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THIS POOLING AND SERVICING AGREEMENT ("this Agreement"),
dated as of February 12, 1996, is made with respect to the formation
of the AmeriCredit Automobile Receivables Trust 1996-A (the "Trust"),
among AmeriCredit Financial Services, Inc., a Delaware
corporation, ("AmeriCredit") (in its capacity as Servicer, the "Servicer" and
in its capacity as Seller, the "Seller"), AmeriCredit Receivables Corp.
("ARC") as the Initial Class B Certificateholder and LaSalle
National Bank, a national banking association, as Trustee (in such
capacity, the "Trustee"), as Backup Servicer (in such capacity, the
"Backup Servicer") and as Collateral Agent (in such capacity, the
"Collateral Agent").
WHEREAS, the Seller wishes to establish a trust and provide
for the allocation and sale of the beneficial interests therein and the
maintenance and distribution of the trust estate;
WHEREAS, the Servicer has agreed to service the Receivables,
which constitute the principal assets of the trust estate;
WHEREAS, all things necessary to make the Certificates,
when executed and authenticated by the Trustee, valid instruments,
and to make this Agreement a valid agreement, in accordance with their
and its terms, have been done; and
WHEREAS, LaSalle National Bank is willing to serve in the capacity
of Trustee and Backup Servicer hereunder.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained, the Seller, the Servicer, ARC, the Trustee and
the Backup Servicer hereby agree as follows:
I DEFINITIONS
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I.1. Definitions. All terms defined in the Spread Account
Agreement (as defined below) shall have the same meaning in this Agreement.
Whenever capitalized and used in this Agreement, the following words
and phrases, unless the context otherwise requires, shall have the
following meanings:
Accountants' Report: The report of a firm of nationally
recognized independent accountants described in Section 4.11.
Accounting Date: With respect to a Distribution Date, the last
day of the Collection Period immediately preceding such Distribution Date.
Administrative Receivable: With respect to any Collection
Period, a Receivable which the Servicer is required to purchase
pursuant to Section 4.7 or which the Servicer has elected to purchase
pursuant to Section 4.4(c) on the Deposit Date with respect to such
Collection Period.
Affiliate: With respect to any Person, any other Person directly
or indirectly controlling, controlled by, or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person, means the power
to direct the management and voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to
the foregoing.
Aggregate Principal Balance: With respect to any Determination
Date, the sum of the Principal Balances (computed as of the related
Accounting Date) for all Receivables (other than (i) any Receivable
that became a Liquidated Receivable during the related Collection Period
and (ii) any Receivable that became a Purchased Receivable on the
immediately preceding Deposit Date).
Agreement: shall have the meaning set forth in the first
paragraph of this Agreement.
AmeriCredit: shall have the meaning set forth in the first
paragraph of this Agreement.
Amount Available: With respect to any
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Distribution Date, the sum of (i) the Available Funds for the immediately
preceding Determination Date, plus (ii) the Deficiency Claim Amount, if any,
received by the Trustee with respect to such Distribution Date, plus
(iii) the Policy Claim Amount, if any, received by the Trustee with
respect to such Distribution Date.
Amount Financed: With respect to a Receivable, the aggregate
amount advanced under such Receivable toward the purchase price of the
Financed Vehicle and related costs, including amounts advanced in respect
of accessories, insurance premiums, service and warranty contracts, other
items customarily financed as part of retail automobile installment sale
contracts or promissory notes, and related costs.
Annual Percentage Rate or APR: With respect to a Receivable, the
rate per annum of finance charges stated in such Receivable as the "annual
percentage rate" (within the meaning of the Federal Truth-in-Lending Act).
If after the Closing Date, the rate per annum with respect to a
Receivable as of the Closing Date is reduced as a result of (i) an
insolvency proceeding involving the Obligor or (ii) pursuant to the
Soldiers' and Sailors' Civil Relief Act of 1940, Annual Percentage Rate or
APR shall refer to such reduced rate.
Annual Trustee's Fee: Shall have the meaning set forth in Section
11.6.
ARC: AmeriCredit Receivables Corp., a Delaware corporation.
Available Funds: With respect to any Determination
Date, the sum of (i) the Collected Funds for such Determination Date, (ii)
all Purchase Amounts deposited in the Collection Account on the related
Deposit Date and (iii) all income from investments of funds in the
Collection Account during the prior Collection Period.
Backup Servicer: LaSalle National Bank, or its successor in
interest pursuant to Section 10.2, or such Person as shall have been
appointed as Backup Servicer or successor Servicer pursuant to Section 10.3.
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Basic Servicing Fee: With respect to any Collection
Period, the fee payable to the Servicer for services rendered during
such Collection Period, which shall be equal to one-twelfth of the Basic
Servicing Fee Rate multiplied by the Aggregate Principal Balance as of
the first day of the Collection Period.
Basic Servicing Fee Rate: 2.50% per annum, payable monthly
at one-twelfth of the annual rate.
Business Day: Any day other than a Saturday, Sunday, legal
holiday or other day on which commercial banking institutions or trust
companies in Texas, New York, Illinois or any other location of any
successor Servicer, successor Trustee or successor Collateral Agent
are authorized or obligated by law, executive order or governmental
decree to be closed.
Calendar Quarter: The three-month period ending on the last day
of March, June, September or December.
Certificate: Any one of the Class A Certificates or Class B
Certificates executed by the Trustee on behalf of the Trust in substantially
the form set forth in Exhibit A or B, respectively.
Certificate Majority: Holders of Class A Certificates
and Class B Certificates representing a majority of the sum of the
Class A Certificate Balance and the Class B Certificate Balance, or if there
are no Class A Certificates outstanding, holders of Class B Certificates
representing a majority of the Class B Certificate Balance, provided, that
for so long as the Class B Certificate is held by any Affiliate of
AmeriCredit or by AmeriCredit, it shall be disregarded for purposes of this
definition.
Certificateholder or Holder: The Person in whose name a
Certificate is registered in the Certificate Register.
Certificate Register and Certificate Registrar: The register
maintained and the registrar appointed pursuant to Section 7.3.
Class: A class of Certificates.
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Class A Certificate: Any one of the Certificates executed by the
Trust and authenticated by the Trustee in substantially the form set forth
in Exhibit A hereto.
Class A Certificate Balance: Initially, the Class A Percentage
of the Cut-off Date Principal Balance and, thereafter, the initial Class A
Certificate Balance reduced by all amounts distributed to the Class A
Certificateholders and allocable to principal.
Class A Certificate Factor: As of any Distribution
Date, a seven-digit decimal figure equal to the Class A Certificate Balance
as of the close of business on such Distribution Date divided by the
initial Class A Certificate Balance as of the Cut-off Date.
Class A Distributable Amount: On any Distribution Date, the sum
of the Class A Principal Distributable Amount and the Class A Interest
Distributable Amount.
Class A Interest Carryover Shortfall: As of the close of
business on any Distribution Date, the excess of the Class A Interest
Distributable Amount for such Distribution Date plus any outstanding
Class A Interest Carryover Shortfall from the preceding Distribution
Date plus interest on such outstanding Class A Interest Carryover Shortfall,
to the extent permitted by law, at the Class A Pass-Through Rate from
such preceding Distribution Date through the current Distribution Date,
over the amount of interest that the holders of the Class A
Certificates actually received on such current Distribution Date.
Class A Interest Distributable Amount: With respect to any
Distribution Date, the sum of (i) for the initial Distribution Date
forty-one (41) days of interest and for any Distribution Date thereafter,
thirty (30) days of interest, in any case calculated on the basis of a
360-day year consisting of twelve 30-day months, at the Class A Pass-Through
Rate on the Class A Certificate Balance as of the close of business on
the last day of the preceding Collection Period and (ii) any outstanding
Class A Interest Carryover Shortfall with respect to the
immediately preceding Distribution Date.
Class A Pass-Through Rate: 5.70% per annum,
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calculated on the basis of a 360-day year consisting of twelve 30-day
months.
Class A Percentage: 92%.
Class A Principal Carryover Shortfall: As of the close of
business on any Distribution Date, the excess of the Class A Principal
Distributable Amount plus any outstanding Class A Principal Carryover
Shortfall from the preceding Distribution Date over the amount of
principal that the holders of the Class A Certificates actually
received on such current Distribution Date.
Class A Principal Distributable Amount: With respect to any
Distribution Date, other than the Final Scheduled Maturity Date, without
duplication, the sum of (x) the Class A Percentage of the sum of (i) the
principal portion of all Collected Funds received during or with
respect to the immediately preceding Collection Period (other than
Liquidated Receivables and Purchased Receivables) including the
principal portion of all prepayments, (ii) the Principal Balance of all
Receivables that became Liquidated Receivables during the related
Collection Period (other than Purchased Receivables), (iii) the
principal portion of the Purchase Amount of all Receivables that became
Purchased Receivables as of the immediately preceding Accounting Date,
plus, in the sole discretion of the Security Insurer, provided no
Insurer Default shall have occurred and be continuing, all or any lesser
portion (as the Security Issuer may determine) of the Principal Balance as of
the immediately preceding Accounting Date of all the Receivables that
were required to be purchased pursuant to Sections 3.5 or 4.7 as
of the immediately preceding Accounting Date but were not so
purchased and (iv) the aggregate amount of Cram Down Losses that shall
have occurred during the related Collection Period, and (y) Class A
Principal Carryover Shortfall. On the Final Scheduled Distribution Date
the Class A Principal Distributable Amount shall be the Outstanding
Class A Certificate Balance.
Class B Certificate: Any one of the Certificates executed by the
Trust and authenticated by the Trustee in substantially the form set forth
in Exhibit B hereto.
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Class B Certificate Balance: Initially, the Class B Percentage
of the Cut-off Date Principal Balance and, thereafter, the initial Class B
Certificate Balance, reduced by (x) all amounts distributed (pursuant to
the provision set forth in Section 5.5(b) hereof) to Class B
Certificateholders and allocable to principal and (y) on any Distribution
Date on which (i) the sum of the Class A Certificate Balance and the
Class B Certificate Balance as of such Distribution Date and after taking
into account all distributions to be made on such Distribution Date exceeds
(ii) the Pool Balance with respect to the immediately preceding
Collection Period, the amount of such excess.
Class B Certificate Factor: As of any Distribution
Date, a seven-digit decimal figure equal to the Class B Certificate Balance
as of the close of business on such Distribution Date divided by the
initial Class B Certificate Balance as of the Cut-Off Date.
Class B Coupon Interest Carryover Shortfall: As of the close
of business on any Distribution Date, the excess of the Class B Coupon
Interest Amount for such Distribution Date plus any outstanding Class
B Coupon Interest Carryover Shortfall from the preceding Distribution Date,
over the amount of interest that the holders of the Class B Certificates
actually received on such current Distribution Date.
Class B Coupon Interest Amount: With respect to any
Distribution Date, the sum of (i) for the initial Distribution Date
forty-one (41) days of interest and for any Distribution Date
thereafter, thirty (30) days of interest, in any case calculated on the
basis of a 360-day year consisting of twelve 30-day months, at the rate
of 5.70% per annum in the Class B Certificate Balance as of the close of
business on the last day of the preceding Collection Period and (ii)
any outstanding Class B Coupon Interest Carryover Shortfall with respect to
the immediately preceding Distribution Date.
Class B Excess Interest Amount: With respect to any
Distribution Date, an amount equal to the portion of Available Funds, if
any, remaining after the distribution of amounts required to be distributed
on such Distribution Date pursuant to clauses (i) through (vii) of Section
5.5(a).
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Class B Percentage: 8%.
Class B Principal Carryover Shortfall: As of the close of
business on any Distribution Date, the excess of the Class B Principal
Distributable Amount plus any out standing Class B Principal Carryover
Shortfall from the preceding Distribution Date over the amount of
principal that the holders of the Class B Certificates actually
received on such current Distribution Date.
Class B Principal Distributable Amount: With respect to any
Distribution Date, without duplication, the Class B Percentage of the sum
of: (i) the principal portion of all Collected Funds received during or
with respect to the immediately preceding Collection Period (other than
Liquidated Receivables and Purchased Receivables) including the principal
portion of all prepayments, (ii) the Principal Balance of all
Receivables that became Liquidated Receivables during the related
Collection Period (other than Purchased Receivables), (iii) the principal
portion of the Purchase Amount of all Receivables that became Purchased
Receivables as of the immediately preceding Accounting Date, and (iv) the
aggregate amount of Cram Down Losses that shall have occurred during the
related Collection Period.
