEREOF, the parties have caused this Purchase Agreement to
be duly executed by their respective officers as of the day and year first above
written.
AFS FUNDING CORP., as Purchaser
/s/ Preston A. Miller
By ____________________________________________
Name: Preston A. Miller
Title: Executive Vice President and Treasurer
AMERICREDIT FINANCIAL SERVICES,
INC., as Seller
/s/ Preston A. Miller
By ____________________________________________
Name: Preston A. Miller
Title: Executive Vice President and Treasurer
CP FUNDING CORP., as Seller
/s/ Preston A. Miller
By ____________________________________________
Name: Preston A. Miller
Title: Executive Vice President and Treasurer
Accepted:
BANK ONE, N.A.,
as Trustee and Trust Collateral Agent
/s/ John J. Rothrock
By __________________________
Name: John J. Rothrock
Title: Authorized Signer
[Purchase Agreement]
<PAGE>
SCHEDULE A
SCHEDULE OF RECEIVABLES FROM AFS
<PAGE>
SCHEDULE B
SCHEDULE OF RECEIVABLES FROM CP FUNDING
<PAGE>
SCHEDULE C (TO THE PURCHASE AGREEMENT)
REPRESENTATIONS AND WARRANTIES OF
---------------------------------
AMERICREDIT FINANCIAL SERVICES, INC. ("AMERICREDIT")
----------------------------------------------------
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 Collection Period and the
payment in the final Collection Period of the Receivable may be minimally
different from the normal period and level payment) which, if made when due,
shall fully amortize the Amount Financed over the original term and (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 either (A)
to AFS Funding Corp. ("AFS Funding") or (B) to CP Funding Corp. ("CP Funding")
and by CP Funding to AFS Funding 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" (including amendments to the
Federal Reserve's Official Staff Commentary to Regulation Z, effective October
1, 1998, concerning negative equity loans), the Soldiers' and Sailors' Civil
Relief Act of 1940, each applicable state Motor Vehicle Retail Installment Sales
Act, and state adaptations of the National Consumer Act and of the Uniform
Consumer Credit Code and other consumer credit laws and equal credit opportunity
and disclosure laws) in respect of the Receivables and the Financed Vehicles,
have been complied with in all material respects, and each Receivable and the
sale of the Financed Vehicle evidenced by each Receivable complied at the time
it was originated or made and now complies in all material respects with all
applicable legal requirements.
4. Origination. Each Receivable 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
<PAGE>
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 related Cutoff Date no Obligor had been
------------------
identified on the records of AmeriCredit as being the subject of a current
bankruptcy proceeding.
8. Schedules of Receivables. The information set forth in the Schedules
------------------------
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 related
Cutoff Date.
9. Marking Records. By the Closing Date or Subsequent Transfer Date, as
---------------
applicable, AmeriCredit 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 AFS Funding by either AmeriCredit or CP
Funding and resold by the AFS Funding to the Trust in accordance with the terms
of the Sale and Servicing Agreement.
10. Computer Tape. The Computer Tape made available by AmeriCredit to AFS
-------------
Funding and to the Trust on the Closing Date or Subsequent Transfer Date, as
applicable, was complete and accurate as of the related Cutoff Date and includes
a description of the same Receivables that are described in the Schedules of
Receivables.
11. Adverse Selection. No selection procedures adverse to the Noteholders
-----------------
or the Insurer were utilized in selecting the Receivables from those receivables
owned by either AmeriCredit or CP Funding which met the selection criteria
contained in the Sale 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 from
2
<PAGE>
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 Notes.
