\n 11.12 Appointment of Paying Agent ………………………………… 70
\n 11.13 Representations, Warranties and Covenants of Custodian ………… 71<\/p>\nARTICLE 12 TERMINATION …………………………………………….. 72
\n 12.1 Termination ………………………………………………. 72
\n 12.2 Optional Purchase of All Automobile Loans ……………………. 72<\/p>\n
ARTICLE 13 MISCELLANEOUS PROVISIONS …………………………………. 73
\n 13.1 Amendment ………………………………………………… 73
\n 13.2 Protection of Title to Issuer ………………………………. 74
\n 13.3 Notices ………………………………………………….. 76
\n 13.4 Assignment ……………………………………………….. 76
\n 13.5 Limitations on Rights of Others …………………………….. 76
\n 13.6 Severability ……………………………………………… 76
\n 13.7 Separate Counterparts ……………………………………… 77
\n 13.8 Headings …………………………………………………. 77
\n 13.9 Governing Law …………………………………………….. 77
\n 13.10 Nonpetition Covenants ……………………………………… 77
\n 13.11 Limitation of Liability of Custodian ………………………… 77
\n 13.12 Independence of the Servicer ……………………………….. 78
\n 13.13 No Joint Venture ………………………………………….. 78
\n<\/c><\/s><\/table>\n
POOLING AND SERVICING AGREEMENT dated as of May 17, 2002, between
\nAMERICREDIT CANADA 2002-A CORP., a corporation incorporated under the federal
\nlaws of Canada, in its capacity as seller (the “Seller”), MERRILL LYNCH
\nFINANCIAL ASSETS INC., a corporation incorporated under the federal laws of
\nCanada (the “Issuer”), AMERICREDIT FINANCIAL SERVICES OF CANADA LTD., a
\ncorporation incorporated under the laws of the Province of Ontario, in its
\ncapacity as servicer (the “Servicer”), BANK ONE, NA, a national banking
\nassociation organized under the laws of the United States, in its capacity as
\nbackup servicer (the “Backup Servicer”), and THE TRUST COMPANY OF BANK OF
\nMONTREAL, a trust company governed by the federal laws of Canada, in its
\ncapacity as custodian (the “Custodian”).<\/p>\n
WHEREAS the Issuer desires to purchase a portfolio of receivables and
\ncertain related assets arising in connection with motor vehicle retail
\ninstalment sale contracts made by the Seller or acquired by the Seller through
\nmotor vehicle dealers;<\/p>\n
AND WHEREAS the Seller is willing to sell such receivables and related
\nassets to the Issuer;<\/p>\n
AND WHEREAS the Servicer is willing to service such receivables and
\nrelated assets;<\/p>\n
AND WHEREAS the Issuer is willing to transfer such receivables and related
\nassets to the Custodian, as agent, nominee and bailee for the benefit of the
\nCertificateholders (as defined herein) and to issue the Certificates (as defined
\nherein) to the Certificateholders;<\/p>\n
NOW THEREFORE, in consideration of the premises and the mutual covenants
\nherein contained, the parties hereto agree as follows:<\/p>\n
ARTICLE 1
\n DEFINITIONS<\/p>\n
1.1 Definitions.<\/p>\n
Whenever used in this Agreement, the following words and phrases shall
\nhave the following meanings:<\/p>\n
“ACAR Series 2002-A Certificateholders’ Assets” means the Purchased
\nAssets, amounts held in the Depository Account with respect to the Automobile
\nLoans sold in connection with the ACAR Series 2002-A Certificateholders’ Assets,
\namounts on deposit in the Collection Account, amounts on deposit in the Spread
\nAccount and amounts on deposit in the Accumulation Account, all funds and
\nEligible Investments on deposit in or credited to such accounts (including all
\nInvestment Earnings thereon), certain other rights under this Agreement and all
\nproceeds of the foregoing.<\/p>\n
“Accelerated Certificate Balance Distributable Amount” means, for any
\nDistribution Date, an amount equal to the lesser of:<\/p>\n
-2-<\/p>\n
(1) the amount on deposit in the Spread Account after giving effect to all
\ndeposits to the Spread Account and withdrawals from the Spread Account as
\ndescribed in items (i) through (v) in Section 6.5(a), in excess of the lesser of
\n(i) 2% of the Initial Pool Balance, and (ii) the Adjusted Certificate Balance;<\/p>\n
and<\/p>\n
(2) the excess, if any, of:<\/p>\n
(a) the sum of:<\/p>\n
(x) the Adjusted Certificate Balance for such Distribution Date;<\/p>\n
minus<\/p>\n
(y) the amounts deposited to the Accumulation Account in respect of the
\n Certificateholders’ Certificate Balance Distributable Amount for the
\n current Distribution Date;<\/p>\n
over<\/p>\n
(b) the Required Adjusted Certificate Balance for such Distribution Date.<\/p>\n
“Accountants’ Report” has the meaning ascribed thereto in Section 5.11.<\/p>\n
“Accounting Date” means, with respect to any Collection Period, the last
\nday of such Collection Period.<\/p>\n
“Accumulation Account” means the account designated as such, established
\nand maintained pursuant to Section 6.1.<\/p>\n
“Adjusted Certificate Balance” means, for the Class A, Class B and Class C
\nCertificates for any Distribution Date, prior to giving effect to amounts paid
\non that date, the aggregate of the outstanding Certificate Balances for the
\nClasses on the Distribution Date less the Certificate Balance Accumulation
\nAmount on deposit in the Accumulation Account prior to giving effect to deposits
\nand withdrawals on such date.<\/p>\n
“Affiliate” means, with respect to any specified Person, any other Person
\ncontrolling or controlled by or under common control with such specified Person.
\nFor the purposes of this definition, “control” when used with respect to any
\nPerson means the power to direct the management and policies of such Person,
\ndirectly or indirectly, whether through the ownership of voting securities, by
\ncontract or otherwise; and the terms “controlling” and “controlled” have
\nmeanings correlative to the foregoing.<\/p>\n
“Aggregate Principal Balance” means, with respect to any Determination
\nDate, the sum of the Principal Balances for all Automobile Loans (other than (i)
\nany Automobile Loan that became a Liquidated Automobile Loan prior to the end of
\nthe related Collection Period and (ii)<\/p>\n
-3-<\/p>\n
any Automobile Loan that became a Purchased Automobile Loan prior to the end of
\nthe related Collection Period) as of such Determination Date.<\/p>\n
“Agreement” means this Pooling and Servicing Agreement, as amended,
\nmodified, supplemented or restated from time to time.<\/p>\n
“AmeriCredit Assignment” means the assignment dated as of the Closing Date
\nfrom AmeriCredit Canada to the Seller.<\/p>\n
“AmeriCredit Canada” means AmeriCredit Financial Services of Canada Ltd.,
\nand its successors and permitted assigns hereunder.<\/p>\n
“AmeriCredit US Custodial Agreement” means the custodial agreement dated
\nas of the Closing Date between the Documentary Custodian and the Custodian, as
\namended, modified, supplemented or restated from time to time.<\/p>\n
“Amount Financed” means, with respect to an Automobile Loan, the aggregate
\namount advanced under such Automobile Loan toward the purchase price of the
\nFinanced Vehicle and any related costs, including amounts advanced at the time
\nthe Automobile Loan is originated in respect of accessories, insurance premiums,
\nservice, car club and warranty contracts and other items customarily financed as
\npart of retail automobile instalment sale contracts or promissory notes, and
\nrelated costs.<\/p>\n
“Annual Percentage Rate” or “APR” of an Automobile Loan means the annual
\npercentage rate of finance charges or service charges, as stated in such
\nAutomobile Loan.<\/p>\n
“Authenticating Agent” means the Person appointed and acting as such
\npursuant to Section 11.11.<\/p>\n
“Automobile Loan” means any motor vehicle retail instalment sale contract
\nlisted on the Schedule of Automobile Loans.<\/p>\n
“Automobile Loan Files” means the documents specified in Section 4.1(b).<\/p>\n
“Available Funds” means, on each Distribution Date, the sum of (i) the
\nCollected Funds for the preceding Collection Period, plus (ii) all Purchase
\nAmounts deposited in the Collection Account during the preceding Collection
\nPeriod, plus (iii) all proceeds of payments made by the Interest Rate Cap
\nCounterparty under the Interest Rate Cap (other than any Early Termination
\nPayments) or by the Interest Rate Cap Guarantor under the Interest Rate Cap
\nGuarantee (other than in respect of any Early Termination Payments) on or before
\nsuch Distribution Date, plus (iv) all Investment Earnings for such Distribution
\nDate.<\/p>\n
“Backup Servicer” means Bank One, NA, in its capacity as backup servicer
\nhereunder and its successors in such capacity.<\/p>\n
“Basic Documents” means this Agreement, the AmeriCredit Assignment, the
\nSeller Assignment, the Interest Rate Cap, the AmeriCredit US Custodial
\nAgreement, the Purchase Agreement and other documents and certificates delivered
\nin connection therewith.<\/p>\n
-4-<\/p>\n
“Book-Entry Certificates” means a beneficial interest in the
\nfully-registered book-entry only certificates representing each of the Class
\nA-1, Class A-2, Class A-3, Class B and Class C Certificates, ownership and
\ntransfers of which shall be made through book entries by a Clearing Agency as
\ndescribed in Section 7.3.<\/p>\n
“Business Day” means a day other than a Saturday, a Sunday or other day on
\nwhich commercial banks located in Toronto, Ontario or Fort Worth, Texas are not
\nopen for business.<\/p>\n
“CDOR” means, for any Class A-1 Interest Period, the annual rate of
\ninterest that is equal to the average rate (rounded, if necessary, to the
\nnearest 1\/100,000 of one percent) for 90 day Canadian dollar banker’s
\nacceptances that appears on the Reuters screen CDOR Page as of 10:00 a.m.,
\nToronto time, on the second Business Day immediately preceding the first day of
\nsuch Class A-1 Interest Period.<\/p>\n
“Certificate” means any of the certificates of the Issuer designated as
\nAmeriCredit Canada Automobile Receivables Co-Ownership Certificates, Series
\n2002-A as executed by the Certificate Registrar and authenticated and delivered
\nhereunder by the Authenticating Agent.<\/p>\n
“Certificate Balance” means, for any Class of Offered Certificates at any
\ntime, initially, the Initial Certificate Balance for such Class and, thereafter,
\nequals the Initial Certificate Balance of such Class reduced by all amounts
\nallocable to the Certificate Balance of such Class previously distributed to the
\nholders of such Class.<\/p>\n
“Certificate Balance Accumulation Amount” means for any Distribution Date,
\nthe sum of (i) the aggregate of the Certificateholders’ Certificate Balance
\nDistributable Amounts, (ii) the aggregate of the Accelerated Certificate Balance
\nDistributable Amounts and (iii) any Maturity Advances, in each case, on deposit
\nin the Accumulation Account on that date (after giving effect to all deposits
\nto, but prior to any distributions from, the Accumulation Account on that date).<\/p>\n
“Certificate Balance Distributable Amount” means, with respect to any
\nDistribution Date, the amount equal to the sum of:<\/p>\n
(a) collections received on Automobile Loans (other than Liquidated
\n Automobile Loans and Purchased Automobile Loans) that are
\n allocable to principal, including any full and partial
\n principal prepayments, during the related Collection Period;<\/p>\n
plus<\/p>\n
(b) the Principal Balance of all Automobile Loans (other than
\n Purchased Automobile Loans) that became Liquidated Automobile
\n Loans during the related Collection Period;<\/p>\n
plus<\/p>\n
-5-<\/p>\n
(c) the portion of the Purchase Amount allocable to principal of
\n all Purchased Automobile Loans that became Purchased Automobile
\n Loans during the related Collection Period;<\/p>\n
plus<\/p>\n
(d) the aggregate amount of Cram Down Losses that shall have
\n occurred during the related Collection Period.<\/p>\n
“Certificate Majority” means the holders of 66 2\/3% or more of the
\nCertificate Balance of the outstanding Offered Certificates or, where a Class of
\nOffered Certificates is affected by a matter separately, 66 2\/3% or more of the
\nCertificate Balance of the outstanding Offered Certificates of the affected
\nClass.<\/p>\n
“Certificate Owner” means initially the Issuer and thereafter, with respect
\nto a Book-Entry Certificate, the Person who is the owner of such Book-Entry
\nCertificate, as reflected on the books of the Clearing Agency, or on the books
\nof a Person maintaining an account with such Clearing Agency (directly or as an
\nindirect participant, in accordance with the rules of such Clearing Agency) and
\nshall mean, with respect to a Definitive Certificate, the Certificateholder.<\/p>\n
“Certificate Rate” means, with respect to (i) the Class A-1 Certificates
\nand each Class A-1 Interest Period, a rate per annum equal to CDOR for such
\nClass A-1 Interest Period plus 0.17%, (ii) the Class A-2 Certificates, 4.697%,
\n(iii) the Class A-3 Certificates, 5.422%, (iv) the Class B Certificates, 7.070%
\nand (v) the Class C Certificates, 8.344%.<\/p>\n
“Certificate Register” has the meaning set forth in Section 7.2(a).<\/p>\n
“Certificate Registrar” means the Custodian acting as Certificate Registrar
\npursuant to this Agreement.<\/p>\n
“Certificateholder” means the Person in whose name a Certificate is
\nregistered in the Certificate Register. All references herein to
\n“Certificateholders” shall reflect the rights of Certificate Owners as they may
\nindirectly exercise such rights through the Clearing Agency and the Clearing
\nAgency Participants, except as otherwise specified herein; provided, however,
\nthat the parties hereto shall be required to recognize as a “Certificateholder”
\nonly the Person in whose name a Certificate is registered in the Certificate
\nRegister.<\/p>\n
“Certificateholders’ Certificate Balance Carryover Amount” means, as of any
\nDistribution Date, the excess of an amount equal to the Certificateholders’
\nCertificate Balance Distributable Amount for the preceding Distribution Date
\nover the Certificate Balance Accumulation Amount with respect to clause (i) of
\nsuch definition that were actually deposited in the Accumulation Account in
\nrespect of the Certificate Balances of the Offered Certificates on such
\npreceding Distribution Date.<\/p>\n
“Certificateholders’ Certificate Balance Distributable Amount” means, for
\nany Distribution Date, other than the Final Scheduled Distribution Date for any
\nClass of Offered Certificates, the sum of the Certificateholders’ Monthly
\nCertificate Balance Distributable Amount and the Certificateholders’ Certificate
\nBalance Carryover Amount, if any. The<\/p>\n
-6-<\/p>\n
Certificateholders’ Certificate Balance Distributable Amount on the
\nFinal Scheduled Distribution Date for any Class of Certificate will equal the
\nsum of:<\/p>\n
(1) the Certificateholders’ Monthly Certificate Balance
\n Distributable Amount for such Distribution Date;<\/p>\n
plus<\/p>\n
(2) the Certificateholders’ Certificate Balance Carryover Amount as
\n of such Distribution Date;<\/p>\n
plus<\/p>\n
(3) the excess of the Adjusted Certificate Balance of the maturing
\n Class of Certificates, if any, over the amounts described in
\n clauses (1) and (2) above.<\/p>\n
Notwithstanding the above, the Certificateholders’ Certificate Balance
\nDistributable Amount shall not exceed the Adjusted Certificate Balance.<\/p>\n
“Certificateholders’ Certificate Rate Carryover Amount” means, with respect
\nto any Distribution Date and any Class of Offered Certificates, the sum of (a)
\nthe difference between (i) the Certificateholders’ Monthly Certificate Rate
\nDistributable Amount, and (ii) the amount that was actually deposited to the
\nAccumulation Account in respect of the Certificateholders’ Certificate Rate
\nDistributable Amount for the Class on such preceding Distribution Date, plus (b)
\nthe Certificateholders’ Certificate Rate Carryover Amount, if any, as of the
\nprior Distribution Date, plus (c) an amount equal to interest on the
\nCertificateholders’ Certificate Rate Carryover Amount for such Class of Offered
\nCertificates on the previous Offered Certificate Distribution Date, at the
\nCertificate Rate for such Class from and including the immediately preceding
\nDistribution Date to but excluding the current Distribution Date.<\/p>\n
“Certificateholders’ Certificate Rate Distributable Amount” means, with
\nrespect to any Distribution Date and Class of Offered Certificates, the lesser
\nof (a) the sum of (i) the Certificateholders’ Monthly Certificate Rate
\nDistributable Amount, and (ii) the Certificateholders’ Certificate Rate
\nCarryover Amount, if any, and (b) the amount that is available to be deposited
\nto the Accumulation Account in respect of the Certificateholders’ Certificate
\nRate Distributable Amount.<\/p>\n
“Certificateholders’ Distributable Amount” means, for any Distribution
\nDate, the sum of the Certificateholders’ Certificate Balance Distributable
\nAmount and the Certificateholders’ Certificate Rate Distributable Amount.<\/p>\n
“Certificateholders’ Monthly Certificate Balance Distributable Amount”
\nmeans, for any Distribution Date, the lesser of:<\/p>\n
(1) the excess of;<\/p>\n
-7-<\/p>\n
(a) the Adjusted Certificate Balance less any Certificateholder’s
\n Certificate Balance Carryover Amount before giving effect to
\n distributions on such date, over<\/p>\n
(b) the Required Adjusted Certificate Balance; and<\/p>\n
(2) the Certificate Balance Distributable Amount.<\/p>\n
“Certificateholders’ Monthly Certificate Rate Distributable Amount” means,
\nwith respect to any Distribution Date and any Class of Offered Certificates, an
\namount equal to the product of (i) the Certificate Balance of such Class as of
\nthe close of the immediately preceding Distribution Date, (ii) the Certificate
\nRate for such class, and (iii) (x) in the case of the Class A-1 Certificates, a
\nfraction, the numerator of which is the actual number of days from and including
\nthe immediately preceding Distribution Date to but excluding the current
\nDistribution Date, and the denominator of which is 365, and (y) in the case of
\nthe Class A-2, Class A-3, Class B and Class C Certificates, a fraction, the
\nnumerator of which is one and the denominator of which is 12; provided, however,
\nthat for the initial Distribution Date, the Certificateholders’ Monthly
\nCertificate Rate Distributable Amount for the Class A-1, Class A-2, Class A-3,
\nClass B and Class C Certificates will be an amount equal to $68,227.40,
\n$202,696.40, $159,892.71, $94,788.22 and $89,495.10, respectively.<\/p>\n
“Certificateholders’ Parity Deficit Amount” means, for any Distribution
\nDate, the excess, if any, of:<\/p>\n
(1) the remaining Adjusted Certificate Balance on the Distribution Date,
\n after giving effect to all deposits made to and including such
\n Distribution Date into the Accumulation Account from sources other
\n than the Spread Account;<\/p>\n
minus<\/p>\n
(2) the Pool Balance at the end of the prior calendar month.<\/p>\n
“Certificateholders’ Targeted Certificate Rate Distributable Amount” means,
\nwith respect to any Class of Offered Certificates and any related Offered
\nCertificate Distribution Date, an amount equal to the sum of (a) the product of
\n(i) the sum of (A) the Certificate Balance of such Class as of the close of the
\nimmediately preceding Offered Certificate Distribution Date for such Class, and
\n(B) the Certificateholders’ Certificate Rate Carryover Amount from the prior
\nOffered Certificate Distribution Date, (ii) the Certificate Rate for such Class,
\nand (iii) (x) in the case of the Class A-1 Certificates a fraction, the
\nnumerator of which is the actual number of days from and including the
\nimmediately preceding Offered Certificate Distribution Date to but excluding the
\ncurrent Offered Certificate Distribution Date, and the denominator of which is
\n365, and (y) in the case of the Class A-2, Class A-3, Class B and Class C
\nCertificates a fraction, the numerator of which is the number of Distribution
\nDates from and including the immediately preceding Offered Certificate
\nDistribution Date to and excluding the current Offered Certificate Distribution
\nDate and the denominator of which is 12, and (b) the Certificateholders’
\nCertificate Rate Carryover Amount from the prior Offered Certificate
\nDistribution Date; provided, however, that for the initial Offered Certificate
\nDistribution Dates for the Class A-1, Class A-2, Class A-3, Class B and Class C
\nCertificates, the Certificateholders’ Targeted Certificate Rate Distributable<\/p>\n
-8-<\/p>\n
Amount will be an amount equal to $276,320.96, $1,783,041.19, $1,135,238.21,
\n$672,996.39 and $635,415.21, respectively.<\/p>\n
“Class” means, collectively, all of the Certificates bearing the same
\nalphabetical and, if applicable, numeral class designation.<\/p>\n
“Class A Certificates” means, collectively, the Class A-1 Certificates, the
\nClass A-2 Certificates and the Class A-3 Certificates.<\/p>\n
“Class A-1 Certificate” means any one of the Certificates with a “Class
\nA-1” designation on the face thereof, substantially in the form of Exhibit A-1
\nattached hereto.<\/p>\n
“Class A-1 Interest Period” means, in respect of any Class A-1 Certificate,
\nthe period from and including one Offered Certificate Distribution Date relating
\nto such Offered Certificate (or in the case of the first Class A-1 Interest
\nPeriod, the Closing Date) to but excluding the next following Offered
\nCertificate Distribution Date relating to the Offered Certificate.<\/p>\n
“Class A-2 Certificate” means any one of the Certificates with a “Class
\nA-2” designation on the face thereof, substantially in the form of Exhibit A-2
\nattached hereto.<\/p>\n
“Class A-3 Certificate” means any one of the Certificates with a “Class
\nA-3” designation on the face thereof, substantially in the form of Exhibit A-3
\nattached hereto.<\/p>\n
“Class B Certificate” means any one of the Certificates with a “Class B”
\ndesignation on the face thereof, substantially in the form of Exhibit A-4
\nattached hereto.<\/p>\n
“Class C Certificate” means any one of the Certificates with a “Class C”
\ndesignation on the face thereof, substantially in the form of Exhibit A-5
\nattached hereto.<\/p>\n
“Clearing Agency” shall mean an organization recognized as a “clearing
\nagency” pursuant to the Securities Act (Ontario).<\/p>\n
“Clearing Agency Participant” shall mean a broker, dealer, bank, other
\nfinancial institution or other Person for whom from time to time a Clearing
\nAgency effects book-entry transfers and pledges of securities deposited with the
\nClearing Agency.<\/p>\n
“Closing Date” means May 17, 2002, or such other date as the Issuer, the
\nSeller and the Underwriter agree, but not later than May 31, 2002.<\/p>\n
“Collateral Insurance” has the meaning set forth in Section 5.4(a).<\/p>\n
“Collected Funds” means, with respect to any Collection Period, the amount
\nof funds in the Collection Account representing collections on the Automobile
\nLoans during such Collection Period, including all Net Liquidation Proceeds
\ncollected during such Collection Period (but excluding any Purchase Amounts).<\/p>\n
“Collection Account” means the account designated as such, established and
\nmaintained pursuant to Section 6.1.<\/p>\n
-9-<\/p>\n
“Collection Period” means, with respect to the first Distribution Date, the
\nperiod beginning on the close of business on the Cut-off Date and ending on the
\nclose of business on May 31, 2002. With respect to each subsequent Distribution
\nDate, “Collection Period” means the immediately preceding calendar month. Any
\namount stated “as of the close of business of the last day of a Collection
\nPeriod” shall give effect to the following calculations as determined as of the
\nend of the day on such last day: (i) all applications of collections and (ii)
\nall distributions.<\/p>\n
“Collection Records” means all manually prepared or computer generated
\nrecords relating to collection efforts or payment histories with respect to the
\nAutomobile Loans.<\/p>\n
“Computer Tape” means the computer tapes or other electronic media
\nfurnished by the Seller to the Issuer and its assigns describing certain
\ncharacteristics of the Automobile Loans as of the Cut-off Date.<\/p>\n
“Contract” means a motor vehicle retail instalment sale contract.<\/p>\n
“Corporate Trust Office” means, with respect to the Custodian, the
\nprincipal corporate trust office of the Custodian, which at the time of
\nexecution of this agreement is Suite 5104, 100 King Street West, Toronto,
\nOntario, M5X 1A1, Attention: Senior Trust Officer.<\/p>\n
“Cram Down Loss” means, with respect to any Automobile Loan, if a court of
\nappropriate jurisdiction in a proceeding related to an Insolvency Event shall
\nhave issued an order reducing the amount owed on the Automobile Loan or
\notherwise modifying or restructuring the Scheduled Automobile Loan Payments to
\nbe made on the Automobile Loan, an amount equal to:<\/p>\n
(i) the excess of the principal balance of such Automobile Loan
\n immediately prior to such order over the Automobile Loan’s Principal
\n Balance as so reduced; and\/or<\/p>\n
(ii) if such court shall have issued an order reducing the effective rate
\n of interest on such Automobile Loan, the excess of the principal
\n balance of such Automobile Loan immediately prior to such order over
\n the net present value (using as the discount rate the higher of the
\n average payment rate on such Automobile Loan or the rate of
\n interest, if any, specified by the court in such order) of the
\n Scheduled Automobile Loan Payments as so modified or restructured. A
\n “Cram Down Loss” shall be deemed to have occurred on the date of
\n issuance of such order.<\/p>\n
“Custodial Accounts” has the meaning set forth in Section 6.1(b).<\/p>\n
“Custodian” means The Trust Company of Bank of Montreal, its successor in
\ninterest and permitted assigns, or any successor custodian appointed as herein
\nprovided.<\/p>\n
“Custodian Fee” means the fee payable to the Custodian for services
\nrendered by the Custodian in the exercise and performance of any of the powers
\nand duties of the Custodian hereunder.<\/p>\n
“Custodian Liability” has the meaning set forth in Section 11.5(b).<\/p>\n
-10-<\/p>\n
“Cut-off Date” means May 8, 2002.<\/p>\n
“DBRS” means Dominion Bond Rating Service Limited, or its successors.<\/p>\n
“Dealer” means a dealer who sold a Financed Vehicle and who originated and
\nassigned the respective Automobile Loan to AmeriCredit Canada under a Dealer
\nAgreement or pursuant to a Dealer Assignment.<\/p>\n
“Dealer Agreement” means any agreement between a Dealer and AmeriCredit
\nCanada relating to the acquisition of Automobile Loans from a Dealer by
\nAmeriCredit Canada.<\/p>\n
“Dealer Assignment” means, with respect to an Automobile Loan, the executed
\nassignment executed by a Dealer conveying such Automobile Loans to AmeriCredit
\nCanada.<\/p>\n
“Deficiency Draw Amount” means, the amount, after taking into account the
\napplication on the Distribution Date of Available Funds for the related
\nCollection Period, equal to the sum, without duplication, of:<\/p>\n
(1) any shortfall on the Distribution Date in the full payment of
\n amounts in clauses (i) and (ii) of Section 6.4(a);<\/p>\n
plus<\/p>\n
(2) if the Distribution Date is an Offered Certificate Distribution
\n Date, the Certificateholders’ Certificate Rate Carryover Amount for
\n such date;<\/p>\n
plus<\/p>\n
(3) the greater of:<\/p>\n
(A) the Certificateholders’ Parity Deficit Amount, if any, for the
\n Distribution Date;<\/p>\n
and<\/p>\n
(B) if the Distribution Date is the Final Scheduled Distribution Date
\n for any Class, any remaining outstanding Certificate Balance of that
\n Class, to the extent that the amount is available on the
\n Distribution Date in the Spread Account.<\/p>\n
“Definitive Certificates” means the fully registered certificated form
\ncertificates issued to owners of Book-Entry Certificates or their nominees in
\ncertain circumstances.<\/p>\n
“Depository Account” means an account maintained by the Servicer at the
\nDepository Bank pursuant to Section 5.2(d).<\/p>\n
“Depository Agreement” means any agreement relating to the Depository
\nAccount.<\/p>\n
“Depository Bank” means a depository institution at which a Depository
\nAccount is maintained by the Servicer.<\/p>\n
-11-<\/p>\n
“Determination Date” means, with respect to any Collection Period, the
\nBusiness Day preceding the Distribution Date in the next calendar month.<\/p>\n
“Distribution Date” means the sixth day of each month commencing June
\n6, 2002. If any such day is not a Business Day in Toronto, Ontario, the
\n“Distribution Date” shall be the next such Business Day.<\/p>\n
“Documentary Custodian” means AmeriCredit Financial Services, Inc., in
\nits capacity as documentary custodian under the AmeriCredit US Custodial
\nAgreement, and its successors in such capacity thereunder.<\/p>\n
“Early Termination Payment” means any early termination payment payable
\nby the Interest Rate Cap Counterparty pursuant to the Interest Rate Cap if the
\nInterest Rate Cap is terminated prior to the Final Scheduled Distribution Date
\nfor the Class A-1 Certificates.<\/p>\n
“Electronic Ledger” means the electronic master record of the retail
\ninstalment sales contracts or instalment loans of the Servicer.<\/p>\n
“Eligible Deposit Account” means either (a) a segregated account with
\nan Eligible Institution or (b) a segregated trust account with a corporate trust
\ndepartment of a bank or trust company organized under the laws of Canada or any
\none of the provinces thereof, having corporate trust powers and acting as agent
\nfor funds deposited in such account, so long as any of the securities of such
\nbank or trust company have a credit rating from each Rating Agency in one of its
\ngeneric rating categories which signifies investment grade.<\/p>\n
“Eligible Institution” means the Custodian, or any other trust company
\nor Schedule I chartered bank incorporated under the laws of Canada (including an
\naffiliate of the Custodian) or any province thereof (i) which has either (A) a
\nlong-term unsecured debt rating of AA (low) or better by DBRS, Aa3 or better by
\nMoody’s and AA- or better from Standard & Poor’s or (B) a certificate of deposit
\nrating or short-term credit rating of R-1 (middle) or better by DBRS, Prime-1 or
\nbetter by Moody’s and A-1+ by Standard & Poor’s, or such other lower ratings as
\nmay be acceptable to the Rating Agencies, and (ii) whose deposits are insured by
\nCanada Deposit Insurance Corporation or its successors;<\/p>\n
“Eligible Investments” mean book-entry securities, negotiable
\ninstruments or securities represented by instruments in bearer or registered
\nform which evidence:<\/p>\n
(a) direct obligations of, and obligations fully guaranteed as to
\n timely payment by, the Government of Canada or any agency or
\n instrumentality thereof the obligations of which are backed by
\n the full faith and credit of the Government of Canada;<\/p>\n
(b) demand deposits, time deposits or certificates of deposit of any
\n chartered bank or trust company or credit union or co-operative
\n credit society incorporated under the laws of Canada or any
\n province thereof and subject to supervision and examination by
\n federal banking or depository institution authorities; provided,
\n however, that at the time of the investment or contractual
\n commitment to invest therein, the commercial paper or other
\n short-term senior unsecured debt<\/p>\n
-12-<\/p>\n
obligations (other than such obligations the rating of which is
\n based on the credit of a Person other than such depository
\n institution or trust company) of such depository institution or
\n trust company shall have a credit rating of at least two of the
\n following: (i) A-1+ from Standard & Poor’s, (ii) Prime-1 from
\n Moody’s, and (iii) R-1 (high) from DBRS; provided, further,
\n however, that if such commercial paper or other short-term senior
\n unsecured debt obligations are rated by Moody’s they shall have a
\n credit rating of at least Prime-1 from Moody’s.<\/p>\n
(c) call loans and notes or banker’s acceptances issued or accepted
\n by any bank, trust company, credit union or co-operative credit
\n society described in paragraph (b) above;<\/p>\n
(d) commercial paper having, at the time of the investment or
\n contractual commitment to invest therein, a rating of at least
\n two of the following: (i) A-1+ from Standard & Poor’s; (ii)
\n Prime-1 from Moody’s, and (iii) R-1 (high) from DBRS; provided,
\n however, that if such commercial paper is rated by Moody’s it
\n shall be rated at least Prime-1 by Moody’;s;<\/p>\n
(e) investments in money market funds (including funds for which the
\n Custodian in each of their individual capacities or any of their
\n respective Affiliates is investment manager, controlling party or
\n advisor) having a rating of at least two of the following: (i)
\n AAAm or AAAm-G from Standard & Poor’s, (ii) Aaa from Moody’s, and
\n (iii) AAA from DBRS; provided, however, that if such investments
\n are rated by Moody’s they shall be rated at least Aaa by Moody’s;<\/p>\n
(f) repurchase obligations with respect to any security that is a
\n direct obligation of, or fully guaranteed by, the Government of
\n Canada or any agency or instrumentality thereof the obligations
\n of which are backed by the full faith and credit of the
\n Government of Canada, in either case entered into with a bank or
\n trust company (acting as principal) referred to in clause (b)
\n above; and<\/p>\n
(g) any other investment to which the Rating Agencies have consented.<\/p>\n
“Event of Default” means the occurrence of either of the following
\nevents: (i) the failure to make any Certificate Rate distribution on any Class
\nof Offered Certificates when the same is scheduled to be made and the
\ncontinuance of such failure for a period of five days, or (ii) the failure to
\ndistribute the outstanding Certificate Balance of any Class of Offered
\nCertificates on its Final Scheduled Distribution Date.<\/p>\n
“Final Scheduled Distribution Date” means (i) for the Class A-1
\nCertificates, July 7, 2003, (ii) for the Class A-2 Certificates, September 6,
\n2005, (iii) for the Class A-3 Certificates, October 6, 2006, (iv) for the Class
\nB Certificates, March 6, 2007, and (v) for the Class C Certificates, May 6,
\n2009.<\/p>\n
“Financed Vehicle” means an automobile, light-duty truck, van or
\nminivan, together with all accessions thereto, securing an Obligor’s
\nindebtedness under the respective Automobile Loan.<\/p>\n
-13-<\/p>\n
“Financing Statements” has the meaning set forth in Section 13.2(a).<\/p>\n
“Force-Placed Insurance” has the meaning set forth in Section 5.4.<\/p>\n
“Independent Accountants” has the meaning set forth in Section 5.11.<\/p>\n
“Initial Certificate Balance” means, for the Class A-1 Certificates,
\n$45,000,000, for the Class A-2 Certificates, $80,750,000, for the Class A-3
\nCertificates, $53,966,000, for the Class B Certificates, $24,535,000, and for
\nthe Class C Certificates, $19,628,000.<\/p>\n
“Initial Pool Balance” means the Pool Balance as of the Cut-off Date.<\/p>\n
“Insolvency Event” means, with respect to a specified Person, (a) the
\nadmission by the Person that the Person is unable to pay its liabilities
\ngenerally as they become due, or (b) the making by the Person of a general
\nassignment for the benefit of the creditors of the Person, or (c) any other
\nacknowledgement by the Person of the insolvency of the Person, or (d)(i) the
\ninstitution of any proceeding by or against the Person seeking to adjudicate it
\na bankrupt or insolvent or seeking liquidation, winding up, dissolution,
\nreorganization, arrangement, adjustment, protection, relief or composition of
\nits debts under any law relating to bankruptcy, insolvency, reorganization,
\nmoratorium or relief of debtors or seeking the entry of an order for relief by
\nthe receiver, trustee or other similar official for the Person or for any
\nsubstantial part of its property and if such proceeding has been instituted
\nagainst the Person either such proceeding has not been stayed or dismissed
\nwithin 45 days or any of the actions sought in such proceeding (including the
\nentry of an order for relief or the appointment of a receiver), are granted
\nagainst the Person or the property of the Person or any substantial part
\nthereof, or (ii) the private appointment of a receiver in respect of the Person
\nor of the property of the Person or any substantial part thereof.<\/p>\n
“Insurance Add-On Amount” means the premium charged to the Obligor in
\nthe event that the Servicer obtains Force-Placed Insurance pursuant to Section
\n5.4.<\/p>\n
“Interest Rate Cap” means the Confirmation (as defined in the ISDA
\nMaster Agreement) dated as of the Closing Date between the Interest Rate Cap
\nCounterparty and AmeriCredit Canada relating to an interest rate cap
\ntransaction, as amended, modified, supplemented or restated from time to time.<\/p>\n
“Interest Rate Cap Counterparty” means Merrill Lynch Capital Services,
\nInc., and its successors and permitted assigns under the ISDA Master Agreement.<\/p>\n
“Interest Rate Cap Guarantee” means the guarantee dated as of May 6,
\n2002 by Interest Rate Cap Guarantor in favour of AmeriCredit Canada in respect
\nof the obligations of the Interest Rate Cap Counterparty under the ISDA Master
\nAgreement, as amended, modified, supplemented or restated from time to time.<\/p>\n
“Insurance Policies” has the meaning set forth in Section 5.4(a).<\/p>\n
“Interest Rate Cap Guarantor” means Merrill Lynch & Co., Inc., and its
\nsuccessors.<\/p>\n
-14-<\/p>\n
“Investment Earnings” means, with respect to any date and any Custodial
\nAccount, the interest and other investment earnings (net of losses and
\ninvestment expenses) on amounts on deposit in such Custodial Account and to be
\ndeposited into the Collection Account on such date.<\/p>\n
“ISDA Master Agreement” means the ISDA Master Agreement dated as of May
\n3, 2002 (including the Schedule thereto) between the Interest Rate Cap
\nCounterparty and AmeriCredit Canada, as amended, modified, supplemented or
\nrestated from time to time.<\/p>\n
“Issuer” means Merrill Lynch Financial Assets Inc., and its successors.<\/p>\n
“Lien” means a security interest, lien, charge, pledge, equity, or
\nencumbrance of any kind, other than tax liens, mechanics’ liens and any liens
\nthat attach to the respective Automobile Loan by operation of law as a result of
\nany act or omission by the related Obligor.<\/p>\n
“Liquidated Automobile Loan” means, with respect to any Collection
\nPeriod, an Automobile Loan for which, as of the last day of such Collection
\nPeriod (i) 90 days have elapsed since the Servicer repossessed the Financed
\nVehicle; provided, however, that in no case shall $30 or more of a Scheduled
\nAutomobile Loan Payment have become 210 or more days delinquent in the case of a
\nrepossessed Financed Vehicle; (ii) the Servicer has determined in good faith
\nthat it has received all amounts it expects to recover; or (iii) $30 or more of
\na Scheduled Automobile Loan Payment has become 120 or more days delinquent,
\nexcept in the case of a repossessed Financed Vehicle.<\/p>\n
“Maturity Advance” means any advance made by the Servicer pursuant to
\nSection 6.3(d).<\/p>\n
“Monthly Records” means all records and data maintained by the Servicer
\nwith respect to the Automobile Loans, including the following with respect to
\neach Automobile Loans: the account number; the originating Dealer; Obligor name;
\nObligor address; Obligor home phone number; Obligor business phone number;
\noriginal Principal Balance; original term; Annual Percentage Rate; current
\nPrincipal Balance; current remaining term; origination date; first payment date;
\nfinal scheduled payment date; next payment due date; date of most recent
\npayment; new\/used classification; collateral description; days currently
\ndelinquent; number of contract extensions (months) to date; amount of Scheduled
\nAutomobile Loan Payment; current Insurance Policy expiration date; and past due
\nlate charges.<\/p>\n
“Moody’s” means Moody’s Investors Service Inc., or its successor.<\/p>\n
“Net Liquidation Proceeds” means, with respect to a Liquidated
\nAutomobile Loan, (1) proceeds from the underlying Financed Vehicles’
\ndisposition; plus (2) any insurance proceeds; plus (3) other monies received
\nfrom the Obligor that are allocable to principal and interest due under the
\nAutomobile Loan; minus (4) the Servicer’s reasonable out-of-pocket costs,
\nincluding repossession and resale expenses not already deducted from any
\nproceeds of disposition or collections, in connection with the collection of
\nsuch Automobile Loan and any amounts that are required to be remitted to the
\nObligor by law; provided, however, that Net Liquidation Proceeds shall in no
\nevent be less than zero.<\/p>\n
-15-<\/p>\n
“Obligor” means, in respect of an Automobile Loan, the purchaser or
\nco-purchasers of the related Financed Vehicle and any other Person who owes
\npayments under the Automobile Loan.<\/p>\n
“Offered Certificate Distribution Date” means (i) the Distribution Date
\nin each of August, November, February and May of each year in the case of the
\nClass A-1 Certificates, (ii) the Distribution Date in November and May of each
\nyear in the case of the Class A-2 Certificates, (iii) the Distribution Dates in
\nOctober and April of each year in the case of the Class A-3, Class B and Class C
\nCertificates and (iv) with respect to any Class of Offered Certificates, the
\ndate on which the Certificate Balance is reduced to zero pursuant to exercise of
\nthe “optional purchase” of the Servicer under Error! Reference source not found.