Closing Date: March 4, 1996.
Collateral Agent: The Collateral Agent named in the Spread
Account Agreement, and any successor thereto pursuant to the terms of the
Spread Account Agreement.
Collateral Insurance: Shall have the meaning set forth in Section
4.4(a).
Collected Funds: With respect to any Determination
Date, the amount of funds in the Collection Account representing
collections on the Receivables during or with respect to the related
Collection Period, including all Liquidation Proceeds collected during
the related Collection Period (but excluding any Purchase Amounts).
Collection Account: The account designated as the Collection
Account in, and which is established and maintained pursuant to,
Section 5.1.
<PAGE>
Collection Period: With respect to the first Distribution
Date, the period beginning on the close of business on February 12,
1996 and ending on the close of business on March 31, 1996. With respect
to each subsequent Distribution Date, the preceding calendar month. Any
amount stated "as of the close of business of the last day of a
Collection Period" shall give effect to the following calculations as
determined as of the end of the day on such last day: (i) all applications
of collections, and (ii) all distributions.
Collection Records: All manually prepared or computer
generated records relating to collection efforts or payment histories with
respect to the Receivables.
Compensating Interest: Shall have the meaning set forth in Section
4.8(b) hereof.
Computer Tape or Listing: The computer tape or listing
generated on behalf of the Seller which provides information relating to
the Receivables and which was used by the Seller in selecting the
Receivables conveyed to the Trust hereunder.
Confidential Offering Circular: The Offering Circular, dated
February __, 1996, relating to the Class A Certificates.
Controlling Party: The Security Insurer, so long as no Insurer
Default shall have occurred and be continuing and the Trustee for the
benefit of the Certificateholders, for so long as the Insurer Default shall
have occurred and be continuing.
Corporate Trust Office: The principal office of the Trustee at
which at any particular time its corporate trust business shall be
administered, which office at the Closing Date is located at LaSalle
National Bank, 135 S. LaSalle Street , Suite 200, Chicago, Illinois
60603, Attention: Asset Backed Securities Trust Administration. The
telecopy number for the Corporate Trust Office on the Closing Date is (312)
904-2084.
Cram Down Loss: With respect to a Receivable, if a court of
appropriate jurisdiction in an insolvency
<PAGE>
proceeding shall have issued an order reducing the amount owed on a
Receivable or otherwise modifying or restructuring the scheduled payments to
be made on a Receivable, an amount equal to the excess of the principal
balance of such Receivable immediately prior to such order over
the principal balance of such Receivable as so reduced or the net present
value (using as the discount rate the higher of the APR on such Receivable
or the rate of interest, if any, specified by the court in such order) of
the scheduled payments as so modified or restructured. A "Cram Down Loss"
shall be deemed to have occurred on the date of issuance of such order.
Cumulative Net Losses: The difference between (A) the sum of
(i) the aggregate Principal Balances (plus accrued and unpaid interest,
at the applicable APR) of all Receivables that became Liquidated
Receivables through the last Accounting Date of the latest Monthly Period,
plus (ii) the Principal Balance of all Receivables that became
Purchased Receivables through the last Accounting Date of the latest
Monthly Period and that were delinquent with respect to 5% or more of a
Scheduled Payment more than 30 days through the last Accounting Date of
the latest Monthly Period, plus (iii) the aggregate of all Cram Down
Losses that occurred through the last Accounting Date of the latest Monthly
Period, and (B) the Liquidation Proceeds received by the Seller through the
last Accounting Date of the latest Monthly Period.
Custodian: AmeriCredit and any other Person named from time to
time as custodian in any Custodian Agreement acting as agent for the
Trustee, which Person must be acceptable to the Controlling Party (the
Custodian as of the Closing Date is acceptable to the Security Insurer as of
the Closing Date).
Custodian Agreement: Any Custodian Agreement from time to time
in effect between the Custodian named therein and the Trustee, as the same
may be amended, supplemented or otherwise modified from time to time in
accordance with the terms thereof, which Custodian Agreement and any
amendments, supplements or modifications thereto shall be acceptable to the
Controlling Party (the Custodian Agreement which is effective on the
Closing Date is acceptable to the Controlling Party).
<PAGE>
Cut-off Date: February 12, 1996.
Cut-off Date Principal Balance: $97,202,782.98.
Dealer: A seller of new or used automobiles or light trucks
that originated one or more of the Receivables and sold the respective
Receivable, directly or indirectly, to AmeriCredit.
Dealer Agreement: An agreement by and among AmeriCredit and
a Dealer relating to the sale of retail installment sale contracts
and installment notes to AmeriCredit and all documents and
instruments relating thereto.
Dealer Assignment: With respect to a Receivable, the executed
assignment executed by a Dealer conveying such Receivable to AmeriCredit.
Dealer Underwriting Guide: means the underwriting manual used by
AmeriCredit in the purchase of Receivables as amended from time to time.
Deficiency Claim Amount: Shall have the meaning set forth in
Section 6.3(a).
Deficiency Claim Date: With respect to any Distribution
Date, the fourth Business Day immediately preceding such Distribution
Date.
Deficiency Notice: Shall have the meaning set forth in Section
6.3(a).
Deposit Date: With respect to any Collection Period, the
Business Day immediately preceding the related Determination Date.
Determination Date: With respect to a Collection Period, the
earlier of (i) the fourth Business Day preceding the Distribution Date in
the next calendar month, and (ii) the 5th day of the next calendar month,
or if such 5th day is not a Business Day, the next succeeding Business Day.
Distribution Amount: With respect to a
<PAGE>
Distribution Date, the sum of (i) the Available Funds for such
Distribution Date, plus (ii) the Deficiency Claim Amount, if any,
received by the Trustee with respect to such Distribution Date.
Distribution Date: The 12th day of each calendar month, or if
such 12th day is not a Business Day, the next succeeding Business Day,
commencing April 12, 1996 and including the Final Scheduled Distribution
Date.
Draw Date: With respect to any Distribution Date, the third
Business Day immediately preceding such Distribution Date.
Electronic Ledger: The electronic master record of the retail
installment sales contracts or installment loans of the Servicer.
Eligible Account: (i) A segregated trust account that is
maintained with a depository institution acceptable to the Security Insurer
(so long as an Insurer Default shall not have occurred and be continuing),
or (ii) a demand deposit account maintained with a depository institution
or trust company organized under the laws of the United States of America,
or any of the States thereof, or the District of Columbia, having a
certificate of deposit, short term deposit or commercial paper rating
of at least A-1+ by Standard & Poor's and P-1 by Moody's and (so long
as an Insurer Default shall not have occurred and be continuing)
acceptable to the Security Insurer. In either case, such depository
institution or trust company shall have been approved by the Controlling
Party (as defined in the Spread Account Agreement), acting in its
discretion, by written notice to the Collateral Agent.
Eligible Investments: Any one or more of the following types
of investments:
(i) (A) direct interest-bearing obligations of, and
interest-bearing obligations guaranteed as to timely payment
of principal and interest by, the United States or any
agency or instrumentality of the United States the
obligations of which are backed by the full faith and credit
of the United States; and (B) direct interest-bearing
obligations of, and interest-bearing obligations guaranteed
<PAGE>
as to timely payment of principal and interest by, the
Federal National Mortgage Association or the Federal Home
Loan Mortgage Corporation, but only if, at the time of
investment, such obligations are rated AAA by Standard &
Poor's and Aaa by Moody's;
(ii) demand or time deposits in, certificates of
deposit of, or bankers' acceptances issued by any depository
institution or trust company organized under the laws of the
United States or any State and subject to supervision and
examination by federal and/or State banking authorities
(including, if applicable, the Trustee or any agent of the
Trustee acting in their respective commercial capacities);
provided that the short-term unsecured debt obligations of
such depository institution or trust company at the time of
such investment, or contractual commitment providing for
such investment, are rated A1+ by Standard & Poor's and P-1
by Moody's;
(iii) repurchase obligations pursuant to a written
agreement (A) with respect to any obligation described in
clause (i) above, where the Trustee has taken actual or
constructive delivery of such obligation in accordance with
Section 5.1, and (B) entered into with a depository
institution or trust company organized under the laws of the
United States or any State thereof, the deposits of which
are insured by the Federal Deposit Insurance Corporation and
the short-term unsecured debt obligations of which are rated
"A-1+" by Standard & Poor's and "P-1" by Moody's (including,
if applicable, the Trustee or any agent of the Trustee
acting in their respective commercial capacities);
(iv) securities bearing interest or sold at a discount
issued by any corporation incorporated under the laws of the
United States or any State whose long-term unsecured debt
obligations are rated AAA by Standard & Poor's and Aaa by
Moody's at the time of such investment or contractual
commitment providing for such investment; provided however,
that securities issued by any particular corporation will
not be Eligible Investments to the extent that an investment
therein will cause the then outstanding principal amount of
securities issued by such corporation and held as part of
the Collection Account to exceed 10% of the Eligible
Investments held in the Collection Account (with Eligible
Investments held in the Collection Account valued at par);
<PAGE>
(v) commercial paper that (1) is payable in United
States dollars and (2) is rated A1+ by Standard & Poor's and
P-1 by Moody's;
(vi) money market mutual funds registered under the
Investment Company Act of 1940, as amended, having a rating,
at the time of such investment, from each of the Rating
Agencies in the highest investment category granted thereby
(in the case of Standard & Poor's AAAm-G or AAAm); and
(vii) any other demand or time deposit, obligation,
security or investment as may be acceptable to the Rating
Agencies and the Security Insurer, as evidenced by the prior
written consent of the Rating Agencies and the Security
Insurer, as may from time to time be confirmed in writing to
the Trustee by the Security Insurer.
Eligible Servicer: AmeriCredit, the Backup Servicer or
another Person which at the time of its appointment as Servicer, (i)
is servicing a portfolio of motor vehicle retail installment sales
contracts and/or motor vehicle installment loans, (ii) is legally
qualified and has the capacity to service the Receivables, (iii) has
demonstrated the ability professionally and competently to service a
portfolio of motor vehicle retail installment sales contracts and/or
motor vehicle installment loans similar to the Receivables with
reasonable skill and care, (iv) is qualified and entitled to use, pursuant
to a license or other written agreement, and agrees to maintain the
confidentiality of, the software which the Servicer uses in connection with
performing its duties and responsibilities under this Agreement or
otherwise has available software which is adequate to perform its duties
and responsibilities under this Agreement and (v) has a minimum net worth
of $50,000,000.
Final Scheduled Distribution Date: September 12, 2001.
Financed Vehicle: A new or used automobile or light truck,
van or mini-van together with all accessories thereto, securing or
purporting to secure an Obligor's indebtedness under a Receivable.
Force-Placed Insurance: The meaning set forth in
<PAGE>
Section 4.4(b).
Fractional Undivided Interest: The fractional undivided
interest in the Trust that is evidenced by a Certificate.
Independent Accountants: Shall have the meaning set forth in
Section 4.11(a).
Insurance Add-On Amount: The premium charged to the Obligor in
the event that the Servicer obtains Force-Placed Insurance pursuant to
Section 4.4.
Insurance Agreement: The Insurance and Indemnity Agreement
between the Security Insurer and AmeriCredit.
Insurance Agreement Event of Default: An "Event of Default" as
defined in the Insurance Agreement.
Insurance Policy: With respect to a Receivable, any insurance
policy benefiting the holder of the Receivable providing loss or physical
damage, credit life, credit disability, theft, mechanical breakdown or
similar coverage with respect to the Financed Vehicle or the Obligor.