17. Good Title. Immediately prior to the conveyance of the Receivables
----------
to AFS Funding pursuant to this Agreement or Subsequent Purchase Agreement, as
applicable, either AmeriCredit or CP Funding 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 both AmeriCredit and CP Funding, AFS Funding 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. Neither AmeriCredit nor CP Funding has
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 either AmeriCredit or CP Funding in the Financed Vehicle. The Lien
Certificate and original certificate of title for each Financed Vehicle show, or
if a new or replacement Lien Certificate is being applied for with respect to
such Financed Vehicle the Lien Certificate will be received within 180 days of
the Closing Date or Subsequent Transfer Date, as applicable, and will show
AmeriCredit 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, AmeriCredit has received written evidence
from the related Dealer that such Lien Certificate showing AmeriCredit as first
lienholder has been applied for and AmeriCredit's security interest has been
validly assigned by AmeriCredit either (A) to AFS Funding or (B) to CP Funding
and by CP Funding to AFS Funding pursuant to this Agreement. Immediately after
the sale, transfer and assignment thereof by either AmeriCredit or CP Funding to
AFS Funding, each Receivable will be secured by an enforceable and perfected
first priority security interest in the Financed Vehicle in favor of AFS
Funding 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 related 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 AFS Funding 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.
3
<PAGE>
20. No Impairment. Neither AmeriCredit nor CP Funding have 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 Insurer, the Trustee, the Trust Collateral Agent and the
Noteholders in any Receivable or the proceeds thereof.
21. Receivable Not Assumable. No Receivable is assumable by another
------------------------
Person in a manner which would release the Obligor thereof from such Obligor's
obligations to 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 related 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 related Cutoff Date.
25. Past Due. At the related Cutoff Date no Receivable was more than 30
--------
days past due.
26. Remaining Principal Balance. At the related Cutoff Date the Principal
---------------------------
Balance of each Receivable set forth in the Schedules of Receivables is true and
accurate in all material respects.
27. Certain Characteristics of Initial Receivables. (A) Each Initial
----------------------------------------------
Receivable had a remaining maturity, as of the Initial Cutoff Date, of not more
than 72 months; (B) each Receivable had an original maturity of not more than 72
months; (C) each Initial Receivable had a remaining Principal Balance as of the
Initial Cutoff Date of at least $250 and not more than $60,000; (D) each Initial
Receivable has an Annual Percentage Rate of at least 8.00% and not more than
32.00%; (E) no Initial Receivable was more than 30 days past due as of the
Initial Cutoff Date and (F) no funds have been advanced by AmeriCredit, any
Dealer, or anyone acting
4
<PAGE>
on behalf of any of them in order to cause any Initial Receivable to qualify
under clause (E) above.
5
<PAGE>
Exhibit 10.2
<PAGE>
---------------------------------------------------------------------
INDEMNIFICATION AGREEMENT
among
FINANCIAL SECURITY ASSURANCE INC.,
AFS FUNDING CORP.
and
CREDIT SUISSE FIRST BOSTON CORPORATION
Dated as of May 12, 1999
$140,000,000 Class A-1 4.9166% Asset Backed Notes
$435,000,000 Class A-2 5.304% Asset Backed Notes
$130,000,000 Class A-3 5.780% Asset Backed Notes
$295,000,000 Class A-4 5.960% Asset Backed Notes
---------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
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
</TABLE>
EXHIBIT A -- Opinion of Assistant General Counsel
i
<PAGE>
INDEMNIFICATION AGREEMENT
INDEMNIFICATION AGREEMENT dated as of May 12, 1999 among FINANCIAL SECURiTY
ASSURANCE INC. ("Financial Security"), AFS FUNDING CORP., (the "Seller") and
------------------ ------
CREDIT SUISSE FIRST BOSTON CORPORATION as the Representative (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 12, 1999 among Financial Security, the Trust, 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 the amount paid by the
party entitled to indemnification or contribution from the date of such
<PAGE>
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, collectively, the Prospectus relating to the Securities
----------
dated October 26, 1998 and the Prospectus Supplement dated May 13, 1999 (the
"Prospectus Supplement") relating to the Securities.
"Representative" means Credit Suisse First Boston Corporation as
--------------
representative of the Underwriters.
"Securities" means the Trust's $140,000,000 Class A-1 4.9166% Asset Backed
----------
Notes, $435,000,000 Class A-2 5.304% Asset Backed Notes, $130,000,000 Class A-3
5.780% Asset Backed Notes and $295,000,000 Class A-4 5.960% Asset Backed Notes
issued pursuant to the Series 1999-B Indenture.