\nand the payments made from the Accumulation Account after the Pool Balance has
\nbeen reduced to zero. If the Certificate Balance for any Class of Offered
\nCertificates is not distributed in full on its Targeted Certificate Balance
\nDistribution Date or an Event of Default occurs, the Offered Certificate
\nDistribution Date for such Class shall be each Distribution Date thereafter
\nuntil the Certificate Balance for such class is reduced to zero. The first
\nOffered Certificate Distribution Date shall be (i) August 6, 2002 in the case of
\nthe Class A-1 Certificates, (ii) November 6, 2002 in the case of the Class A-2
\nCertificates and (iii) October 6, 2002 in the case of the Class A-3, Class B and
\nClass C Certificates.<\/p>\n
“Offered Certificates” means the Class A-1, Class A-2, Class A-3, Class
\nB and Class C Certificates.<\/p>\n
“Officers’ Certificate” means a certificate signed by the chairman of
\nthe board, the president, any executive vice president or any vice president,
\nany treasurer, assistant treasurer, secretary or assistant secretary of the
\nSeller or the Servicer, as appropriate.<\/p>\n
“Opinion of Counsel” means a written opinion of counsel, which is in
\nform and substance acceptable to the Custodian and the Rating Agencies, each
\nacting reasonably.<\/p>\n
“Optional Purchase Price” has the meaning set forth in Section 12.2(a).<\/p>\n
“Ownership Interest” means, as to any Certificate, any ownership
\ninterest in such Certificate as the Certificateholder thereof and any other
\ninterest therein, whether direct or indirect, legal or beneficial, as owner or
\nas pledgee.<\/p>\n
“Percentage Interest” means, with respect to any Certificate, a
\npercentage, the numerator of which is the initial balance of such Certificate as
\nof the Closing Date, as specified on the face thereof, and the denominator of
\nwhich is the Initial Certificate Balance of the relevant Class.<\/p>\n
“Person” means any individual, corporation, estate, partnership, joint
\nventure, association, joint stock company, trust (including any beneficiary
\nthereof), unincorporated organization or government or any agency or political
\nsubdivision thereof.<\/p>\n
“Pool Balance” means, as of any date the aggregate Principal Balance of
\nthe Automobile Loans, excluding all Liquidated Automobile Loans and all
\nPurchased Automobile Loans, at the end of the preceding calendar month.<\/p>\n
-16-<\/p>\n
“PPSA” means, in respect of each province or territory of Canada (other
\nthan Quebec), the Personal Property Security Act, as from time to time in effect
\nin such province or territory and, in respect of Quebec, the Civil Code of
\nQuebec, as from time to time in effect in such province.<\/p>\n
“Principal Balance” means, with respect to any Automobile Loan, as of
\nany date, the sum of (x) the Amount Financed, minus (i) that portion of all
\namounts received on or prior to such date and allocable to principal in
\naccordance with the terms of the Automobile Loan, minus (ii) any Cram Down Loss
\nin respect of such Automobile Loan accounted for as at that date, plus (y) the
\nunpaid interest that has been capitalized on such Automobile Loan and added to
\nthe loan balance as at that date.<\/p>\n
“Purchase Agreement” means the purchase agreement dated as of the
\nClosing Date between AmeriCredit Canada and the Seller, as amended, modified,
\nsupplemented or restated from time to time.<\/p>\n
“Purchase Amount” means, with respect to a Purchased Automobile Loan,
\nthe Principal Balance as of the date of purchase.<\/p>\n
“Purchased Assets” has the meaning set forth in Section 2.1.<\/p>\n
“Purchased Automobile Loan” means an Automobile Loan purchased as of
\nthe close of business on the last day of a Collection Period by the Servicer
\npursuant to Section 5.7 or Section 12.2 or repurchased by AmeriCredit Canada
\npursuant to Section 3.2.<\/p>\n
“Rating Agency” means each of Moody’s, Standard & Poor’s and DBRS and,
\ncollectively, the “Rating Agencies”. If no such organization or successor
\nmaintains a rating on the Certificates, “Rating Agency” shall be a nationally
\nrecognized statistical rating organization or other comparable Person designated
\nby the Servicer and acceptable to the Custodian, acting reasonably, notice of
\nwhich designation shall be given to the Custodian.<\/p>\n
“Rating Agency Condition” means, with respect to any action, that each
\nRating Agency shall have been given 10 days’ (or such shorter period as shall be
\nacceptable to each Rating Agency) prior notice thereof and that each of the
\nRating Agencies shall have notified the Seller, the Issuer, the Servicer and the
\nCustodian in writing that such action will not result in a reduction or
\nwithdrawal of the then current rating of any Class of Certificates.<\/p>\n
“Record Date” means, with respect to each Distribution Date, the close
\nof business on the Business Day immediately preceding such Distribution Date.<\/p>\n
“Required Adjusted Certificate Balance” means, for any Distribution
\nDate, the amount equal to the sum of:<\/p>\n
(a) the product of:<\/p>\n
(1) the Pool Balance as of the end of the prior calendar month, and<\/p>\n
(2) 100% minus the Required Overcollateralization Percentage;<\/p>\n
-17-<\/p>\n
plus<\/p>\n
(b) if such Distribution Date is on or prior to the date on which the
\n “optional repurchase” can be exercised by the Servicer, the
\n Spread Account balance on such Distribution Date (prior to giving
\n effect to any deposits thereto or withdrawals therefrom).<\/p>\n
Notwithstanding anything to the contrary in this defined term, the
\nRequired Adjusted Certificate Balance shall never be greater than the Pool
\nBalance at any time.<\/p>\n
“Required Overcollateralization Percentage” means a percentage equal to
\n(i) 19% of the outstanding Pool Balance less (ii) the Spread Account balance,
\ndivided by the Pool Balance. On any Distribution Date on which the Adjusted
\nCertificate Balance, as of the prior Distribution Date, is less than or equal to
\n10% of the initial Adjusted Certificate Balance, the Required
\nOvercollateralization Percentage equals 100%.<\/p>\n
“Residual Certificate” means a Certificate designated as a “Class R”
\nCertificate on the face thereof, substantially in the form of Exhibit A-6
\nattached hereto, and evidencing the residual interests in the ACAR Series 2002-A
\nCertificateholders’ Assets.<\/p>\n
“Responsible Officer” means, with respect to any Person, the chairman
\nor vice-chairman of the board of directors, any managing director, the chairman
\nor vice-chairman of the executive committee of the board of directors, the chief
\nexecutive officer, the president, any vice president, assistant vice president,
\nthe secretary, any assistant secretary, the treasurer, any assistant treasurer,
\nor any other officer of such person customarily performing functions similar to
\nthose performed by any of the above designated officers and also means, with
\nrespect to a particular corporate trust matter, any other officer to whom such
\nmatter is referred because of such officer’s knowledge of and familiarity with
\nthe particular subject.<\/p>\n
“Schedule of Automobile Loans” means the schedule (which schedule may
\nbe in the form of microfiche or a disk) of all motor vehicle retail instalment
\nsales contracts originally sold by the Seller to the Issuer on the Closing Date
\nto be held as part of the ACAR 2002-A Certificateholder’s Assets pursuant to
\nthis Agreement, which is attached as Schedule A.<\/p>\n
“Schedule of Representations” means the Schedule of Representations and
\nWarranties attached hereto as Schedule B.<\/p>\n
“Scheduled Automobile Loan Payment” means, with respect to any
\nCollection Period for any Automobile Loan, the amount set forth in such
\nAutomobile Loan as required to be paid by the Obligor in such Collection Period.
\nIf after the Closing Date, the Obligor’s obligation under an Automobile Loan
\nwith respect to a Collection Period has been modified so as to differ from the
\namount specified in such Automobile Loan as a result of (i) the order of a court
\nin an insolvency proceeding involving the Obligor, or (ii) modifications or
\nextensions of the Automobile Loan permitted by Section 5.2(b), the Scheduled
\nAutomobile Loan Payment with respect to such Collection Period shall refer to
\nthe Obligor’s payment obligation with respect to such Collection Period as so
\nmodified.<\/p>\n
-18-<\/p>\n
“Seller” means AmeriCredit Canada 2002-A Corp., a corporation
\nincorporated under the federal laws of Canada, and its successors in interest to
\nthe extent permitted hereunder.<\/p>\n
“Seller Assignment” means the assignment dated as of the Closing Date
\nfrom the Seller to the Issuer.<\/p>\n
“Service Contract” means, with respect to a Financed Vehicle, the
\nagreement, if any, financed under the related Automobile Loan that provides for
\nthe repair of such Financed Vehicle.<\/p>\n
“Servicer” means AmeriCredit Canada, as the servicer of the Automobile
\nLoans, and each successor Servicer pursuant to Section 10.3.<\/p>\n
“Servicer Termination Event” means an event specified in Section 10.1.<\/p>\n
“Servicer’s Certificate” means an Officers’ Certificate of the Servicer
\ndelivered pursuant to Section 5.9, substantially
\nin the form of Exhibit B.<\/p>\n
“Servicing Fee” has the meaning set forth in Section 5.8.<\/p>\n
“Servicing Fee Rate” means 2.25% per annum.<\/p>\n
“Simple Interest Method” means the method of allocating a fixed level
\npayment on an obligation between principal and interest, pursuant to which the
\nportion of such payment that is allocated to interest is equal to the product of
\nthe fixed rate of interest on such obligation multiplied by the period of time
\n(expressed as a fraction of a year, based on the actual number of days in the
\ncalendar month and 365 days in the calendar year) elapsed since the preceding
\npayment under the obligation was made.<\/p>\n
“Spread Account” means the account designated as such, established and
\nmaintained pursuant to Section 6.1.<\/p>\n
“Standard & Poor’s” means Standard & Poor’s Rating Service, a division
\nof The McGraw-Hill Companies, Inc., or its successor.<\/p>\n
“Statistical Calculation Date” means April 28, 2002.<\/p>\n
“Subordinated Certificate” means a Class B, Class C or Residual
\nCertificate.<\/p>\n
“Targeted Certificate Balance Distribution Date” means, for the Class
\nA-1 Certificates, November 6, 2002, for the Class A-2 Certificates, May 6, 2004,
\nfor the Class A-3 Certificates, October 6, 2005, for the Class B Certificates,
\nOctober 6, 2005, and for the Class C Certificates, October 6, 2005.<\/p>\n
“Voting Rights” means the voting rights for the Certificates.<\/p>\n
“Underwriter” means Merrill Lynch Canada Inc. and its successors.<\/p>\n
-19-<\/p>\n
1.2 Other Definitional Provisions.<\/p>\n
(a) All terms defined in this Agreement shall have the defined meanings
\nwhen used in any instrument governed hereby and in any certificate or other
\ndocument made or delivered pursuant hereto unless otherwise defined therein.<\/p>\n
(b) The definitions contained in this Agreement are applicable to the
\nsingular as well as the plural forms of such terms and to the masculine as well
\nas to the feminine and neuter genders of such terms.<\/p>\n
(c) Any agreement, instrument or statute defined or referred to herein
\nor in any instrument or certificate delivered in connection herewith means such
\nagreement, instrument or statute as from time to time amended, modified or
\nsupplemented and includes (in the case of agreements or instruments) references
\nto all attachments thereto and instruments incorporated therein; references to a
\nPerson are also to its permitted successors and assigns.<\/p>\n
(d) The words “hereof,” “herein,” “hereunder” and words of similar
\nimport when used in this Agreement shall refer to this Agreement as a whole and
\nnot to any particular provision of this Agreement; Section, Schedule and Exhibit
\nreferences contained in this Agreement are references to Sections, Schedules and
\nExhibits in or to this Agreement unless otherwise specified; and the term
\n“including” shall mean “including without limitation.”<\/p>\n
(e) Except as otherwise specifically provided herein, all monetary
\namounts in this Agreement are stated in lawful money of Canada.<\/p>\n
ARTICLE 2
\n CONVEYANCE OF PURCHASED ASSETS<\/p>\n
2.1 Conveyance of Purchased Assets.<\/p>\n
In consideration of the Issuer’s delivery to or upon the order of the
\nSeller on the Closing Date of (i) $223,879,000 (less the amount deposited by the
\nIssuer to Spread Account pursuant to Section 6.1(a)(iii)), and (ii) the Residual
\nCertificate, the Seller does hereby sell, transfer, assign, set over and
\notherwise convey to the Issuer, without recourse (subject to the obligations set
\nforth herein) (and on a fully serviced basis as provided herein and in the
\nPurchase Agreement), all right, title and interest of the Seller in and to the
\nfollowing assets (collectively, the “Purchased Assets”):<\/p>\n
(a) the Automobile Loans and all collections received thereon after
\n the Cut-off Date;<\/p>\n
(b) the security interests in the Financed Vehicles granted by
\n Obligors pursuant to the Automobile Loans and any other interest
\n of the Seller in such Financed Vehicles;<\/p>\n
(c) any proceeds and the right to receive proceeds with respect to
\n the Automobile Loans from claims on any physical damage, credit
\n life or disability insurance policies covering Financed Vehicles
\n or Obligors and any proceeds from the liquidation of the
\n Automobile Loans;<\/p>\n
-20-<\/p>\n
(d) any proceeds from any Automobile Loan repurchased by a Dealer
\n pursuant to a Dealer Agreement as a result of a breach of
\n representation or warranty in the related Dealer Agreement;<\/p>\n
(e) the Automobile Loan Files;<\/p>\n
(f) all proceeds of payments made by the Interest Rate Cap
\n Counterparty pursuant to the Interest Rate Cap (other than any
\n Early Termination Payments);<\/p>\n
(g) all proceeds of payments made by the Interest Rate Cap Guarantor
\n pursuant to the Interest Rate Cap Guarantee (except to the extent
\n such proceeds relate to Early Termination Payments);<\/p>\n
(h) all of the right, title and interest of the Seller in and to the
\n Purchase Agreement (including, without limitation, all of the
\n Seller’s rights against AmeriCredit Canada under the Purchase
\n Agreement in respect of breaches of representations and
\n warranties made by AmeriCredit Canada under the Purchase
\n Agreement); and<\/p>\n
(i) the proceeds of any and all of the foregoing.<\/p>\n
It is the intention of the Seller that the transfer and assignment
\ncontemplated by this Agreement shall constitute a sale of the Purchased Assets
\nfrom the Seller to the Issuer and the beneficial interest in and title to the
\nPurchased Assets shall not be part of the Seller’s estate in the event of the
\nfiling of a bankruptcy or insolvency petition or proceeding by or against the
\nSeller under any bankruptcy or insolvency law.<\/p>\n
2.2 Conveyance of Automobile Loans to Custodian and Creation of
\n Co-Ownership Interests.<\/p>\n
(a) Forthwith upon the closing of the sale by the Seller to the
\n Issuer pursuant to Section 2.1 on the Closing Date, the Issuer,
\n on the direction of each Person who has agreed to acquire a
\n Certificate, hereby sells, assigns, transfers, sets over, conveys
\n and delivers to, and deposits with, the Custodian, all of the
\n right, title and interest of the Issuer in, to and under the
\n Purchased Assets. The Custodian shall thereafter hold the ACAR
\n Series 2002-A Certificateholders’ Assets as agent, nominee and
\n bailee, and so far as same is required for the purposes of the
\n laws of the Province of Quebec, as holder of power of attorney
\n (fonde de pouvoir) within the meaning of Article 2692 of the
\n Civil Code of Quebec, for the benefit of the Certificateholders,
\n all of whom appoint the Custodian to so act.<\/p>\n
(b) The Custodian agrees to act as the agent, nominee and bailee for
\n the Certificateholders pursuant to the terms of this Agreement,
\n and to perform the functions and services and exercise the
\n authority conferred on it by the Certificateholders pursuant to
\n this Agreement. Subject to the terms and conditions hereof, the
\n Custodian hereby acknowledges its acceptance of, as agent,
\n nominee and bailee, and holder of power of attorney (fonde de
\n pouvoir), for and on behalf of the Certificateholders, the sale,
\n assignment, transfer, conveyance,<\/p>\n
-21-<\/p>\n
delivery and deposit of all of the Issuer’s present and future
\n right, title and interest in, to and under the Purchased Assets.<\/p>\n
2.3 Representations and Warranties of Issuer.<\/p>\n
The Issuer hereby represents and warrants to the Custodian, for its own
\nbenefit and the benefit of the Certificateholders, and to the Backup Servicer,
\nas of the Closing Date (which representations and warranties shall not merge on,
\nbut shall survive, the Closing Date), that:<\/p>\n
(a) The Issuer is a corporation duly organized, validly existing and
\n in good standing under the laws of Canada and possesses all
\n licenses and authorizations necessary to carry out the
\n transactions of the Issuer contemplated by this Agreement.<\/p>\n
(b) The execution and delivery of this Agreement by the Issuer, and
\n the performance and compliance with the terms of this Agreement
\n by the Issuer, does not and will not violate the Issuer’s
\n articles of incorporation or by-laws or constitute a default (or
\n an event which, with notice or lapse of time, or both, would
\n constitute a default) under, or result in the breach of, any
\n material agreement or other instrument to which it is a party or
\n which is applicable to it or any of its assets, the default or
\n breach of which, in the Issuer’s good faith and reasonable
\n judgment, is likely to affect materially and adversely either the
\n ability of the Issuer to perform its obligations under this
\n Agreement or the financial condition of the Issuer.<\/p>\n
(c) No consent, approval or authorization of or designation,
\n declaration, notice or filing with any governmental authority,
\n corporation, person or firm on the part of the Issuer is required
\n in connection with the valid execution and delivery of this
\n Agreement or the consummation of any other transactions of the
\n Issuer contemplated hereby other than a consent, approval,
\n authorization, designation, declaration, notice or filing which
\n has been obtained, made or given.<\/p>\n
(d) The Issuer has the full power and authority to carry on its
\n business as now being conducted and to enter into and consummate
\n all transactions of the Issuer contemplated by this Agreement,
\n has duly authorized the execution, delivery and performance of
\n this Agreement, and has duly executed and delivered this
\n Agreement.<\/p>\n
(e) This Agreement, assuming due authorization, execution and
\n delivery by each of the other parties hereto, constitutes a
\n valid, legal and binding obligation of the Issuer, enforceable
\n against the Issuer in accordance with the terms hereof, subject
\n to (A) applicable bankruptcy, insolvency, reorganization,
\n moratorium and other laws affecting the enforcement of creditors’
\n rights generally, and (B) general principles of equity,
\n regardless of whether such enforcement is considered in a
\n proceeding in equity or at law.<\/p>\n
(f) The Issuer is not in violation of, and its execution and delivery
\n of this Agreement and its performance and compliance with the
\n terms of this Agreement does not constitute a violation of, any
\n law, any order or decree of any court or arbiter, or any order,
\n regulation or demand of any federal, provincial or local
\n governmental<\/p>\n
-22-<\/p>\n
or regulatory authority, which violation, in the Issuer’s good faith
\n and reasonable judgment, is likely to affect materially and adversely
\n either the ability of the Issuer to perform its obligations under this
\n Agreement or the financial condition of the Issuer.<\/p>\n
(g) The creation of the co-ownership interests in the Purchased Assets in
\n favour of the Certificateholders as contemplated herein requires no
\n regulatory approval, other than any such approvals as have been
\n obtained, and is not subject to any bulk sales or similar legislation
\n in effect in any applicable jurisdiction.<\/p>\n
(h) No litigation is pending or, to the best of the Issuer’s knowledge,
\n threatened against the Issuer that, if determined adversely to the
\n Issuer, would prohibit the Issuer from entering into this Agreement
\n or, in the Issuer’s good faith and reasonable judgment, is likely to
\n materially and adversely affect either the ability of the Issuer to
\n perform its obligations under this Agreement or the financial
\n condition of the Issuer.<\/p>\n
(i) Immediately prior to the transfer of the Purchased Assets by the
\n Issuer to the Custodian and the creation of the co-ownership interests
\n in the Purchased Assets in favour of the Certificateholders pursuant
\n to this Agreement, the Issuer is the sole beneficial owner of the
\n Purchased Assets free and clear of all encumbrances and has full right
\n and authority to sell, assign and transfer its right, title and
\n interest in the Purchased Assets.<\/p>\n
(j) The Issuer is transferring its right, title and interest in, to and
\n under the Purchased Assets to the Custodian for the benefit of the
\n Certificateholders free and clear of any liens, pledges, charges and
\n security interests created by it or attributable to its ownership.<\/p>\n
(k) The Issuer will in its financial statements treat (i) the transfer to
\n it of the Seller’s interest in the Purchased Assets as a sale of the
\n Purchased Assets to the Issuer, and (ii) the transfer by the Issuer to
\n the Certificateholders as co-owners of the beneficial interest in the
\n Purchased Assets as a sale of the Purchased Assets to the
\n Certificateholders. The consideration received by the Issuer upon such
\n sale will constitute the fair market value of the Purchased Assets.
\n The Issuer will be solvent at all relevant times prior to, and will
\n not be rendered insolvent by, the sale of the Purchased Assets to the
\n Certificateholders. The Issuer is not selling the Purchased Assets to
\n the Certificateholders with any intent to hinder, delay or defraud any
\n of the creditors of the Issuer.<\/p>\n
The representations and warranties of the Issuer set forth in this Section
\n2.3 shall survive the execution and delivery of this Agreement and shall inure
\nto the benefit of the Persons for whose benefit they were made for so long as
\nthe ACAR Series 2002-A Certificateholders’ Assets remain in existence. Upon
\ndiscovery by any party hereto of any breach of any of the foregoing
\nrepresentations and warranties, the party discovering such breach shall give
\nprompt written notice to the other parties and to the Rating Agencies.<\/p>\n
-23-<\/p>\n
ARTICLE 3
\n THE AUTOMOBILE LOANS<\/p>\n
3.1 Additional Representations and Warranties of Seller.<\/p>\n
The Seller hereby represents and warrants that each of the representations
\nand warranties set forth on the Schedule of Representations attached hereto as
\nSchedule B on which the Issuer is deemed to have relied in acquiring the
\nPurchased Assets is true and correct. Such representations and warranties speak
\nas of the execution and delivery of this Agreement and as of the Closing Date in
\nthe case of the Purchased Assets, but shall survive the sale, transfer and
\nassignment of the Purchased Assets by the Seller to the Issuer and by the Issuer
\nto the Custodian pursuant to this Agreement.<\/p>\n
3.2 Repurchase upon Breach.<\/p>\n
(a) The Seller, the Servicer or the Custodian, as the case may be, shall
\ninform the other parties to this Agreement promptly, by notice in writing, upon
\nthe discovery of any breach of the Seller’s representations and warranties made
\npursuant to Section 3.1. As of the last day of the second (or, if the Seller so
\nelects, the first) month following the discovery by the Seller or receipt by the
\nSeller of notice of such breach, unless such breach is cured by such date,
\nAmeriCredit Canada shall have an obligation to repurchase any Automobile Loan in
\nwhich the interests of the Certificateholders are materially and adversely
\naffected by any such breach as of such date. The “second month” shall mean the
\nmonth following the month in which discovery occurs or notice is given, and the
\n“first month” shall mean the month in which discovery occurs or notice is given.