Insurer Default: The occurrence and continuance of any of the
following events:
(A) the Security Insurer shall have failed to make a
payment required under the Policy in accordance with its
terms;
(B) The Security Insurer shall have (i) filed a petition
or commenced any case or proceeding under any provision or
chapter of the United States Bankruptcy Code or any other
similar federal or state law relating to insolvency,
bankruptcy, rehabilitation, liquidation or reorganization,
(ii) made a general assignment for the benefit of its
creditors, or (iii) had an order for relief entered against
it under the United States Bankruptcy Code or any other
similar federal or state law relating to insolvency,
bankruptcy, rehabilitation, liquidation or reorganization
which is final and nonappealable; or
(C) a court of competent jurisdiction, the New York
<PAGE>
Department of Insurance or other competent regulatory
authority shall have entered a final and nonappealable
order, judgment or decree (i) appointing a custodian,
trustee, agent or receiver for the Security Insurer or for
all or any material portion of its property or
(ii) authorizing the taking of possession by a custodian,
trustee, agent or receiver of the Security Insurer (or the
taking of possession of all or any material portion of the
property of the Security Insurer).
Lien: Any security interest, lien, charge, pledge,
preference, equity or encumbrance of any kind, including tax liens,
mechanics' liens and any liens that attach by operation of law.
Lien Certificate: With respect to a Financed Vehicle, an
original certificate of title, certificate of lien or other notification
issued by the Registrar of Titles of the applicable state to a secured
party which indicates that the lien of the secured party on the Financed
Vehicle is recorded on the original certificate of title. In any
jurisdiction in which the original certificate of title is required to be
given to the Obligor, the term "Lien Certificate" shall mean only a
certificate or notification issued to a secured party.
Liquidated Receivable: With respect to any Collection
Period, a Receivable as to which (i) 90 days have elapsed since the Servicer
repossessed the Financed Vehicle, (ii) the Servicer has determined in good
faith that all amounts it expects to recover have been received or (iii) 5%
or more of a Scheduled Payment shall have become 120 or more days
delinquent, except in the case of repossessed Financed Vehicles.
Liquidation Proceeds: With respect to a Liquidated
Receivable, all amounts realized with respect to such Receivable (other
than amounts withdrawn from the Spread Account and drawings under the
Policy) net of (i) reasonable expenses incurred by the Servicer in
connection with the collection of such Receivable and the repossession and
disposition of the Financed Vehicle and (ii) amounts that are required
to be refunded to the Obligor on such Receivable; provided however, that
the Liquidation Proceeds with respect to any Receivable shall in no event
be less
<PAGE>
than zero.
Lockbox Account: An account maintained on behalf of the Trustee
by the Lockbox Bank pursuant to Section 4.2(d).
Lockbox Agreement: The Tri-Party Remittance Processing
Agreement, dated as of February 12, 1996, by and among AmeriCredit, First
Interstate Bank of Texas, N.A., and the Trustee, as such agreement may
be amended or supplemented from time to time, unless the Trustee
hereunder shall cease to be a party thereunder, or such agreement shall
be terminated in accordance with its terms, in which event "Lockbox
Agreement" shall mean such other agreement, in form and substance
acceptable to the Controlling Party, among the Servicer, the Trustee and the
Lockbox Bank.
Lockbox Bank: A depository institution named by the Servicer and
acceptable to the Controlling Party.
Monthly Records: All records and data maintained by the
Servicer with respect to the Receivables, including the following with
respect to each Receivable: the account number; the originating Dealer;
Obligor name; Obligor address; Obligor home phone number; Obligor business
phone number; original Principal Balance; original term; Annual
Percentage Rate; current Principal Balance; current remaining term;
origination date; first payment date; final scheduled payment date; next
payment due date; date of most recent payment; new/used
classification; collateral description; days currently delinquent; number
of contract extensions (months) to date; amount of Scheduled Payment;
current Insurance Policy expiration date; and past due late charges.
Moody's: Moody's Investors Service, Inc., or any successor
thereto.
Notice of Deficiency: A written or telecopied notice from
the Trustee to the Security Insurer, substantially in the form of
Exhibit A to the Policy.
Obligor: The purchaser or the co-purchasers of the Financed
Vehicle and any other Person or Persons who are primarily or secondarily
obligated to make payments under a
<PAGE>
Receivable.
Officer's Certificate: A certificate signed by the chairman of
the board, the vice chairman, the president, the chief financial officer or
any vice president.
Opinion of Counsel: A written opinion of counsel reasonably
acceptable to the Security Insurer, which opinion is acceptable in form and
substance to the Trustee and, if such opinion or a copy thereof is required
by the provisions of this Agreement to be delivered to the Security
Insurer, to the Security Insurer.
Other Conveyed Property: All property conveyed by the Seller to
the Trust pursuant to this Agreement other than the Receivables.
Person: Any legal person, including any individual,
corporation, partnership, joint venture, estate, association, joint stock
company, trust, unincorporated organization or government or any
agency or political subdivision thereof, or any other entity.
Prepayment: Any payment in full made by an Obligor of the
principal of a Receivable which is received by the Servicer in advance of
the scheduled maturity date for such Receivable.
Policy: The financial guaranty insurance policy number
- -N issued by the Security Insurer to the Trustee for the benefit of
the Class A Certificateholders, including any endorsements thereto.
Policy Claim Amount: Shall have the meaning set forth in Section
6.4(a).
Policy Payments Account: The account designated as the Policy
Payments Account in, and which is established and maintained pursuant to,
Section 5.1.
Pool Balance: As of the close of business on the last day of a
Collection Period, the aggregate Principal Balance of the Receivables
(excluding Purchased Receivables and Liquidated Receivables).
<PAGE>
Pool Factor: With respect to any Distribution Date, a seven digit
decimal figure equal to, as applicable, the Class A Certificate Balance as of
such Distribution Date (after giving effect to distributions on such date)
divided by the Class A Certificate Balance as of the Closing Date, or, the
Class B Certificate Balance as of such Distribution Date (after giving effect
to distributions on such date) divided by the Class B Certificate Balance as
of the Closing Date.
Preference Claim: Shall have the meaning set forth in Section 6.5(b).
Principal Balance: With respect to any Receivable, as of any date, the
Amount Financed minus (i) that portion of all amounts received on or prior to
such date and allocable to principal in accordance with the terms of the
Receivable, and (ii) any Cram Down Loss in respect of such Receivable.
Purchase Amount: With respect to a Receivable, the Principal Balance and
all accrued and unpaid interest on the Receivable as of the date of purchase.
Purchased Receivable: As of any Accounting Date, any Receivable that
became a Warranty Receivable or Administrative Receivable as of such
Accounting Date (or which the Seller or the Servicer has elected to purchase
as of an earlier Accounting Date, as permitted hereunder) and as to which the
Purchase Amount has been deposited in the Collection Account by the Seller or
the Servicer, as applicable, on or before the related Deposit Date.
Rating Agency: Each of Moody's and Standard & Poor's, so long as such
Persons maintain a rating on the Certificates; and if either Moody's or
Standard & Poor's no longer maintains a rating on the Certificates, such
other nationally recognized statistical rating organization selected by the
Certificate Majority, AmeriCredit and (so long as an Insurer Default shall
not have occurred and be continuing) acceptable to the Security Insurer.
Receivable: A retail installment sale contract or promissory note (and
related security agreement) for a new or used automobile or light truck, vans
or mini-vans (and
<PAGE>
all accessories thereto) that is included in the Schedule of Receivables, and
all rights and obligations under such a contract, but not including (i) any
Liquidated Receivable (other than for purposes of calculating, as applicable,
the Class A Principal Distributable Amount and the Class B Principal
Distributable Amount hereunder), or (ii) any Purchased Receivable on or after
the Accounting Date immediately preceding the Deposit Date on which payment
of the Purchase Amount is made in connection therewith pursuant to Section
5.4.
Receivable File: The documents, electronic entries, instruments and
writings listed in Section 3.2 pertaining to a particular Receivable.
Registrar of Titles: With respect to any state, the governmental agency
or body responsible for the registration of, and the issuance of certificates
of title relating to, motor vehicles and liens thereon.
Related Documents: The Certificates, the Indemnification Agreement, the
Spread Account Agreement, the Insurance Agreement, the Lockbox Agreement, and
the Initial Purchaser Agreement dated February __, 1996 between the Seller
and the initial purchaser of the Certificates. The Related Documents to be
executed by any party are referred to herein as "such party's Related
Documents," "its Related Documents" or by a similar expression.
Repurchase Events: The occurrence of a breach of any of the Seller's or
the Servicer's representations and warranties in this Agreement which
requires the repurchase of a Receivable by the Seller or the Servicer
pursuant hereto.
Required Deposit Rating: A rating on short-term unsecured debt
obligations of "P-1" by Moody's and at least "A-1+" by Standard & Poor's (or
such other rating as may be acceptable to the Rating Agencies and, so long as
an Insurer Default shall not have occurred and be continuing, the Security
Insurer) so as to not affect the rating on the Certificates.
Responsible Officer: When used with respect to the Trustee, any officer
of the Trustee assigned by the
<PAGE>
Trustee to administer its corporate trust affairs relating to the Trust. When
used with respect to any other Person that is not an individual, the
President, any Vice-President or Assistant Vice-President or the Controller
of such Person, or any other officer or employee having similar functions.
Schedule of Receivables: The schedule of all retail installment sales
contracts and promissory notes originally held as part of the Trust which is
attached as Schedule A.
Schedule of Representations: The Schedule of Representations and
Warranties attached hereto as Schedule B.
Scheduled Payment: With respect to any Collection Period for any
Receivable, the amount set forth in such Receivable as required to be paid by
the Obligor in such Collection Period. If after the Closing Date, the
Obligor's obligation under a Receivable with respect to a Collection Period
has been modified so as to differ from the amount specified in such
Receivable as a result of (i) the order of a court in an insolvency
proceeding involving the Obligor, (ii) pursuant to the Soldiers' and Sailors'
Civil Relief Act of 1940 or (iii) modifications or extensions of the
Receivable permitted by Section 4.2(b), the Scheduled Payment with respect to
such Collection Period shall refer to the Obligor's payment obligation with
respect to such Collection Period as so modified.
Security Insurer: Financial Security Assurance Inc., a monoline
insurance company incorporated under the laws of the State of New York, or
any successor thereto, as issuer of the Policy.
Seller: shall have the meaning set forth in the first paragraph of this
Agreement.
Series: The Certificates issued pursuant to this Agreement.
Servicer: AmeriCredit Financial Services, Inc., a Delaware corporation,
its successor in interest pursuant to Section 9.2 or, after any termination
of the Servicer upon a
<PAGE>
Servicer Termination Event, the Backup Servicer or any other successor
Servicer.
Servicer Extension Notice: The notice delivered pursuant to Section 4.14.
Servicer Termination Event: An event described in Section 10.1.
Servicer's Certificate: With respect to each Determination Date, a
certificate, completed by and executed on behalf of the Servicer, in
accordance with Section 4.9, substantially in the form attached hereto as
Exhibit C.
Simple Interest Method: The method of allocating a fixed level payment
on an obligation between principal and interest, pursuant to which the
portion of such payment that is allocated to interest is equal to the product
of the fixed rate of interest on such obligation multiplied by the period of
time (expressed as a fraction of a year, based on the actual number of days
in the calendar month and 365 days in the calendar year) elapsed since the
preceding payment under the obligation was made.
Simple Interest Receivable: A Receivable under which the portion of the
payment allocable to interest and the portion allocable to principal is
determined in accordance with the Simple Interest Method.
Spread Account: The Series 1996-A Spread Account established and
maintained pursuant to the Spread Account Agreement. The Spread Account shall
in no event be deemed part of the Trust Property.
Spread Account Agreement: The Spread Account Agreement among ARC, the
Security Insurer, the Collateral Agent and the Trustee as the same may be
amended, supplemented or otherwise modified in accordance with the terms
thereof.
Standard & Poor's: Standard & Poor's Ratings Service, or any successor
thereto.
Subcollection Account: The account designated as the Subcollection
Account in, and which is established and
<PAGE>
maintained pursuant to Section 5.2(a).
Supplemental Servicing Fee: With respect to any Collection Period all
administrative fees, expenses and charges paid by or on behalf of Obligors,
including late fees, prepayment fees and liquidation fees collected on the
Receivables during such Collection Period.
Total Servicing Fee: The sum of the Basic Servicing Fee and the
Supplemental Servicing Fee.
Trigger Event: shall have the meaning set forth in the Spread Account
Agreement.
Trust: shall have the meaning set forth in Section 2.1.