"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 11, 1998, 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" means the Series 1999-B Supplement to
-----------------------------------
Spread Account Agreement, dated as of May 12, 1999, 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
"Trust" means AmeriCredit Automobile Receivables Trust 1999-B.
-----
2
<PAGE>
"Underwriters" means Credit Suisse First Boston Corporation, Banc Boston
------------
Robertson Stephens Inc., Chase Securities Inc. and NationsBanc Montgomery
Securities LLC, as 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
----------------------
12, 1999 among the Seller, AmeriCredit Financial Services, Inc. and the
Underwriters.
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 public policy as expressed in the Securities Act and are therefore
unenforceable).
3
<PAGE>
(f) Financial Information. The consolidated balance sheets of
---------------------
Financial Security as of December 31, 1998 and December 31, 1997 and the
related consolidated statements of income, changes in shareholder's equity
and cash flows for the fiscal years then ended, and the interim
consolidated balance sheet of Financial Security as of March 31, 1999, and
the related statements of income, changes in shareholder equity and cash
flows for the interim period then ended, which are incorporated by
reference in the Prospectus, 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
------------------------------
Supplement set forth under the caption "The Insurer" (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 Supplement 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 Assistant 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
4
<PAGE>
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 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 insurance financial strength by
Moody's Investors Service, Inc., its insurer financial strength by Standard &
Poor's Ratings Services and Standard & Poor's (Australia) Pty. Ltd., its claims-
paying ability by Fitch IBCA, Inc. and Japan Rating and Investment Information,
Inc. or any other rating assigned by a 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
5
<PAGE>
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 in all material respects. In respect of
the Prospectus Supplement, the Underwriter Information is limited to the
information set forth (i) on the cover page in the table containing the
price to the public, the underwriting discount and the proceeds to the
Seller with respect to the Securities and in the paragraph immediately
following such table and 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.
6
<PAGE>
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 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.
------------
7
<PAGE>
(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 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 -- Transaction
Oversight
Department (with a copy to the attention of the
General
8
<PAGE>
Counsel)
Re: AmeriCredit Automobile Receivables Trust
1999-B
Confirmation: (212) 826-0100
Telecopy Nos.: (212) 339-3518,
(212) 339-3529
If to the Seller: AFS Funding Corp.
1325 Airmotive Way
Reno, Nevada 89502
Attention: General Counsel
Confirmation:
Telecopy No.:
If to the Underwriters: Credit Suisse First Boston Corporation
Eleven Madison Avenue
New York, NY 10010
Attn: Joseph D. Fashano
Confirmation: (212) 325-2107
Telecopy No.: (212) 324-4296
(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 Underwriting 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>
IN WITNESS WHEREOF, the parties hereto have caused this Indemnification
Agreement to be duly executed and delivered as of the date first above written.
FINANCIAL SECURITY ASSURANCE INC.
/s/ Daniel Farrell
By: ______________________________________
Name: Daniel Farrell
-------------------------------
Authorized Officer
AFS FUNDING CORP.
/s/ Preston A. Miller
By: ______________________________________
Name: Preston A. Miller
-------------------------------
Title: Executive Vice President and
-------------------------------
Treasurer
-------------------------------
CREDIT SUISSE FIRST BOSTON CORPORATION
/s/ Richard d'Albert
By: ______________________________________
Name: Richard d'Albert
-------------------------------
Title: Managing Director
-------------------------------
<PAGE>
EXHIBIT A
OPINION OF ASSISTANT 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, 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, 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 "The Insurer" in the Prospectus (the
"Offering Document") of the Seller with respect to the Securities. The
-----------------
information 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
A-1
<PAGE>
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).
A-2
<PAGE>
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the Prospectus Supplement of
AFS Funding Corp. relating to AmeriCredit Automobile Receivables Trust 1999-B of
our report dated January 26, 1999 on our audits of the consolidated financial
statements of Financial Security Assurance Inc. and Subsidiaries as of December
31, 1998 and 1997, and for each of the three years in the period ended December
31, 1998. We also consent to the reference to our Firm under the caption
"Experts".