\nIn consideration of and simultaneously with the repurchase of the Automobile
\nLoan, (i) the Seller shall remit, or cause AmeriCredit Canada to remit, to the
\nCollection Account the Purchase Amount, in the manner specified in Section
\n6.3(b); provided, however, that the obligation of the Seller to repurchase any
\nAutomobile Loan arising solely as a result of a breach of AmeriCredit Canada’s
\nrepresentations and warranties pursuant to the Purchase Agreement is subject to
\nthe receipt by the Seller of the Purchase Amount from AmeriCredit Canada, and
\n(ii) the Issuer shall execute such assignments and other documents reasonably
\nrequested by such person in order to effect such repurchase. The sole remedy of
\nthe Issuer, the Custodian, or the Certificateholders with respect to a breach of
\nrepresentations and warranties pursuant to Section 3.1 and the agreement
\ncontained in this Section shall be to require AmeriCredit Canada to repurchase
\nAutomobile Loans pursuant to this Section, subject to the conditions contained
\nherein, and to enforce AmeriCredit Canada’s obligation to the Seller to
\nrepurchase such Automobile Loans pursuant to the Purchase Agreement. The
\nCustodian shall not have a duty to conduct any affirmative investigation as to
\nthe occurrence of any conditions requiring the repurchase of any Automobile Loan
\npursuant to this Section.<\/p>\n
In addition to the foregoing and notwithstanding whether the related
\nAutomobile Loan shall have been purchased by AmeriCredit Canada, AmeriCredit
\nCanada shall indemnify the Servicer, the Backup Servicer, the Custodian and the
\nofficers, directors, agents and employees thereof and the Certificateholders
\nagainst all costs, expenses, losses, damages, claims and liabilities, including
\nreasonable fees and expenses of counsel, which may be asserted against or
\nincurred by any of them as a result of third party claims arising out of the
\nevents or facts giving rise to such breach.<\/p>\n
-24-<\/p>\n
ARTICLE 4
\n CUSTODY OF AUTOMOBILE LOAN FILES<\/p>\n
4.1 Custody of Automobile Loan Files.<\/p>\n
(a) On the Closing Date, the Custodian shall enter into the AmeriCredit US
\nCustodial Agreement.<\/p>\n
(b) The Documentary Custodian (in accordance with the terms of the
\nAmeriCredit US Custodial Agreement) shall act as custodian on behalf of the
\nCustodian of the following documents or instruments pertaining to each
\nAutomobile Loan:<\/p>\n
(i) The fully executed original of the Automobile Loan (together
\n with any agreements modifying the Automobile Loan, including,
\n without limitation, any extension agreements); and<\/p>\n
(ii) The original credit application, or a copy thereof, of each
\n Obligor, fully executed by each such Obligor on customary
\n form, or on a form approved by the Seller, for such
\n application.<\/p>\n
ARTICLE 5
\n ADMINISTRATION AND SERVICING OF AUTOMOBILE LOANS<\/p>\n
5.1 Duties of the Servicer.<\/p>\n
(a) The Servicer is hereby authorized to act as agent for the Custodian
\nand the Certificateholders and in such capacity shall manage, service,
\nadminister and make collections on the Automobile Loans, and perform the other
\nactions required by the Servicer under this Agreement. The Servicer agrees that
\nits servicing of the Automobile Loans shall be carried out in accordance with
\ncustomary and usual procedures of institutions which service motor vehicle
\nretail instalment sales contracts and, to the extent more exacting, the degree
\nof skill and attention that the Servicer exercises from time to time with
\nrespect to all comparable motor vehicle receivables that it services for itself
\nor others. In performing such duties, so long as AmeriCredit Canada is the
\nServicer, it shall substantially comply with the policies and procedures
\ndescribed on Schedule C, as such policies and procedures may be updated from
\ntime to time. The Servicer’s duties shall include, without limitation,
\ncollection and posting of all payments, responding to inquiries of Obligors
\nregarding the Automobile Loans, investigating delinquencies, sending payment
\ncoupons to Obligors, reporting any required tax information to Obligors, paying
\nthe disposition costs of default accounts, monitoring the collateral, complying
\nwith the terms of the Depository Agreement, accounting for collections and
\nfurnishing monthly and annual statements to the Issuer with respect to
\ndistributions, monitoring the status of Insurance Policies with respect to the
\nFinanced Vehicles and performing the other duties specified herein.<\/p>\n
(b) The Servicer shall also administer and enforce all rights and
\nresponsibilities of the holder of the Automobile Loans provided for in the
\nDealer Agreements (and shall maintain possession of the Dealer Agreements to the
\nextent it is necessary to do so), the Dealer Assignments and the Insurance
\nPolicies, to the extent that such Dealer Agreements, Dealer<\/p>\n
-25-<\/p>\n
Assignments and Insurance Policies relate to the Automobile Loans, the Financed
\nVehicles or the Obligors. To the extent consistent with the standards, policies
\nand procedures otherwise required hereby, the Servicer shall follow its
\ncustomary standards, policies, and procedures and shall have full power and
\nauthority, acting alone, to do any and all things in connection with such
\nmanaging, servicing, administration and collection that it may deem necessary or
\ndesirable. Without limiting the generality of the foregoing, the Servicer is
\nhereby authorized and empowered by the Custodian to execute and deliver, on
\nbehalf of the Custodian and the Certificateholders, any and all instruments of
\nsatisfaction or cancellation, or of partial or full release or discharge, and
\nall other comparable instruments, with respect to the Automobile Loans and with
\nrespect to the Financed Vehicles; provided, however, that notwithstanding the
\nforegoing, the Servicer shall not, except pursuant to an order from a court of
\ncompetent jurisdiction, release an Obligor from payment of any unpaid amount
\nunder any Automobile Loan or waive the right to collect the unpaid balance of
\nany Automobile Loan from the Obligor except in accordance with the Servicer’s
\ncustomary practices.<\/p>\n
(c) The Servicer is hereby authorized to commence, in its own name or in
\nthe name of the Custodian, a legal proceeding to enforce an Automobile Loan
\npursuant to Section 5.3 or to commence or participate in any other legal
\nproceeding (including, without limitation, a bankruptcy proceeding) relating to
\nor involving an Automobile Loan, an Obligor or a Financed Vehicle. If the
\nServicer commences or participates in such a legal proceeding in its own name,
\nthe Custodian shall thereupon be deemed to have automatically assigned such
\nAutomobile Loan to the Servicer solely for purposes of commencing or
\nparticipating in any such proceeding as a party or claimant, and the Servicer is
\nauthorized and empowered by the Custodian to execute and deliver in the
\nServicer’s name any notices, demands, claims, complaints, responses, affidavits
\nor other documents or instruments in connection with any such proceeding. The
\nCustodian shall furnish the Servicer with any limited powers of attorney and
\nother documents which the Servicer may reasonably request and which the Servicer
\ndeems necessary or appropriate and take any other steps which the Servicer may
\ndeem necessary or appropriate to enable the Servicer to carry out its servicing
\nand administrative duties under this Agreement.<\/p>\n
5.2 Collection of Automobile Loan Payments; Modifications of Automobile Loans;
\n Depository Agreements.<\/p>\n
(a) Consistent with the standards, policies and procedures required by
\nthis Agreement, the Servicer shall make reasonable efforts to collect all
\npayments called for under the terms and provisions of the Automobile Loans as
\nand when the same shall become due, and shall follow such collection procedures
\nas it follows with respect to all comparable automobile loans that it services
\nfor itself or others and otherwise act with respect to the Purchased Assets, the
\nDealer Agreements, the Dealer Assignments and the Insurance Policies in such
\nmanner as will, in the reasonable judgment of the Servicer, maximize the amount
\nto be received by the Custodian with respect thereto. The Servicer is authorized
\nin its discretion to waive any prepayment charge, late payment charge or any
\nother similar fees that may be collected in the ordinary course of servicing any
\nAutomobile Loan.<\/p>\n
(b) The Servicer may at any time agree to a modification or amendment of
\nan Automobile Loan in order to (i) change the Obligor’s regular due date to a
\ndate within the Collection Period in which such due date occurs or (ii)
\nre-amortize the Scheduled Automobile<\/p>\n
-26-<\/p>\n
Loan Payments on the Automobile Loan following a partial prepayment of
\nprincipal, in accordance with its customary procedures if the Servicer believes
\nin good faith that such extension, modification or amendment is necessary to
\navoid a default on such Automobile Loan, will maximize the amount to be received
\nby the Issuer with respect to such Automobile Loan, and is otherwise in the best
\ninterests of the Issuer.<\/p>\n
(c) The Servicer may grant payment extensions on, or other modifications
\nor amendments to, an Automobile Loan (in addition to those modifications
\npermitted by Section 5.2(b)) in accordance with its customary procedures if the
\nServicer believes in good faith that such extension, modification or amendment
\nis necessary to avoid a default on such Automobile Loan, will maximize the
\namount to be received by the Custodian on behalf of the Certificateholders with
\nrespect to such Automobile Loan, and is otherwise in the best interests of the
\nCertificateholders; provided, however, that:<\/p>\n
(i) The aggregate period of all extensions on an Automobile Loan
\n shall not exceed eight months;<\/p>\n
(ii) In no event may an Automobile Loan be extended beyond the
\n Collection Period immediately preceding the latest Final
\n Scheduled Distribution Date; and<\/p>\n
(iii) the Servicer shall not amend or modify an Automobile Loan
\n (except as provided in Section 5.2(b) and this Section
\n 5.2(c)) without the consent of a Certificate Majority.<\/p>\n
(d) The Servicer shall maintain the following system for collecting and
\nprocessing payments on the Automobile Loans and the other motor vehicle retail
\ninstalment sale contracts or security agreements owned or serviced by the
\nServicer or AmeriCredit Canada. The Servicer shall establish and maintain one or
\nmore segregated deposit accounts (collectively, the “Depository Account”) at the
\nDepository Bank. The Depository Account shall be maintained by the Servicer for
\nand on behalf of AmeriCredit Canada, the Custodian and each other owner of motor
\nvehicle retail instalment sale contracts or security agreements originated and
\nowned or serviced by the Servicer or AmeriCredit Canada. The Servicer shall use
\nits best efforts to notify or direct Obligors to make all cheque or other mail
\npayments on the Automobile Loans directly to the Depository Account and all
\ndirect debit payments on the Automobile Loans to the Depository Account. The
\nServicer shall not permit any payments other than payments on the Automobile
\nLoans and other motor vehicle retail instalment sale contracts or security
\nagreements originated and owned or serviced by the Servicer or AmeriCredit
\nCanada to be made to the Depository Account. The Servicer shall use its best
\nefforts to notify or direct the Depository Bank to deposit all payments on the
\nAutomobile Loans in the Depository Account no later than the Business Day after
\nreceipt, and to cause all amounts credited to the Depository Account on account
\nof such payments to be transferred to the Depository Account no later than the
\nsecond Business Day after receipt of such payments. The Servicer shall cause all
\namounts credited to the Depository Account on account of payments on the
\nAutomobile Loans to be transferred to the Collection Account no later than the
\nsecond Business Day after receipt of such payments in the Depository Account.
\nThe Depository Account shall be a demand deposit account held by the Depository
\nBank, and shall be an Eligible Deposit Account. The Servicer may at any time
\nmove<\/p>\n
-27-<\/p>\n
the Depository Account to another Eligible Deposit Account provided the Servicer
\nshall give the Custodian and the Backup Servicer written notice of such new
\nDepository Account.<\/p>\n
Prior to the Closing Date, the Servicer shall have notified each Obligor
\nthat makes its payments on the Automobile Loans by cheque and to make such
\npayments thereafter directly to the Depository Bank (except in the case of
\nObligors that have already been making such payments to the Depository Bank),
\nand shall have provided each such Obligor with remittance invoices in order to
\nenable such Obligors to make such payments directly to the Depository Bank for
\ndeposit into the Depository Account, and the Seller will continue, not less
\noften than every three months, to so notify those Obligors who have failed to
\nmake payments to the Depository Bank. The Servicer shall request each Obligor
\nthat makes payment on the Automobile Loans by direct debit of such Obligor’s
\nbank account, to execute a new authorization for automatic payment sufficient to
\nauthorize direct debit by the Depository Bank. If at any time, the Depository
\nBank is unable to directly debit an Obligor’s bank account that makes payment on
\nthe Automobile Loans by direct debit and if such inability is not cured within
\n15 days or cannot be cured by execution by the Obligor of a new authorization
\nfor automatic payment, the Servicer shall notify such Obligor that it cannot
\nmake payment by direct debit and must thereafter make payment by cheque.<\/p>\n
In the event of a termination of the Servicer, the successor Servicer shall
\nestablish a new Depository Account or similar collection processing system in
\naccordance with and subject to the terms hereof. The outgoing Servicer shall,
\nupon request of the Custodian, but at the expense of the outgoing Servicer,
\ndeliver to the successor Servicer all documents and records relating to each
\nsuch Depository Account and an accounting of amounts collected and held by the
\nDepository Bank and otherwise use its best efforts to effect the orderly and
\nefficient transfer of any Depository Account to the successor Servicer.<\/p>\n
(e) The Servicer shall deposit all payments by or on behalf of the
\nObligors received directly by the Servicer to the Depository Bank without
\ndeposit into any intervening account and as soon as practicable, but in no event
\nlater than three Business Days after receipt thereof.<\/p>\n
5.3 Realization upon Automobile Loans.<\/p>\n
(a) Consistent with the standards, policies and procedures required by
\nthis Agreement, the Servicer shall use its best efforts to repossess (or
\notherwise comparably convert the ownership of) and liquidate any Financed
\nVehicle securing an Automobile Loan with respect to which the Servicer has
\ndetermined that payments thereunder are not likely to be resumed, as soon as is
\npracticable after default on such Automobile Loan but in no event later than the
\ndate on which all or any portion of a Scheduled Automobile Loan Payment has
\nbecome 91 days delinquent; provided, however, that the Servicer may elect not to
\nrepossess a Financed Vehicle within such time period if in its good faith
\njudgment it determines that the proceeds ultimately recoverable with respect to
\nsuch Automobile Loan would be increased by forbearance. The Servicer is
\nauthorized to follow such customary practices and procedures as it shall deem
\nnecessary or advisable, consistent with the standard of care required by Section
\n5.1, which practices and procedures may include reasonable efforts to realize
\nupon any recourse to Dealers, the sale of the related Financed Vehicle at a
\npublic or private sale, the submission of claims under an insurance policy and
\nother actions by the Servicer in order to realize upon such an<\/p>\n
-28-<\/p>\n
Automobile Loan. The foregoing is subject to the provision that, in any case in
\nwhich the Financed Vehicle shall have suffered damage, the Servicer shall not
\nexpend funds in connection with any repair or towards the repossession of such
\nFinanced Vehicle unless it shall determine in its discretion that such repair
\nand\/or repossession shall increase the proceeds of liquidation of the related
\nAutomobile Loan by an amount greater than the amount of such expenses. All
\namounts received upon liquidation of a Financed Vehicle shall be remitted
\ndirectly by the Servicer to the Collection Account without deposit into any
\nintervening account as soon as practicable, but in no event later than the
\nBusiness Day after receipt thereof. The Servicer shall be entitled to recover
\nall reasonable expenses incurred by it in the course of repossessing and
\nliquidating a Financed Vehicle into cash proceeds, but only out of the cash
\nproceeds of such Financed Vehicle, any deficiency obtained from the Obligor or
\nany amounts received from the related Dealer, which amounts in reimbursement may
\nbe retained by the Servicer (and shall not be required to be deposited as
\nprovided in Section 5.2(e)) to the extent of such expenses. The Servicer shall
\ncollect and remit on behalf of the Custodian and the Certificateholders any
\nsales, goods and services and other applicable taxes payable in connection with
\nany realization in respect of any repossessed Financed Vehicles.<\/p>\n
(b) If the Servicer elects to commence a legal proceeding to enforce a
\nDealer Agreement or Dealer Assignment the act of commencement shall be deemed to
\nbe an automatic assignment from the Custodian and the Certificateholders to the
\nServicer of the rights under such Dealer Agreement or Dealer Assignment for
\npurposes of collection only. If, however, in any enforcement suit or legal
\nproceeding it is held that the Servicer may not enforce a Dealer Agreement or
\nDealer Assignment on the grounds that it is not a real party in interest or a
\nPerson entitled to enforce the Dealer Agreement or Dealer Assignment, the Issuer
\nor the Custodian, at the Servicer’s expense, or the Seller, at the Seller’s
\nexpense, shall take such steps as the Servicer deems reasonably necessary to
\nenforce the Dealer Agreement or Dealer Assignment, including bringing suit in
\nits name or the name of the Seller or of the Issuer and\/or the Custodian for the
\nbenefit of the Certificateholders. All amounts recovered shall be remitted
\ndirectly by the Servicer as provided in Section 5.2(e).<\/p>\n
5.4 Insurance.<\/p>\n
(a) The Servicer shall require, in accordance with its customary servicing
\npolicies and procedures, that each Financed Vehicle be insured by the related
\nObligor under the insurance policies (the “Insurance Policies”) referred to in
\nParagraph 24 of the Schedule of Representations and Warranties and shall monitor
\nthe status of such physical loss and damage insurance coverage thereafter, in
\naccordance with its customary servicing procedures. Each Automobile Loan
\nrequires the Obligor to maintain such physical loss and damage insurance, naming
\nAmeriCredit Canada and its successors and assigns as additional insureds, and
\npermits the holder of such Automobile Loan to obtain physical loss and damage
\ninsurance at the expense of the Obligor if the Obligor fails to maintain such
\ninsurance. If the Servicer shall determine that an Obligor has failed to obtain
\nor maintain a physical loss and damage Insurance Policy covering the related
\nFinanced Vehicle which satisfies the conditions set forth in clause (i)(a) of
\nsuch Paragraph 24 (including, without limitation, during the repossession of
\nsuch Financed Vehicle) the Servicer may enforce the rights of the holder of the
\nAutomobile Loan under the Automobile Loan to require the Obligor to obtain such
\nphysical loss and damage insurance in accordance with its customary servicing
\npolicies and procedures. The Servicer may maintain a vendor’s single<\/p>\n
-29-<\/p>\n
interest or other collateral protection Insurance Policy with respect to all
\nFinanced Vehicles (“Collateral Insurance”) which policy shall by its terms
\ninsure against physical loss and damage in the event any Obligor fails to
\nmaintain physical loss and damage insurance with respect to the related Financed
\nVehicle. All policies of Collateral Insurance shall be endorsed with clauses
\nproviding for loss payable to the Servicer. Costs incurred by the Servicer in
\nmaintaining such Collateral Insurance shall be paid by the Servicer.<\/p>\n
(b) The Servicer may, if an Obligor fails to obtain or maintain a physical
\nloss and damage Insurance Policy, obtain insurance with respect to the related
\nFinanced Vehicle and advance on behalf of such Obligor, as required under the
\nterms of the Insurance Policy, the premiums for such insurance (such insurance
\nbeing referred to herein as “Force-Placed Insurance”). All policies of
\nForce-Placed Insurance shall be endorsed with clauses providing for loss payable
\nto the Servicer. Any cost incurred by the Servicer in maintaining such
\nForce-Placed Insurance shall only be recoverable out of premiums paid by the
\nObligors or Net Liquidation Proceeds with respect to the Automobile Loan, as
\nprovided in Section 5.4(c).<\/p>\n
(c) In connection with any Force-Placed Insurance obtained hereunder, the
\nServicer may, in the manner and to the extent permitted by applicable law,
\nrequire the Obligors to repay the entire premium to the Servicer. In no event
\nshall the Servicer include the amount of the premium in the Amount Financed
\nunder the Automobile Loan. For all purposes of this Agreement, the Insurance
\nAdd-On Amount with respect to any Automobile Loan having Force-Placed Insurance
\nwill be treated as a separate obligation of the Obligor and will not be added to
\nthe Principal Balance of such Automobile Loan, and amounts allocable thereto
\nwill not be available for distribution on the Certificates. The Servicer shall
\nretain and separately administer the right to receive payments from Obligors
\nwith respect to Insurance Add-On Amounts or rebates of Forced-Placed Insurance
\npremiums. If an Obligor makes a payment with respect to an Automobile Loan
\nhaving Force-Placed Insurance, but the Servicer is unable to determine whether
\nthe payment is allocable to the Automobile Loan or to the Insurance Add-On
\nAmount, the payment shall be applied first to any unpaid Scheduled Automobile
\nLoan Payments and then to the Insurance Add-On Amount. Net Liquidation Proceeds
\non any Automobile Loan will be used first to pay the Principal Balance and
\naccrued interest on such Automobile Loan and then to pay the related Insurance
\nAdd-On Amount. If an Obligor under an Automobile Loan with respect to which the
\nServicer has placed Force-Placed Insurance fails to make scheduled payments of
\nsuch Insurance Add-On Amount as due, and the Servicer has determined that
\neventual payment of the Insurance Add-On Amount is unlikely, the Servicer may,
\nbut shall not be required to, purchase such Automobile Loan from the Issuer for
\nthe Purchase Amount on any subsequent Determination Date. Any such Automobile
\nLoan, and any Automobile Loan with respect to which the Servicer has placed
\nForce-Placed Insurance which has been paid in full (excluding any Insurance
\nAdd-On Amounts) will be assigned to the Servicer.<\/p>\n
(d) The Servicer may sue to enforce or collect upon the Insurance
\nPolicies, in its own name, if possible, or as agent of the Custodian. If the
\nServicer elects to commence a legal proceeding to enforce an Insurance Policy,
\nthe act of commencement shall be deemed to be an automatic assignment of the
\nrights of the Custodian and the Certificateholders under such Insurance Policy
\nto the Servicer for purposes of collection only. If, however, in any enforcement
\nsuit or legal proceeding it is held that the Servicer may not enforce an
\nInsurance Policy on the grounds that it is not a real party in interest or a
\nholder entitled to enforce the Insurance Policy,<\/p>\n
-30-<\/p>\n
the Custodian, at the Servicer’s expense, shall take such steps as the Servicer
\ndeems necessary to enforce such Insurance Policy, including bringing suit in its
\nname or the name of the Custodian for the benefit of the Certificateholders.<\/p>\n
(e) The Servicer will cause itself and may cause the Custodian to be named
\nas named insured under all policies of Collateral Insurance.<\/p>\n
5.5 Maintenance of Security Interests in Vehicles.<\/p>\n
Consistent with the policies and procedures required by this Agreement, the
\nServicer shall take such steps on behalf of the Custodian as are necessary to
\nmaintain perfection of the security interest created by each Automobile Loan in
\nthe related Financed Vehicle, including, but not limited to, obtaining the
\nexecution by the Obligors and the recording, registering, filing, re-recording,
\nre-filing, and re-registering of all security agreements, financing statements
\nand financing change statements as are necessary to maintain the security
\ninterest granted by the Obligors under the respective Automobile Loans. The
\nCustodian hereby authorizes the Servicer, and the Servicer agrees, to take any
\nand all steps necessary to re-perfect such security interest on behalf of the
\nCustodian as necessary because of the relocation of a Financed Vehicle or for
\nany other reason.<\/p>\n
5.6 Covenants, Representations, and Warranties of Servicer.<\/p>\n
By its execution and delivery of this Agreement, the Servicer makes the
\nfollowing representations, warranties and covenants on which the Custodian
\nrelies in accepting the Purchased Assets, and on which the Authenticating Agent
\nrelies in authenticating the Certificates.<\/p>\n
(a) The Servicer covenants as follows:<\/p>\n
(i) Liens in Force. The Financed Vehicle securing each Automobile
\n Loan shall not be released in whole or in part from the security
\n interest granted by the Automobile Loan, except upon payment in
\n full of the Automobile Loan or as otherwise contemplated herein;<\/p>\n
(ii) No Impairment. The Servicer shall do nothing to impair the
\n rights of the Custodian or the Certificateholders in the
\n Purchased Assets, the Dealer Agreements, the Dealer Assignments
\n or the Insurance Policies except as otherwise expressly provided
\n herein;<\/p>\n
(iii) No Amendments. The Servicer shall not extend or otherwise amend
\n the terms of any Automobile Loan, except in accordance with
\n Section 5.2; and<\/p>\n
(iv) Restrictions on Liens. The Servicer shall not (i) create, incur
\n or suffer to exist, or agree to create, incur or suffer to
\n exist, or consent to cause or permit in the future (upon the
\n happening of a contingency or otherwise) the creation,
\n incurrence or existence of any Lien or restriction on
\n transferability of the Automobile Loans, and the restrictions on
\n transferability imposed by this Agreement or (ii) sign or file
\n under the<\/p>\n
-31-<\/p>\n
PPSA of any jurisdiction any financing statement which names
\n AmeriCredit Canada as a debtor, or sign any security
\n agreement authorizing any secured party thereunder to file
\n such financing statement, with respect to the Automobile
\n Loans.<\/p>\n
(b) The Servicer represents, warrants and covenants as of the Closing Date
\n as to itself that the representations and warranties set forth on the
\n Schedule of Representations attached hereto as Schedule B are true and
\n correct, provided that such representations and warranties contained
\n therein and herein shall not apply to any entity other than
\n AmeriCredit Canada.<\/p>\n
5.7 Purchase of Automobile Loans Upon Breach of Covenant.<\/p>\n
Upon discovery by any of the Servicer or a Responsible Officer of the
\nCustodian of a breach of any of the covenants set forth in Sections 5.5 or
\n5.6(a), the party discovering such breach shall give prompt written notice to
\nthe others; provided, however, that the failure to give any such notice shall
\nnot affect any obligation of the Servicer under this Section. As of the second
\nAccounting Date following its discovery or receipt of notice of any breach of
\nany covenant set forth in Sections 5.5 or 5.6(a) which materially and adversely
\naffects the interests of the Certificateholders in any Automobile Loan
\n(including any Liquidated Automobile Loan) (or, at the Servicer’s election, the
\nfirst Accounting Date so following) or the related Financed Vehicle, the
\nServicer shall, unless such breach shall have been cured in all material
\nrespects, purchase from the Custodian the Automobile Loan affected by such
\nbreach and, on such Accounting Date, the Servicer shall pay the related Purchase
\nAmount. It is understood and agreed that the obligation of the Servicer to
\npurchase any Automobile Loan (including any Liquidated Automobile Loan) with
\nrespect to which such a breach has occurred and is continuing shall, if such
\nobligation is fulfilled, constitute the sole remedy against the Servicer for
\nsuch breach available to the Certificateholders or the Custodian; provided,
\nhowever, that the Servicer shall indemnify the Issuer, the Backup Servicer, the
\nCustodian and the Certificateholders from and against all costs, expenses,
\nlosses, damages, claims and liabilities, including reasonable fees and expenses
\nof counsel, which may be asserted against or incurred by any of them as a result
\nof third party claims arising out of the events or facts giving rise to such
\nbreach. This section shall survive the termination of this Agreement and the
\nearlier removal or resignation of the Custodian and\/or the Backup Servicer.<\/p>\n
5.8 Total Servicing Fee; Payment of Certain Expenses by Servicer.<\/p>\n
On each Distribution Date, the Servicer (provided that the Servicer is not
\nAmeriCredit Canada) shall be entitled to receive out of the Collection Account a
\nmonthly servicing fee equal to the product of one-twelfth times 2.25% of the
\nPool Balance as of the opening of business on the first day of the related
\nCollection Period (the “Servicing Fee”) pursuant to Section 6.4. The Servicer
\nshall be required to pay all expenses incurred by it in connection with its
\nactivities under this Agreement (including taxes imposed on the Servicer,
\nexpenses incurred in connection with distributions and reports made by the
\nServicer to Certificateholders and all other fees and expenses of the Backup
\nServicer or the Custodian, except taxes levied or assessed against the Custodian
\nor the Certificateholders, and claims against the Custodian or the
\nCertificateholders in respect of indemnification, which taxes and claims in
\nrespect of indemnification against the<\/p>\n
-32-<\/p>\n
Custodian or the Certificateholders are expressly stated to be for the account
\nof AmeriCredit Canada). The Servicer shall be liable for the fees and expenses
\nof the Backup Servicer, the Custodian, the Depository Bank (and any fees under
\nthe Depository Agreement) and the Independent Accountants. Notwithstanding the
\nforegoing, if the Servicer shall not be AmeriCredit Canada, a successor to
\nAmeriCredit Canada as Servicer including the Backup Servicer permitted by
\nSection 10.3 shall not be liable for taxes levied or assessed against the
\nCustodian or the Certificateholders or claims against the Custodian or the
\nCertificateholders in respect of indemnification, or the fees and expenses
\nreferred to above.<\/p>\n
5.9 Servicer’s Certificate.<\/p>\n
On or prior to 12:00 p.m. (Toronto time) each Distribution Date, the
\nServicer shall deliver (facsimile delivery being acceptable) to the Custodian,
\nthe Backup Servicer and each Rating Agency a Servicer’s Certificate executed by
\na Responsible Officer of the Servicer containing among other things, (i) all
\ninformation necessary to enable the Custodian to make any withdrawal and deposit
\nrequired by Error! Reference source not found. and to make the distributions
\nrequired by Error! Reference source not found., (ii) a listing of all Purchased
\nAutomobile Loans purchased as of the related Accounting Date, identifying the
\nAutomobile Loans so purchased, (iii) all information necessary to enable the
\nCustodian to send the statements to Certificateholders required by Article 6 and
\n(iv) all information necessary to enable the Custodian to reconcile the
\naggregate cash flows to and from the Collection Account for the related
\nCollection Period and Distribution Date, including the accounting required by
\nArticle 6. Automobile Loans purchased by the Servicer on the related Accounting
\nDate and each Automobile Loan which became a Liquidated Automobile Loan or which
\nwas paid in full during the related Collection Period shall be identified by
\naccount number (as set forth in the Schedule of Automobile Loans).<\/p>\n
5.10 Annual Statement as to Compliance, Notice of Servicer Termination
\n Event.<\/p>\n
(a) The Servicer shall deliver to the Custodian, the Backup Servicer
\nand each Rating Agency, on or before October 31 (or 120 days after the end of
\nthe Servicer’s fiscal year, if other than June 30) of each year, beginning on
\nOctober 31, 2003, an officer’s certificate signed by any Responsible Officer of
\nthe Servicer, dated as of June 30 (or other applicable date) of such year,
\nstating that (i) a review of the activities of the Servicer during the preceding
\n12-month period (or such other period as shall have elapsed from the Closing
\nDate to the date of the first such certificate (which period shall not be less
\nthan six months)) and of its performance under this Agreement has been made
\nunder such Responsible Officer’s supervision, and (ii) to such Responsible
\nOfficer’s knowledge, based on such review, the Servicer has fulfilled all its
\nobligations under this Agreement throughout such period, or, if there has been a
\ndefault in the fulfilment of any such obligation, specifying each such default
\nknown to such Responsible Officer and the nature and status thereof.<\/p>\n
(b) The Seller or the Servicer shall deliver to the Custodian, the
\nBackup Servicer, the Servicer or the Seller (as applicable) and each Rating
\nAgency promptly after having obtained knowledge thereof, but in no event later
\nthan two (2) Business Days thereafter, written notice in an officer’s
\ncertificate of any event which with the giving of notice or lapse of time, or
\nboth, would become a Servicer Termination Event.<\/p>\n
-33-<\/p>\n
5.11 Annual Independent Accountants’ Report.<\/p>\n
The Servicer shall cause a firm of nationally recognized independent
\ncertified public accountants (the “Independent Accountants”), who may also
\nrender other services to the Servicer or to the Seller, to deliver to the
\nCustodian, the Backup Servicer and each Rating Agency, on or before October 31
\n(or 120 days after the end of the Servicer’s fiscal year, if other than June 30)
\nof each year, beginning on October 31, 2003, with respect to the twelve months
\nended the immediately preceding June 30 (or other applicable date) (or such
\nother period as shall have elapsed from the Closing Date to the date of such
\ncertificate (which period shall not be less than six months)), a statement (the
\n“Accountants’ Report”) addressed to the board of directors of the Servicer and
\nto the Custodian, to the effect that such firm has audited the books and records
\nof AmeriCredit Corp., in which the Servicer is included as a consolidated
\nsubsidiary, and issued its report thereon in connection with the audit report on
\nthe consolidated financial statements of AmeriCredit Corp. or has audited such
\nother books and records as may be necessary for a Servicer other than
\nAmeriCredit Canada, and that (i) such audit was made in accordance with
\ngenerally accepted auditing standards, and accordingly included such tests of
\nthe accounting records and such other auditing procedures as such firm
\nconsidered necessary in the circumstances, (ii) the firm is independent of the
\nSeller and the Servicer within the meaning of the Code of Professional Ethics of
\nthe American Institute of Certified Public Accountants, and (iii) includes a
\nreport on the application of agreed upon procedures to three randomly selected
\nServicer’s Certificates noting whether any exceptions or errors in the
\nServicer’s Certificates were found.<\/p>\n
5.12 Access to Certain Documentation and Information Regarding Automobile
\n Loans.<\/p>\n
The Servicer shall provide to representatives of each of the Custodian
\nand the Backup Servicer reasonable access to the documentation regarding the
\nAutomobile Loans. In each case, such access shall be afforded without charge but
\nonly upon reasonable request and during normal business hours. Nothing in this
\nSection shall affect the obligation of the Servicer to observe any applicable
\nlaw prohibiting disclosure of information regarding the Obligors, and the
\nfailure of the Servicer to provide access as provided in this Section as a
\nresult of such obligation shall not constitute a breach of this Section.<\/p>\n
5.13 Monthly Tape.<\/p>\n
On or before each Distribution Date, the Servicer will deliver to the
\nCustodian and the Backup Servicer a computer tape and a diskette (or any other
\nelectronic transmission acceptable to the Custodian and the Backup Servicer) in
\na format acceptable to the Custodian and the Backup Servicer containing the
\ninformation with respect to the Automobile Loans as of the preceding Accounting
\nDate necessary for preparation of the Servicer’s Certificate relating to the
\nimmediately preceding Collection Period and necessary to review the application
\nof collections as provided in Article 6. In addition, upon the occurrence of a
\nServicer Termination Event the Servicer shall, if so requested by the Custodian,
\ndeliver to the Backup Servicer its Collection Records and its Monthly Records
\nwithin 15 days after demand therefor and a computer tape containing as of the
\nclose of business on the date of demand all of the data maintained by the
\nServicer in computer format in connection with servicing the Automobile Loans.