Trust Property: The property and proceeds conveyed pursuant to Section
3.1, together with certain monies paid on or after the Cut-off Date, the
Policy, the Collection Account (including all Eligible Investments therein
and all proceeds therefrom), the Lockbox Account, the Subcollection Account
and certain other rights under this Agreement. Although the Seller has
pledged the Spread Account to the Trustee and the Security Insurer pursuant
to the Spread Account Agreement, the Spread Account shall not under any
circumstances be deemed to be a part of or otherwise includable in the Trust
or the Trust Property.
Trustee: The Person acting as Trustee under this Agreement, its
successors in interest and any successor Trustee under this Agreement.
UCC: The Uniform Commercial Code as in effect in the relevant
jurisdiction.
Warranty Receivable: With respect to any Collection Period, a Receivable
which the Seller has become obligated to repurchase pursuant to Section 3.5.
I.2. Usage of Terms. With respect to all terms used in this Agreement,
the singular includes the plural and the plural the singular; words importing
any gender include the other genders; references to "writing" include
printing, typing, lithography, and other means of reproducing words in
<PAGE>
a visible form; references to agreements and other contractual instruments
include all subsequent amendments thereto or changes therein entered into in
accordance with their respective terms and not prohibited by this Agreement;
references to Persons include their permitted successors and assigns; and the
terms "include" or "including" mean "include without limitation" or
"including without limitation."
I.3. Calculations. All calculations of the amount of interest accrued on
the Certificates and all calculations of the amount of the Basic Servicing
Fee shall be made on the basis of a 360-day year consisting of twelve 30-day
months. All references to the Principal Balance of a Receivable as of a
Accounting Date shall refer to the close of business on such day.
I.4. Section References. All references to Articles, Sections,
paragraphs, subsections, exhibits and schedules shall be to such portions of
this Agreement unless otherwise specified.
I.5. Action by or Consent of Certificateholders. Whenever any provision
of this Agreement refers to action to be taken, or consented to, by
Certificateholders, such provision shall be deemed to refer to
Certificateholders of record as of the Accounting Date immediately preceding
the date on which such action is to be taken, or consent given, by
Certificateholders. Solely for the purposes of any action to be taken, or
consented to, by Certificateholders, any Certificate registered in the name
of AmeriCredit or any Affiliate thereof shall be deemed not to be outstanding
and the Fractional Undivided Interest evidenced thereby shall not be taken
into account in determining whether the requisite Fractional Undivided
Interest necessary to effect any such action or consent has been obtained;
provided however, that, solely for the purpose of determining whether the
Trustee is entitled to rely upon any such action or consent, only
Certificates which the Trustee knows to be so owned shall be so disregarded.
I.6. No Recourse. No recourse may be taken, directly or indirectly,
under this Agreement or any certificate or other writing delivered in
connection herewith or therewith, against any stockholder, officer, or
director, as such, of
<PAGE>
the Seller, AmeriCredit, the Servicer or the Trustee or of any predecessor or
successor of the Seller, AmeriCredit, the Servicer or the Trustee.
I.7. Material Adverse Effect. Whenever a determination is to be made
under this Agreement as to whether a given event, action, course of conduct
or set of facts or circumstances could or would have a material adverse
effect on the Trust or the Certificateholders (or any similar or analogous
determination), such determination shall be made without taking into account
the insurance provided by the Policy.
II CREATION OF TRUST
II.1. Creation of Trust. The Seller does hereby create and establish,
pursuant to the laws of the State of New York and this Agreement a trust (the
"Trust"), which for convenience shall be known as "AmeriCredit Automobile
Receivables Trust 1996-A."
III CONVEYANCE OF RECEIVABLES; ACCEPTANCE BY TRUSTEE;
ORIGINAL ISSUANCE OF CERTIFICATES
III.1. Conveyance of Receivables. Subject to the terms and conditions
of this Agreement, the Seller, pursuant to the mutually agreed upon terms
contained herein, hereby sells, transfers, assigns, and otherwise conveys to
the Trust, without recourse (but without limitation of its obligations in
this Agreement), all of the right, title and interest of the Seller in and to
the Receivables, all monies payable thereon or in respect thereof after the
Cutoff Date, the security interests of the Seller in the related Financed
Vehicles, the Insurance Policies and any proceeds from any Insurance Policies
relating to the Receivables, the Obligors or the related Financed Vehicles,
including rebates of premiums, all Collateral Insurance and any Force-Placed
Insurance relating to the Receivables, rights of the Seller against Dealers
with respect to the Receivables under the Dealer Agreements and the Dealer
Assignments, all items contained in the related Receivable Files, any and all
other documents that the Seller or the Servicer keeps on file in accordance
with its customary procedures relating to the Receivables, the Obligors or
the related Financed Vehicles,
<PAGE>
property (including the right to receive future Liquidation Proceeds) that
secures a Receivable and that has been acquired by or on behalf of the Seller
or the Trust pursuant to liquidation of such Receivable, all funds on deposit
from time to time in the Collection Account (including all income thereon and
all amounts deposited in respect of Administrative Receivables and Warranty
Receivables) and all investments therein and proceeds thereof, all proceeds
and investments of any of the foregoing, all present and future claims,
demands, causes and choses in action in respect of any or all of the
foregoing and all payments on or under and all proceeds of every kind and
nature whatsoever in respect of any or in lieu of the foregoing, including
all proceeds of the conversion, voluntary or involuntary, into cash or other
liquid property, all cash proceeds, accounts, accounts receivable, notes,
drafts, acceptances, chattel paper, checks, deposit accounts, insurance
proceeds, condemnation awards, rights to payment of any and every kind and
other forms of obligations and receivables, instruments and other property
which at any time constitute all or part of or are included in the proceeds
of any of the foregoing. It is the intention of the Seller that the transfer
and assignment contemplated by this Agreement shall constitute a sale of the
Receivables and Other Conveyed Property from the Seller to the Trust and the
beneficial interest in and title to the Receivables and the Other Conveyed
Property shall not be part of the Seller's estate in the event of the filing
of a bankruptcy petition by or against the Seller under any bankruptcy law.
In the event that, notwithstanding the intent of the Seller, the transfer and
assignment contemplated hereby is held not to be a sale, this Agreement shall
constitute a grant of a first priority security interest to the Trust in the
property referred to in this Section 3.1 for the benefit of the
Certificateholders.
III.2. Custody of Receivable Files.
(a) In connection with the sale, transfer and assignment of the
Receivables and the Other Conveyed Property to the Trust pursuant to this
Agreement and simultaneously with the execution and delivery of this
Agreement, the Trustee shall enter into the Custodian Agreement with the
Custodian, dated as of February 12, 1996, pursuant to which the Trustee shall
revocably appoint the Custodian, and the Custodian shall accept such
appointment,
<PAGE>
to act as the agent of the Trustee as custodian of the following documents or
instruments in its possession which shall be delivered to the Custodian as
agent of the Trustee on or before the Closing Date (with respect to each
Receivable):
(i) The fully executed original of the Receivable
(together with any agreements modifying the Receivable,
including without limitation any extension agreements);
(ii) The original credit application, or a copy
thereof, of each Obligor, fully executed by each such
Obligor on AmeriCredit's customary form, or on a form
approved by AmeriCredit, for such application, and
(iii) The original certificate of title (when
received) and otherwise such documents, if any, that
AmeriCredit keeps on file in accordance with its customary
procedures indicating that the Financed Vehicle is owned by
the Obligor and subject to the interest of AmeriCredit as
first lienholder or secured party (including any Lien
Certificate received by AmeriCredit), or, if such original
certificate of title has not yet been received, a copy of
the application therefor, showing AmeriCredit as secured
party.
The Trustee may act as the Custodian, in which case the Trustee shall be
deemed to have assumed the obligations of the Custodian specified in the
Custodian Agreement.
(b) Upon payment in full of any Receivable, the Servicer will notify
the Custodian pursuant to a certificate of an officer of the Servicer (which
certificate shall include a statement to the effect that all amounts received
in connection with such payments which are required to be deposited in the
Collection Account pursuant to Section 4.1 have been so deposited) and shall
request delivery of the Receivable and Receivable File to the Servicer. From
time to time as appropriate for servicing and enforcing any Receivable, the
Custodian shall, upon written request of an officer of the Servicer and
delivery to the Custodian of a receipt signed by such officer, cause the
original Receivable and the related Receivable File to be released to the
Servicer. The Servicer's receipt of a Receivable and/or Receivable File shall
obligate the Servicer to return the
<PAGE>
original Receivable and the related Receivable File to the Custodian when its
need by the Servicer has ceased unless the Receivable is repurchased as
described in Section 3.5 or 4.7.
III.3. Conditions to Issuance by Trust. As conditions to the Trustee's
execution and delivery of the Certificates on the Closing Date, the Trustee
shall have received the following on or before the Closing Date:
(a) The Schedule of Receivables certified by the
President, Controller or Treasurer of the Seller;
(b) The acknowledgement of the Custodian that it holds
the Receivable File relating to each Receivable;
(c) Copies of resolutions of the Board of Directors of
the Seller approving the execution, delivery and performance
of this Agreement, the Related Documents and the
transactions contemplated hereby and thereby, certified by a
Secretary or an Assistant Secretary of the Seller;
(d) Copies of resolutions of the Board of Directors of
AmeriCredit approving the execution, delivery and
performance of this Agreement, the Related Documents and the
transactions contemplated hereby and thereby, certified by a
Secretary or an Assistant Secretary of AmeriCredit;
(e) Evidence that all filings (including, without
limitation, UCC filings) required to be made by any Person
and actions required to be taken or performed by any Person
in any jurisdiction to give the Trustee a first priority
perfected lien on, or ownership interest in, the Receivables
and the Other Conveyed Property have been made, taken or
performed; and
(f) An executed copy of the Policy and Spread Account
Agreement.
III.4. Representations and Warranties of Seller. By its execution of
this Agreement, the Seller makes the following representations and warranties
on which the Trust relies in accepting the Receivables and the Other Conveyed
Property and in issuing the Certificates and upon which the Security Insurer
relies in issuing the Policy. Unless
<PAGE>
otherwise specified, such representations and warranties speak as of the
Closing Date, but shall survive the sale, transfer, and assignment of the
Receivables to the Trust.
(a) Schedule of Representations. The representations and
warranties set forth on the Schedule of Representations attached hereto as
Schedule B are true and correct.
(b) Organization and Good Standing. The Seller has been duly
organized and is validly existing as a corporation in good standing under
the laws of the State of Delaware, with power and authority to own its
properties and to conduct its business as such properties are currently
owned and such business is currently conducted, and had at all relevant
times, and now has, power, authority and legal right to acquire, own and
sell the Receivables and the Other Conveyed Property transferred to the Trust.
(c) Due Qualification. The Seller is duly qualified to do
business as a foreign corporation in good standing and has obtained all
necessary licenses and approvals in all jurisdictions where the failure to
do so would materially and adversely affect Seller's ability to
transfer the Receivables and the Other Conveyed Property to the Trust
pursuant to this Agreement, or the validity or enforceability
of the Receivables and the Other Conveyed Property or to perform
Seller's obligations hereunder and under the Seller's Related Documents.
(d) Power and Authority. The Seller has the power and authority
to execute and deliver this Agreement and its Related Documents and to
carry out its terms and their terms, respectively; the Seller has full
power and authority to sell and assign the Receivables and the Other
Conveyed Property to be sold and assigned to and deposited with the Trust
by it and has duly authorized such sale and assignment to the Trust by all
necessary corporate action; and the execution, delivery and performance of
this Agreement and the Seller's Related Documents have been duly authorized
by the Seller by all necessary corporate action.
(e) Valid Sale, Binding Obligations. This Agreement effects a
valid sale, transfer and assignment of the Receivables and the Other
Conveyed Property, enforceable against the Seller and creditors of and
purchasers from the
<PAGE>
Seller; and this Agreement and the Seller's Related Documents, when duly
executed and delivered, shall constitute legal, valid and binding obligations
of the Seller enforceable in accordance with their respective terms, except
as enforceability may be limited by bankruptcy, insolvency, reorganization or
other similar laws affecting the enforcement of creditors' rights generally
and by equitable limitations on the availability of specific remedies,
regardless of whether such enforceability is considered in a proceeding in
equity or at law.