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
May 13, 1999
<PAGE>
REPORT OF INDEPENDNET ACCOUNTANTS
To the Managers of AmeriCredit Automobile Receivables Trust 1999-B:
In our opinion, the accompanying balance sheet presents fairly, in all material
respects, the financial position of AmeriCredit Automobile Receivables Trust
1999-B as of May 12, 1999, in conformity with generally accepted accounting
principles. This financial statement is the responsibility of the Trust's
management; our responsibility is to express an opinion on this financial
statement based on our audit. We conducted our audit in accordance with
generally accepted auditing standard which require that we plan and perform the
audit to obtain reasonable assurance about whether the balance sheet is free of
material misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the balance sheet, assessing the
accounting principles used and significant estimates made by management, and
evaluating the overall financial statement presentation. We believe that our
audit provides a reasonable basis for the opinion expressed above.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
Forth Worth, Texas
1
<PAGE>
Exhibit 99.1
<PAGE>
EXHIBIT 99.1
AmeriCredit Corporations
Composition of the Receivables
1999-B
<TABLE>
<CAPTION>
New Used Total
------------------------ ------------------------ ------------------
<S> <C> <C> <C>
Aggregate Principal Balance $150,738,028.71 $549,261,964.28 $699,999,992.99
Number of Receivables in Pool 9,551 43,545 53,096
Percent of Pool by Principal Balance 21.53% 78.47%
Average Principal Balance $15,782.43 $12,613.66 $13,183.67
Range of Principal Balances ($527.04 to $50,934.70) ($267.76 to $52,854.80)
Weighted Average APR 16.96% 18.86% 18.45%
Range of APRs (9.25% to 27.00%) (9.00% to 29.95%)
Weighted Average Remaining Term 60 57 57
Range of Remaining Terms (4 to 72 months) (3 to 72 months)
Weighted Average Original Term 61 58 58
Range of Original Terms (12 to 72 months) (12 to 72 months)
</TABLE>
____________________
(1) Aggregate Principal Balance includes some portion of accrued interest.
As a result, the Weighted Average APR of the Receivables may not be
equivalent to the Contracts' aggregate yield on the Aggregate
Principal Balance.
<PAGE>
AmeriCredit Corporation
Distribution of the Receivables By APR as of the Cutoff Date
<TABLE>
<CAPTION>
Aggregate Principal
Balance as of Cutoff Percent of Aggregate Number of Percent of Number of
APR Range (1) Date Principal Balance (2) Receivables Receivables (2)
- -------------------- -------------------- --------------------- ------------- ---------------------
<S> <C> <C> <C> <C>
9.000% to 9.999% 3,020,285.59 0.43% 168 0.32%
10.000% to 10.999% 2,544,425.87 0.36% 149 0.28%
11.000% to 11.999% 5,899,883.86 0.84% 312 0.59%
12.000% to 12.999% 27,728,851.08 3.96% 1,604 3.02%
13.000% to 13.999% 23,451,962.33 3.35% 1,350 2.54%
14.000% to 14.999% 27,595,541.36 3.94% 1,627 3.06%
15.000% to 15.999% 49,023,325.07 7.00% 3,047 5.74%
16.000% to 16.999% 44,418,298.73 6.35% 2,892 5.45%
17.000% to 17.999% 77,151,564.18 11.02% 5,392 10.16%
18.000% to 18.999% 134,678,561.48 19.24% 10,220 19.25%
19.000% to 19.999% 70,118,921.51 10.02% 5,294 9.97%
20.000% to 20.999% 77,865,924.78 11.12% 6,358 11.97%
21.000% to 21.999% 94,752,530.89 13.54% 8,475 15.96%
22.000% to 22.999% 26,880,107.08 3.84% 2,509 4.73%
23.000% to 23.999% 29,560,157.20 4.22% 3,107 5.85%
24.000% to 24.999% 3,868,448.47 0.55% 400 0.75%
25.000% to 25.999% 1,026,205.18 0.15% 136 0.26%
26.000% to 26.999% 164,266.90 0.02% 26 0.05%
27.000% to 27.999% 104,061.44 0.01% 13 0.02%
28.000% to 28.999% 93,934.73 0.01% 10 0.02%
29.000% to 29.999% 52,735.26 0.01% 7 0.01%
-------------------- --------------------- -------------- --------------------
TOTAL 699,999,992.99 100.00% 53,096 100.00%
==================== ===================== ============== ====================
</TABLE>
____________________________
(1) Aggregate Principal Balances include some portion of accrued interest.