\nOther than the duties specifically set forth in this Agreement, the Backup
\nServicer shall have no obligations<\/p>\n
-34-<\/p>\n
hereunder, including, without limitation, to supervise, verify, monitor or
\nadminister the performance of the Servicer. The Backup Servicer shall have no
\nliability for any actions taken or omitted by the Servicer.<\/p>\n
5.14 Fidelity Bond and Errors and Omissions Policy.<\/p>\n
The Servicer has obtained, and shall continue to maintain in full force
\nand effect, a fidelity bond and errors and omissions policy of a type and in
\nsuch amount as is customary for servicers engaged in the business of servicing
\nautomobile loans.<\/p>\n
ARTICLE 6
\n CUSTODIAL ACCOUNTS; DISTRIBUTIONS;
\n STATEMENTS TO CERTIFICATEHOLDERS<\/p>\n
6.1 Establishment of Custodial Accounts.<\/p>\n
(a) (i) The Custodian, on behalf of the Certificateholders, will
\nestablish and maintain in its own name an Eligible Deposit Account (the
\n“Collection Account”), bearing a designation clearly indicating that the funds
\ndeposited therein are held for the benefit of the Custodian on behalf of the
\nCertificateholders.<\/p>\n
(i) The Custodian, on behalf of the Certificateholders, shall
\nestablish and maintain in its own name an Eligible Deposit Account (the
\n“Accumulation Account”), bearing a designation clearly indicating that the funds
\ndeposited therein are held for the benefit of the Custodian on behalf of the
\nCertificateholders.<\/p>\n
(ii) The Custodian, on behalf of the Certificateholders, shall
\nestablish and maintain in its own name an Eligible Deposit Account (the “Spread
\nAccount”), bearing a designation clearly indicating that the funds deposited
\ntherein are held for the benefit of the Custodian on behalf of the
\nCertificateholders. On the Closing Date, the Issuer shall deposit (or cause to
\nbe deposited) $4,907,052.95 to the Spread Account.<\/p>\n
(b) Funds on deposit in the Collection Account, the Accumulation
\nAccount and the Spread Account (collectively, the “Custodial Accounts”) shall be
\ninvested by the Custodian (or any custodian with respect to funds on deposit in
\nany such account) in Eligible Investments selected in writing by the Servicer
\n(pursuant to standing instructions or otherwise); provided however, it is
\nunderstood and agreed that the Custodian and the Servicer shall not be liable
\nfor the selection of, or any loss arising from such investment in, Eligible
\nInvestments. All such Eligible Investments shall be held by or on behalf of the
\nCustodian for the benefit of the Certificateholders. Other than as permitted by
\nthe Rating Agencies, funds on deposit in any Custodial Account shall be invested
\nin Eligible Investments that will mature so that such funds will be available at
\nthe close of business on the Business Day immediately preceding the following
\nDistribution Date; provided that on the Business Day preceding each Distribution
\nDate all Investment Earnings on funds on deposit therein shall be deposited into
\nthe Collection Account and shall be deemed to constitute a portion of the
\nAvailable Funds for such Distribution Date. Funds deposited in a Custodial
\nAccount on the day immediately preceding a Distribution<\/p>\n
-35-<\/p>\n
Date upon the maturity of any Eligible Investments are not required to be
\ninvested overnight. All Eligible Investments will be held to maturity.<\/p>\n
(c) All investment earnings of moneys deposited in the Custodial
\nAccounts shall be deposited (or caused to be deposited) by the Custodian in the
\nCollection Account, and any loss resulting from such investments shall be
\ncharged to such account. The Servicer will not direct the Custodian to make any
\ninvestment of any funds held in any of the Custodial Accounts unless the
\nsecurity interest granted and perfected in such account will continue to be
\nperfected in such investment, in either case without any further action by any
\nPerson, and, in connection with any direction to the Custodian to make any such
\ninvestment, if requested by the Custodian, the Servicer shall deliver to the
\nCustodian an Opinion of Counsel, acceptable to the Custodian, to such effect.<\/p>\n
(d) The Custodian shall not in any way be held liable by reason of any
\ninsufficiency in any of the Custodial Accounts resulting from any loss on any
\nEligible Investment included therein except for losses attributable to the
\nCustodian’s gross negligence or bad faith or its failure to make payments on
\nsuch Eligible Investments issued by the Custodian, in its commercial capacity as
\nprincipal obligor and not as trustee, in accordance with their terms.<\/p>\n
(e) If the Servicer shall have failed to give investment directions in
\nwriting for any funds on deposit in the Custodial Accounts to the Custodian by
\n1:00 p.m. Toronto time (or such other time as may be agreed by the Issuer and
\nCustodian) on any Business Day, amounts collected or receivable from the ACAR
\nSeries 2002-A Certificateholders’ Assets will be applied as if there had not
\nbeen such directions; then the Custodian shall, to the fullest extent
\npracticable, invest and reinvest funds in the Custodial Accounts in the
\ninvestment described in clause (g) of the definition of Eligible Investments.<\/p>\n
(f) The Certificateholders shall possess all right, title and interest
\nin all funds on deposit from time to time in the Custodial Accounts and in all
\nproceeds thereof (including all Investment Earnings on the Custodial Accounts)
\nand all such funds, investments, proceeds and income shall be part of the ACAR
\nSeries 2002-A Certificateholders’ Assets. Except as otherwise provided herein,
\nthe Custodial Accounts shall be under the sole dominion and control of the
\nCustodian for the benefit of the Certificateholders. If, at any time, any of the
\nCustodial Accounts ceases to be an Eligible Deposit Account, the Custodian (or
\nthe Servicer on its behalf) shall within five Business Days (or such longer
\nperiod as to which each Rating Agency may consent) establish a new Custodial
\nAccount as an Eligible Deposit Account and shall transfer any cash and\/or any
\ninvestments to such new Custodial Account. In connection with the foregoing, the
\nServicer agrees that it shall notify the Custodian in writing promptly upon any
\nof such Custodial Accounts ceasing to be an Eligible Deposit Account.<\/p>\n
(g) The Servicer shall have the power to instruct the Custodian to make
\nwithdrawals and payments from the Custodial Accounts for the purpose of
\npermitting the Servicer and the Custodian to carry out their respective duties
\nhereunder.<\/p>\n
-36-<\/p>\n
6.2 Certain Reimbursements to the Servicer.<\/p>\n
The Servicer will be entitled to be reimbursed from amounts on deposit
\nin the Collection Account with respect to a Collection Period for amounts
\npreviously deposited in the Collection Account but later determined by the
\nServicer to have resulted from mistaken deposits or postings or cheques returned
\nfor insufficient funds. The amount to be reimbursed hereunder shall be paid to
\nthe Servicer on the related Distribution Date pursuant to Section 6.4(a)(i) upon
\ncertification by the Servicer of such amounts and the provision of such
\ninformation to the Custodian as may be necessary in the opinion of the Custodian
\nto verify the accuracy of such certification; provided, however, that the
\nServicer must provide such clarification within 12 months of such mistaken
\ndeposit, posting, or returned cheque. The Servicer will additionally be entitled
\nto receive from amounts on deposit in the Collection Account with respect to a
\nCollection Period any amounts paid by Obligors that were collected in the
\nDepository Account but that do not relate to (i) principal and interest payments
\ndue on the Automobile Loans or (ii) any fees or expenses related to extensions
\ndue on the Automobile Loans.<\/p>\n
6.3 Application of Collections.<\/p>\n
(a) All collections or payments by or on behalf of the Obligor for the
\nCollection Period with respect to each Automobile Loan (other than a Purchased
\nAutomobile Loan) shall be applied by the Servicer to interest and principal in
\naccordance with the Simple Interest Method.<\/p>\n
(b) The Servicer and the Seller, as applicable, shall deposit or cause
\nto be deposited in the Collection Account on the Determination Date on which
\nsuch obligations are due the aggregate Purchase Amount with respect to Purchased
\nAutomobile Loans.<\/p>\n
(c) Any Optional Purchase Price payable by the Servicer under Section
\n12.2 shall be deposited in the Collection Account.<\/p>\n
(d) If the Certificate Balance Accumulation Amount on deposit in the
\nAccumulation Account on the Targeted Certificate Balance Distribution Date for a
\nClass of Offered Certificates is or will be less than the outstanding
\nCertificate Balance of such Class (after giving effect to all deposits made or
\nto be made to the Accumulation Account on such date other than pursuant to this
\nSection), the Servicer will have the option to make an advance (a “Maturity
\nAdvance”) in any amount up to the amount of such shortfall. If the Servicer
\nelects to make a Maturity Advance it shall deposit the amount of the Maturity
\nAdvance into the Accumulation Account on the related Targeted Certificate
\nBalance Distribution Date in immediately available funds.<\/p>\n
6.4 Distribution Date Payments From the Collection Account.<\/p>\n
(a) On each Distribution Date, the Custodian shall (based solely on the
\ninformation contained in the Servicer’s Certificate delivered with respect to
\nthe related Distribution Date) distribute the following amounts of Available
\nFunds from the Collection Account unless otherwise specified and in the
\nfollowing order of priority:<\/p>\n
(i) in the event that AmeriCredit Canada is no longer Servicer,
\n to the Servicer, the Servicing Fee for the preceding
\n Collection Period and other amounts relating to mistaken
\n deposits, postings or cheques returned for<\/p>\n
-37-<\/p>\n
insufficient funds during the preceding Collection
\n Period, and to pay to AmeriCredit Canada, any amounts
\n paid by Obligors during the Collection Period that were
\n collected in the Depository Account or the Collection
\n Account but did not relate to (i) principal and interest
\n payments due on the Automobile Loans or (ii) any fees or
\n expenses related to extensions due on the Automobile
\n Loans;<\/p>\n
(ii) to the Custodian and the Backup Servicer, their
\n respective accrued and unpaid fees and expenses then due
\n to each of them;<\/p>\n
(iii) to the Accumulation Account, the aggregate of the
\n Certificateholders’ Certificate Rate Distributable
\n Amounts for such Distribution Date;<\/p>\n
(iv) to the Servicer, any outstanding Maturity Advances;<\/p>\n
(v) to the Accumulation Account, the Certificateholders’
\n Certificate Balance Distributable Amount for such
\n Distribution Date; and<\/p>\n
(vi) to the Spread Account, any remaining Available Funds.<\/p>\n
6.5 Spread Account; Distribution Date Payments from Spread Account<\/p>\n
(a) On each Distribution Date, the Custodian shall, based on the
\ninstructions of the Servicer, withdraw the Deficiency Draw Amount, if any, for
\nsuch date from the Spread Account and apply such amount to make the following
\ndeposits or payments in the following order of priority:<\/p>\n
(i) first, to the Servicer, any remaining amounts due under
\n Section 6.4(a)(i) on the related Distribution Date;<\/p>\n
(ii) second, to the Custodian and the Backup Servicer, any
\n remaining amounts due under Section 6.4(a)(ii) on the
\n related Distribution Date;<\/p>\n
(iii) third, if the related Distribution Date is an Offered
\n Certificate Distribution Date, to the Accumulation
\n Account, the excess of (x) the aggregate of the
\n Certificateholders’ Targeted Certificate Rate
\n Distributable Amounts for such Distribution Date over (y)
\n the aggregate of the Certificateholders’ Certificate Rate
\n Distributable Amounts on deposit in the Accumulation
\n Account on such Distribution Date (after giving effect to
\n all deposits to the Accumulation Account under Section
\n 6.4(a)(iii));<\/p>\n
(iv) fourth, to the Accumulation Account, the
\n Certificateholders’ Parity Deficit Amount on the related
\n Distribution Date; and<\/p>\n
(v) fifth, if the related Distribution Date is the Final
\n Scheduled Distribution Date for any Class of Offered
\n Certificates, to the Accumulation Account, any remaining
\n outstanding Certificate Balance for such Class (after
\n giving effect to all other applications of available
\n funds on such date).<\/p>\n
-38-<\/p>\n
(b) On each Distribution Date, the excess, if any, of (A) the amounts on
\ndeposit in the Spread Account (after giving effect to any payments under Section
\n6.5(a) above) and (B) the lesser of (i) 2% of the Initial Pool Balance, and (ii)
\nthe Adjusted Certificate Balance, shall be paid or distributed by the Custodian
\nas follows:<\/p>\n
(i) first, to the Accumulation Account, an amount equal to the lesser
\n of (x) such excess and (y) the Accelerated Certificate Balance
\n Distributable Amount for such Distribution Date; and<\/p>\n
(ii) second, to the holders of the Residual Certificates, any
\n remaining excess.<\/p>\n
provided, however, that on each Distribution Date on and after the occurrence of
\nan Event of Default, the Custodian shall, based on the instructions of the
\nServicer, transfer from the Spread Account to the Accumulation Account the
\nlesser of (x) the Adjusted Certificate Balance of the Offered Certificates on
\nsuch date (after giving effect to all other amounts available to make
\ndistributions in respect thereof on such date) and (v) all amounts on deposit in
\nor deposited to the Spread Account on such Distribution Date.<\/p>\n
(c) Upon any distribution to the holders of the Residual Certificates of
\namounts properly distributed from the Spread Account, neither the Custodian nor
\nthe other Certificateholders will have any rights in, or claims to, such
\namounts.<\/p>\n
(d) Following (i) the payment in full of the Certificate Balance of the
\nClass A Certificates, Class B Certificates and the Class C Certificates and of
\nall other amounts to be distributed hereunder to the Custodian and the
\nCertificateholders other than the holders of the Residual Certificates and (ii)
\nthe termination of this Agreement, any amount remaining on deposit in the Spread
\nAccount shall be paid to the holders of the Residual Certificates. The holders
\nof the Residual Certificates shall in no event be required to refund any amounts
\nproperly distributed pursuant to this Section 6.5.<\/p>\n
6.6 Certificate Rate and Certificate Balance Distributions.<\/p>\n
(a) Prior to the occurrence of an Event of Default, on each Offered
\nCertificate Distribution Date for a Class of Offered Certificates, the Custodian
\nshall, based on the instructions of the Servicer, make the following
\ndistributions from the Accumulation Account to the Certificateholders of the
\napplicable Class:<\/p>\n
(i) first, there shall be distributed to the holders of the Class A
\n Certificates, pro-rata, the lesser of (A) the sum of the
\n Certificateholders’ Targeted Certificate Rate Distributable
\n Amounts for the Class A Certificates and such Offered Certificate
\n Distribution Date, and (B) the sum of the Certificateholders’
\n Certificate Rate Distributable Amounts for all Classes and such
\n Offered Certificate Distribution Date and the amount, if any,
\n deposited to the Accumulation Account under Section 6.5(a)(iii)
\n on such Offered Certificate Distribution Date;<\/p>\n
(ii) second , there shall be distributed to the holders of the Class A
\n Certificates, pro rata, the lesser of (A) the Certificateholders’
\n Targeted Certificate Rate<\/p>\n
-39-<\/p>\n
Distributable Amount for the Class B Certificates and such
\n Offered Certificate Distribution Date, and (B) the excess of (1)
\n the amount determined under clause (a)(i)(B) over (2) the amount
\n distributed or paid to the holders of the Class A Certificates
\n under Section 6.5(a)(i) on such Offered Certificate Distribution
\n Date; and<\/p>\n
(iii) third, the lesser of (A) the Certificateholders’ Targeted
\n Certificate Rate Distributable Amount for the Class C
\n Certificates and such Offered Certificate Distribution Date, and
\n (B) the excess of (1) the amount determined under clause
\n (a)(i)(B) over (2) the amount distributed or paid to the holders
\n of the Class A Certificates and the Class B Certificates under
\n Sections 6.5(a)(i) and (ii) on such Offered Certificate
\n Distribution Date, shall be distributed by the Custodian to the
\n holders of the Class C Certificates, pro-rata.<\/p>\n
(b) Prior to the occurrence of an Event of Default, on the Targeted
\nCertificate Balance Distribution Date for any Class of Offered Certificates and,
\nif the Certificate Balance of such Class is not distributed in full on that
\nTargeted Certificate Balance Distribution Date, on each Distribution Date
\nthereafter until the Certificate Balance of such Class is reduced to zero, the
\nCustodian shall, based on the instructions of the Servicer, distribute to the
\nCertificateholders of such Class the lesser of (i) the Certificate Balance of
\nsuch Class, and (ii) the amount on deposit in the Accumulation Account on such
\ndate (after giving effect to all deposits to the Accumulation Account on such
\ndate); provided, however, if more than one Class of Offered Certificates are to
\nreceive distributions with respect to their Certificate Balances as described
\nabove, distributions will be made on such Classes sequentially as follows: (1)
\nto the Class A-1 Certificates until the Certificate Balance thereof has been
\nreduced to zero; (2) to the Class A-2 Certificates until the Certificate Balance
\nthereof has been reduced to zero; (3) to the Class A-3 Certificates until the
\nCertificate Balance thereof has been reduced to zero; (4) to the Class B
\nCertificate Balance thereof has been reduced to zero; and (5) to the Class C
\nCertificates until the Certificate Balance thereof has been reduced to zero.<\/p>\n
(c) On and after the occurrence of an Event of Default, distributions in
\nrespect of the Targeted Certificate Rate Distributable Amounts and the
\nCertificate Balances for the Offered Certificates of each Class shall be made in
\naccordance with Section 6.7.<\/p>\n
6.7 Distributions Following an Event of Default.<\/p>\n
On each Offered Certificate Distribution Date on or after the occurrence of
\nan Event of Default, the Custodian shall, based on the instructions of the
\nServicer, distribute amounts deposited into or on deposit in the Accumulation
\nAccount on such date as follows and in the following order of priority:<\/p>\n
(a) first, there shall be distributed to the holders of the Class A
\nCertificates, pro-rata, the lesser of (i) the sum of the Certificateholders’
\nTargeted Certificate Rate Distributable Amounts for the Class A Certificates and
\nsuch Offered Certificate Distribution Date, and (ii) the amount, if any, on
\ndeposit in or deposited to the Accumulation Account on such date;<\/p>\n
-40-<\/p>\n
(b) second, there shall be distributed to the holders of the Class A
\nCertificates, pro-rata, until the Certificate Balances of the Class A
\nCertificates has been reduced to zero, the lesser of (i) the sum of the
\nCertificate Balances of the Class A Certificates for such Offered Certificate
\nDistribution Date and (ii) the amount, if any, on deposit in or deposited to the
\nAccumulation Account on such date (after giving effect to subsection (a) above);<\/p>\n
(c) third, there shall be distributed to the holders of the Class B
\nCertificates, pro-rata, the lesser of (i) the Certificateholders’ Targeted
\nCertificate Rate Distributable Amounts for the Class B Certificates and such
\nOffered Certificate Distribution Date, and (ii) the amount, if any, on deposit
\nin or deposited to the Accumulation Account on such date (after giving effect to
\nsubsections (a) and (b) above);<\/p>\n
(d) fourth, there shall be distributed to the holders of the Class B
\nCertificates, pro-rata, until the Certificate Balance of the Class B
\nCertificates has been reduced to zero, the lesser of (i) the Certificate Balance
\nof the Class B Certificates for such Offered Certificate Distribution Date and
\n(ii) the amount, if any, on deposit in or deposited to the Accumulation Account
\non such date (after giving effect to subsections (a) through (c) above);.<\/p>\n
(e) fifth, there shall be distributed to the holders of the Class C
\nCertificates, pro-rata, the lesser of (i) the Certificateholders’ Targeted
\nCertificate Rate Distributable Amounts for the Class C Certificates and such
\nOffered Certificate Distribution Date, and (ii) the amount, if any, on deposit
\nin or deposited to the Accumulation Account on such date (after giving effect to
\nsubsections (a) through (d) above);<\/p>\n
(f) sixth, there shall be distributed to the holders of the Class C
\nCertificates, pro-rata, until the Certificate Balance of the Class C
\nCertificates has been reduced to zero, the lesser of (i) the Certificate Balance
\nof the Class C Certificates for such Offered Certificate Distribution Date and
\n(ii) the amount, if any, on deposit in or deposited to the Accumulation Account
\non such date (after giving effect to subsection (a) through (e) above); and<\/p>\n
(g) thereafter, any remaining balance shall be deposited to the Spread
\nAccount and applied in accordance with Section 6.5.<\/p>\n
6.8 Statements to Certificateholders.<\/p>\n
(a) On or prior to each Distribution Date, the Servicer will provide to the
\nCustodian and, subject to the terms of applicable orders of the Canadian
\nSecurities Administrators (the “Regulators”) and except as may be otherwise
\npermitted or required by orders given by the Regulators from time to time, the
\nCustodian shall provide each Certificateholder of record (with a copy to each of
\nthe Rating Agencies) a statement setting forth at least the following
\ninformation as to the Certificates to the extent applicable:<\/p>\n
(i) the amount of the distribution(s) allocable to the applicable
\n Certificate Rate;<\/p>\n
(ii) the amount of the distribution(s) allocable to reduce Certificate
\n Balances;<\/p>\n
-41-<\/p>\n
(iii) each Class of Certificates’ aggregate outstanding
\n Certificate Balance amount, after considering all payments
\n reported under (ii) above on that date;<\/p>\n
(iv) the related Certificateholders’ Certificate Rate Carryover
\n Amount and the related Certificateholders’ Certificate
\n Balance Carryover Amount, if any, and the change in those
\n amounts from the preceding statement;<\/p>\n
(v) the Servicing Fee paid for the related calendar month;<\/p>\n
(vi) the Adjusted Certificate Balances;<\/p>\n
(vii) the amount of any outstanding Maturity Advances;<\/p>\n
(viii) the Certificate Balance of the Residual Certificates; and<\/p>\n
(ix) amounts on deposit in the Spread Account.<\/p>\n
(b) After the end of each calendar year, within the required time period,
\nthe Servicer will provide to the Custodian, and the Custodian will furnish to
\neach Person who at any time during the calendar year was a Certificateholder,:<\/p>\n
(i) a statement as to the aggregate amounts of Certificate Rate
\n and Certificate Balance distributions paid to the
\n Certificateholder;<\/p>\n
(ii) information regarding the amount of servicing compensation
\n the Servicer received; and<\/p>\n
(iii) other information as the Seller deems necessary to enable
\n the Certificateholder to prepare its tax returns.<\/p>\n
(c) Within the prescribed period of time for tax reporting purposes after
\nthe end of each calendar year, the Servicer will provide the Certificateholders
\na statement containing the amounts described in Section 6.8(b)(iii) above for
\nthat calendar year and any other information required by applicable tax laws.<\/p>\n
(d) Seller will cause AmeriCredit Corp. to post such information contained
\nin the monthly statement referred to in paragraph (a) above at its world wide
\nweb site located at “www.americredit.com”.<\/p>\n
ARTICLE 7
\n THE CERTIFICATES<\/p>\n
7.1 The Certificates.<\/p>\n
(a) To evidence the co-ownership of the Automobile Loans and the other ACAR
\nSeries 2002-A Certificateholders’ Assets by the Certificateholders, there are
\nhereby authorized and created one Class of Certificates to be designated
\ngenerally as the “AmeriCredit Canada CDOR<\/p>\n
-42-<\/p>\n
+ 0.17% Automobile Receivables Co-Ownership Certificates, Series 2002-A, Class
\nA-1”, one Class of Certificates to be designated generally as the “AmeriCredit
\nCanada 4.697% Automobile Receivables Co-Ownership Certificates, Series 2002-A,
\nClass A-2”, one Class of Certificates to be designated generally as the
\n“AmeriCredit Canada 5.422% Automobile Receivables Co-Ownership Certificates,
\nSeries 2002-A, Class A-3”, one Class of Certificates to be designated generally
\nas the “AmeriCredit Canada 7.070% Automobile Receivables Co-Ownership
\nCertificates, Series 2002-A, Class B”, one Class of Certificates to be
\ndesignated generally as the “AmeriCredit Canada 8.344% Automobile Receivables
\nCo-Ownership Certificates, Series 2002-A, Class C” and one Class of Residual
\nCertificates to be designated generally as the “AmeriCredit Canada Automobile
\nReceivables Co-Ownership Certificates, Series 2002-A, Class R”.<\/p>\n
(b) The Certificates will be substantially in the respective forms
\nattached hereto as Exhibits A-1 through A-6; provided, that any of the
\nCertificates may be issued with appropriate insertions, omissions, substitutions
\nand variations, and may have imprinted or otherwise reproduced thereon such
\nlegend or legends, not inconsistent with the provisions of this Agreement, as
\nmay be required to comply with any law or with rules or regulations pursuant
\nthereto, or with the rules of any securities market in which the Certificates
\nare admitted to trading, or to conform to general usage. The Certificates will
\nbe issuable in registered form only; provided, however, that in accordance with
\nSection 7.3 beneficial ownership interests in the Certificates shall initially
\nbe held and transferred through the book-entry facilities of the Clearing
\nAgency. The Certificates (other than the Residual Certificate) will be issuable
\nonly in denominations corresponding to Initial Certificate Balances (or other
\ndenominations consistent with the requirements of the Clearing Agency) as of the
\nClosing Date of not less than $150,000. The Residual Certificate will not have
\nany Certificate Balance.<\/p>\n
(c) The Certificates shall be executed by manual or facsimile signature on
\nbehalf of the Issuer by the Certificate Registrar hereunder by an authorized
\nsignatory in accordance with and upon written receipt of written instructions
\nfrom the Issuer. Certificates bearing the manual or facsimile signatures of
\nindividuals who were at any time the authorized officers of the Certificate
\nRegistrar shall be entitled to all benefits under this Agreement, subject to the
\nfollowing sentence, notwithstanding that such individuals or any of them have
\nceased to hold such offices prior to the authentication and delivery of such
\nCertificates or did not hold such offices at the date of such Certificates. No
\nCertificate shall be entitled to any benefit under this Agreement, or be valid
\nfor any purpose, however, unless there appears on such Certificate a certificate
\nof authentication substantially in the form provided for herein executed by the
\nAuthenticating Agent by manual signature, and such certificate of authentication
\nupon any Certificate shall be conclusive evidence, and the only evidence, that
\nsuch Certificate has been duly authenticated and delivered hereunder. All
\nCertificates shall be dated the date of their authentication.<\/p>\n
(d) The Certificate Registrar is hereby authorized to sign and shall on
\nthe Closing Date sign and register in accordance with Section 7.1(c) in
\naccordance with and upon written receipt of written instructions from the Issuer
\nand deliver to the Clearing Agency, on behalf of the purchasers of the Offered
\nCertificates, one Certificate for each Class of Offered Certificates, registered
\nin each case in the name of CDS & Co., as nominee for the Clearing Agency. The
\nCertificate Registrar is hereby authorized to sign and shall on the Closing Date
\nsign and register in accordance with Section 7.1(c) in accordance with and upon
\nwritten receipt of written<\/p>\n
-43-<\/p>\n
instructions from the Issuer and deliver to each purchaser of a Residual
\nCertificate, one Certificate for each Class of Residual Certificate purchased.<\/p>\n
7.2 Registration of Transfer and Exchange of Certificates.<\/p>\n
(a) At all times during the term of this Agreement, there shall be
\nmaintained at the office of the Certificate Registrar a certificate register in
\nwhich, subject to such reasonable regulations as the Certificate Registrar may
\nprescribe, the Certificate Registrar shall provide for the registration of
\nCertificates and of transfers and exchanges of Certificates as herein provided
\n(the “Certificate Register”). The Custodian is hereby initially appointed (and
\nhereby agrees to act in accordance with the terms hereof) as Certificate
\nRegistrar for the purpose of registering Certificates and transfers and
\nexchanges of Certificates as herein provided. The Certificate Registrar may
\nappoint, by a written instrument delivered to the Issuer and the Custodian (if
\nthe Custodian is not the Certificate Registrar), any other bank or trust company
\nto act as Certificate Registrar under such conditions as the predecessor
\nCertificate Registrar may prescribe, provided that the predecessor Certificate
\nRegistrar shall not be relieved of any of its duties or responsibilities
\nhereunder by reason of such appointment. If the Custodian resigns or is removed
\nin accordance with the terms hereof, the successor Custodian shall immediately
\nsucceed to its duties as Certificate Registrar. The Issuer and the Custodian (if
\nit is no longer the Certificate Registrar) shall have the right to inspect the
\nCertificate Register or to obtain a copy thereof at all reasonable times, and to
\nrely conclusively upon a certificate of the Certificate Registrar as to the
\ninformation set forth in the Certificate Register. Upon written request of any
\nCertificateholder made for purposes of communicating with other
\nCertificateholders with respect to their rights under this Agreement, the
\nCertificate Registrar shall promptly furnish such Certificateholder with a list
\nof the other Certificateholders of record identified in the Certificate Register
\nat the time of the request.<\/p>\n
(b) Subject to the preceding provisions of this Section 7.2, upon
\nsurrender for registration of transfer of any Certificate at the office of the
\nCertificate Registrar in Toronto, Ontario, the Certificate Registrar shall
\nexecute and the Authenticating Agent shall authenticate and deliver, in the name
\nof the designated transferee or transferees, one or more new Certificates of the
\nsame Class of a like aggregate Percentage Interest.<\/p>\n
(c) At the option of any Certificateholder, its Certificates may be
\nexchanged for other Certificates of authorized denominations of the same Class
\nof a like aggregate Percentage Interest, upon surrender of the Certificates to
\nbe exchanged at the offices of the Certificate Registrar maintained for such
\npurpose. Whenever any Certificates are so surrendered for exchange, the
\nCertificate Registrar shall execute and the Authenticating Agent shall
\nauthenticate and deliver the Certificates which the Certificateholder making the
\nexchange is entitled to receive.<\/p>\n
(d) Other than any Certificates transferred and registered on the Closing
\nDate, every Certificate presented or surrendered for transfer or exchange shall
\n(if so required by the Certificate Registrar) be duly endorsed by, or be
\naccompanied by a written instrument of transfer in the form satisfactory to the
\nCertificate Registrar duly executed by, the Certificateholder thereof or his
\nattorney duly authorized in writing. Such instrument of transfer may be required
\nto<\/p>\n
-44-<\/p>\n
include such representations of the transferee of the Certificate as may be
\nrequired by the Certificate Registrar.<\/p>\n
(e) No fee or service charge shall be imposed for any transfer or exchange
\nof Certificates, but the Certificate Registrar may require payment of a sum
\nsufficient to cover any tax or other governmental charge that may be imposed in
\nconnection with any transfer or exchange of Certificates.<\/p>\n
(f) All Certificates surrendered for transfer and exchange shall be