(f) No Violation. The consummation of the transactions
contemplated by this Agreement and the Related Documents and the fulfillment
of the terms of this Agreement and the Related Documents shall not conflict
with, result in any breach of any of the terms and provisions of or
constitute (with or without notice, lapse of time or both) a default under
the certificate of incorporation or by-laws of the Seller, or any indenture,
agreement, mortgage, deed of trust or other instrument to which the Seller
is a party or by which it is bound, or result in the creation or
imposition of any Lien upon any of its properties pursuant to the terms
of any such indenture, agreement, mortgage, deed of trust or other
instrument, other than this Agreement, or violate any law, order, rule
or regulation applicable to the Seller of any court or of any federal or
state regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Seller or any of its
properties.
(g) No Proceedings. There are no proceedings or investigations
pending or, to the Seller's knowledge, threatened against the Seller,
before any court, regulatory body, administrative agency or other
tribunal or governmental instrumentality having jurisdiction over the
Seller or its properties (A) asserting the invalidity of this Agreement
or any of the Related Documents, (B) seeking to prevent the issuance of
the Certificates or the consummation of any of the transactions
contemplated by this Agreement or any of the Related Documents, (C) seeking
any determination or ruling that might materially and adversely affect the
performance by the Seller of its obligations under, or the validity or
enforceability of, this Agreement or any of the Related Documents, or (D)
seeking to adversely affect the federal income tax or other federal, state
or
<PAGE>
local tax attributes of the Certificates.
(h) Chief Executive Office. The chief executive office of the
Seller is at 200 Bailey Avenue, Fort Worth, Texas 76107-1220.
III.5. Repurchase of Receivables Upon Breach of Warranty. Upon
discovery by any of the Seller, the Servicer, the Security Insurer or the
Trustee of a breach of any of the representations and warranties of the
Seller contained in Section 3.4, the party discovering such breach shall give
prompt written notice to the others; provided, however, that the failure to
give any such notice shall not affect any obligation of the Seller. As of the
second Accounting Date (or, at the Seller's election, the first Accounting
Date) following its discovery or its receipt of notice of any breach of the
representations and warranties set forth on the Schedule of Representations
which materially and adversely affects the interests of the
Certificateholders, the Security Insurer or the Trust in any Receivable
(including any Liquidated Receivable) the Seller shall, unless such breach
shall have been cured in all material respects, purchase such Receivable from
the Trust and, on or before the related Deposit Date, the Seller shall pay
the Purchase Amount to the Trust pursuant to Section 5.4. It is understood
and agreed that, except as set forth in this Section 3.5, the obligation of
the Seller to repurchase any Receivable as to which a breach has occurred and
is continuing shall, if such obligation is fulfilled, constitute the sole
remedy against the Seller for such breach available to the Security Insurer,
the Trustee on behalf of the Certificateholders or the Trust.
In addition to the foregoing and notwithstanding whether the related
Receivable shall have been purchased by the Seller, the Seller shall
indemnify the Trust, the Trustee, the Backup Servicer, the Collateral Agent,
the Security Insurer, the Trust and the Certificateholders against all costs,
expenses, losses, damages, claims and liabilities, including reasonable fees
and expenses of counsel, which may be asserted against or incurred by any of
them as a result of third party claims arising out of the events or facts
giving rise to such breach.
III.6. [Reserved].
<PAGE>
III.7. Collecting Lien Certificates Not Delivered on the Closing Date.
In the case of any Receivable in respect of which written evidence from the
Dealer selling the related Financed Vehicle that the Lien Certificate for
such Financed Vehicle showing AmeriCredit as first lienholder has been
applied for from the Registrar of Titles was delivered to the Custodian on
the Closing Date in lieu of a Lien Certificate, the Servicer shall use its
best efforts to collect such Lien Certificate from the Registrar of Titles as
promptly as practicable. If such Lien Certificate showing AmeriCredit as
first lienholder is not received by the Custodian within 180 days after the
Closing Date then the representation and warranty in paragraph 5 of the
Schedule of Representations in respect of such Receivable shall be deemed to
have been incorrect in a manner that materially and adversely affects the
Certificateholders, the Security Insurer and the Trust.
III.8. Trustee's Assignment of Administrative Receivables and Warranty
Receivables. With respect to all Administrative Receivables and all Warranty
Receivables purchased by the Servicer or the Seller, the Trustee shall take
any and all actions reasonably requested by the Seller or the Servicer, at
the expense of the requesting party, to assign, without recourse,
representation or warranty, to the Seller, or the Servicer, as applicable,
all the Trust's right, title and interest in and to such Purchased
Receivable, all monies due thereon, the security interests in the related
Financed Vehicles, proceeds from any Insurance Policies, proceeds from
recourse against Dealers on such Receivables and the interests of the Trust
in certain rebates of premiums and other amounts relating to the Insurance
Policies and any documents relating thereto, such assignment being an
assignment outright and not for security; and the Seller or the Servicer, as
applicable, shall thereupon own such Receivable, and all such security and
documents, free of any further obligation to the Trust, the Trustee, the
Security Insurer, the Certificateholders or the Trust with respect thereto.
IV ADMINISTRATION AND SERVICING OF RECEIVABLES
IV.1. Duties of the Servicer. The Servicer is hereby authorized to act
as agent for the Trust and in such capacity shall manage, service,
administer and make
<PAGE>
collections on the Receivables, and perform the other actions required by the
Servicer under this Agreement. The Servicer agrees that its servicing of the
Receivables shall be carried out in accordance with customary and usual
procedures of institutions which service motor vehicle retail installment
sales contracts and, to the extent more exacting, the degree of skill and
attention that the Servicer exercises from time to time with respect to all
comparable motor vehicle receivables that it services for itself or others.
In performing such duties, so long as AmeriCredit is the Servicer, it shall
comply with the policies and procedures attached hereto as Schedule C. The
Servicer's duties shall include, without limitation, collection and posting
of all payments, responding to inquiries of Obligors on the Receivables,
investigating delinquencies, sending payment coupons to Obligors, reporting
any required tax information to Obligors, monitoring the collateral,
complying with the terms of the Lockbox Agreement, accounting for collections
and furnishing monthly and annual statements to the Trustee and the Security
Insurer with respect to distributions, monitoring the status of Insurance
Policies with respect to the Financed Vehicles and performing the other
duties specified herein. The Servicer shall also administer and enforce all
rights and responsibilities of the holder of the Receivables provided for in
the Dealer Agreements (and shall maintain possession of the Dealer
Agreements, to the extent it is necessary to do so), the Dealer Assignments
and the Insurance Policies, to the extent that such Dealer Agreements, Dealer
Assignments and Insurance Policies relate to the Receivables, the Financed
Vehicles or the Obligors. To the extent consistent with the standards,
policies and procedures otherwise required hereby, the Servicer shall follow
its customary standards, policies, and procedures and shall have full power
and authority, acting alone, to do any and all things in connection with such
managing, servicing, administration and collection that it may deem necessary
or desirable. Without limiting the generality of the foregoing, the Servicer
is hereby authorized and empowered by the Trust to execute and deliver, on
behalf of the Trust, any and all instruments of satisfaction or cancellation,
or of partial or full release or discharge, and all other comparable
instruments, with respect to the Receivables and with respect to the Financed
Vehicles; provided, however, that notwithstanding the foregoing, the Servicer
shall not,
<PAGE>
except pursuant to an order from a court of competent jurisdiction, release
an Obligor from payment of any unpaid amount under any Receivable or waive
the right to collect the unpaid balance of any Receivable from the Obligor.
The Servicer is hereby authorized to commence, in its own name or in the name
of the Trust (provided the Servicer has obtained the Trustee's consent, which
consent shall not be unreasonably withheld), a legal proceeding to enforce a
Receivable pursuant to Section 4.3 or to commence or participate in any other
legal proceeding (including, without limitation, a bankruptcy proceeding)
relating to or involving a Receivable, an Obligor or a Financed Vehicle. If
the Servicer commences or participates in such a legal proceeding in its own
name, the Trust shall thereupon be deemed to have automatically assigned such
Receivable to the Servicer solely for purposes of commencing or participating
in any such proceeding as a party or claimant, and the Servicer is authorized
and empowered by the Trust to execute and deliver in the Servicer's name any
notices, demands, claims, complaints, responses, affidavits or other
documents or instruments in connection with any such proceeding. The Trustee
shall furnish the Servicer with any powers of attorney and other documents
which the Servicer may reasonably request and which the Servicer deems
necessary or appropriate and take any other steps which the Servicer may deem
necessary or appropriate to enable the Servicer to carry out its servicing
and administrative duties under this Agreement.
IV.2. Collection of Receivable Payments; Modifications of Receivables;
Lockbox Agreements.
(a) Consistent with the standards, policies and procedures
required by this Agreement, the Servicer shall make reasonable efforts to
collect all payments called for under the terms and provisions of the
Receivables as and when the same shall become due, and shall follow
such collection procedures as it follows with respect to all comparable
automobile receivables that it services for itself or others and
otherwise act with respect to the Receivables, the Dealer Agreements, the
Dealer Assignments, the Insurance Policies and the Other Conveyed Property
in such manner as will, in the reasonable judgment of the Servicer,
maximize the amount to be received by the Trust with respect thereto.
The Servicer is authorized in its
<PAGE>
discretion to waive any prepayment charge, late payment charge or any other
similar fees that may be collected in the ordinary course of servicing any
Receivable.
(b) The Servicer may at any time agree to a modification or
amendment of a Receivable in order to (i) change the Obligor's regular due
date to a date within the Collection Period in which such due date occurs or
(ii) re-amortize the scheduled payments on the Receivable following a
partial prepayment of principal.
(c) The Servicer may grant payment extensions on, or other
modifications or amendments to, a Receivable (in addition to those
modifications permitted by Section 4.2(b)) in accordance with its customary
procedures if the Servicer believes in good faith that such extension,
modification or amendment is necessary to avoid a default on such
Receivable, will maximize the amount to be received by the Trust with
respect to such Receivable, and is otherwise in the best interests of the
Trust; provided, however, that:
(i) The aggregate period of all extensions on a
Receivable shall not exceed six months;
(ii) In no event may a Receivable be extended beyond
the Collection Period immediately preceding the Final
Scheduled Distribution Date;
(iii) So long as an Insurer Default shall not have
occurred and be continuing, the Servicer shall not amend or
modify a Receivable (except as provided in Section 4.2(b)
and this Section 4.2(c)) without the consent of the Security
Insurer or a Certificate Majority (if an Insurer Default
shall have occurred and be continuing);
(iv) The aggregate Principal Balance of Receivables
which may be extended during any Calendar Quarter shall not
exceed 6.0% of the aggregate Principal Balance of
Receivables as of the Accounting Date immediately prior to
the first day of such Calendar Quarter; and
(v) No such extension, modification or amendment shall
be granted more than 90 days after the Closing Date if such
action would have the effect of causing such Receivable to
be deemed to have been exchanged for another Receivable
<PAGE>
within the meaning of Section 1001 of the Internal Revenue
Code of 1986, as amended, or any proposed, temporary or
final Treasury Regulations issued thereunder.
(d) The Servicer shall use its best efforts to cause Obligors to
make all payments on the Receivables, whether by check or by direct debit of
the Obligor's bank account, to be made directly to one or more Lockbox
Banks, acting as agent for the Trust pursuant to a Lockbox Agreement.
The Servicer shall use its best efforts to cause any Lockbox Bank to
deposit all payments on the Receivables in the Lockbox Account no
later than the Business Day after receipt, and to cause all amounts
credited to the Lockbox Account on account of such payments to be
transferred to the Collection Account no later than the second Business
Day after receipt of such payments. The Lockbox Account shall be a demand
deposit account held by the Lockbox Bank, or at the request of the
Controlling Party, an Eligible Account.