Indicated APR's represent APR's on Principal Balance net of such
accrued interest.
(2) Percentages may not add to 100% because of rounding.
<PAGE>
AmeriCredit Corporation
Distribution of the Receivables by Geographic Location of Obligor
1999-B
<TABLE>
<CAPTION>
Aggregate Principal
Balance as of Cutoff Percent of Aggregate Number of Percent of Number of
State Date Principal Balance (1) Receivables Receivables (1)
- ---------------- -------------------- --------------------- ----------- --------------------
<S> <C> <C> <C> <C>
California $ 93,938,533.99 13.42% 6,616 12.46%
Texas $ 67,997,218.74 9.71% 5,076 9.56%
Florida $ 55,792,143.55 7.97% 4,280 8.06%
New York $ 38,229,442.73 5.46% 2,853 5.37%
Pennsylvania $ 38,201,877.19 5.46% 2,985 5.62%
Ohio $ 36,933,871.49 5.28% 2,968 5.59%
Illinois $ 33,022,375.10 4.72% 2,430 4.58%
Michigan $ 25,280,566.84 3.61% 1,922 3.62%
Arizona $ 23,517,151.66 3.36% 1,828 3.44%
Georgia $ 23,158,032.24 3.31% 1,639 3.09%
Virginia $ 21,887,547.69 3.13% 1,625 3.06%
New Jersey $ 20,670,231.36 2.95% 1,577 2.97%
North Carolina $ 15,731,384.60 2.25% 1,215 2.29%
Tennessee $ 15,703,581.07 2.24% 1,166 2.20%
Nevada $ 14,173,692.54 2.02% 1,058 1.99%
Maryland $ 13,469,705.67 1.92% 964 1.82%
Alabama $ 13,304,596.37 1.90% 989 1.86%
Indiana $ 11,459,690.41 1.64% 888 1.67%
Missouri $ 10,917,991.68 1.56% 863 1.63%
Minnesota $ 10,407,985.23 1.49% 814 1.53%
Kentucky $ 9,966,096.24 1.42% 794 1.50%
Washington $ 9,701,845.58 1.39% 791 1.49%
Massachusetts $ 8,755,730.35 1.25% 794 1.50%
Louisiana $ 8,015,851.16 1.15% 605 1.14%
Colorado $ 7,647,538.61 1.09% 640 1.21%
Oklahoma $ 6,013,456.52 0.86% 493 0.93%
Wisconsin $ 5,625,351.47 0.80% 443 0.83%
Connecticut $ 5,472,143.03 0.78% 431 0.81%
Kansas $ 5,467,503.15 0.78% 413 0.78%
South Carolina $ 5,115,572.33 0.73% 399 0.75%
Iowa $ 5,106,152.00 0.73% 390 0.73%
Mississippi $ 4,904,357.15 0.70% 357 0.67%
West Virginia $ 4,522,679.46 0.65% 349 0.66%
Nebraska $ 3,610,724.00 0.52% 283 0.53%
Delaware $ 3,523,934.54 0.50% 267 0.50%
New Mexico $ 3,457,438.96 0.49% 276 0.52%
Utah $ 3,432,234.97 0.49% 297 0.56%
Oregon $ 3,235,453.95 0.46% 236 0.44%
New Hampshire $ 2,894,998.15 0.41% 255 0.48%
Rhode Island $ 2,485,320.21 0.36% 215 0.40%
Maine $ 2,210,132.84 0.32% 202 0.38%
Other (2) $ 5,037,858.00 0.72% 410 0.77%
--------------- ------- ------ -------
TOTAL $699,999,992.82 100.00% 53,096 100.00%
--------------- ------- ------ -------
</TABLE>
_________________________
(1) Percentages may not add to 100% because of rounding.
(2) States with principal balances less than $2,000,000.