\nphysically cancelled by the Certificate Registrar, and the Certificate Registrar
\nshall dispose of such cancelled Certificates in accordance with its standard
\nprocedures.<\/p>\n
(g) Upon request, the Certificate Registrar shall provide to the Servicer,
\nthe Backup Servicer and the Issuer notice of each transfer of a Certificate and
\nshall provide to each such Person an updated copy of the Certificate Register.<\/p>\n
7.3 Book-Entry Certificates.<\/p>\n
(a) Each Class of Offered Certificates shall initially be issued as one or
\nmore Certificates registered in the name of the Clearing Agency or its nominee
\nand, except as provided in Section 7.3(c) below, transfer of such Certificates
\nmay not be registered by the Certificate Registrar unless such transfer is to a
\nsuccessor Clearing Agency that agrees to hold such Certificates for the
\nrespective Certificate Owners with Ownership Interests therein. Such Certificate
\nOwners shall hold and transfer their respective Ownership Interests in and to
\nsuch Certificates through the book-entry facilities of the Clearing Agency and,
\nexcept as provided in Section 7.3(c) below, shall not be entitled to definitive,
\nfully registered Certificates (“Definitive Certificates”) in respect of such
\nOwnership Interests. All transfers by Certificate Owners of their respective
\nOwnership Interests in the Book-Entry Certificates shall be made in accordance
\nwith the procedures established by the Clearing Agency Participant representing
\neach such Certificate Owner. Each Clearing Agency Participant shall only
\ntransfer the Ownership Interests in the Book-Entry Certificates of Certificate
\nOwners it represents in accordance with the Clearing Agency’s normal procedures.<\/p>\n
(b) The Custodian, the Issuer, the Backup Servicer and the Certificate
\nRegistrar may for all purposes, including the making of payments due on the
\nBook-Entry Certificates, deal with the Clearing Agency as the authorized
\nrepresentative of the Certificate Owners with respect to such Certificates for
\nthe purposes of exercising the rights of Certificateholders hereunder. The
\nrights of Certificate Owners with respect to the Book-Entry Certificates shall
\nbe limited to those established by law and agreements between such Certificate
\nOwners and the Clearing Agency Participants. Multiple requests and directions
\nfrom, and votes of, the Clearing Agency as holder of the Book-Entry Certificates
\nwith respect to any particular matter shall not be deemed inconsistent if they
\nare made with respect to different Certificate Owners. The Custodian may
\nestablish a reasonable record date in connection with solicitations of consents
\nfrom or voting by Certificateholders and shall give notice to the Clearing
\nAgency of such record date.<\/p>\n
(c) On the Closing Date, upon receipt of and in accordance with
\nregistration instructions delivered by the Issuer, the Certificate Registrar
\nshall execute, at the Issuer’s expense, and the<\/p>\n
-45-<\/p>\n
Authenticating Agent shall authenticate and deliver, Definitive Certificates in
\nfavour of each purchaser of Residual Certificates. In addition, if (i)(A) the
\nIssuer advises the Custodian and the Certificate Registrar in writing that the
\nClearing Agency is no longer willing or able to properly discharge its
\nresponsibilities with respect to a Class of the Book-Entry Certificates, and (B)
\nthe Issuer is unable to locate a qualified successor, or (ii) the Issuer at its
\noption advises the Custodian and the Certificate Registrar in writing that it
\nelects to terminate the book-entry system through the Clearing Agency with
\nrespect to a Class of Book-Entry Certificates, the Certificate Registrar shall
\nnotify all affected Certificate Owners, through the Clearing Agency, of the
\noccurrence of any such event and of the availability of Definitive Certificates
\nto such Certificate Owners requesting the same. Upon surrender to the
\nCertificate Registrar of the Book-Entry Certificates of any Class thereof by the
\nClearing Agency, accompanied by registration instructions from the Clearing
\nAgency for registration of transfer, the Certificate Registrar shall execute, at
\nthe Issuer’s expense, and the Authenticating Agent shall authenticate and
\ndeliver, the Definitive Certificates in respect of such Class to the Certificate
\nOwners identified in such instructions. The Issuer shall provide the Certificate
\nRegistrar with an adequate inventory of Definitive Certificates. None of the
\nIssuer, the Custodian or the Certificate Registrar shall be liable for any delay
\nin delivery of such instructions and may conclusively rely on, and shall be
\nprotected in relying on, such instructions. Upon the issuance of Definitive
\nCertificates for purposes of evidencing ownership of any Class of Certificates,
\nthe registered holders of such Definitive Certificates shall be recognized as
\nCertificateholders hereunder and, accordingly, shall be entitled directly to
\nreceive payments on, to exercise Voting Rights with respect to, and to transfer
\nand exchange such Definitive Certificates.<\/p>\n
7.4 Mutilated, Destroyed, Lost or Stolen Certificates.<\/p>\n
If (i) any mutilated Certificate is surrendered to the Certificate
\nRegistrar, or the Certificate Registrar receives evidence to its satisfaction of
\nthe destruction, loss or theft of any Certificate, and (ii) there is delivered
\nto the Custodian and the Certificate Registrar such security or indemnity as may
\nbe required by them to save each of them harmless, then, in the absence of
\nactual notice to the Custodian or the Certificate Registrar that such
\nCertificate has been acquired by a bona fide purchaser, the Certificate
\nRegistrar shall execute and the Authenticating Agent shall authenticate and
\ndeliver, in exchange for or in lieu of any such mutilated, destroyed, lost or
\nstolen Certificate, a new Certificate of the same Class and like Percentage
\nInterest. Upon the issuance of any new Certificate under this Section, the
\nCustodian and the Certificate Registrar may require the payment of a sum
\nsufficient to cover any tax or other governmental charge that may be imposed in
\nrelation thereto and any other expenses (including the fees and expenses of the
\nCustodian and the Certificate Registrar) connected therewith.<\/p>\n
7.5 Persons Deemed Owners.<\/p>\n
Prior to due presentment for registration of transfer, the Issuer, the
\nCustodian, the Certificate Registrar, the Backup Servicer and any agent of any
\nof them may treat the Person in whose name any Certificate is registered as the
\nowner of such Certificate for the purpose of receiving distributions pursuant to
\nSection 6.4 and for all other purposes whatsoever and none of the Issuer, the
\nCustodian, the Certificate Registrar, the Backup Servicer or any agent of any of
\nthem shall be affected by notice to the contrary.<\/p>\n
-46-<\/p>\n
7.6 Rights of Certificateholders.<\/p>\n
(a) Each of the Certificateholders shall own an undivided co-ownership
\ninterest in the ACAR Series 2002-A Certificateholders’ Assets as
\ntenants-in-common which shall entitle each Certificateholder to the benefit of
\nall provisions of this Agreement in accordance with their respective interests
\nhereunder, including, without limitation, the right to receive all distributions
\nand payments in accordance with Article 6. The co-ownership interest of each
\nCertificateholder shall be transferable only in accordance with this Agreement.
\nNo Certificateholder may seek or be entitled to partition or other division of
\nthe ACAR Series 2002-A Certificateholders’ Assets. Each Certificateholder shall
\nacquire and hold its co-ownership interest subject to the terms of this
\nAgreement and shall be so bound with respect to its ability to deal with such
\ninterest. No Certificateholder shall have the right to enter into any contract,
\ninstrument or agreement with any third party with respect to its co-ownership
\ninterest in the ACAR Series 2002-A Certificateholders’ Assets, nor grant a lien,
\ncharge or security interest in such ACAR Series 2002-A Certificateholders’
\nAssets provided that, subject to the foregoing, nothing in this Section 7.6
\nshall prevent a Certificateholder from granting a security interest in its
\nCertificate or its rights under this Agreement to the holder of such security
\ninterest in accordance therewith. No Certificateholder shall have the right to
\nact as agent of any other Certificateholder with respect to the ACAR Series
\n2002-A Certificateholders’ Assets. No Certificateholder shall have a claim of
\nany kind against any other Certificate in respect of its co-ownership interest
\nin the ACAR Series 2002-A Certificateholders’ Assets.<\/p>\n
(b) The rights of each Certificateholder with respect to the ACAR Series
\n2002-A Certificateholders’ Assets shall be governed by, and may be exercised
\nonly in accordance with, this Agreement. Except as expressly provided herein, no
\nCertificateholder shall have any right to demand any payment from any Obligor
\nnor shall any Certificateholder be entitled to receive, take any action to
\nterminate the custody of, or to require any sale, partition or other dealing in,
\nany of the ACAR Series 2002-A Certificateholders’ Assets or any other property
\nfrom time to time included in the ACAR Series 2002-A Certificateholders’ Assets
\nand each such Certificateholder agrees that it will not authorize or purport any
\nassignee or transferee of a Certificate to do so.<\/p>\n
(c) Each Certificateholder, by accepting its Certificate and acquiring an
\nundivided co-ownership interest in the ACAR Series 2002-A Certificateholders’
\nAssets, as tenant in common, evidenced by a Certificate, shall be deemed to have
\nagreed to be bound by the terms and conditions of this Agreement upon acceptance
\nof its Certificate and shall be so bound.<\/p>\n
(d) Notwithstanding any other provision of this Agreement, any and all
\nrights and claims of any Certificateholder arising under this Agreement or any
\nCertificate and all right, title or interest of any Certificateholder in or to
\nthe ACAR Series 2002-A Certificateholders’ Assets or any portion thereof shall
\nconclusively be deemed to have been terminated, extinguished, satisfied,
\ndischarged or exhausted, as the case may be, at the time at which such
\nCertificateholder receives payment in full or in kind of all amounts to which it
\nmay be entitled under this Agreement.<\/p>\n
(e) Each Certificate shall constitute evidence of the rights and legal
\ntitle of the holder thereof in and to an undivided co-ownership interest, as
\ntenant in common, in and to the ACAR<\/p>\n
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Series 2002-A Certificateholders’ Assets, the right to receive the portion of
\nthe payments to be made from the ACAR Series 2002-A Certificateholders’ Assets,
\nin each case in accordance with the terms and conditions of this Agreement and
\nthe relevant Certificate, and also the other rights accorded to a holder of a
\nCertificate.<\/p>\n
(f) The death or incapacity of any Certificateholder shall not operate to
\ntermination this Agreement nor entitle such Certificateholder’s legal
\nrepresentatives or heirs to claim an accounting or to take any action or
\ncommence any proceeding in any court for a partition or sale of the ACAR Series
\n2002-A Certificateholders’ Assets, nor otherwise affect the rights, obligations,
\nand liabilities of the parties to this Agreement or any of them.<\/p>\n
(g) No Certificateholder shall have any right to vote or in any manner
\notherwise control the operation and management of the ACAR Series 2002-A
\nCertificateholders’ Assets, or the obligations of the parties to this Agreement
\n(except as specifically provided in this Agreement) nor shall anything in this
\nAgreement set forth, or contained in the terms of the Certificates, be construed
\nso as to constitute the Certificateholders from time to time as partners or
\nmembers of an association; nor shall any Certificateholder be under any
\nliability to any third person by reason of any action taken pursuant to any
\nprovision of this Agreement.<\/p>\n
7.7 Taxes.<\/p>\n
In the event that any withholding tax is imposed on the payment (or
\nallocations of income) to a Certificateholder, such tax shall reduce the amount
\notherwise distributable to the Certificateholder in accordance with this
\nSection. The Custodian is hereby authorized and directed to retain from amounts
\notherwise distributable to the Certificateholders sufficient funds for the
\npayment of any withholding tax for which the Issuer may be liable (but such
\nauthorization shall not prevent the Custodian from contesting any such tax in
\nappropriate proceedings, and withholding payment of such tax, if permitted by
\nlaw, pending the outcome of such proceedings). The amount of any withholding tax
\nimposed with respect to a Certificateholder shall be treated as cash distributed
\nto such Certificateholder at the time it is withheld by the Issuer and remitted
\nto the appropriate taxing authority. If there is a possibility that withholding
\ntax is payable with respect to a distribution (such as a distribution to a
\nnon-Canadian Certificateholder), the Custodian may in its sole discretion
\nwithhold such amounts in accordance with this Section 7.7. In the event that a
\nCertificateholder wishes to apply for a refund of any such withholding tax, the
\nCustodian shall reasonably cooperate with such Certificateholder in making such
\nclaim so long as such Certificateholder agrees to reimburse the Custodian for
\nany out-of-pocket expenses (including legal fees and expenses) incurred.<\/p>\n
7.8 Place of Payments.<\/p>\n
Distributions required to be made to Certificateholders on any Offered
\nCertificate Distribution Date shall be made to each Certificateholder of record
\non the preceding Record Date either by (i) wire transfer, in immediately
\navailable funds, to the account of such Certificateholder at a bank or other
\nentity having appropriate facilities therefore, if such Certificateholder shall
\nhave provided to the Certificate Registrar appropriate written instructions at
\nleast five Business Days prior to such Distribution Date and such
\nCertificateholder’s Certificates in the aggregate evidence a denomination of not
\nless than $1,000,000 or (ii) by<\/p>\n
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cheque mailed to such Certificateholder at the address of such holder appearing
\nin the Certificate Register. Notwithstanding the foregoing, the final
\ndistribution in respect of any Certificate (whether on the Final Scheduled
\nDistribution Date or otherwise) will be payable only upon presentation and
\nsurrender of such Certificate at the office or agency maintained for that
\npurpose by the Certificate Registrar pursuant to Section 7.2 of this Agreement.<\/p>\n
Subject to Section 6.1 and this Section, monies received by the Custodian
\nhereunder need not be segregated in any manner except to the extent required by
\nlaw and may be deposited under such general conditions as may be prescribed by
\nlaw, and the Custodian shall not be liable for any interest thereon.<\/p>\n
ARTICLE 8
\n THE SELLER<\/p>\n
8.1 Representations of Seller.<\/p>\n
The Seller makes the following representations on which the Issuer is
\ndeemed to have relied in acquiring the Purchased Assets and on which the
\nCustodian and Backup Servicer may rely. The representations speak as of the
\nexecution and delivery of this Agreement and as of the Closing Date and shall
\nsurvive the sale of the Purchased Assets to the Issuer and the transfer of the
\nPurchased Assets to the Custodian.<\/p>\n
(a) Schedule of Representations. The representations and warranties set
\n forth on the Schedule of Representations attached hereto as Schedule
\n B are true and correct.<\/p>\n
(b) Organization and Good Standing. The Seller has been duly incorporated
\n and is validly existing as a corporation in good standing under the
\n federal laws of Canada, with power and authority to own its
\n properties and to conduct its business as such properties are
\n currently owned and such business is currently conducted, and had at
\n all relevant times, and now has, power, authority and legal right to
\n acquire, own and sell the Purchased Assets transferred to the Issuer.<\/p>\n
(c) Due Qualification. The Seller is duly qualified to do business as a
\n foreign corporation in good standing and has obtained all necessary
\n licenses and approvals in all jurisdictions where the failure to do
\n so would materially and adversely affect Seller’s ability to transfer
\n the Purchased Assets to the Issuer pursuant to this Agreement, or the
\n validity or enforceability of the Purchased Assets or to perform
\n Seller’s obligations hereunder and under the Basic Documents to which
\n the Seller is a party.<\/p>\n
(d) Power and Authority. The Seller has the power and authority to
\n execute and deliver this Agreement and the Basic Documents to which
\n it is a party and to carry out its terms and their terms,
\n respectively; the Seller has full power and authority to sell and
\n assign the Purchased Assets to be sold and assigned to and deposited
\n with the Issuer by it and has duly authorized such sale and
\n assignment to the Issuer by all necessary corporate action; and the
\n execution, delivery and<\/p>\n
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performance of this Agreement and the Basic Documents to which the
\n Seller is a party have been duly authorized by the Seller by all
\n necessary corporate action.<\/p>\n
(e) Valid Sale, Binding Obligations. This Agreement effects a valid sale,
\n transfer and assignment of the Purchased Assets, enforceable against
\n the Seller and creditors of and purchasers from the Seller; and this
\n Agreement and the Basic Documents to which the Seller is a party,
\n when duly executed and delivered, shall constitute legal, valid and
\n binding obligations of the Seller enforceable in accordance with
\n their respective terms, except as enforceability may be limited by
\n bankruptcy, insolvency, reorganization or other similar laws
\n affecting the enforcement of creditors’ rights generally and by
\n equitable limitations on the availability of specific remedies,
\n regardless of whether such enforceability is considered in a
\n proceeding in equity or at law.<\/p>\n
(f) No Violation. The consummation of the transactions contemplated by
\n this Agreement and the Basic Documents to which the Seller is a party
\n and the fulfilment of the terms of this Agreement and the Basic
\n Documents to which the Seller is a party shall not conflict with,
\n result in any breach of any of the terms and provisions of or
\n constitute (with or without notice, lapse of time or both) a default
\n under the articles of incorporation or by-laws of the Seller, or any
\n indenture, agreement, mortgage, deed of trust or other instrument to
\n which the Seller is a party or by which it is bound, or result in the
\n creation or imposition of any Lien upon any of its properties
\n pursuant to the terms of any such indenture, agreement, mortgage,
\n deed of trust or other instrument, other than this Agreement, or
\n violate any law, order, rule or regulation applicable to the Seller
\n of any court or of any federal or state regulatory body,
\n administrative agency or other governmental instrumentality having
\n jurisdiction over the Seller or any of its properties.<\/p>\n
(g) No Proceedings. There are no proceedings or investigations pending
\n or, to the Seller’s knowledge, threatened against the Seller, before
\n any court, regulatory body, administrative agency or other tribunal
\n or governmental instrumentality having jurisdiction over the Seller
\n or its properties (A) asserting the invalidity of this Agreement or
\n any of the Basic Documents to which the Seller is a party, (B)
\n seeking to prevent the issuance of the Certificates or the
\n consummation of any of the transactions contemplated by this
\n Agreement or any of the Basic Documents to which the Seller is a
\n party, (C) seeking any determination or ruling that might materially
\n and adversely affect the performance by the Seller of its obligations
\n under, or the validity or enforceability of, this Agreement or any of
\n the Basic Documents to which the Seller is a party, or (D) seeking to
\n adversely affect the federal income tax or other federal, state or
\n local tax attributes of the Certificates.<\/p>\n
(h) True Sale.<\/p>\n
(i) It is the intention of the Seller that the transfer and
\n assignment herein contemplated constitute a sale of the
\n Purchased Assets from the Seller to the Issuer and that the
\n beneficial interest in and title to such Purchased<\/p>\n
-50-<\/p>\n
Assets not be part of the Seller’s estate in the event of a
\n bankruptcy or insolvency proceeding by or against the Seller
\n under any bankruptcy or insolvency law. No Purchased Assets or
\n portion thereof has been sold, transferred, assigned or pledged
\n by the Seller to any Person other than the Issuer. Immediately
\n prior to the transfer and assignment herein contemplated, the
\n Seller had good title to each Purchased Asset, free and clear of
\n all Liens, encumbrances, security interests and rights of others
\n and, immediately upon the transfer thereof, the Issuer shall
\n have good title to each such Purchased Asset, free and clear of
\n all Liens, encumbrances, security interests and rights of
\n others; and the transfer and assignment of the Purchased Assets
\n to the Issuer has been perfected under the applicable PPSA; and<\/p>\n
(ii) It is the intention of the Issuer that the transfer and
\n assignment herein contemplated constitute a sale of the
\n Purchased Assets from the Issuer to the Custodian and the
\n Certificateholders and that the beneficial interest in and title
\n to such Purchased Assets not be part of the Issuer’s estate in
\n the event of a bankruptcy or insolvency proceeding by or against
\n the Issuer under any bankruptcy or insolvency law. No Purchased
\n Asset or portion thereof has been sold, transferred, assigned or
\n pledged by the Issuer to any Person other than the Custodian and
\n the Certificateholders. Immediately prior to the transfer and
\n assignment herein contemplated, the Issuer had good title to
\n each Purchased Asset, free and clear of all Liens, encumbrances,
\n security interests and rights of others and, immediately upon
\n the transfer thereof, the Custodian and the Certificateholders
\n shall have good title to each such Purchased Asset, free and
\n clear of all Liens, encumbrances, security interests and rights
\n of others; and the transfer and assignment of the Purchased
\n Assets to the Custodian and the Certificateholders has been
\n perfected under the applicable PPSA.<\/p>\n
(i) Chief Executive Office. The chief executive office of the Seller is
\n located in the Province of Ontario.<\/p>\n
(j) No Consents. No consent, approval, authorization or order of any
\n court or governmental agency or body is required for the execution,
\n delivery and performance by the Seller of or compliance by the Seller
\n with this Agreement or the consummation of the transactions
\n contemplated by this Agreement, other than those which have been
\n obtained by the Seller.<\/p>\n
(k) Not Bulk Sale. The transfer, assignment and conveyance of the
\n Purchased Assets by the Seller to the Issuer does not constitute a
\n bulk sale under applicable bulk sales legislation or any similar
\n statutory provisions in effect in any applicable jurisdiction.<\/p>\n
(l) Title. The Seller will treat the transfer hereunder of the Purchased
\n Assets to the Issuer in its financial statements as a sale of the
\n Purchased Assets to the Issuer. The consideration received by the
\n Seller upon the sale of the Purchased Assets to<\/p>\n
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the Issuer will constitute fair consideration for the Purchased
\n Assets. The Seller will be solvent at all relevant times prior to,
\n and will not be rendered insolvent by, the sale of the Purchased
\n Assets to the Issuer. The Seller is not selling the Purchased
\n Assets to the Issuer with any intent to hinder, delay or defraud
\n any of the creditors of the Seller.<\/p>\n
8.2 Corporate Existence.<\/p>\n
(a) During the term of this Agreement, the Seller will keep in full force
\nand effect its existence, rights and franchises as a corporation under the laws
\nof the jurisdiction of its incorporation and will obtain and preserve its
\nqualification to do business in each jurisdiction in which such qualification is
\nor shall be necessary to protect the validity and enforceability of this
\nAgreement, the Basic Documents and each other instrument or agreement necessary
\nor appropriate to the proper administration of this Agreement and the
\ntransactions contemplated hereby.<\/p>\n
(b) During the term of this Agreement, the Seller shall observe the
\napplicable legal requirements for the recognition of the Seller as a legal
\nentity separate and apart from its Affiliates, including as follows:<\/p>\n
(i) the Seller shall maintain corporate records and books of
\n account separate from those of its Affiliates;<\/p>\n
(ii) except as otherwise provided in this Agreement, the Seller
\n shall not commingle its assets and funds with those of its
\n Affiliates;<\/p>\n
(iii) the Seller shall hold such appropriate meetings of its Board
\n of Directors as are necessary to authorize all the Seller’s
\n corporate actions required by law to be authorized by the
\n Board of Directors, shall keep minutes of such meetings and
\n of meetings of its shareholder(s) and observe all other
\n customary corporate formalities (and any successor Seller
\n not a corporation shall observe similar procedures in
\n accordance with its governing documents and applicable law);<\/p>\n
(iv) the Seller shall at all times hold itself out to the public
\n under the Seller’s own name as a legal entity separate and
\n distinct from its Affiliates; and<\/p>\n
(v) all transactions and dealings between the Seller and its
\n Affiliates will be conducted on an arm’s-length basis.<\/p>\n
8.3 Liability of Seller; Indemnities.<\/p>\n
(a) The Seller shall be liable in accordance herewith only to the extent
\nof the obligations specifically undertaken by the Seller under this Agreement.<\/p>\n
(b) The Seller shall indemnify, defend and hold harmless (i) the Custodian
\nand the Backup Servicer and each of their respective officers, directors,
\nemployees and agents, from and against any taxes (including any sales, goods and
\nservices, gross receipts, general corporation,<\/p>\n
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tangible personal property, privilege or license taxes) that may at any time be
\nasserted against any such Person with respect to the transactions contemplated
\nin this Agreement and any of the Basic Documents (except any income taxes
\narising out of fees paid to the Custodian or the Backup Servicer and except any
\ntaxes to which the Custodian or the Backup Servicer may otherwise be subject to,
\nwithout regard to the transactions contemplated hereby), and (ii) the Issuer and
\nthe Certificateholders from and against any goods and services taxes, sales
\ntaxes or other transfer taxes arising out of (x) the sale and conveyance of the
\nPurchased Assets to the Issuer or the Custodian and the Certificateholders or
\n(y) the issuance and original sale of the Certificates or (z) the servicing of
\nthe Purchased Assets by AmeriCredit Canada, as Servicer, in accordance with and
\non the terms of the Purchase Agreement and the Pooling and Servicing Agreement
\nand, in each case, all costs and expenses in defending against taxes indemnified
\nunder this Section.<\/p>\n
(c) The Seller shall indemnify, defend and hold harmless the Issuer, the
\nBackup Servicer and the Custodian and the respective officers, directors,
\nemployees and agents thereof and the Certificateholders from and against any
\nloss, liability or expense incurred by reason of the Seller’s wilful
\nmisfeasance, bad faith or negligence in the performance of its duties under this
\nAgreement, or by reason of reckless disregard of its obligations and duties
\nunder this Agreement.<\/p>\n
(d) The Seller shall indemnify, defend and hold harmless the Custodian and
\nthe Backup Servicer and the respective officers, directors, employees and agents
\nthereof from and against any and all costs, expenses, losses, claims, damages
\nand liabilities arising out of, or incurred in connection with the acceptance or
\nperformance of the duties set forth herein and in the Basic Documents except to
\nthe extent that such cost, expense, loss, claim, damage or liability shall be
\ndue to the wilful misfeasance, bad faith or negligence (except for errors in
\njudgment) of the Custodian and the Backup Servicer respectively.<\/p>\n
(e) Indemnification under this Section 8.3 shall survive the resignation
\nor removal of the Custodian and the termination of this Agreement and shall
\ninclude reasonable fees and expenses of counsel and other expenses of
\nlitigation. If the Seller shall have made any indemnity payments pursuant to
\nthis Section and the Person to or on behalf of whom such payments are made
\nthereafter shall collect any of such amounts from others, such Person shall
\npromptly repay such amounts to the Seller, without interest.<\/p>\n
8.4 Merger or Consolidation of, or Assumption of the Obligations of, Seller.<\/p>\n
Any Person (a) into which the Seller may be merged or consolidated, (b)
\nwhich may result from any merger or consolidation to which the Seller shall be a
\nparty or (c) which may succeed to the properties and assets of the Seller
\nsubstantially as a whole, which Person in any of the foregoing cases executes an
\nagreement of assumption to perform every obligation of the Seller under this
\nAgreement, shall be the successor to the Seller hereunder without the execution
\nor filing of any document or any further act by any of the parties to this
\nAgreement; provided, however, that (i) immediately after giving effect to such
\ntransaction, no representation or warranty made pursuant to Section 3.1 shall
\nhave been breached and no Servicer Termination Event, and no event which, after
\nnotice or lapse of time, or both, would become a Servicer Termination Event
\nshall have happened and be continuing, (ii) the Seller shall have delivered to
\nthe Custodian an Officers’ Certificate and an Opinion of Counsel each stating
\nthat such<\/p>\n
-53-<\/p>\n
consolidation, merger or succession and such agreement of assumption comply with
\nthis Section and that all conditions precedent, if any, provided for in this
\nAgreement relating to such transaction have been complied with, (iii) the Rating
\nAgency Condition shall have been satisfied with respect to such transaction and
\n(iv) the Seller shall have delivered to the Custodian and the Backup Servicer an
\nOpinion of Counsel stating that, in the opinion of such counsel, either (A) all
\nfinancing statements and financing change statements and amendments thereto have
\nbeen executed and filed that are necessary fully to preserve and protect the
\ninterest of the Custodian in the Automobile Loans and reciting the details of
\nsuch filings or (B) no such action shall be necessary to preserve and protect
\nsuch interest. Notwithstanding anything herein to the contrary, the execution of
\nthe foregoing agreement of assumption and compliance with clauses (i), (ii),
\n(iii) and (iv) above shall be conditions to the consummation of the transactions
\nreferred to in clauses (a), (b) or (c) above.<\/p>\n
8.5 Limitation on Liability of Seller and Others.<\/p>\n
The Seller and any director or officer or employee or agent of the Seller
\nmay rely in good faith on the advice of counsel or on any document of any kind,
\nprima facie properly executed and submitted by any Person respecting any matters
\narising under any Basic Document. The Seller shall not be under any obligation
\nto appear in, prosecute or defend any legal action that shall not be incidental
\nto its obligations under this Agreement, and that in its opinion may involve it
\nin any expense or liability.<\/p>\n
8.6 Ownership of the Certificates.<\/p>\n
The Seller and any Affiliate thereof may in its individual or any other
\ncapacity become the owner or pledgee of Certificates with the same rights as it
\nwould have if it were not the Seller or an Affiliate thereof, except as
\nexpressly provided herein or in any Basic Document. Certificates so owned by the
\nSeller or such Affiliate shall have an equal and proportionate benefit under the
\nprovisions of the Basic Documents, without preference, priority, or distinction
\nas among all of the Certificates; provided, however, that any Certificates owned