Prior to the Closing Date, the Servicer shall have notified each Obligor
that makes its payments on the Receivables by check to make such payments
thereafter directly to the Lockbox Bank (except in the case of Obligors that
have already been making such payments to the Lockbox Bank), and shall have
provided each such Obligor with remittance invoices in order to enable such
Obligors to make such payments directly to the Lockbox Bank for deposit into
the Lockbox Account, and the Servicer will continue, not less often than
every three months, to so notify those Obligors who have failed to make
payments to the Lockbox Bank. If and to the extent requested by the
Controlling Party, the Servicer shall request each Obligor that makes payment
on the Receivables by direct debit of such Obligor's bank account, to execute
a new authorization for automatic payment which in the judgment of the
Controlling Party is sufficient to authorize direct debit by the Lockbox Bank
on behalf of the Trust. If at any time, the Lockbox Bank is unable to
directly debit an Obligor's bank account that makes payment on the
Receivables by direct debit and if such inability is not cured within 15 days
or cannot be cured by execution by the Obligor of a new authorization for
automatic payment, the Servicer shall notify such Obligor that it cannot make
payment by direct debit and must thereafter make payment by check.
<PAGE>
Notwithstanding any Lockbox Agreement, or any of the provisions of
this Agreement relating to the Lockbox Agreement, the Servicer shall
remain obligated and liable to the Trust, Trustee and Certificateholders for
servicing and administering the Receivables and the Other Conveyed
Property in accordance with the provisions of this Agreement without
diminution of such obligation or liability by virtue thereof, provided,
however, that the foregoing shall not apply to any Backup Servicer for so
long as a Lockbox Bank is performing its obligations pursuant to the terms
of a Lockbox Agreement.
In the event of a termination of the Servicer, the successor
Servicer shall assume all of the rights and obligations of the
outgoing Servicer under the Lockbox Agreement. In such event, the
successor Servicer shall be deemed to have assumed all of the
outgoing Servicer's interest therein and to have replaced the outgoing
Servicer as a party to each such Lockbox Agreement to the same extent as if
such Lockbox Agreement had been assigned to the successor Servicer,
except that the outgoing Servicer shall not thereby be relieved of any
liability or obligations on the part of the outgoing Servicer to the
Lockbox Bank under such Lockbox Agreement. The outgoing Servicer shall,
upon request of the Trustee, but at the expense of the outgoing Servicer,
deliver to the successor Servicer all documents and records relating to
each such Lockbox Agreement and an accounting of amounts collected and held
by the Lockbox Bank and otherwise use its best efforts to effect the orderly
and efficient transfer of any Lockbox Agreement to the successor Servicer.
In the event that the Security Insurer (so long as an Insurer Default
shall not have occurred and be continuing) or a Certificate Majority (if
an Insurer Default shall have occurred and be continuing) elects to change
the identity of the Lockbox Bank, the outgoing Servicer, at its expense,
shall cause the Lockbox Bank to deliver, at the direction of the
Security Insurer (so long as an Insurer Default shall not have occurred
and be continuing) or a Certificate Majority (if an Insurer Default
shall have occurred and be continuing) to the Trustee or a successor
Lockbox Bank, all documents and records relating to the Receivables and
all amounts held (or thereafter received) by the Lockbox Bank (together
with an accounting of such amounts) and shall otherwise use its best
efforts to effect the orderly and efficient transfer of the
lockbox
<PAGE>
arrangements and the Servicer shall notify the Obligors to make payments to
the Lockbox established by the successor.
(e) The Servicer shall remit all payments by or on behalf of the
Obligors received directly by the Servicer to the Subcollection Account or
to the Lockbox Bank for deposit into the Collection Account, in either case,
without deposit into any intervening account and as soon as practicable, but
in no event later than the Business Day after receipt thereof.
IV.3. Realization Upon Receivables.
(a) Consistent with the standards, policies and procedures
required by this Agreement, the Servicer shall use its best efforts to
repossess (or otherwise comparably convert the ownership of) and liquidate
any Financed Vehicle securing a Receivable with respect to which the Servicer
has determined that payments thereunder are not likely to be resumed, as
soon as is practicable after default on such Receivable but in no event
later than the date on which all or any portion of a Scheduled Payment has
become 91 days delinquent; provided, however, that the Servicer may elect
not to repossess a Financed Vehicle within such time period if in its
good faith judgment it determines that the proceeds ultimately
recoverable with respect to such Receivable would be increased by
forbearance. The Servicer is authorized to follow such customary
practices and procedures as it shall deem necessary or advisable,
consistent with the standard of care required by Section 4.1, which
practices and procedures may include reasonable efforts to realize upon any
recourse to Dealers, the sale of the related Financed Vehicle at public or
private sale, the submission of claims under an Insurance Policy and
other actions by the Servicer in order to realize upon such a
Receivable. The foregoing is subject to the provision that, in any case
in which the Financed Vehicle shall have suffered damage, the Servicer
shall not expend funds in connection with any repair or towards the
repossession of such Financed Vehicle unless it shall determine in its
discretion that such repair and/or repossession shall increase the
proceeds of liquidation of the related Receivable by an amount
greater than the amount of such expenses. All amounts received upon
liquidation of a Financed Vehicle shall be remitted directly by the
Servicer
<PAGE>
to the Subcollection Account without deposit into any intervening
account as soon as practicable, but in no event later than the Business
Day after receipt thereof. The Servicer shall be entitled to recover
all reasonable expenses incurred by it in the course of repossessing and
liquidating a Financed Vehicle into cash proceeds, but only out of the
cash proceeds of such Financed Vehicle, any deficiency obtained from the
Obligor or any amounts received from the related Dealer, which amounts in
reimbursement may be retained by the Servicer (and shall not be required to
be deposited as provided in Section 4.2(e)) to the extent of such
expenses. The Servicer shall pay on behalf of the Trust any personal
property taxes assessed on repossessed Financed Vehicles. The Servicer
shall be entitled to reimbursement of any such tax from Liquidation
Proceeds with respect to such Receivable.
(b) If the Servicer elects to commence a legal proceeding to
enforce a Dealer Agreement or Dealer Assignment, the act of
commencement shall be deemed to be an automatic assignment from the Trust to
the Servicer of the rights under such Dealer Agreement and Dealer
Assignment for purposes of collection only. If, however, in any
enforcement suit or legal proceeding it is held that the Servicer may
not enforce a Dealer Agreement or Dealer Assignment on the grounds
that it is not a real party in interest or a Person entitled to
enforce the Dealer Agreement or Dealer Assignment, the Trustee, at
the Servicer's expense, or the Seller, at the Seller's expense, shall take
such steps as the Servicer deems necessary to enforce the Dealer Agreement
or Dealer Assignment, including bringing suit in its name or the name of the
Seller or of the Trust and the Trustee for the benefit of the
Certificateholders. All amounts recovered shall be remitted directly by the
Servicer as provided in Section 4.2(e).
IV.4. Insurance.
(a) The Servicer shall require, in accordance with its customary
servicing policies and procedures, that each Financed Vehicle be insured
by the related Obligor under the Insurance Policies referred to in
Paragraph 24 of the Schedule of Representations and Warranties and shall
monitor the status of such physical loss and damage insurance
<PAGE>
coverage thereafter, in accordance with its customary servicing
procedures. Each Receivable requires the Obligor to maintain such physical
loss and damage insurance, naming AmeriCredit and its successors and
assigns as additional insureds, and permits the holder of such
Receivable to obtain physical loss and damage insurance at the expense of
the Obligor if the Obligor fails to maintain such insurance. If the
Servicer shall determine that an Obligor has failed to obtain or maintain a
physical loss and damage Insurance Policy covering the related Financed
Vehicle which satisfies the conditions set forth in clause (i)(a) of such
Paragraph 24 (including, without limitation, during the repossession of
such Financed Vehicle) the Servicer may enforce the rights of the
holder of the Receivable under the Receivable to require the Obligor to
obtain such physical loss and damage insurance in accordance with its
customary servicing policies and procedures. The Servicer may maintain
a vendor's single interest or other collateral protection insurance
policy with respect to all Financed Vehicles ("Collateral Insurance")
which policy shall by its terms insure against physical loss and damage
in the event any Obligor fails to maintain physical loss and damage
insurance with respect to the related Financed Vehicle. All policies of
Collateral Insurance shall be endorsed with clauses providing for loss
payable to the Servicer. Costs incurred by the Servicer in maintaining
such Collateral Insurance shall be paid by the Servicer.
(b) The Servicer may, if an Obligor fails to obtain or maintain a
physical loss and damage Insurance Policy, obtain insurance with respect to
the related Financed Vehicle and advance on behalf of such Obligor, as
required under the terms of the insurance policy, the premiums for
such insurance (such insurance being referred to herein as "Force-Placed
Insurance"). All policies of Force-Placed Insurance shall be endorsed with
clauses providing for loss payable to the Servicer. Any cost incurred
by the Servicer in maintaining such Force-Placed Insurance shall
only be recoverable out of premiums paid by the Obligors or
Liquidation Proceeds with respect to the Receivable, as provided in
Section 4.4(c).
(c) In connection with any Force-Placed Insurance obtained
hereunder, the Servicer may, in the manner and to the extent permitted by
applicable law, require the Obligors
<PAGE>
to repay the entire premium to the Servicer. In no event shall the
Servicer include the amount of the premium in the Amount Financed under the
Receivable. For all purposes of this Agreement, the Insurance Add-On Amount
with respect to any Receivable having Force-Placed Insurance will be treated
as a separate obligation of the Obligor and will not be added to the
Principal Balance of such Receivable, and amounts allocable thereto
will not be available for distribution on the Certificates. The
Servicer shall retain and separately administer the right to receive payments
from Obligors with respect to Insurance Add-On Amounts or rebates of
Forced-Placed Insurance premiums. If an Obligor makes a payment with
respect to a Receivable having Force-Placed Insurance, but the Servicer is
unable to determine whether the payment is allocable to the Receivable
or to the Insurance Add-On Amount, the payment shall be applied first to
any unpaid Scheduled Payments and then to the Insurance Add-On Amount.
Liquidation Proceeds on any Receivable will be used first to pay the
Principal Balance and accrued interest on such Receivable and then to
pay the related Insurance Add-On Amount. If an Obligor under a
Receivable with respect to which the Servicer has placed Force-Placed
Insurance fails to make scheduled payments of such Insurance Add-On Amount
as due, and the Servicer has determined that eventual payment of the
Insurance Add-On Amount is unlikely, the Servicer may, but shall not be
required to, purchase such Receivable from the Trust for the Purchase
Amount on any subsequent Deposit Date. Any such Receivable, and any
Receivable with respect to which the Servicer has placed Force-Placed
Insurance which has been paid in full (excluding any Insurance Add-On
Amounts) will be assigned to the Servicer.
(d) The Servicer may sue to enforce or collect upon the Insurance
Policies, in its own name, if possible, or as agent of the Trust. If the
Servicer elects to commence a legal proceeding to enforce an Insurance
Policy, the act of commencement shall be deemed to be an automatic
assignment of the rights of the Trust under such Insurance Policy to the
Servicer for purposes of collection only. If, however, in any enforcement
suit or legal proceeding it is held that the Servicer may not enforce an
Insurance Policy on the grounds that it is not a real party in interest or
a holder entitled to enforce the Insurance Policy, the Trustee, at the
Servicer's expense, or the Seller, at the Seller's
<PAGE>
expense, shall take such steps as the Servicer deems necessary to
enforce such Insurance Policy, including bringing suit in its name or the
name of the Trust and the Trustee for the benefit of the Certificateholders.
(e) The Servicer will cause itself and may cause the Trustee to
be named as named insured under all policies of Collateral Insurance.
IV.5. Maintenance of Security Interests in
Vehicles.
(a) Consistent with the policies and procedures required by
this Agreement, the Servicer shall take such steps on behalf of the Trust
as are necessary to maintain perfection of the security interest
created by each Receivable in the related Financed Vehicle, including
but not limited to obtaining the execution by the Obligors and the
recording, registering, filing, re-recording, re-filing, and re-registering
of all security agreements, financing statements and continuation
statements as are necessary to maintain the security interest granted by the
Obligors under the respective Receivables. The Trustee hereby authorizes
the Servicer, and the Servicer agrees, to take any and all steps necessary
to re-perfect such security interest on behalf of the Trust as
necessary because of the relocation of a Financed Vehicle or for any other
reason. In the event that the assignment of a Receivable to the
Trust is insufficient, without a notation on the related Financed
Vehicle's certificate of title, or without fulfilling any additional
administrative requirements under the laws of the state in which the Financed
Vehicle is located, to perfect a security interest in the related Financed
Vehicle in favor of the Trustee, the Servicer hereby agrees
that AmeriCredit's designation as the secured party on the certificate
of title is in its capacity as agent of the Trustee.