\nby the Seller or any Affiliate thereof, during the time such Certificates are
\nowned by them, shall be without voting rights for any purpose set forth in the
\nBasic Documents. The Residual Certificate will initially be held by AmeriCredit
\nCanada. The Seller shall notify the Rating Agency and the Custodian with respect
\nto any transfer of the Residual Certificate.<\/p>\n
ARTICLE 9
\n THE SERVICER<\/p>\n
9.1 Representations of Servicer.<\/p>\n
AmeriCredit Canada makes the following representations on which the Issuer
\nis deemed to have relied in acquiring the Purchased Assets. The representations
\nspeak as of the execution and delivery of this Agreement and as of the Closing
\nDate, and shall survive the sale of the Purchased Assets to the Issuer and the
\ntransfer of the Purchased Assets to the Custodian.<\/p>\n
(a) Representations and Warranties. The representations and warranties set
\n forth on the Schedule of Representations attached hereto as Schedule B
\n are true and<\/p>\n
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correct, provided that such representations and warranties contained
\n therein and herein shall not apply to any entity other than
\n AmeriCredit Canada;<\/p>\n
(b) Organization and Good Standing. AmeriCredit Canada has been duly
\n organized and is validly existing and in good standing under the laws
\n of its jurisdiction of incorporation, with power, authority and legal
\n right to own its properties and to conduct its business as such
\n properties are currently owned and such business is currently
\n conducted, and had at all relevant times, and now has, power,
\n authority and legal right to enter into and perform its obligations
\n under this Agreement;<\/p>\n
(c) Due Qualification. AmeriCredit Canada is duly qualified to do business
\n as a foreign corporation in good standing and has obtained all
\n necessary licenses and approvals, in all jurisdictions in which the
\n ownership or lease of property or the conduct of its business
\n (including the servicing of the Automobile Loans as required by this
\n Agreement) requires or shall require such qualification;<\/p>\n
(d) Power and Authority. AmeriCredit Canada has the power and authority to
\n execute and deliver this Agreement and the Basic Documents to which it
\n is a party and to carry out its terms and their terms, respectively,
\n and the execution, delivery and performance of this Agreement and such
\n Basic Documents have been duly authorized by the Servicer by all
\n necessary corporate action;<\/p>\n
(e) Binding Obligation. This Agreement and the Basic Documents to which
\n the Servicer is a party shall constitute legal, valid and binding
\n obligations of the Servicer enforceable in accordance with their
\n respective terms, except as enforceability may be limited by
\n bankruptcy, insolvency, reorganization, or other similar laws
\n affecting the enforcement of creditors’ rights generally and by
\n equitable limitations on the availability of specific remedies,
\n regardless of whether such enforceability is considered in a
\n proceeding in equity or at law;<\/p>\n
(f) No Violation. The consummation of the transactions contemplated by
\n this Agreement and the Basic Documents to which the Servicer is a
\n party, and the fulfilment of the terms of this Agreement and the Basic
\n Documents to which the Servicer is a party, shall not conflict with,
\n result in any breach of any of the terms and provisions of, or
\n constitute (with or without notice or lapse of time) a default under,
\n the articles of incorporation or bylaws of the Servicer, or any
\n indenture, agreement, mortgage, deed of trust or other instrument to
\n which the Servicer is a party or by which it is bound, or result in
\n the creation or imposition of any Lien upon any of its properties
\n pursuant to the terms of any such indenture, agreement, mortgage, deed
\n of trust or other instrument, other than this Agreement, or violate
\n any law, order, rule or regulation applicable to the Servicer of any
\n court or of any federal or state regulatory body, administrative
\n agency or other governmental instrumentality having jurisdiction over
\n the Servicer or any of its properties;<\/p>\n
(g) No Proceedings. There are no proceedings or investigations pending or,
\n to the Servicer’s knowledge, threatened against the Servicer, before
\n any court, regulatory body, administrative agency or other tribunal or
\n governmental instrumentality<\/p>\n
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having jurisdiction over the Servicer or its properties (A) asserting
\n the invalidity of this Agreement or any of the Basic Documents, (B)
\n seeking to prevent the issuance of the Certificates or the
\n consummation of any of the transactions contemplated by this Agreement
\n or any of the Basic Documents, or (C) seeking any determination or
\n ruling that might materially and adversely affect the performance by
\n the Servicer of its obligations under, or the validity or
\n enforceability of, this Agreement or any of the Basic Documents to
\n which the Servicer is a party or (D) seeking to adversely affect the
\n federal income tax or other federal, state, provincial, or local tax
\n attributes of the Certificates; and<\/p>\n
(h) No Consents. The Servicer is not required to obtain the consent of any
\n other party or any consent, license, approval or authorization, or
\n registration or declaration with, any governmental authority, bureau
\n or agency in connection with the execution, delivery, performance,
\n validity or enforceability of this Agreement which has not already
\n been obtained.<\/p>\n
9.2 Liability of Servicer; Indemnities.<\/p>\n
(a) The Servicer (in its capacity as such) shall be liable hereunder only
\nto the extent of the obligations in this Agreement specifically undertaken by
\nthe Servicer and the representations made by the Servicer.<\/p>\n
(b) The Servicer shall defend, indemnify and hold harmless the Custodian,
\nthe Backup Servicer, their respective officers, directors, agents and employees,
\nand the Certificateholders from and against any and all costs, expenses, losses,
\ndamages, claims and liabilities, including reasonable fees and expenses of
\ncounsel and expenses of litigation arising out of or resulting from the use,
\nownership or operation by the Servicer or any Affiliate thereof of any Financed
\nVehicle.<\/p>\n
(c) The Servicer (when the Servicer is AmeriCredit Canada) shall indemnify,
\ndefend and hold harmless (i) the Custodian and the Backup Servicer and each of
\ntheir respective officers, directors, employees and agents, from and against any
\ntaxes (including any sales, goods and services, gross receipts, general
\ncorporation, tangible personal property, privilege or license taxes) that may at
\nany time be asserted against any such Person with respect to the transactions
\ncontemplated in this Agreement and any of the Basic Documents (except any income
\ntaxes arising out of fees paid to the Custodian or the Backup Servicer and
\nexcept any taxes to which the Custodian or the Backup Servicer may otherwise be
\nsubject to, without regard to the transactions contemplated hereby), and (ii)
\nthe Issuer and the Certificateholders from and against any goods and services
\ntaxes, sales taxes or other transfer taxes arising out of (x) the sale and
\nconveyance of the Purchased Assets to the Issuer or the Custodian and the
\nCertificateholders or (y) the issuance and original sale of the Certificates or
\n(z) the servicing of the Purchased Assets by AmeriCredit Canada, as Servicer, in
\naccordance with and on the terms of the Purchase Agreement and the Pooling and
\nServicing Agreement and, in each case, all costs and expenses in defending
\nagainst taxes indemnified under this Section.<\/p>\n
(d) The Servicer (when the Servicer is not AmeriCredit Canada) shall
\nindemnify, defend and hold harmless the Custodian, the Backup Servicer, their
\nrespective officers, directors, agents<\/p>\n
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and employees and the Certificateholders from and against any taxes with respect
\nto the sale of Automobile Loans in connection with servicing hereunder that may
\nat any time be asserted against any of such parties with respect to the
\ntransactions contemplated in this Agreement, including, without limitation, any
\nsales, gross receipts, tangible or intangible personal property, privilege or
\nlicense taxes (but not including any federal, provincial, state or other income
\ntaxes, including franchise taxes asserted with respect to, and as of the date
\nof, the sale of the Purchased Assets to the Issuer or the issuance and original
\nsale of the Certificates) and costs and expenses in defending against the same.<\/p>\n
(e) The Servicer shall indemnify, defend and hold harmless the Custodian,
\nthe Backup Servicer, their respective officers, directors, agents and employees
\nand the Certificateholders from and against any and all costs, expenses, losses,
\nclaims, damages, and liabilities to the extent that such cost, expense, loss,
\nclaim, damage, or liability arose out of, or was imposed upon the Custodian, the
\nBackup Servicer or the Certificateholders by reason of the breach of this
\nAgreement by the Servicer, the negligence, misfeasance, or bad faith of the
\nServicer in the performance of its duties under this Agreement or by reason of
\nreckless disregard of its obligations and duties under this Agreement.<\/p>\n
(f) AmeriCredit Canada shall indemnify the Custodian and the Backup
\nServicer, and the respective officers, directors, agents and employees thereof
\nagainst any and all loss, liability or expense, (other than overhead and
\nexpenses incurred in the normal course of business) incurred by each of them in
\nconnection with the acceptance, administration or performance of their duties
\nunder the Basic Documents other than if such loss, liability or expense was
\nincurred by the Custodian or the Backup Servicer as a result of any such
\nentity’s wilful misconduct, bad faith or gross negligence.<\/p>\n
(g) Indemnification under this Article 9 shall include, without limitation,
\nreasonable fees and expenses of counsel and expenses of litigation. If the
\nServicer or AmeriCredit Canada has made any indemnity payments pursuant to this
\nArticle and the recipient thereafter collects any of such amounts from others,
\nthe recipient shall promptly repay such amounts collected to the Servicer,
\nwithout interest.<\/p>\n
9.3 Merger or Consolidation of, or Assumption of, the Obligations of the
\n Servicer or Backup Servicer.<\/p>\n
(a) AmeriCredit Canada shall not merge or consolidate with any other
\nPerson, convey, transfer or lease substantially all its assets as an entirety to
\nanother Person, or permit any other Person to become the successor to
\nAmeriCredit Canada’s business unless, after the merger, consolidation,
\nconveyance, transfer, lease or succession, the successor or surviving entity
\nshall be capable of fulfilling the duties of AmeriCredit contained in this
\nAgreement and shall be acceptable to the Custodian and the Rating Agencies. Any
\ncorporation (i) into which AmeriCredit Canada may be merged or consolidated,
\n(ii) resulting from any merger or consolidation to which AmeriCredit Canada
\nshall be a party, (iii) which acquires by conveyance, transfer, or lease
\nsubstantially all of the assets of AmeriCredit Canada, or (iv) succeeding to the
\nbusiness of AmeriCredit Canada, in any of the foregoing cases shall execute an
\nagreement of assumption to perform every obligation of AmeriCredit Canada under
\nthis Agreement and, whether or not such assumption agreement is executed, shall
\nbe the successor to AmeriCredit<\/p>\n
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Canada under this Agreement without the execution or filing of any paper or any
\nfurther act on the part of any of the parties to this Agreement, anything in
\nthis Agreement to the contrary notwithstanding; provided, however, that nothing
\ncontained herein shall be deemed to release AmeriCredit Canada from any
\nobligation. AmeriCredit Canada shall provide notice of any merger, consolidation
\nor succession pursuant to this Section to the Custodian, the Certificateholders
\nand each Rating Agency. Notwithstanding the foregoing, AmeriCredit Canada shall
\nnot merge or consolidate with any other Person or permit any other Person to
\nbecome a successor to AmeriCredit Canada’s business, unless (x) immediately
\nafter giving effect to such transaction, no representation or warranty made
\npursuant to Section 5.6 shall have been breached (for purposes hereof, such
\nrepresentations and warranties shall speak as of the date of the consummation of
\nsuch transaction), (y) AmeriCredit Canada shall have delivered to the Custodian,
\nthe Backup Servicer and the Rating Agencies an Officer’s Certificate and an
\nOpinion of Counsel each stating that such consolidation, merger or succession
\nand such agreement of assumption comply with this Section and that all
\nconditions precedent, if any, provided for in this Agreement relating to such
\ntransaction have been complied with, and (z) AmeriCredit Canada shall have
\ndelivered to the Custodian and the Rating Agencies an Opinion of Counsel,
\nstating in the opinion of such counsel, either (A) all financing statements and
\nfinancing change statements and amendments thereto have been executed and filed
\nthat are necessary to preserve and protect the interest of the Custodian and the
\nCertificateholders in the Purchased Assets and reciting the details of the
\nfilings or (B) no such action shall be necessary to preserve and protect such
\ninterest.<\/p>\n
(b) Any corporation (i) into which the Backup Servicer may be merged or
\nconsolidated, (ii) resulting from any merger or consolidation to which the
\nBackup Servicer shall be a party, (iii) which acquires by conveyance, transfer
\nor lease substantially all of the assets of the Backup Servicer, or (iv)
\nsucceeding to the business of the Backup Servicer, in any of the foregoing cases
\nshall execute an agreement of assumption to perform every obligation of the
\nBackup Servicer under this Agreement and, whether or not such assumption
\nagreement is executed, shall be the successor to the Backup Servicer under this
\nAgreement without the execution or filing of any paper or any further act on the
\npart of any of the parties to this Agreement, anything in this Agreement to the
\ncontrary notwithstanding; provided, however, that nothing contained herein shall
\nbe deemed to release the Backup Servicer from any obligation.<\/p>\n
9.4 Limitation on Liability of Servicer, Backup Servicer and Others.<\/p>\n
(a) Neither the Servicer, the Backup Servicer nor any of the directors or
\nofficers or employees or agents of the Servicer or Backup Servicer shall be
\nunder any liability to the Issuer or the Certificateholders, except as provided
\nin this Agreement, for any action taken or for refraining from the taking of any
\naction pursuant to this Agreement; provided, however, that this provision shall
\nnot protect the Servicer, the Backup Servicer or any such Person against any
\nliability that would otherwise be imposed by reason of a breach of this
\nAgreement or wilful misfeasance, bad faith or negligence (excluding errors in
\njudgment) in the performance of duties; provided further that this provision
\nshall not affect any liability to indemnify the Custodian for costs, taxes,
\nexpenses, claims, liabilities, losses or damages paid by the Custodian, in its
\nindividual capacities. The Servicer, the Backup Servicer and any director,
\nofficer, employee or agent of the Servicer or the Backup Servicer may rely in
\ngood faith on the written advice of<\/p>\n
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counsel or on any document of any kind prima facie properly executed and
\nsubmitted by any Person respecting any matters arising under this Agreement.<\/p>\n
(b) The Backup Servicer shall not be liable for any obligation of the
\nServicer contained in this Agreement or for any errors of the Servicer contained
\nin any computer tape, certificate or other data or document delivered to the
\nBackup Servicer hereunder or on which the Backup Servicer must rely in order to
\nperform its obligations hereunder, and the Custodian, the Backup Servicer, the
\nSeller and the Certificateholders shall look only to the Servicer to perform
\nsuch obligations. The Backup Servicer and the Custodian shall have no
\nresponsibility and shall not be in default hereunder or incur any liability for
\nany failure, error, malfunction or any delay in carrying out any of their
\nrespective duties under this Agreement if such failure or delay results from the
\nBackup Servicer acting in accordance with information prepared or supplied by a
\nPerson other than the Backup Servicer (or contractual agents) or the failure of
\nany such other Person to prepare or provide such information. The Backup
\nServicer shall have no responsibility, shall not be in default and shall incur
\nno liability for (i) any act or failure to act of any third party (other than
\nits contractual agents), including the Servicer, (ii) any inaccuracy or omission
\nin a notice or communication received by the Backup Servicer from any third
\nparty (other than its contractual agents), (iii) the invalidity or
\nunenforceability of any Automobile Loan under applicable law, (iv) the breach or
\ninaccuracy of any representation or warranty made with respect to any Automobile
\nLoan, or (v) the acts or omissions of any successor Backup Servicer.<\/p>\n
9.5 Delegation of Duties.<\/p>\n
The Servicer may delegate duties under this Agreement to an Affiliate of
\nAmeriCredit Canada with the prior written consent of the Custodian and the
\nBackup Servicer, provided, however, that no such consent shall be required in
\nconnection with the execution, delivery or performance of the AmeriCredit US
\nCustodial Agreement by AmeriCredit Canada and AmeriCredit Corp. The Servicer
\nalso may at any time perform through sub-contractors the specific duties of (i)
\nrepossession of Financed Vehicles, (ii) tracking Financed Vehicles’ insurance
\nand (iii) pursuing the collection of deficiency balances on certain Liquidated
\nAutomobile Loans and may perform other specific duties through such
\nsub-contractors in accordance with Servicer’s customary servicing policies and
\nprocedures, with the prior consent of the Rating Agencies; provided, however,
\nthat no such delegation or sub-contracting duties by the Servicer shall relieve
\nthe Servicer of its responsibility with respect to such duties. Neither
\nAmeriCredit Canada nor any party acting as Servicer hereunder shall appoint any
\nsubservicer hereunder without the prior written consent of the Backup Servicer.<\/p>\n
9.6 Servicer and Backup Servicer Not to Resign.<\/p>\n
Subject to the provisions of Section 9.3, neither the Servicer nor the
\nBackup Servicer shall resign from the obligations and duties imposed on it by
\nthis Agreement as Servicer or Backup Servicer except upon a determination that
\nby reason of a change in legal requirements the performance of its duties under
\nthis Agreement would cause it to be in violation of such legal requirements in a
\nmanner which would have a material adverse effect on the Servicer or the Backup
\nServicer, as the case may be, and a Certificate Majority does not elect to waive
\nthe obligations of the Servicer or the Backup Servicer, as the case may be, to
\nperform the duties which render it legally unable to act or to delegate those
\nduties to another Person. Any such<\/p>\n
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determination permitting the resignation of the Servicer or Backup Servicer
\nshall be evidenced by an Opinion of Counsel. No resignation of the Servicer
\nshall become effective until the Backup Servicer or a successor Servicer that is
\nan Eligible Servicer shall have assumed the responsibilities and obligations of
\nthe Servicer. No resignation of the Backup Servicer shall become effective until
\na Person that is an Eligible Servicer shall have assumed the responsibilities
\nand obligations of the Backup Servicer; provided, however, that in the event a
\nsuccessor Backup Servicer is not appointed within 60 days after the Backup
\nServicer has given notice of its resignation and has provided the Opinion of
\nCounsel required by this Section, the Backup Servicer may petition a court for
\nits removal.<\/p>\n
ARTICLE 10
\n SERVICER TERMINATION EVENT<\/p>\n
10.1 Servicer Termination Event.<\/p>\n
For purposes of this Agreement, each of the following shall constitute a
\n“Servicer Termination Event”:<\/p>\n
(a) Any failure by the Servicer to deliver to the Custodian for
\n distribution to Certificateholders any proceeds or payment required to
\n be so delivered under the terms of this Agreement that continues
\n unremedied for a period of two Business Days (one Business Day with
\n respect to payment of Purchase Amounts) after written notice is
\n received by the Servicer from the Custodian or after discovery of such
\n failure by a Responsible Officer of the Servicer; or<\/p>\n
(b) Failure by the Servicer to deliver to the Custodian the Servicer’s
\n Certificate by 12:00 p.m. on any Distribution Date; or<\/p>\n
(c) Failure on the part of the Servicer to duly observe or perform in any
\n material respect any other covenants or agreements of the Servicer set
\n forth in this Agreement, which failure (i) materially and adversely
\n affects the rights of Certificateholders, and (ii) continues
\n unremedied for a period of 60 days after knowledge thereof by the
\n Servicer or after the date on which written notice of such failure,
\n requiring the same to be remedied, shall have been given to the
\n Servicer by the holders of the Certificates entitled to at least 25%
\n of the Voting Rights; or<\/p>\n
(d) The entry of a decree or order for relief by a court or regulatory
\n authority having jurisdiction in respect of the Servicer in an
\n involuntary case under applicable bankruptcy laws, as now or hereafter
\n in effect, or another present or future, bankruptcy, insolvency or
\n similar law, or appointing a receiver, liquidator, assignee, trustee,
\n custodian, sequestrator or other similar official of the Servicer or
\n of any substantial part of its property or ordering the winding up or
\n liquidation of the affairs of the Servicer and the continuance of any
\n such decree or order unstayed and in effect for a period of 60
\n consecutive days or the commencement of an involuntary case under the
\n applicable bankruptcy laws, as now or<\/p>\n
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hereinafter in effect, or another present or applicable bankruptcy,
\n insolvency or similar law and such case is not dismissed within 60
\n days; or<\/p>\n
(e) The commencement by the Servicer of a voluntary case under applicable
\n bankruptcy laws, as now or hereafter in effect, or any other present
\n or future, applicable bankruptcy, insolvency or similar law, or the
\n consent by the Servicer to the appointment of or taking possession by
\n a receiver, liquidator, assignee, trustee, custodian, sequestrator or
\n other similar official of the Servicer or of any substantial part of
\n its property or the making by the Servicer of an assignment for the
\n benefit of creditors or the failure by the Servicer generally to pay
\n its debts as such debts become due or the taking of corporate action
\n by the Servicer in furtherance of any of the foregoing; or<\/p>\n
(f) Any representation, warranty or statement of the Servicer made in this
\n Agreement or any certificate, report or other writing delivered
\n pursuant hereto shall prove to be incorrect in any material respect as
\n of the time when the same shall have been made, and the incorrectness
\n of such representation, warranty or statement has a material adverse
\n effect on the Custodian or the Certificateholders and, within 30 days
\n after knowledge thereof by the Servicer or after written notice
\n thereof shall have been given to the Servicer by the Custodian or by
\n the holders of the Certificates entitled to at least 25% of the Voting
\n Rights and the circumstances or condition in respect of which such
\n representation, warranty or statement was incorrect shall not have
\n been eliminated or otherwise cured.<\/p>\n
10.2 Consequences of a Servicer Termination Event.<\/p>\n
If a Servicer Termination Event shall occur and be continuing either the
\nCustodian (to the extent it has knowledge thereof) or the holders of the
\nCertificates entitled to at least 66 2\/3% of the Voting Rights, by notice given
\nin writing to the Servicer (and to the Custodian if given by the
\nCertificateholders) may terminate all of the rights and obligations of the then
\nServicer under this Agreement. On or after the receipt by the Servicer of such
\nwritten notice or upon termination of the term of the Servicer, all authority,
\npower, obligations and responsibilities of the Servicer under this Agreement,
\nwhether with respect to the Certificates or the Purchased Assets or otherwise,
\nautomatically shall pass to, be vested in and become obligations and
\nresponsibilities of the Backup Servicer (or such other successor Servicer
\nappointed by the Custodian); provided, however, that the successor Servicer
\nshall have no liability with respect to any obligation which was required to be
\nperformed by the terminated Servicer prior to the date that the successor
\nServicer becomes the Servicer or any claim of a third party based on any alleged
\naction or inaction of the terminated Servicer. The successor Servicer is
\nauthorized and empowered by this Agreement to execute and deliver, on behalf of
\nthe terminated Servicer, as attorney-in-fact or otherwise, any and all documents
\nand other instruments and to do or accomplish all other acts or things necessary
\nor appropriate to effect the purposes of such notice of termination. The
\nterminated Servicer agrees to cooperate with the successor Servicer in effecting
\nthe termination of the responsibilities and rights of the terminated Servicer
\nunder this Agreement, including, without limitation, the transfer to the
\nsuccessor Servicer for administration by it of all cash amounts that shall at
\nthe time be held by the terminated Servicer for deposit, or have been deposited
\nby the terminated Servicer, in the Collection Account or thereafter received
\nwith<\/p>\n
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respect to the Automobile Loans and the delivery to the successor Servicer of
\nall Automobile Loan Files, Monthly Records and Collection Records and a computer
\ntape in readable form as of the most recent Business Day containing all
\ninformation necessary to enable the successor Servicer or a successor Servicer
\nto service the Purchased Assets. If requested by the Custodian, the successor
\nServicer shall direct the Obligors to make all payments under the Automobile
\nLoans directly to the successor Servicer (in which event the successor Servicer
\nshall process such payments in accordance with Section 5.2(e)), or to a
\nDepository established by the successor Servicer, at the successor Servicer’s
\nexpense. The terminated Servicer shall grant the Custodian and the successor
\nServicer reasonable access to the terminated Servicer’s premises at the
\nterminated Servicer’s expense.<\/p>\n
10.3 Appointment of Successor.<\/p>\n
(a) On and after the time the Servicer receives a notice of termination
\npursuant to Section 10.2, or upon the resignation of the Servicer pursuant to
\nSection 9.6, the Backup Servicer shall be the successor in all respects to the
\nServicer in its capacity as servicer under this Agreement and the transactions
\nset forth or provided for in this Agreement, and shall be subject to all the
\nrights, responsibilities, restrictions, duties, liabilities and termination
\nprovisions relating thereto placed on the Servicer by the terms and provisions
\nof this Agreement except as otherwise stated herein. The Custodian and such
\nsuccessor shall take such action, consistent with this Agreement, as shall be
\nnecessary to effectuate any such succession. If a successor Servicer is acting
\nas Servicer hereunder, it shall be subject to termination under Section 10.2
\nupon the occurrence of any Servicer Termination Event applicable to it as
\nServicer.<\/p>\n
(b) If the Backup Servicer shall be legally unable or unwilling to act as
\nServicer, the Backup Servicer, the Custodian or a Certificate Majority may
\npetition a court of competent jurisdiction to appoint any Eligible Servicer as
\nthe successor to the Servicer. Pending appointment pursuant to the preceding
\nsentence, the Backup Servicer shall act as successor Servicer unless it is
\nlegally unable to do so, in which event the outgoing Servicer shall continue to
\nact as Servicer until a successor has been appointed and accepted such
\nappointment. Subject to Section 9.6, no provision of this Agreement shall be
\nconstrued as relieving the Backup Servicer of its obligation to succeed as
\nsuccessor Servicer upon the termination of the Servicer pursuant to Section
\n10.2, or upon the resignation of the Servicer pursuant to Section 9.6. If upon
\nthe termination of the Servicer pursuant to Section 10.2 or the resignation of
\nthe Servicer pursuant to Section 9.6, the Custodian appoints a successor
\nServicer other than the Backup Servicer, the Backup Servicer shall not be
\nrelieved of its duties as Backup Servicer hereunder.<\/p>\n
(c) Any successor Servicer shall be entitled to the Servicing Fee and such
\nother compensation as described in Section 5.8 hereof. If any successor Servicer
\nis appointed as a result of the Backup Servicer’s refusal (in breach of the
\nterms of this Agreement) to act as Servicer although it is legally able to do
\nso, the Custodian or a Certificate Majority and such successor Servicer may
\nagree on reasonable additional compensation to be paid to such successor
\nServicer by the Backup Servicer, which additional compensation shall be paid by
\nsuch breaching Backup Servicer in its individual capacity and solely out of its
\nown funds; provided, however, it being understood and agreed that the Custodian
\nshall give prior notice to the Backup Servicer with respect to the appointment
\nof such successor and the payment of additional compensation, if any. If any
\nsuccessor Servicer is appointed for any reason other than the<\/p>\n
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Backup Servicer’s refusal to act as Servicer although legally able to do so, the
\nBackup Servicer shall not be liable for any Servicing Fee, additional
\ncompensation or other amounts to be paid to such successor Servicer in
\nconnection with its assumption and performance of the servicing duties described
\nherein.<\/p>\n
10.4 Notification to Certificateholders.<\/p>\n
Upon any termination of, or appointment of a successor to, the Servicer,
\nthe Custodian shall give prompt written notice thereof to each Certificateholder
\nand to the Rating Agencies.<\/p>\n
10.5 Waiver of Past Defaults.<\/p>\n
The Custodian may, on behalf of all Certificateholders, waive any default
\nby the Servicer in the performance of its obligations hereunder and its
\nconsequences. Upon any such waiver of a past default, such default shall cease
\nto exist, and any Servicer Termination Event arising therefrom shall be deemed
\nto have been remedied for every purpose of this Agreement. No such waiver shall
\nextend to any subsequent or other default or impair any right consequent
\nthereto.<\/p>\n
ARTICLE 11
\n CONCERNING THE CUSTODIAN<\/p>\n
11.1 Duties of Custodian.<\/p>\n
(a) The Custodian undertakes to perform such duties and only such duties as
\nare specifically set forth in this Agreement. Any permissive right of the
\nCustodian contained in this Agreement shall not be construed as a duty.<\/p>\n
(b) The Custodian upon receipt of all resolutions, certificates,
\nstatements, opinions, reports, documents, orders or other instruments furnished
\nto it which are specifically required to be furnished pursuant to any provision
\nof this Agreement (other than the Automobile Loans, the review of which is
\nspecifically governed by the terms of Article 3) to the extent specifically set
\nforth herein, shall examine them to determine whether they conform to the
\nrequirements of this Agreement to the extent specifically set forth herein. If
\nany such instrument is found not to conform to the requirements of this
\nAgreement in a material manner, the Custodian shall inform the Servicer who
\nshall take such action as it deems appropriate to have the instrument corrected.