(b) Upon the occurrence of an Insurance Agreement Event of
Default, the Security Insurer may (so long as an Insurer Default shall not
have occurred and be continuing) instruct the Trustee and the Servicer to
take or cause to be taken, or, if an Insurer Default shall have occurred,
upon the occurrence of a Servicer Termination Event, the Trustee and the
Servicer shall take or cause to be taken such action
<PAGE>
as may, in the opinion of counsel to the Controlling Party, be necessary to
perfect or re-perfect the security interests in the Financed Vehicles
securing the Receivables in the name of the Trustee by amending the title
documents of such Financed Vehicles or by such other reasonable means as
may, in the opinion of counsel to the Controlling Party, be necessary
or prudent. AmeriCredit hereby agrees to pay all expenses related to such
perfection or reperfection and to take all action necessary therefor. In
addition, prior to the occurrence of an Insurance Agreement Event of
Default, the Controlling Party may instruct the Trustee and the
Servicer to take or cause to be taken such action as may, in the opinion of
counsel to the Controlling Party, be necessary to perfect or
re-perfect the security interest in the Financed Vehicles underlying the
Receivables in the name of the Trustee, including by amending the title
documents of such Financed Vehicles or by such other reasonable means as
may, in the opinion of counsel to the Controlling Party, be necessary or
prudent; provided, however, that if the Controlling Party requests that
the title documents be amended prior to the occurrence of an Insurance
Agreement Event of Default, the out-of-pocket expenses of the Servicer or
the Trustee in connection with such action shall be reimbursed to the
Servicer or the Trustee, as applicable, by the Controlling Party.
AmeriCredit hereby appoints the Trustee as its attorney-in-fact to take
any and all steps required to be performed by AmeriCredit pursuant to
this Section 4.5(b), including execution of certificates of title or any
other documents in the name and stead of AmeriCredit, and the Trustee hereby
accepts such appointment.
IV.6. Covenants, Representations, and Warranties of Servicer.
By its execution and delivery of this Agreement, the Servicer makes the
following representations, warranties and covenants on which the Trustee
relies in accepting the Receivables and issuing the Certificates, on
which the Trustee relies in authenticating the Certificates and on which
the Security Insurer relies in issuing the Policy.
(a) The Servicer covenants as follows:
(i) Liens in Force. The Financed Vehicle securing
each Receivable shall not be released in whole or in part
from the security interest granted by the Receivable, except
upon payment in full of the Receivable or as otherwise
<PAGE>
contemplated herein;
(ii) No Impairment. The Servicer shall do nothing to
impair the rights of the Trust or the Certificateholders in
the Receivables, the Dealer Agreements, the Dealer
Assignments, the Insurance Policies or the Other Conveyed
Property;
(iii) No Amendments. The Servicer shall not extend
or otherwise amend the terms of any Receivable, except in
accordance with Section 4.2; and
(iv) Restrictions on Liens. The Servicer shall not
(i) create, incur or suffer to exist, or agree to create,
incur or suffer to exist, or consent to cause or permit in
the future (upon the happening of a contingency or
otherwise) the creation, incurrence or existence of any Lien
or restriction on transferability of the Receivables except
for the Lien in favor of the Trustee for the benefit of the
Certificateholders and Security Insurer, the Lien imposed by
the Spread Account Agreement in favor of the Trustee for the
benefit of the Trustee and Security Insurer, and the
restrictions on transferability imposed by this Agreement or
(ii) sign or file under the Uniform Commercial Code of any
jurisdiction any financing statement which names AmeriCredit
or the Servicer as a debtor, or sign any security agreement
authorizing any secured party thereunder to file such
financing statement, with respect to the Receivables, except
in each case any such instrument solely securing the rights
and preserving the Lien of the Trustee, for the benefit of
the Certificateholders and the Security Insurer.
(b) The Servicer represents, warrants and covenants as of the
Closing Date as to itself:
(i) Representations and Warranties. The
representations and warranties set forth on the Schedule of
Representations attached hereto as Schedule B are true and
correct, provided that such representations and warranties
contained therein and herein shall not apply to any entity
other than AmeriCredit;
(ii) Organization and Good Standing. The Servicer has
been duly organized and is validly existing and in good
standing under the laws of its jurisdiction of organization,
<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
Related Documents and to carry out its terms and their
terms, respectively, and the execution, delivery and
performance of this Agreement and the Servicer's Related
Documents have been duly authorized by the Servicer by all
necessary corporate action;
(v) Binding Obligation. This Agreement and the
Servicer's Related Documents shall constitute legal, valid
and binding obligations of the Servicer enforceable in
accordance with their respective terms, except as
enforceability may be limited by bankruptcy, insolvency,
reorganization, or other similar laws affecting the
enforcement of creditors' rights generally and by equitable
limitations on the availability of specific remedies,
regardless of whether such enforceability is considered in a
proceeding in equity or at law;
(vi) No Violation. The consummation of the
transactions contemplated by this Agreement and the
Servicer's Related Documents, and the fulfillment of the
terms of this Agreement and the Servicer's Related
Documents, shall not conflict with, result in any breach of
any of the terms and provisions of, or constitute (with or
without notice or lapse of time) a default under, the
articles of incorporation or bylaws of the Servicer, or any
indenture, agreement, mortgage, deed of trust or other
instrument to which the Servicer is a party or by which it
is bound, or result in the creation or imposition of any
<PAGE>
Lien upon any of its properties pursuant to the terms of any
such indenture, agreement, mortgage, deed of trust or other
instrument, other than this Agreement, or violate any law,
order, rule or regulation applicable to the Servicer of any
court or of any federal or state regulatory body,
administrative agency or other governmental instrumentality
having jurisdiction over the Servicer or any of its
properties;
(vii) No Proceedings. There are no proceedings or
investigations pending or, to the Servicer's knowledge,
threatened against the Servicer, before any court,
regulatory body, administrative agency or other tribunal or
governmental instrumentality having jurisdiction over the
Servicer or its properties (A) asserting the invalidity of
this Agreement or any of the Related Documents, (B) seeking
to prevent the issuance of the Certificates or the
consummation of any of the transactions contemplated by this
Agreement or any of the Related Documents, or (C) seeking
any determination or ruling that might materially and
adversely affect the performance by the Servicer of its
obligations under, or the validity or enforceability of,
this Agreement or any of the Related Documents or (D)
seeking to adversely affect the federal income tax or other
federal, state or local tax attributes of the Certificates;
(viii) No Consents. The Servicer is not required to
obtain the consent of any other party or any consent,
license, approval or authorization, or registration or
declaration with, any governmental authority, bureau or
agency in connection with the execution, delivery,
performance, validity or enforceability of this Agreement
which has not already been obtained.
IV.7. Purchase of Receivables Upon Breach of Covenant. Upon
discovery by any of the Servicer, the Security Insurer or the Trustee
of a breach of any of the covenants set forth in Sections 4.5(a) or 4.6(a),
the party discovering such breach shall give prompt written notice to the
others; provided, however, that the failure to give any such notice shall
not affect any obligation of AmeriCredit as Servicer under this Section
4.7. As of the second Accounting Date following its discovery or receipt
of notice of any breach of any covenant set forth in Sections 4.5(a) or
4.6(a) which materially and adversely affects the
<PAGE>
interests of the Certificateholders or the Security Insurer in any
Receivable (including any Liquidated Receivable) (or, at AmeriCredit's
election, the first Accounting Date so following), AmeriCredit shall,
unless such breach shall have been cured in all material respects, purchase
from the Trust the Receivable affected by such breach and, on the related
Deposit Date, AmeriCredit shall pay the related Purchase Amount. It is
understood and agreed that the obligation of AmeriCredit to purchase any
Receivable (including any Liquidated Receivable) with respect to which
such a breach has occurred and is continuing shall, if such obligation is
fulfilled, constitute the sole remedy against AmeriCredit for such
breach available to the Security Insurer, the Certificateholders or
the Trustee on behalf of Certificateholders; provided, however,
that AmeriCredit shall indemnify the Trust, the Backup Servicer,
the Collateral Agent, the Security Insurer, the Trustee and the
Certificateholders against all costs, expenses, losses, damages, claims
and liabilities, including reasonable fees and expenses of counsel, which
may be asserted against or incurred by any of them as a result of third
party claims arising out of the events or facts giving rise to such
breach.
IV.8. Total Servicing Fee; Payment of Certain Expenses by
Servicer; Compensating Interest. (a) On each Distribution Date, the
Servicer shall be entitled to receive out of the Collection Account the
Basic Servicing Fee and any Supplemental Servicing Fee for the related
Collection Period pursuant to Section 5.5. The Servicer shall be
required to pay all expenses incurred by it in connection with its
activities under this Agreement (including taxes imposed on the Servicer,
expenses incurred in connection with distributions and reports made by
the Servicer to Certificateholders or the Security Insurer and all
other fees and expenses of the Trustee, except taxes levied or assessed
against the Trust, and claims against the Trust in respect of
indemnification, which taxes and claims in respect of indemnification
against the Trust are expressly stated to be for the account of
AmeriCredit). The Servicer shall be liable for the fees and expenses of
the Trustee, the Custodian, the Backup Servicer, the Collateral Agent,
the Lockbox Bank (and any fees under the Lockbox Agreement) and the
Independent Accountants. Notwithstanding the foregoing if the
Servicer shall not be AmeriCredit, a
<PAGE>
successor to AmeriCredit as Servicer permitted by Section 9.2 shall not be
liable for taxes levied or assessed against the Trust or claims against
the Trust in respect of indemnification.
(b) On or prior to each Determination Date, the Servicer shall
deposit in the Collection Account with respect to any Prepayment
received on a Receivable during the related Collection Period, out of its
own funds without any right of reimbursement therefor, an amount equal to
the difference between (x) 30 days' interest at an interest rate equal to
the weighted average of the Class A Pass-Through Rate and the Class B
Pass-Through Rate on the Principal Balance of such Receivable as of the
first day of the related Collection Period and (y) the interest actually
paid by the Obligor with respect to the Receivable during such Collection
Period (any such amount paid by the Servicer, "Compensating Interest").
The Servicer shall in no event be required to pay Compensating Interest with
respect to any Collection Period in an amount in excess of the aggregate
Servicing Fee received by the Servicer with respect to all Receivables for
the related Collection Period.
IV.9. Servicer's Certificate. No later than 10:00 am. New
York City time on each Determination Date, the Servicer shall deliver to
the Trustee, the Backup Servicer, the Security Insurer, the Collateral Agent
and each Rating Agency a Servicer's Certificate executed by a Responsible
Officer of the Servicer containing among other things, (i) all information
necessary to enable the Trustee to make any withdrawal and deposit required
by Section 6.3, to give any notice required by Section 6.3(b) and to
make the distributions required by Sections 5.5, (ii) all information
necessary to enable the Trustee to send the statements to
Certificateholders and the Security Insurer required by Section 5.7,
(iii) a listing of all Warranty Receivables and Administrative Receivables
purchased as of the related Deposit Date, identifying the Receivables so
purchased and (iv) all information necessary to enable the Trustee to
reconcile all deposits to, and withdrawals from, the Collection
Account for the related Collection Period and Distribution Date,
including the accounting required by Section 5.7. Receivables purchased
by the Servicer or by the Seller on the related Deposit Date and each
Receivable which became a Liquidated Receivable or which was paid in
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full during the related Collection Period shall be identified by account
number (as set forth in the Schedule of Receivables). A copy of such
certificate may be obtained by any Certificateholder by a request in
writing to the Trustee addressed to the Corporate Trust Office. In
addition to the information set forth in the preceding sentence, the
Servicer's Certificate delivered to the Security Insurer, the
Collateral Agent and the Trustee on the Determination Date shall also
contain the following information: (a) the Delinquency Ratio, Average
Delinquency Ratio, Default Ratio, Average Default Ratio, Net Loss Ratio and
Average Net Loss Ratio for such Determination Date; (b) whether any
Trigger Event has occurred as of such Determination Date; (c) whether
any Trigger Event that may have occurred as of a prior Determination Date
is Deemed Cured as of such Determination Date; and (d) whether to the
knowledge of the Servicer an Insurance Agreement Event of Default has
occurred.