\nThe Custodian shall not be responsible for the accuracy or content of any
\nresolution, certificate, statement, opinion, report, document, order or other
\ninstrument furnished by the Issuer or the Servicer or the Backup Servicer, and
\naccepted by the Custodian in good faith, pursuant to this Agreement.<\/p>\n
(c) No provision of this Agreement shall be construed to relieve the
\nCustodian from liability for its own grossly negligent action, its own grossly
\nnegligent failure to act or its own misconduct; provided, however, that, as
\napplicable:<\/p>\n
(i) the Custodian’s duties and obligations shall be determined
\n solely by the express provisions of this Agreement and it shall
\n not be liable except for the performance of such duties and
\n obligations as are specifically set forth<\/p>\n
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in this Agreement; no implied covenants or obligations shall be
\n read into this Agreement against it and, in the absence of bad
\n faith on its part, it may conclusively rely, as to the truth of
\n the statements and the correctness of the opinions expressed in
\n any certificates or opinions furnished to it and conforming to
\n the requirements of this Agreement, upon such statements and
\n opinions expressed;<\/p>\n
(ii) the Custodian shall not be personally liable for an error of
\n judgment made in good faith by a Responsible Officer, unless it
\n shall be proved that it was grossly negligent in ascertaining
\n the pertinent facts if it was required to do so;<\/p>\n
(iii) the Custodian shall not be personally liable with respect to
\n any action taken, suffered or omitted to be taken by the
\n Custodian in good faith in accordance with the direction of
\n Certificateholders entitled to at least 25% of the Voting
\n Rights relating to the time, method and place of conducting any
\n proceeding for any remedy available to the Custodian, or
\n exercising any power conferred upon the Custodian, under this
\n Agreement; and<\/p>\n
(iv) the protections, immunities and indemnities afforded to the
\n Custodian hereunder shall also be available to it acting in the
\n capacity of Paying Agent, Authenticating Agent and Certificate
\n Registrar.<\/p>\n
11.2 Certain Matters Affecting Custodian.<\/p>\n
Except as otherwise provided in Section 11.1:<\/p>\n
(i) the Custodian may rely upon and shall be protected in acting or
\n refraining from acting upon any resolution, Officers’
\n Certificate, certificate of auditors or any other certificate,
\n statement, instrument, opinion, report, notice, request,
\n consent, order, appraisal, bond or other paper or document
\n reasonably believed by it to be genuine and to have been signed
\n or presented by the proper party or parties;<\/p>\n
(ii) the Custodian may consult with counsel and the written advice
\n of such counsel or any Opinion of Counsel shall be full and
\n complete authorization and protection in respect of any action
\n taken or suffered or omitted by it hereunder in good faith and
\n in accordance therewith;<\/p>\n
(iii) the Custodian shall be under no obligation to exercise any
\n powers vested in it by this Agreement or to make any
\n investigation of matters arising hereunder or to institute,
\n conduct or defend any litigation hereunder or in relation
\n hereto at the request, order or direction of any of the
\n Certificateholders, pursuant to the provisions of this
\n Agreement, unless such Certificateholders shall have offered to
\n the Custodian reasonable security or indemnity against the
\n costs, expenses and liabilities which may be incurred therein
\n or thereby; the Custodian shall not be required to expend or
\n risk its own funds or otherwise incur any financial liability
\n in<\/p>\n
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the performance of any of its duties hereunder, or in the
\n exercise of any of its rights or powers, if it shall have
\n reasonable grounds for believing that repayment of such funds
\n or adequate indemnity against such risk or liability is not
\n reasonably assured to it;<\/p>\n
(iv) the Custodian shall not be personally liable for any action
\n reasonably taken, suffered or omitted by it in good faith and
\n believed by it to be authorized or within the powers conferred
\n upon it by this Agreement;<\/p>\n
(v) the Custodian shall not be bound to make any investigation into
\n the facts or matters stated in any resolution, certificate,
\n statement, instrument, opinion, report, notice, request,
\n consent, order, approval, bond or other paper or document,
\n unless requested in writing to do so by Certificateholders
\n entitled to at least 25% of the Voting Rights; provided,
\n however, that if the payment within a reasonable time to the
\n Custodian of the costs, expenses or liabilities likely to be
\n incurred by it in the making of such investigation is, in the
\n opinion of the Custodian not reasonably assured to it by the
\n security afforded to it by the terms of this Agreement, it may
\n require reasonable indemnity against such expense or liability
\n as a condition to taking any such action;<\/p>\n
(vi) the Custodian may perform any duties hereunder either directly
\n or by or through agents or attorneys; provided, however, that
\n it shall remain responsible for all acts and omissions of such
\n agents or attorneys within the scope of its employment to the
\n same extent as it is responsible for its own actions and
\n omissions hereunder; and<\/p>\n
(vii) the Custodian shall not be responsible for any act or omission
\n of the Servicer or the Backup Servicer, the Issuer or the
\n Seller.<\/p>\n
11.3 Custodian Not Liable for Validity or Sufficiency of Certificates or
\n Automobile Loans.<\/p>\n
The recitals contained herein and in the Certificates, other than the
\nstatements, if any, attributed to the Custodian in Article 6 (except to the
\nextent the Custodian is relying on information provided to it by the Servicer in
\nmaking such statements) and the signature of the Certificate Registrar and the
\nAuthenticating Agent set forth on each outstanding Certificate, shall be taken
\nas the statements of the Issuer or the Servicer, as the case may be, and the
\nCustodian assumes no responsibility for their correctness. The Custodian makes
\nno representations as to the validity or sufficiency of this Agreement or of any
\nCertificate (other than as to the signature of the Custodian set forth thereon)
\nor of any Automobile Loan or related document. The Custodian shall not be
\naccountable for the use or application by the Issuer of any of the Certificates
\nissued to it or of the proceeds of such Certificates, or for the use or
\napplication of any funds paid to the Issuer in respect of the assignment of the
\nAutomobile Loans to the Custodian, or any funds deposited in or withdrawn from
\nthe Certificate Account or any other account by or on behalf of the Issuer or
\nthe Servicer. The Custodian shall not be responsible for the accuracy or content
\nof any resolution, certificate, statement, opinion, report, document, order<\/p>\n
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or other instrument furnished by the Issuer or the Servicer, and accepted by the
\nCustodian in good faith, pursuant to this Agreement.<\/p>\n
11.4 Custodian May Own Certificates.<\/p>\n
The Custodian or any agent of the Custodian, in its individual or any
\nother capacity, may become the owner or pledgee of Certificates with the same
\nrights (except as otherwise provided in the definition of “Certificateholder”)
\nit would have if it were not the Custodian or such agent.<\/p>\n
11.5 Fees and Expenses of Custodian; Indemnification of Custodian.<\/p>\n
(a) On each Distribution Date, the Custodian shall withdraw from the funds
\non deposit in the Collection Account, in the manner set forth in Section 6.4(a),
\nand pay to itself all earned but unpaid Custodian Fees, as compensation for all
\nservices rendered by the Custodian in the exercise and performance of any of the
\npowers and duties of the Custodian hereunder. The Custodian Fee shall constitute
\nthe Custodian’s sole compensation for such services to be rendered by it.<\/p>\n
(b) The Custodian and any director, officer, employee, Affiliate or agent
\nof the Custodian shall be entitled to be indemnified for and held harmless out
\nof the ACAR Series 2002-A Certificateholders’ Assets against any loss, liability
\nor reasonable “out-of-pocket” expense (including, without limitation, costs and
\nexpenses of litigation, and of investigation, counsel fees, damages, judgments
\nand amounts paid in settlement arising out of, or incurred in connection with
\nthis Agreement, the Automobile Loans or the Certificates) (“Custodian
\nLiability”); provided, that neither the Custodian nor any of the other above
\nspecified Persons shall be entitled to indemnification pursuant to this Section
\n11.5(b) for (1) any liability specifically required to be borne by such Persons
\npursuant to the terms hereof, or (2) any loss, liability or expense incurred by
\nreason of wilful misfeasance, bad faith or negligence in the performance of the
\nCustodian’s obligations and duties hereunder, or as may arise from a breach of
\nany representation, warranty or covenant of the Custodian made herein. The
\nprovisions of this Section 11.5(b) and of Section 11.5(b) shall survive any
\nresignation or removal of the Custodian and appointment of a successor
\nCustodian.<\/p>\n
(c) If the Custodian Liability arises from the issuance or sale of the
\nCertificates and the indemnification provided for in Section 11.5(b) is invalid
\nor unenforceable, then an amount shall be paid out of the ACAR Series 2002-A
\nCertificateholders’ Assets as a contribution to the amount paid or payable by
\nthe Custodian as a result of such Custodian Liability in such proportion as is
\nappropriate to reflect the relative fault of any other parties on the one hand
\nand the Custodian on the other in connection with the actions or omissions which
\nresulted in such Custodian Liability, as well as any other relevant equitable
\nconsiderations.<\/p>\n
11.6 Eligibility Requirements for Custodian.<\/p>\n
The Custodian hereunder shall at all times be a trust company organized
\nunder the laws of Canada or any province of Canada and duly authorized and
\nlicensed to carry on business in all of the Provinces and Territories of Canada,
\nhaving a combined capital and surplus of at least $10,000,000.00 and subject to
\nsupervision by the Office of the Superintendent of Financial Institutions or
\ncomparable provincial regulatory authority. If such company files reports at
\nleast<\/p>\n
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annually, pursuant to law or to the requirements of the aforesaid regulatory
\nauthority, then for the purposes of this Section the combined capital and
\nsurplus of such company shall be deemed to be its combined capital and surplus
\nas set forth in its most recent report so filed. The Custodian shall (except
\nwhere the Custodian is The Trust Company of Bank of Montreal or BNY Trust
\nCompany of Canada) also be an entity with a credit rating on its long term
\nunsecured debt of at least “Aa2” by Moody’s “AA” by Standard & Poor’s and “AA”
\nby DBRS or such other rating that shall not result in the qualification,
\ndowngrading or withdrawal of the rating or ratings assigned to one or more
\nClasses of the Certificates by any Rating Agency. In case at any time the
\nCustodian shall cease to be eligible in accordance with the provisions of this
\nSection, the Custodian shall resign immediately in the manner and with the
\neffect specified in Section 11.7; provided, that if the Custodian shall cease to
\nbe so eligible because its combined capital and surplus is no longer at least
\n$10,000,000.00, and if the Custodian proposes to the other parties hereto to
\nenter into an agreement with (and reasonably acceptable to) each of them, and if
\nin light of such agreement the Custodian’s continuing to act in such capacity
\nwould not (as evidenced in writing by each Rating Agency) cause any Rating
\nAgency to qualify, downgrade or withdraw any rating assigned thereby to any
\nClass of Certificates, then upon the execution and delivery of such agreement
\nthe Custodian shall not be required to resign, and may continue in such
\ncapacity, for so long as none of the ratings assigned by the Rating Agencies to
\nthe Certificates is adversely affected thereby. The corporation or association
\nserving as Custodian may have normal banking and trust relationships with the
\nIssuer, the Servicer and their respective Affiliates.<\/p>\n
11.7 Resignation and Removal of Custodian.<\/p>\n
(a) The Custodian may at any time resign and be discharged from its
\nobligations hereunder by giving 60 days written notice thereof to the Issuer,
\nthe Servicer, and to all Certificateholders at their respective addresses set
\nforth in the Certificate Register. Upon receiving such notice of resignation,
\nthe Issuer shall promptly appoint a successor Custodian acceptable to the Issuer
\nby written instrument, in duplicate, which instrument shall be delivered to the
\nresigning Custodian and to the successor Custodian, and which appointment of
\nsuccessor Custodian will not result, in and of itself, in a downgrading,
\nwithdrawal or qualification of the rating then assigned by the Rating Agencies
\nto any Class of Certificates as confirmed in writing by each of the Rating
\nAgencies. A copy of such instrument shall be delivered to the Servicer, the
\nBackup Servicer and the Certificateholders by the Issuer. If no successor
\nCustodian shall have been so appointed and have accepted appointment within 60
\ndays after the giving of such notice of resignation, the resigning Custodian may
\npetition any court of competent jurisdiction for the appointment of a successor
\nCustodian.<\/p>\n
(b) If at any time the Custodian shall cease to be eligible in accordance
\nwith the provisions of Section 11.6 and shall fail to resign after written
\nrequest therefor by the Issuer, or if at any time the Custodian shall become
\nincapable of acting, or shall be adjudged bankrupt or insolvent, or a receiver,
\nreceiver manager, trustee, liquidator or Person with similar powers respecting
\nthe Custodian or of its property shall be appointed, or any public official
\nshall take charge or control of the Custodian or of its property or affairs for
\nthe purpose of conservation or liquidation, or if the Custodian shall fail, then
\nthe Issuer may remove the Custodian and appoint a successor Custodian, if
\nnecessary, acceptable to the Servicer and the Backup Servicer by written
\ninstrument, in duplicate, which instrument shall be delivered to the Custodian
\nso removed and to<\/p>\n
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the successor Custodian. A copy of such instrument shall be delivered to the
\nServicer, the Backup Servicer and the Certificateholders by the Issuer.<\/p>\n
(c) The Certificateholders entitled to at least 66 2\/3% of the Voting
\nRights may at any time (with or without cause) remove the Custodian and appoint
\na successor Custodian, if necessary, by written instrument or instruments, in
\ntriplicate, signed by such Certificateholders or their attorneys-in-fact duly
\nauthorized, one complete set of which instruments shall be delivered to the
\nServicer, one complete set to the Custodian so removed and one complete set to
\nthe successor Custodian so appointed. A copy of such instrument shall be
\ndelivered to the Issuer, the Servicer, the Backup Servicer and the remaining
\nCertificateholders by the successor so appointed. In the event that the
\nCustodian is terminated or removed pursuant to this Section 11.17, all of its
\nrights and obligations under this Agreement and in and to the Automobile Loans
\nshall be terminated, other than any rights or obligations that accrued prior to
\nthe date of such termination or removal (including the right to receive all
\nfees, expenses and other amounts accrued or owing to it under this Agreement,
\nwith respect to periods prior to the date of such termination or removal and no
\ntermination without cause shall be effective until the payment of such amounts
\nto the Custodian).<\/p>\n
(d) Any resignation or removal of the Custodian and appointment of a
\nsuccessor Custodian pursuant to any of the provisions of this Section 11.7 shall
\nnot become effective until acceptance of appointment by the successor Custodian
\nas provided in Section 11.8.<\/p>\n
(e) Notwithstanding anything to the contrary contained in this Section
\n11.7, upon receipt of all necessary regulatory approvals, BNY Trust Company of
\nCanada shall become the Custodian upon compliance with the provisions of Section
\n11.8.<\/p>\n
11.8 Successor Custodian.<\/p>\n
(a) Any successor Custodian appointed as provided in Section 11.7 shall
\nexecute, acknowledge and deliver to the Issuer, the Servicer, the Backup
\nServicer and to its predecessor Custodian an instrument accepting such
\nappointment hereunder, and thereupon the resignation or removal of the
\npredecessor Custodian shall become effective and such successor Custodian,
\nwithout any further act, deed or conveyance, shall become fully vested with all
\nthe rights, powers, duties and obligations of its predecessor hereunder, with
\nthe like effect as if originally named as Custodian herein. The Issuer, the
\nServicer, the Backup Servicer and the predecessor Custodian shall execute and
\ndeliver such instruments and do such other things as may reasonably be required
\nto more fully and certainly vest and confirm in the successor Custodian all such
\nrights, powers, duties and obligations, and to enable the successor Custodian to
\nperform its obligations hereunder. Any resignation or removal of the Custodian
\nand appointment of a successor Custodian will not become effective until
\nacceptance of appointment by the successor Custodian. The costs of registering
\nany transfers of the ACAR Series 2002-A Certificateholders’ Assets to a
\nsuccessor Custodian shall be: (i) if the Custodian is terminated as a result of
\na material breach or default relating to the performance of its obligations
\nunder this Agreement, paid by the Custodian, and (ii) if the Custodian
\nvoluntarily resigns (except where such voluntary resignation arises in
\nconnection with BNY Trust Company of Canada becoming the Custodian, or where
\nsuch voluntary resignation is due to: (x) the material default by another party
\nhereto in the performance of said party’s obligations hereunder (including,
\nwithout limitation the non-payment of the Custodian Fee), or (y) a material
\nchange in the duties and responsibilities of the<\/p>\n
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Custodian hereunder which the Custodian has not consented to), up to a maximum
\nof, if such resignation occurs: (a) during the first year of its term as
\nCustodian, the greater of $10,000 and one half of the fees due or paid to the
\nCustodian to the date of such resignation, and (b) at any time after the first
\nyear of its term as Custodian, one half of the fees due or paid to the Custodian
\nduring the preceding 12 month period.<\/p>\n
(b) No successor Custodian shall accept appointment as provided in this
\nSection 11.8, unless at the time of such acceptance such successor Custodian
\nshall be eligible under the provisions of Section 11.6.<\/p>\n
(c) Upon acceptance of appointment by a successor Custodian as provided in
\nthis Section 11.8, such successor Custodian shall mail notice of the succession
\nof such Custodian hereunder to the Issuer and the Certificateholders.<\/p>\n
11.9 Amalgamation or Consolidation of Custodian.<\/p>\n
Any entity into which the Custodian may be amalgamated or combined or with
\nwhich it may be consolidated or any entity resulting from any amalgamation,
\nconversion or consolidation to which the Custodian shall be a party, or any
\nentity succeeding to the corporate trust business of the Custodian, shall be the
\nsuccessor of the Custodian hereunder, provided such entity shall be eligible
\nunder the provisions of Section 11.6, without the execution or filing of any
\npaper or any further act on the part of any of the parties hereto, anything
\nherein to the contrary notwithstanding.<\/p>\n
11.10 Appointment of Co-Custodian, Separate Custodian or Sub-Custodian.<\/p>\n
(a) Notwithstanding any other provisions hereof, at any time, for the
\npurpose of meeting any legal requirements of any jurisdiction in which any part
\nof the ACAR Series 2002-A Certificateholders’ Assets or property securing the
\nsame may at the time be located, the Servicer and the Custodian shall have the
\npower and shall execute and deliver all instruments to appoint one or more
\nPersons approved by the Custodian to act as co-Custodian or co-Custodians,
\njointly with the Custodian, or separate Custodian or separate Custodians, of all
\nor any part of the ACAR Series 2002-A Certificateholders’ Assets, and to vest in
\nsuch Person or Persons, in such capacity, such title to the ACAR Series 2002-A
\nCertificateholders’ Assets, or any part thereof, and, subject to the other
\nprovisions of this Section 11.10, such powers, duties, obligations and rights as
\nthe Servicer may consider necessary or desirable. No co-Custodian or separate
\nCustodian hereunder shall be required to meet the terms of eligibility as a
\nsuccessor Custodian under Section 11.6. hereunder and no notice to
\nCertificateholders of the appointment of co-Custodian(s) or separate
\nCustodian(s) shall be required under Section 11.8.<\/p>\n
(b) In the case of any appointment of a co-Custodian or separate Custodian
\npursuant to this Section 11.10 all rights, powers, duties and obligations
\nconferred or imposed upon the Custodian shall be conferred or imposed upon and
\nexercised or performed by the Custodian and such separate Custodian or
\nco-Custodian jointly, except to the extent that under any law of any
\njurisdiction in which any particular act or acts are to be performed (whether as
\nCustodian hereunder or as successor to the Servicer hereunder), the Custodian
\nshall be incompetent or unqualified to perform such act or acts, in which event
\nsuch rights, powers, duties and<\/p>\n
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obligations (including the holding of title to the ACAR Series 2002-A
\nCertificateholders’ Assets or any portion thereof in any such jurisdiction)
\nshall be exercised and performed by such separate Custodian or co-Custodian at
\nthe direction of the Custodian.<\/p>\n
(c) Any notice, request or other writing given to the Custodian shall be
\ndeemed to have been given to each of the then separate Custodians and
\nco-Custodians, as effectively as if given to each of them. Every instrument
\nappointing any separate Custodian or co-Custodian shall refer to this Agreement
\nand the conditions of this Section 11.10. Each separate Custodian and
\nco-Custodian, upon its acceptance of such appointment, shall be vested with the
\nproperty specified in its instrument of appointment, either jointly with the
\nCustodian or separately, as may be provided therein, subject to all the
\nprovisions of this Agreement, specifically including every provision of this
\nAgreement relating to the conduct of, affecting the liability of, or affording
\nprotection to, the Custodian. Every such instrument shall be filed with the
\nCustodian.<\/p>\n
(d) Any separate Custodian or co-Custodian may, at any time, constitute
\nthe Custodian, its agent or attorney-in-fact, with full power and authority, to
\nthe extent not prohibited by law, to do any lawful act under or in respect of
\nthis Agreement on its behalf and in its name. If any separate Custodian or
\nco-Custodian shall cease to exist, become incapable of acting, resign or be
\nremoved, all of its estates, properties, rights and remedies shall vest in and
\nbe exercised by the Custodian, to the extent permitted by law, without the
\nappointment of a new or successor Custodian.<\/p>\n
(e) The appointment of a co-Custodian or separate Custodian under this
\nSection 11.10 shall not relieve the Custodian of its duties and responsibilities
\nhereunder.<\/p>\n
11.11 Appointment of Authenticating Agents.<\/p>\n
(a) The Custodian may appoint one or more Authenticating Agents, which
\nshall be authorized to act on behalf of the Custodian in authenticating
\nCertificates. The Custodian is hereby initially appointed (and hereby agrees to
\nact in accordance with the terms hereof) as Authenticating Agent for the purpose
\nof authenticating Certificates executed and delivered by the Custodian under
\nArticle 7 upon original issuance or upon transfer and exchange of Certificates
\nas herein provided. Each Authenticating Agent other than the Custodian must be
\norganized and doing business as a trust company under the laws of Canada or any
\nprovince thereof, have a combined capital and surplus of at least
\n$10,000,000.00, and be subject to supervision by the Office of the
\nSuperintendent of Financial Institutions or comparable provincial authority.
\nEach Authenticating Agent shall be subject to the same obligations, standard of
\ncare, protection and indemnities as would be imposed on, or would protect, the
\nCustodian hereunder. If the Custodian is no longer the Authenticating Agent, any
\nprovision or requirement herein requiring notice or any information or
\ndocumentation to be provided to the Authenticating Agent shall be construed to
\nrequire that such notice, information or documentation also be provided to the
\nCustodian.<\/p>\n
(b) Any Person into which any Authenticating Agent may be amalgamated or
\ncombined or with which it may be consolidated, shall be a party, or any Person
\nsucceeding to the corporate agency business of any Authenticating Agent, shall
\ncontinue to be the Authenticating Agent without the execution or filing of any
\npaper or any further act on the part of the Custodian or the Authenticating
\nAgent.<\/p>\n
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(c) Any Authenticating Agent may at any time resign by giving at least 30
\ndays’ advance written notice of resignation to the Custodian, the Certificate
\nRegistrar, the Servicer and the Issuer. The Custodian may at any time terminate
\nthe agency of any Authenticating Agent by giving written notice of termination
\nto such Authenticating Agent, the Servicer, the Certificate Registrar and the
\nIssuer. Upon receiving a notice of resignation or upon such a termination, or in
\ncase at any time any Authenticating Agent shall cease to be eligible in
\naccordance with the provisions of this Section 11.11, the Custodian may appoint
\na successor Authenticating Agent, in which case the Custodian shall give written
\nnotice of such appointment to the Servicer, the Certificate Registrar and the
\nIssuer and shall mail notice of such appointment to all Certificateholders;
\nprovided, however, that no successor Authenticating Agent shall be appointed
\nunless eligible under the provisions of this Section 11.11. Any successor
\nAuthenticating Agent upon acceptance of its appointment hereunder shall become
\nvested with all the rights, powers, duties and responsibilities of its
\npredecessor hereunder, with like effect as if originally named as Authenticating
\nAgent. No Authenticating Agent shall have responsibility or liability for any
\naction taken by it as such at the direction of the Custodian.<\/p>\n
11.12 Appointment of Paying Agent.<\/p>\n
The Custodian may appoint a Paying Agent for the purpose of making
\ndistributions to Certificateholders hereunder. The Custodian shall cause such
\nPaying Agent to execute and deliver to the Custodian an instrument in which such
\nPaying Agent shall agree with the Custodian that such Paying Agent will hold all
\nsums held by it for the payment to Certificateholders in an Eligible Deposit
\nAccount in trust for the benefit of the Certificateholders entitled thereto
\nuntil such sums shall be paid to the Certificateholders. All funds remitted by
\nthe Custodian or the Servicer to any such Paying Agent for the purpose of making
\ndistributions shall be paid to Certificateholders on each Distribution Date and
\nany amounts not so paid shall be returned on such Distribution Date to the
\nCustodian or the Servicer, as applicable. If the Paying Agent is not the
\nCustodian or the Servicer, the Custodian or the Servicer shall remit to the
\nPaying Agent on the Business Day prior to each Distribution Date, by wire
\ntransfer in immediately available funds, the funds to be distributed on such
\nDistribution Date. Any Paying Agent shall be either a bank or trust company or
\notherwise authorized under law to exercise corporate trust powers and shall have
\na rating (except where the Paying Agent is The Trust Company of Bank of Montreal
\nor BNY Trust Company of Canada) of at least “A” (or its equivalent) by each of
\nMoody’s, Standard & Poor’s and DBRS, or such lower rating as will not result in
\ndowngrading or withdrawal of the ratings then assigned to the Certificates, as
\nevidenced in writing by the Rating Agencies. The Custodian may enter into
\nagreements to appoint a Paying Agent which is not the Custodian, provided that,
\nsuch agreement: (i) is consistent with this Agreement in all material respects;
\n(ii) provides that if the Custodian shall for any reason no longer act in the
\ncapacity of Custodian hereunder, the successor Custodian or its designee may
\nthereupon assume all of the rights and, except to the extent they arose prior to
\nthe date of assumption, obligations of the Paying Agent under such agreement or
\nalternatively, may terminate such agreement without cause and without payment of
\nany penalty or termination fee; and (iii) does not permit the Paying Agent any
\nrights of indemnification that may be satisfied out of the ACAR Series 2002-A
\nCertificateholders’ Assets. The appointment of any Paying Agent shall not
\nrelieve the Custodian from any of its obligations hereunder, and the Custodian
\nshall remain responsible for all acts and omissions of any Paying Agent to the
\nextent such Paying Agent would have been responsible pursuant to the terms
\nhereof. The initial Paying Agent shall be the Custodian. Notwithstanding<\/p>\n
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anything herein to the contrary, if the Custodian is no longer the Paying Agent,
\nany provision or requirement herein requiring notice or any information to be
\nprovided to the Paying Agent shall be construed to require that such notice,
\ninformation or documentation also be provided to the Custodian.<\/p>\n
11.13 Representations, Warranties and Covenants of Custodian.<\/p>\n
(a) The Custodian hereby represents and warrants to the Servicer, the
\nBackup Servicer and the Issuer and for the benefit of the Certificateholders, as
\nof the Closing Date, that:<\/p>\n
(i) The Custodian is a trust company duly organized, validly
\n existing and in good standing under the laws of Canada.<\/p>\n
(ii) The execution and delivery of this Agreement by the
\n Custodian, and the performance and compliance with the
\n terms of this Agreement by the Custodian, will not violate
\n the Custodian’s organizational documents or constitute a
\n default (or an event which, with notice or lapse of time,
\n or both, would constitute a default) under, or result in a
\n breach of, any material agreement or other material
\n instrument to which it is a party or by which it is bound.<\/p>\n
(iii) Except to the extent that the laws of certain jurisdictions
\n in which any part of the ACAR Series 2002-A
\n Certificateholders’ Assets may be located require that a
\n co-Custodian or separate Custodian be appointed to act with
\n respect to such property as contemplated by Section 11.10,
\n the Custodian has the full power and authority to carry on
\n its business as now being conducted and to enter into and
\n consummate all transactions contemplated by this Agreement
\n has duly authorized the execution, delivery and performance
\n of this Agreement and has duly executed and delivered this
\n Agreement.<\/p>\n
(iv) This Agreement, assuming due authorization, execution and
\n delivery by the other parties hereto, constitutes a valid
\n and binding obligation of the Custodian, enforceable
\n against the Custodian in accordance with the terms hereof,
\n subject to (A) applicable bankruptcy, insolvency,
\n reorganization, moratorium and other laws affecting the
\n enforcement of creditors’ rights generally and the rights
\n of creditors of banks, and (B) general principles of
\n equity, regardless of whether such enforcement is
\n considered in a proceeding in equity or at law.<\/p>\n
(v) The Custodian is not in violation of, and its execution and
\n delivery of this Agreement and its performance and
\n compliance with the terms of this Agreement will not
\n constitute a violation of, any law, any order or decree of
\n any court or arbiter, or any order, regulation or demand of
\n any federal, provincial or local governmental or regulatory
\n authority, which violation, in the Custodian’s good faith
\n and reasonable judgment, is likely to affect<\/p>\n
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materially and adversely the ability of the Custodian to
\n perform its obligations under this Agreement.<\/p>\n
(vi) No litigation is pending or, to the best of the Custodian’s
\n knowledge, threatened against the Custodian that, if
\n determined adversely to the Custodian, would prohibit the
\n Custodian from entering into this Agreement or, in the
\n Custodian’s good faith and reasonable judgment, is likely
\n to materially and adversely affect the ability of the
\n Custodian to perform its obligations under this Agreement.<\/p>\n
(vii) Any consent, approval, authorization or order of any court
\n or governmental agency or body required for the execution,
\n delivery and performance by the Custodian of or compliance
\n by the Custodian with this Agreement or the consummation of
\n the transactions contemplated by this Agreement has been
\n obtained and is effective.<\/p>\n
ARTICLE 12
\n TERMINATION<\/p>\n
12.1 Termination.<\/p>\n
The respective obligations of the Seller, the Issuer, the Servicer, the
\nBackup Servicer and the Custodian created hereby and the co-ownership
\narrangement created by this Agreement shall terminate and be of no further force
\nor effect upon the earlier of (i) the final distribution by the Custodian of all
\nmoneys or other property or proceeds of the ACAR Series 2002-A
\nCertificateholders’ Assets in accordance with the terms of this Agreement or
\n(ii) the time provided in Section 12.2 at which AmeriCredit Canada succeeds to
\nthe interests of the Certificateholders in and to the ACAR Series 2002-A
\nCertificateholders’ Assets.<\/p>\n
12.2 Optional Purchase of All Automobile Loans.<\/p>\n
(a) On any Distribution Date on which the Adjusted Certificate Balance
\n(after giving effect to distributions or deposits) to be made on such date
\n(otherwise than from the proceeds of any Optional Purchase Price deposited to
\nthe Collection Account pursuant to this Section) shall be less than or equal to
\n10% of the initial Adjusted Certificate Balance, AmeriCredit Canada shall have
\nthe option to purchase the ACAR Series 2002-A Certificateholders’ Assets (other
\nthan the Custodial Accounts and the funds or Eligible Investments on deposit
\ntherein or credited thereto); provided, however, that the amount to be paid for
\nsuch purchase (as set forth in the following sentence) shall be sufficient to
\npay the full amount of the aggregate Adjusted Certificate Balance of all Classes
\nof Offered Certificates then outstanding and any unpaid Certificate Rate
\namounts. To exercise such option, AmeriCredit Canada, shall deposit an amount