IV.10. Annual Statement as to Compliance, Notice of Servicer
Termination Event.
(a) The Servicer shall deliver to the Trustee, the Backup
Servicer, the Security Insurer, the Certificateholders and
each Rating Agency, on or before October 31 (or 120 days after the end
of the Servicer's fiscal year, if other than June 30) of each year,
beginning on October 31, 1996, an officer's certificate signed by any
Responsible Officer of the Servicer, dated as of June 30 (or other
applicable date) of such year, stating that (i) a review of the
activities of the Servicer during the preceding 12-month period (or
such other period as shall have elapsed from the Closing Date to the date
of the first such certificate) and of its performance under this
Agreement has been made under such officer's supervision, and (ii) to
such officer's knowledge, based on such review, the Servicer has fulfilled
all its obligations under this Agreement throughout such period, or, if
there has been a default in the fulfillment of any such
obligation, specifying each such default known to such officer and the
nature and status thereof.
(b) The Servicer shall deliver to the Trustee, the Backup
Servicer, the Security Insurer, the Certificateholders, the
Collateral Agent, and each Rating
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Agency, promptly after having obtained knowledge thereof, but in no event
later than two (2) Business Days thereafter, written notice in an officer's
certificate of any event which with the giving of notice or lapse of
time, or both, would become a Servicer Termination Event under Section
10.1(a). The Seller or the Servicer shall deliver to the Trustee, the
Backup Servicer, the Security Insurer, the Collateral Agent, the Servicer
or the Seller (as applicable) and each Rating Agency promptly after
having obtained knowledge thereof, but in no event later than two (2)
Business Days thereafter, written notice in an officer's certificate of
any event which with the giving of notice or lapse of time, or both, would
become a Servicer Termination Event under any other clause of Section 10.1.
IV.11. Annual Independent Accountants' Report.
(a) The Servicer shall cause a firm of nationally recognized
independent certified public accountants (the "Independent Accountants"),
who may also render other services to the Servicer or to the Seller, to
deliver to the Trustee, the Backup Servicer, the Security Insurer and each
Rating Agency, on or before October 31 (or 120 days after the end of the
Servicer's fiscal year, if other than June 30) of each year, beginning
on October 31, 1996, with respect to the twelve months ended the
immediately preceding June 30 (or other applicable date) (or such other
period as shall have elapsed from the Closing Date to the date of such
certificate), a statement (the "Accountants' Report") addressed to the
Board of Directors of the Servicer, to the Trustee, the Backup Servicer and
to the Security Insurer, to the effect that such firm has audited the books
and records 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
<PAGE>
Certificates including the delinquency, default and loss statistics
required to be specified therein noting whether any exceptions or errors in
the Servicer's Certificates were found.
(b) A copy of the Accountants' Report may be obtained by any
Certificateholder by a request in writing to the Trustee addressed to the
Corporate Trust Office.
IV.12. Access to Certain Documentation and Information
Regarding Receivables. The Servicer shall provide to representatives
of the Trustee, the Backup Servicer, the Certificateholders and the
Security Insurer reasonable access to the documentation regarding
the Receivables. In each case, such access shall be afforded without
charge but only upon reasonable request and during normal business hours.
Nothing in this Section shall derogate from the obligation of the
Servicer to observe any applicable law prohibiting disclosure of
information regarding the Obligors, and the failure of the Servicer to
provide access as provided in this Section as a result of such obligation
shall not constitute a breach of this Section.
IV.13. Monthly Tape. On or before the fifth Business Day,
but in no event later than the seventh calendar day, of each month,
the Servicer will deliver to the Trustee and the Backup Servicer a
computer tape and a diskette (or any other electronic transmission
acceptable to the Trustee and the Backup Servicer) in a format acceptable to
the Trustee and the Backup Servicer containing the information with
respect to the Receivables as of the preceding Accounting Date necessary
for preparation of the Servicer's Certificate relating to the
immediately succeeding Determination Date and necessary to determine the
application of collections as provided in Section 5.3. The Backup Servicer
shall use such tape or diskette (or other electronic transmission
acceptable to the Trustee and the Backup Servicer) to verify the
Servicer's Certificate delivered by the Servicer, and the Backup Servicer
shall certify to the Controlling Party that it has verified the
Servicer's Certificate in accordance with this Section 4.13 and shall
notify the Servicer and the Controlling Party of any discrepancies, in each
case, on or before the second Business Day following the Determination
Date. In the event
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that the Backup Servicer reports any discrepancies, the Servicer and
the Backup Servicer shall attempt to reconcile such discrepancies prior to
the related Distribution Date, but in the absence of a reconciliation,
the Servicer's Certificate shall control for the purpose of calculations
and distributions with respect to the related Distribution Date. In the
event that the Backup Servicer and the Servicer are unable to reconcile
discrepancies with respect to a Servicer's Certificate by the related
Distribution Date, the Servicer shall cause the Independent Accountants, at
the Servicer's expense, to audit the Servicer's Certificate and,
prior to the third Business Day, but in no event later than the fifth
calendar day, of the following month, reconcile the discrepancies. The
effect, if any, of such reconciliation shall be reflected in the
Servicer's Certificate for such next succeeding Determination Date. In
addition, upon the occurrence of a Servicer Termination Event the
Servicer shall, if so requested by the Controlling Party deliver to the
Backup Servicer its Collection Records and its Monthly Records within 15 days
after demand therefor and a computer tape containing as of the close of
business on the date of demand all of the data maintained by the
Servicer in computer format in connection with servicing the Receivables.
Other than the duties specifically set forth in this Agreement, the
Backup Servicer shall have no obligations hereunder, including, without
limitation, to supervise, verify, monitor or administer the performance of
the Servicer. The Backup Servicer shall have no liability for any actions
taken or omitted by the Servicer.
IV.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 March 31, 1996,
which term shall be extendible by the Controlling Party for
successive quarterly terms ending on each successive June 30,
September 30 and December 31 (or, pursuant to revocable written
standing instructions from time to time to the Servicer and the Trustee
for any specified number of terms greater than one), until the Certificates
are paid in full. Each such notice (including each notice pursuant to
standing instructions, which shall be deemed delivered at the end of
successive quarterly terms for so long as such instructions are in effect)
(a "Servicer Extension Notice") shall be delivered by the Security
Insurer to the Trustee and the
<PAGE>
Servicer. The Servicer hereby agrees that, as of the date hereof and upon
its receipt of any such Servicer Extension Notice, the Servicer shall
become bound, for the initial term beginning on the Closing Date and for
the duration of the term covered by such Servicer Extension Notice, to
continue as the Servicer subject to and in accordance with the other
provisions of this Agreement. Until such time as an Insurer Default shall
have occurred and be continuing the Trustee agrees that if as of the
fifteenth day prior to the last day of any term of the Servicer the Trustee
shall not have received any Servicer Extension Notice from the
Security Insurer, the Trustee will, within five days thereafter, give
written notice of such non-receipt to the Security Insurer and the Servicer.
IV.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.
V DISTRIBUTIONS; STATEMENTS TO CERTIFICATEHOLDERS
V.1. Accounts. The Servicer shall establish the Collection
Account in the name of the Trustee for the benefit of the
Certificateholders. The Servicer shall also establish the Policy Payments
Account in the name of the Trustee for the benefit of the Class A
Certificateholders. Each of the Collection Account and the Policy
Payments Account shall be an Eligible Account and initially shall be a
segregated trust account established with the Trustee and maintained with
the Trustee. All amounts held in the Collection Account shall, to
the extent permitted by applicable laws, rules and regulations, be
invested by the Trustee, as directed in writing by the Servicer, in
Eligible Investments that mature not later than one Business Day prior
to the Distribution Date for the Collection Period to which such amounts
relate. Any such written direction shall certify that any such investment
is authorized by this Section 5.1. Investments in Eligible Investments
shall be made in the name of the Trustee on behalf of the
Certificateholders, and such investments shall not be sold or disposed of
prior to their maturity. The Trustee may
<PAGE>
trade with itself or an Affiliate in the purchase or sale of Eligible
Investments. Any investment of funds in the Collection Account shall
be made in Eligible Investments held by a financial institution with
respect to which (a) such institution has noted the Trustee's
interest therein by book entry or otherwise and (b) a confirmation of the
Trustee's interest has been sent to the Trustee by such institution,
provided that such Eligible Investments are (i) specific certificated
securities (as such term is used in the Texas UCC, and (ii) either (A) in
the possession of such institution or (B) in the possession of a
clearing corporation as such term is used in the New York UCC and the Texas
UCC, registered in the name of such clearing corporation, not
endorsed for collection or surrender or any other purpose not involving
transfer, not containing any evidence of a right or interest
inconsistent with the Trustee's security interest therein, and held
by such clearing corporation in an account of such institution. Subject
to the other provisions hereof, the Trustee shall have sole control over
each such investment and the income thereon, and any certificate or other
instrument evidencing any such investment, if any, shall be delivered
directly to the Trustee or its agent, together with each document of
transfer, if any, necessary to transfer title to such investment to
the Trustee in a manner which complies with this Section 5.1. All
interest, dividends, gains upon sale and other income from, or earnings on,
investments of funds in the Collection Account shall be deposited in
the Collection Account, and, in the case of the Collection Account,
distributed on the next Distribution Date pursuant to Section 5.5. The
Seller shall deposit in the Collection Account an amount equal to any net
loss on such investments immediately as realized. Amounts in Policy Payments
Account shall not be invested. On the Closing Date, the Servicer shall
deposit in the Collection Account (i) all Scheduled Payments and
prepayments of Receivables received by the Lockbox Bank after the Cut-off
Date and prior to the Closing Date or received by the Lockbox Bank after the
Cut-off Date and at least two Business Days prior to the Closing Date and
(ii) all Liquidation Proceeds and proceeds of Insurance Policies
realized in respect of a Financed Vehicle and applied by the Servicer
after the Cut-off Date.
V.2. Collections. (a) The Servicer shall establish the
Subcollection Account in the name of the Trustee for the
<PAGE>
benefit of the Certificateholders. The Subcollection Account shall
be an Eligible Account satisfying clause (i) of the definition of "Eligible
Account," and shall initially be established with First Interstate
Bank, N.A. The Servicer shall remit directly to the Subcollection
Account without deposit into any intervening account (i) all payments
by or on behalf of the Obligors on the Receivables, (ii) all Liquidation
Proceeds received by the Servicer and (iii) any Compensating Interest, in
each case, as soon as practicable, but in no event later than the
Business Day after receipt thereof. Within two days of deposit of
payments into the Subcollection Account, the Servicer shall cause all
amounts credited to the Subcollection Account to be transferred to the
Collection Account. Amounts in the Subcollection Account shall not be
invested.
(a) Notwithstanding the provisions of subsection (a) hereof, the
Servicer will be entitled to be reimbursed from amounts on deposit in the
Collection Account with respect to a Collection Period for amounts
previously deposited in the Collection Account but later determined by the
Servicer or the Lockbox Bank to have resulted from mistaken deposits or
postings or checks returned for insufficient funds. The amount to be
reimbursed hereunder shall be paid to the Servicer on the related
Distribution Date pursuant to Section 5.5(a)(i) upon certification by the
Servicer of such amounts and the provision of such information to the Trustee
and the Security Insurer as may be necessary in the opinion of the Trustee
and the Security Insurer to verify the accuracy of such
certification. In the event that the Security Insurer has not received
evidence satisfactory to it of the Servicer's entitlement to reimbursement
pursuant to this Section, the Security Insurer shall (unless an Insurer
Default shall have occurred and be continuing) give the Trustee notice to
such effect, following receipt of which the Trustee shall not make a
distribution to the Servicer in respect of such amount pursuant to Section
5.5, or if the Servicer prior thereto has been reimbursed pursuant
to Section 5.5 or Section 5.6, the Trustee shall withhold such amounts
from amounts otherwise distributable to the Servicer on the next succeeding
Distribution Date.
V.3. Application of Collections. For the purposes of this
Agreement, all collections for a Collection Period shall be applied by the
Servicer