\n(the “Optional Purchase Price”) equal to the aggregate Purchase Amount for the
\nAutomobile Loans (including Liquidated Automobile Loans), plus the appraised
\nvalue of any other property held by the Custodian, such value to be determined
\nby an appraiser mutually agreed upon by the Servicer and the Custodian. Upon
\nsuch deposit of the Optional Purchase Price in the Collection Account,
\nAmeriCredit Canada shall succeed to all interests of the Certificateholders in
\nand to the<\/p>\n
-73-<\/p>\n
ACAR Series 2002-A Certificateholders’ Assets (other than the Custodial Accounts
\nand the funds or Eligible Investments on deposit therein or credited thereto).<\/p>\n
(b) Upon the exercise of the “purchase right” in Section 12.2(a), the
\nCustodian shall apply the Optional Purchase Price deposited by AmeriCredit
\nCanada into the Collection Account to (i) make the distributions and payments
\nrequired under Sections 6.4(a)(i) and (ii), as applicable, (ii) make the final
\ndistributions in respect of any remaining outstanding Certificateholders’
\nCertificate Rate Distributable Amounts, Maturity Advances and Certificate
\nBalances, and (iii) deposit the balance to the Spread Account for application in
\naccordance with Sections 6.5 and 6.6.<\/p>\n
ARTICLE 13
\n MISCELLANEOUS PROVISIONS<\/p>\n
13.1 Amendment.<\/p>\n
(a) This Agreement may be amended from time to time by the parties hereto,
\nwith the consent of the Custodian (which consent may not be unreasonably
\nwithheld) but without the consent of any of the Certificateholders, to cure any
\nambiguity, to correct or supplement any provisions in this Agreement, or to make
\nany other provisions with respect to matters or questions arising under this
\nAgreement which shall not be inconsistent with the provisions of this Agreement;
\nprovided, however, that such action shall not, as evidenced by an Opinion of
\nCounsel delivered to the Custodian, adversely affect in any material respect the
\ninterests of any Certificateholder.<\/p>\n
(b) This Agreement may also be amended from time to time by the Seller,
\nthe Servicer and the Issuer, with the consent of a Certificate Majority for the
\npurpose of adding any provisions to or changing in any manner or eliminating any
\nof the provisions of this Agreement or of modifying in any manner the rights of
\nthe Certificateholders; provided, however, that no such amendment shall (i)
\nincrease or reduce in any manner the amount of, or accelerate or delay the
\ntiming of, collections of payments on Automobile Loans or distributions that are
\nrequired to be made for the benefit of the Certificateholders, or (ii) reduce
\nthe aforesaid percentage of the Certificateholders required to consent to any
\nsuch amendment, without the consent of the holders of all the outstanding
\nCertificates.<\/p>\n
(c) Promptly after the execution of any such amendment, the Custodian
\nshall furnish written notification of the substance of such amendment or consent
\nto each Certificateholder and the Rating Agencies.<\/p>\n
(d) It shall not be necessary for the consent of Certificateholders
\npursuant to this Section to approve the particular form of any proposed
\namendment, but it shall be sufficient if such consent shall approve the
\nsubstance thereof. The manner of obtaining such consents (and any other consents
\nof Certificateholders provided for in this Agreement) and of evidencing the
\nauthorization of any action by Certificateholders shall be subject to such
\nreasonable requirements as the Custodian may prescribe.<\/p>\n
-74-<\/p>\n
(e) Prior to the execution of any amendment to this Agreement, the
\nCustodian and Backup Servicer shall be entitled to receive and conclusively rely
\nupon an Opinion of Counsel stating that the execution of such amendment is
\nauthorized or permitted by this Agreement and the Opinion of Counsel referred to
\nin Section 13.2(h)(i) has been delivered. The Custodian and the Backup Servicer
\nmay, but shall not be obligated to, enter into any such amendment which affects
\nthe Issuer’s, the Custodian’s or the Backup Servicer’s, as applicable, own
\nrights, duties or immunities under this Agreement or otherwise.<\/p>\n
13.2 Protection of Title to Issuer.<\/p>\n
(a) The Servicer shall execute and file such financing statements,
\nassignments and other documents and cause to be executed, delivered and filed
\nsuch financing change or other statements, assignments and other documents
\n(collectively, the “Financing Statements”), all in such manner and in such
\nplaces as may be required by law fully to preserve, maintain and protect the
\ninterest of the Issuer and the interests of the Custodian and the
\nCertificateholders in the Automobile Loans and in the proceeds thereof. The
\nSeller shall deliver (or cause to be delivered) to the Custodian file-stamped
\ncopies of, or filing receipts for, any document filed as provided above, as soon
\nas available following such filing.<\/p>\n
(b) Neither the Seller nor the Servicer shall change its name, identity or
\ncorporate structure in any manner that would, could or might make any Financing
\nStatement filed in accordance with paragraph (a) above seriously misleading,
\nunless it shall have given the Custodian at least five days’ prior written
\nnotice thereof and shall have promptly filed appropriate amendments to all
\npreviously filed Financing Statements. Promptly upon such filing, the Seller or
\nthe Servicer, as the case may be, shall deliver an Opinion of Counsel in form
\nand substance reasonably satisfactory to the Custodian, stating either (A) all
\nfinancing statements and financing change statements have been executed and
\nfiled that are necessary fully to preserve and protect the interest of the
\nIssuer and the Custodian in the Automobile Loans, and reciting the details of
\nsuch filings or referring to prior Opinions of Counsel in which such details are
\ngiven, or (B) no such action shall be necessary to preserve and protect such
\ninterest.<\/p>\n
(c) Each of the Seller and the Servicer shall have an obligation to give
\nthe Custodian at least 60 days’ prior written notice of any relocation of its
\nprincipal executive office if, as a result of such relocation, the applicable
\nprovisions of the PPSA would require the filing of any amendment of any
\npreviously filed Financing Statement or of any new Financing Statement and shall
\npromptly file any such amendment. The Servicer shall at all times maintain each
\noffice from which it shall service Automobile Loans, and its principal executive
\noffice, within Canada.<\/p>\n
(d) The Servicer shall maintain accounts and records as to each Automobile
\nLoan accurately and in sufficient detail to permit (i) the reader thereof to
\nknow at any time the status of such Automobile Loan, including payments and
\nrecoveries made and payments owing (and the nature of each) and (ii)
\nreconciliation between payments or recoveries on (or with respect to) each
\nAutomobile Loan and the amounts from time to time deposited in the Collection
\nAccount in respect of such Automobile Loan.<\/p>\n
(e) The Servicer shall maintain its computer systems so that, from and
\nafter the time of sale under this Agreement of the Automobile Loans to the
\nIssuer, the Servicer’s master<\/p>\n
-75-<\/p>\n
computer records (including any backup archives) that refer to an Automobile
\nLoan shall indicate clearly the interest of the Issuer in such Automobile Loan
\nand that such Automobile Loan is owned by the Issuer. Indication of the Issuer’s
\ninterest in an Automobile Loan shall be deleted from or modified on the
\nServicer’s computer systems when, and only when, the related Automobile Loan
\nshall have been paid in full or repurchased.<\/p>\n
(f) If at any time the Seller or the Servicer shall propose to sell,
\ngrant a security interest in or otherwise transfer any interest in automotive
\nreceivables to any prospective purchaser, lender or other transferee, the
\nServicer shall give to such prospective purchaser, lender or other transferee
\ncomputer tapes, records or printouts (including any restored from backup
\narchives) that, if they shall refer in any manner whatsoever to any Automobile
\nLoan, shall indicate clearly that such Automobile Loan has been sold and is
\nowned by the Issuer.<\/p>\n
(g) Upon request, the Servicer shall furnish to the Custodian, within
\nfive Business Days, a list of all Automobile Loans (by contract number and name
\nof Obligor) then held as part of the ACAR Series 2002-A Certificateholders’
\nAssets, together with a reconciliation of such list to the Schedule of
\nAutomobile Loans and to each of the Servicer’s Certificates furnished before
\nsuch request indicating removal of Automobile Loans from the Issuer.<\/p>\n
(h) The Seller and the Servicer shall deliver to the Issuer and the
\nCustodian :<\/p>\n
(i) promptly after the execution and delivery of the Agreement
\n and, if required pursuant to Section 13.1, of each amendment,
\n an Opinion of Counsel stating that, in the opinion of such
\n Counsel, in form and substance reasonably satisfactory to the
\n Custodian, either (A) all Financing Statements have been
\n executed and filed that are necessary fully to preserve and
\n protect the interest of the Custodian and the
\n Certificateholders in the Automobile Loans, and reciting the
\n details of such filings or referring to prior Opinions of
\n Counsel in which such details are given, or (B) no such action
\n shall be necessary to preserve and protect such interest; and<\/p>\n
(ii) within 90 days after the beginning of each calendar year
\n beginning with the first calendar year beginning more than
\n three months after the Cut-off Date, an Opinion of Counsel,
\n dated as of a date during such 90-day period, stating that, in
\n the opinion of such counsel, either (A) all Financing
\n Statements have been executed and filed that are necessary
\n fully to preserve and protect the interest of the Custodian
\n and the Certificateholders in the Automobile Loans, and
\n reciting the details of such filings or referring to prior
\n Opinions of Counsel in which such details are given, or (B) no
\n such action shall be necessary to preserve and protect such
\n interest.<\/p>\n
Each Opinion of Counsel referred to in clause (i) or (ii) above
\nshall specify any action necessary (as of the date of such opinion) to be taken
\nin the following year to preserve and protect such interest.<\/p>\n
-76-<\/p>\n
13.3 Notices.<\/p>\n
All demands, notices and communications upon or to the Seller, the
\nServicer or the Rating Agencies under this Agreement shall be in writing,
\npersonally delivered, or mailed by certified mail, return receipt requested, and
\nshall be deemed to have been duly given upon receipt (a) in the case of the
\nSeller to AmeriCredit Canada 2002-A Corp., c\/o AmeriCredit Corp., 801 Cherry
\nStreet, Fort Worth, Texas 76102, Attention: Chief Financial Officer (b) in the
\ncase of the Servicer to AmeriCredit Financial Services of Canada Ltd., 801
\nCherry Street, Suite 3900, Fort Worth, Texas 76102, Attention: Chief Financial
\nOfficer, (c) in the case of the Issuer, to Merrill Lynch Financial Assets Inc.,
\n181 Bay Street, Suite 500, Toronto, Ontario, Canada, M5J 2V8, Attention: Mark
\nDickerson, (d) in the case of the Custodian, at the Corporate Trust Office, (e)
\nin the case of the Backup Servicer to Bank One, NA, 1111 Polaris Parkway, Ste
\n1K, Columbus, OH 43240, Attention Global Trust Corporate Services, (f) in the
\ncase of Moody’s, to Moody’s Investors Service, Inc., ABS Monitoring Department,
\n99 Church Street, New York, New York 10007; (g) in the case of Standard & Poor’s, to Standard & Poor’s Ratings Group, 55 Water Street, New York, New York
\n10041, Attention: Asset Backed Surveillance Department and (h) in the case of
\nDBRS, 200 King Street West, Suite 1304, Sun Life Centre West Tower, P.O. Box 34,
\nToronto, Ontario M5H 3T4, Attention: Structured Finance. Any notice required or
\npermitted to be mailed to a Certificateholder shall be given by first class
\nmail, postage prepaid, at the address of such Certificateholder as shown in the
\nCertificate Register. Any notice so mailed within the time prescribed in the
\nAgreement shall be conclusively presumed to have been duly given, whether or not
\nthe Certificateholder shall receive such notice.<\/p>\n
13.4 Assignment.<\/p>\n
This Agreement shall inure to the benefit of and be binding upon the
\nparties hereto and their respective successors and permitted assigns.
\nNotwithstanding anything to the contrary contained herein, except as provided in
\nSections 8.4 and 9.3 and as provided in the provisions of this Agreement
\nconcerning the resignation of the Servicer, this Agreement may not be assigned
\nby the Seller or the Servicer without the prior written consent of the
\nCustodian, the Backup Servicer and a Certificate Majority.<\/p>\n
13.5 Limitations on Rights of Others.<\/p>\n
The provisions of this Agreement are solely for the benefit of the parties
\nhereto, the Interest Rate Cap Counterparty Provider and the Certificateholders,
\nas third-party beneficiaries. Nothing in this Agreement, whether express or
\nimplied, shall be construed to give to any other Person any legal or equitable
\nright, remedy or claim under or in respect of this Agreement or any covenants,
\nconditions or provisions contained herein.<\/p>\n
13.6 Severability.<\/p>\n
Any provision of this Agreement that is prohibited or unenforceable in any
\njurisdiction shall, as to such jurisdiction, be ineffective to the extent of
\nsuch prohibition or unenforceability without invalidating the remaining
\nprovisions hereof, and any such prohibition or unenforceability in any
\njurisdiction shall not invalidate or render unenforceable such provision in any
\nother jurisdiction.<\/p>\n
-77-<\/p>\n
13.7 Separate Counterparts.<\/p>\n
This Agreement may be executed by the parties hereto in separate
\ncounterparts, each of which when so executed and delivered shall be an original,
\nbut all such counterparts shall together constitute but one and the same
\ninstrument.<\/p>\n
13.8 Headings.<\/p>\n
The headings of the various Articles and Sections herein are for
\nconvenience of reference only and shall not define or limit any of the terms or
\nprovisions hereof.<\/p>\n
13.9 Governing Law.<\/p>\n
This Agreement shall be governed by and construed in accordance with the
\nlaws of the Province of Ontario and the federal laws of Canada applicable
\ntherein, and each of the parties hereby attorns to the non-exclusive
\njurisdiction of the courts of the Province of Ontario.<\/p>\n
13.10 Nonpetition Covenants.<\/p>\n
(a) Notwithstanding any prior termination of this Agreement, the Servicer
\nand the Seller shall not, prior to the date which is one year and one day after
\nthe termination of this Agreement with respect to the Issuer, acquiesce,
\npetition or otherwise invoke or cause the Issuer to invoke the process of any
\ncourt or government authority for the purpose of commencing or sustaining a case
\nagainst the Issuer under any federal or provincial bankruptcy, insolvency or
\nsimilar law or appointing a receiver, liquidator, assignee, trustee, custodian,
\nsequestrator or other similar official of the Issuer or any substantial part of
\nits property, or ordering the winding up or liquidation of the affairs of the
\nIssuer.<\/p>\n
(b) Notwithstanding any prior termination of this Agreement, the Servicer
\nshall not, prior to the date that is one year and one day after the termination
\nof this Agreement with respect to the Seller, acquiesce to, petition or
\notherwise invoke or cause the Seller to invoke the process of any court or
\ngovernment authority for the purpose of commencing or sustaining a case against
\nthe Seller under any federal or provincial bankruptcy, insolvency or similar
\nlaw, appointing a receiver, liquidator, assignee, trustee, custodian,
\nsequestrator, or other similar official of the Seller or any substantial part of
\nits property, or ordering the winding up or liquidation of the affairs of the
\nSeller.<\/p>\n
13.11 Limitation of Liability of Custodian.<\/p>\n
Notwithstanding anything contained herein to the contrary, The Trust
\nCompany of Bank of Montreal has entered into this Agreement not in its
\nindividual capacity but solely in its capacity as Custodian. No property or
\nassets of The Trust Company of Bank of Montreal, whether beneficially owned by
\nit in its individual capacity or otherwise, will be subject to levy, execution
\nor other enforcement procedure with regard to any obligations hereunder. No
\nrecourse may be had or taken, directly or indirectly, against The Trust Company
\nof Bank of Montreal, in its individual capacity, or any incorporator,
\nshareholder, officer, director, employee or agent of The Trust Company of Bank
\nof Montreal or of any predecessor or successor of The Trust Company of Bank of
\nMontreal or their respective property and assets with regard to any of its<\/p>\n
-78-<\/p>\n
obligations hereunder. Any reference in this Section 13.11 to “The Trust Company
\nof Bank of Montreal” shall mean “The Trust Company of Bank of Montreal and its
\nsuccessors and permitted assigns”.<\/p>\n
13.12 Independence of the Servicer.<\/p>\n
For all purposes of this Agreement, the Servicer shall be an independent
\ncontractor and shall not be subject to the supervision of the Issuer, the
\nCustodian and Backup Servicer with respect to the manner in which it
\naccomplishes the performance of its obligations hereunder. Unless expressly
\nauthorized by this Agreement, the Servicer shall have no authority to act for or
\nrepresent the Issuer or the Custodian in any way and shall not otherwise be
\ndeemed an agent of the Issuer or the Custodian.<\/p>\n
13.13 No Joint Venture.<\/p>\n
Nothing contained in this Agreement (i) shall constitute the Servicer and
\neither of the Issuer or the Custodian as members of any partnership, joint
\nventure, association, syndicate, unincorporated business or other separate
\nentity, (ii) shall be construed to impose any liability as such on any of them
\nor (iii) shall be deemed to confer on any of them any express, implied or
\napparent authority to incur any obligation or liability on behalf of the others.<\/p>\n
[Signature pages follow.]<\/p>\n
-79-<\/p>\n
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
\nduly executed and delivered by their respective duly authorized officers as of
\nthe day and the year first above written.<\/p>\n
AMERICREDIT CANADA 2002-A CORP., as Seller<\/p>\n
By: ___________________________________________
\n Name:
\n Title:<\/p>\n
MERRILL LYNCH FINANCIAL ASSETS INC., as Issuer<\/p>\n
By: ___________________________________________
\n Name:
\n Title:<\/p>\n
AMERICREDIT FINANCIAL SERVICES OF CANADA LTD.,
\n as Servicer<\/p>\n
By: ___________________________________________
\n Name:
\n Title:<\/p>\n
BANK ONE, NA, as Backup Servicer<\/p>\n
By: ___________________________________________
\n Name:
\n Title:<\/p>\n
THE TRUST COMPANY OF BANK OF MONTREAL, as
\n Custodian<\/p>\n
By: ___________________________________________
\n Name:
\n Title:<\/p>\n
SCHEDULE A<\/p>\n
SCHEDULE OF AUTOMOBILE LOANS<\/p>\n
SCHEDULE B<\/p>\n
SCHEDULE OF REPRESENTATIONS AND WARRANTIES<\/p>\n
1. Characteristics of Automobile Loans. Each Automobile Loan (A) was
\n originated (i) by AmeriCredit Canada, or (ii) by a Dealer and purchased by
\n AmeriCredit Canada from such Dealer under an existing Dealer Agreement or
\n pursuant to a Dealer Assignment with AmeriCredit Canada and was validly
\n assigned by such Dealer to AmeriCredit Canada pursuant to a Dealer
\n Assignment, (B) was originated by the Seller or such Dealer for the retail
\n sale of a Financed Vehicle in the ordinary course of the Seller’s or the
\n Dealer’s business, in each case was originated in accordance with the
\n Seller’s credit policies and was fully and properly executed by the
\n parties thereto, and the Seller and each Dealer had all necessary licenses
\n and permits to originate Automobile Loans in the province where the Seller
\n or each such Dealer was located, (C) contains customary and enforceable
\n provisions such as to render the rights and remedies of the holder thereof
\n adequate for realization against the collateral security, (D) is an
\n Automobile Loan which provides for level monthly payments (provided that
\n the period in the first Collection Period and the payment in the final
\n Collection Period of the Automobile Loan may be minimally different from
\n the normal period and level payment) which, if made when due, shall fully
\n amortize the Amount Financed over the original term, and (E) has not been
\n amended or collections with respect to which waived, other than as
\n evidenced in the Automobile Loan File relating thereto.<\/p>\n
2. Fraud or Misrepresentation. Each Automobile Loan was originated (i) by the
\n Seller, or (ii) by a Dealer and was sold by the Dealer to the Seller,
\n without any fraud or misrepresentation on the part of such Dealer in any
\n case.<\/p>\n
3. Compliance with Law. All requirements of applicable federal, provincial
\n and local laws, and regulations thereunder (including, without limitation,
\n consumer protection and cost of credit disclosure laws) in respect of the
\n Automobile Loans and the Financed Vehicles, have been complied with in all
\n material respects, and each Automobile Loan and the sale of the Financed
\n Vehicle evidenced by each Automobile Loan complied at the time it was
\n originated or made and now complies in all material respects with all
\n applicable legal requirements.<\/p>\n
4. Origination. Each Automobile Loan was originated in Canada, is payable in
\n Canadian dollars and is one for which the related Obligor has provided to
\n the Servicer a billing address located in Canada and is not one for which
\n the related Obligor is an Affiliate of the Seller.<\/p>\n
5. Binding Obligation. Each Automobile Loan represents the genuine, legal,
\n valid and binding payment obligation of the Obligor thereon, enforceable
\n by the holder thereof in accordance with its terms, except as
\n enforceability may be limited by bankruptcy, insolvency, reorganization or
\n similar laws affecting the enforcement of creditors’ rights generally and
\n by equitable limitations on the availability of specific remedies,
\n regardless of whether such enforceability is considered in a proceeding in
\n equity or at law; and all<\/p>\n
-2-<\/p>\n
parties to each Automobile Loan had full legal capacity to execute and
\n deliver such Automobile Loan and all other documents related thereto and
\n to grant the security interest purported to be granted thereby.<\/p>\n
6. No Government Obligor. None of the Automobile Loans is due from the
\n Government of Canada or any province or from any Canadian agency,
\n department or instrumentality.<\/p>\n
7. Obligor Bankruptcy. At the related Cut-off Date no Obligor had been
\n identified on the records of the Seller as being the subject of a current
\n bankruptcy proceeding.<\/p>\n
8. Schedule of Automobile Loans. The information set forth in the Schedule of
\n Automobile Loans has been produced from the Electronic Ledger and was true
\n and correct in all material respects as of the close of business on the
\n related Cut-off Date.<\/p>\n
9. Marking Records. By the Closing Date, the Seller will have caused the
\n portions of the Electronic Ledger relating to the Automobile Loans to be
\n clearly and unambiguously marked to show that the Automobile Loans have
\n been sold to the Seller by AmeriCredit Canada and resold by the Seller to
\n the Issuer in accordance with the terms of the Pooling and Servicing
\n Agreement.<\/p>\n
10. Computer Tape. The Computer Tape made available by the Seller to the
\n Issuer on the Closing Date was complete and accurate as of the related
\n Cut-off Date and includes a description of the same Automobile Loans that
\n are described in the Schedule of Automobile Loans.<\/p>\n
11. Adverse Selection. No selection procedures adverse to the
\n Certificateholders were utilized in selecting the Automobile Loans from
\n those receivables owned by the Seller which met the selection criteria
\n contained in the Pooling and Servicing Agreement.<\/p>\n
12. Chattel Paper. Each Automobile Loan constitutes “chattel paper” as defined
\n in the PPSA of the provincial law of which governs the perfection of the
\n interest granted in it.<\/p>\n
13. One Original. There is only one original executed copy of each Automobile
\n Loan.<\/p>\n
14. Automobile Loan Files Complete. There exists an Automobile Loan File
\n pertaining to each Automobile Loan and such Automobile Loan File contains
\n (a) a fully executed original of the Automobile Loan and (b) the original
\n executed credit application, or a paper or electronic copy thereof. Each
\n of such documents which is required to be signed by the Obligor has been
\n signed by the Obligor in the appropriate spaces. All blanks on any form
\n have been properly filled in and each form has otherwise been correctly
\n prepared. The complete Automobile Loan File for each Automobile Loan
\n currently is in the possession of the Custodian or the Documentary
\n Custodian, as applicable.<\/p>\n
15. Automobile Loans in Force. No Automobile Loan has been satisfied,
\n subordinated or rescinded, and the Financed Vehicle securing each such
\n Automobile Loan has not been released from the lien of the related
\n Automobile Loan in whole or in part. No terms of any Automobile Loan have
\n been waived, altered or modified in any respect since its origination,
\n except by instruments or documents identified in the Automobile Loan File.<\/p>\n
-3-<\/p>\n
16. Lawful Assignment. No Automobile Loan was originated in, or is subject to
\n the laws of, any jurisdiction the laws of which would make unlawful, void
\n or voidable the sale, transfer and assignment of such Automobile Loan
\n under this Agreement or pursuant to transfers of the Certificates.<\/p>\n
17. Good Title. Immediately prior to the conveyance of the Automobile Loans to
\n the Issuer pursuant to this Agreement, the Seller was the sole owner
\n thereof and had good and indefeasible title thereto, free of any Lien and,
\n upon execution and delivery of this Agreement by the Seller, the Issuer
\n shall have good and indefeasible title to and will be the sole owner of
\n such Automobile Loans, free of any Lien. No Dealer has a participation in,
\n or other right to receive, proceeds of any Automobile Loan. The Seller has
\n not taken any action to convey any right to any Person that would result
\n in such Person having a right to payments received under the related
\n Insurance Policies or the related Dealer Agreements or to payments due
\n under such Automobile Loans.<\/p>\n
18. Security Interest in Financed Vehicle. Each Automobile Loan creates or
\n shall create a valid, binding and enforceable first priority security
\n interest in favour of the Seller in the Financed Vehicle in favour of the
\n Seller as secured party. Immediately after the sale, transfer and
\n assignment thereof by the Seller to the Issuer and by the Issuer to the
\n Custodian, each Automobile Loan will be secured by an enforceable and
\n perfected first priority security interest in the Financed Vehicle in
\n favor of the Custodian as secured party, which security interest is prior
\n to all other Liens upon and security interests in such Financed Vehicle
\n which now exist or may hereafter arise or be created (except, as to
\n priority, for any lien for taxes, labour or materials affecting a Financed
\n Vehicle). As of the related Cut-off Date there were no Liens or claims for
\n taxes, work, labour or materials affecting a Financed Vehicle which are or
\n may be Liens prior or equal to the Liens of the related Automobile Loan.<\/p>\n
19. All Filings Made. All filings (including, without limitation, PPSA
\n filings) required to be made by any Person and actions required to be
\n taken or performed by any Person in any jurisdiction to give the Issuer a
\n first priority perfected lien on, or ownership interest in, the Purchased
\n Assets and the proceeds thereof have been made, taken or performed.<\/p>\n
20. No Impairment. The Seller has not done anything to convey any right to any
\n Person that would result in such Person having a right to payments due
\n under the Automobile Loan or otherwise to impair the rights of the Issuer,
\n the Custodian and the Certificateholders in any Automobile Loan or the
\n proceeds thereof.<\/p>\n
21. Automobile Loan Not Assumable. No Automobile Loan is assumable by another
\n Person in a manner which would release the Obligor thereof from such
\n Obligor’s obligations to the Seller with respect to such Automobile Loan.<\/p>\n
22. No Defenses. No Automobile Loan is subject to any right of rescission,
\n setoff, counterclaim or defense and no such right has been asserted or
\n threatened with respect to any Automobile Loan.<\/p>\n
-4-<\/p>\n
23. No Default. There has been no default, breach, violation or event
\n permitting acceleration under the terms of any Automobile Loan (other than
\n payment delinquencies of not more than 30 days), and no condition exists
\n or event has occurred and is continuing that with notice, the lapse of
\n time or both would constitute a default, breach, violation or event
\n permitting acceleration under the terms of any Automobile Loan, and there
\n has been no waiver of any of the foregoing. As of the related Cut-off Date
\n no Financed Vehicle had been repossessed.<\/p>\n
24. Insurance. At the time of an origination of an Automobile Loan by the
\n Seller or a purchase of an Automobile Loan by the Seller from a Dealer,
\n each Financed Vehicle is required to be covered by a comprehensive and
\n collision insurance policy (i) in an amount at least equal to the lesser
\n of (a) its maximum insurable value or (b) the principal amount due from
\n the Obligor under the related Automobile Loan, (ii) naming AmeriCredit as
\n loss payee and (iii) insuring against loss and damage due to fire, theft,
\n transportation, collision and other risks generally covered by
\n comprehensive and collision coverage. Each Automobile Loan requires the
\n Obligor to maintain physical loss and damage insurance, naming AmeriCredit
\n Canada and its successors and assigns as additional insured parties, and
\n each Automobile Loan permits the holder thereof to obtain physical loss
\n and damage insurance at the expense of the Obligor if the Obligor fails to
\n do so. No Financed Vehicle is insured under a policy of Force-Placed
\n Insurance on the related Cut-off Date.<\/p>\n
25. Remaining Principal Balance. At the related Cut-off Date the Principal
\n Balance of each Automobile Loan set forth in the Schedule of Automobile
\n Loans is true and accurate in all material respects.<\/p>\n
26. Certain Characteristics of Automobile Loans. (A) Each Automobile Loan had
\n a remaining maturity, as of the Cut-off Date, of not more than 72 months;
\n (B) each Automobile Loan had an original maturity of not more than 72
\n months; (C) each Automobile Loan had a Principal Balance as of the Cut-off
\n Date of not more than $100,000 and not less than $250; (D) each Automobile
\n Loan has an Annual Percentage Rate of at least 7% and not more than 33%;
\n (E) no Automobile Loan was in a repossessed status and no related Obligor
\n was the subject of any voluntary or involuntary bankruptcy or insolvency
\n proceeding; (F) no Automobile Loan was more than 60 days past due as of
\n the Cut-off Date (and if any Automobile Loan was past due as of the
\n Cut-off Date, such Automobile Loan was not one which caused the percentage
\n of the Pool Balance, determined as of the Statistical Calculation Date and
\n the Cut-off Date and, which is comprised of Automobile Loans which are 31
\n to 60 days past due, to exceed 10%); and (G) no funds have been advanced
\n by the Seller, any Dealer, or anyone acting on behalf of any of them in
\n order to cause any Automobile Loan to qualify under clause (F) above.<\/p>\n
27. No Assignability Restrictions. No Automobile Loan is subject to any
\n restriction on the sale or assignment thereof, including, without
\n limitation, any requirement that the related Obligor consent to any such
\n sale or assignment.<\/p>\n
SCHEDULE C<\/p>\n
SERVICING POLICIES AND PROCEDURES<\/p>\n
The Collection Process<\/p>\n
Compliance with provincial and federal collection laws is required of all
\nAmeriCredit Canada Collection Personnel.<\/p>\n
AmeriCredit Canada mails each customer a monthly billing statement 16 to 20 days
\nbefore payment is due.<\/p>\n
A. All accounts are issued to the Computer Assisted Collection System
\n (“CACS”) at 5 days delinquent or at such other dates of delinquency as
\n determined by historical payment patterns of the account.<\/p>\n
B. The CACS segregates accounts into two groups: loans less than 30 days
\n delinquent and those over 30 days delinquent.<\/p>\n
C. Loans delinquent for less than 30 days are then further segregated into
\n two groups: accounts that have good phone numbers and those that do not.<\/p>\n
D. Loans with good phone numbers are transferred to the Davox system
\n (AmeriCredit Canada’s predictive dialling system). The system
\n automatically dials the phone number related to a delinquent account. When
\n a connection is made, the account is then routed to the next available
\n account representative.<\/p>\n
E. Loans without good phone numbers are assigned to front-end collectors.<\/p>\n
F. All reasonable collection efforts are made in an attempt to prevent these
\n accounts from becoming 30+ days delinquent – this includes the use of
\n collection letters. Collection letters may be utilized between 15th and
\n 25th days of delinquency.<\/p>\n
G. When an account reaches 31 days delinquent, a collector determines if any
\n default notification is required in the state where the debtor lives.<\/p>\n
H. When an account exceeds 61 days delinquent, the loan is assigned to a
\n hard-core collector who will continue the collection effort. If the
\n account cannot be resolved through normal collection efforts (i.e.,
\n satisfactory payment arrangements) then the account may be submitted for
\n repossession approval. An officer must approve all repossession requests.<\/p>\n
I. CACS allows each collector to accurately document and update each customer
\n file when contact (verbal or written) is made.<\/p>\n
-2-<\/p>\n
Repossessions<\/p>\n
If repossession of the collateral occurs, the following steps are taken:<\/p>\n
A. Proper authorities are notified (if applicable).<\/p>\n
B. An inventory of all personal property is taken and a condition report is
\n prepared on the vehicle.<\/p>\n
C. Written notification, as required by state law, is sent to the customer(s)
\n stating their rights of redemption or reinstatement along with information
\n on how to obtain any personal property that was in the vehicle at the time
\n of repossession.<\/p>\n
D. Written request to the originating dealer for all refunds due for dealer
\n adds is made.<\/p>\n
E. Collateral disposition through public or private sale, (dictated by state
\n law), in a commercially reasonable manner, through a third-party auto
\n auction.<\/p>\n
F. After the collateral is liquidated, the debtor(s) is notified in writing of
\n the deficiency balance owed, if any.<\/p>\n
Use of Due Date Changes<\/p>\n
Due dates may be changed subject to the following conditions:<\/p>\n
G. The account is contractually current or will be brought current with the
\n due date change.<\/p>\n
H. Due date changes cannot exceed the total of 15 days over the life of the
\n contract.<\/p>\n
I. The first instalment payment has been paid in full.<\/p>\n
J. Only one due date change in a twelve month period.<\/p>\n
An Officer must approve any exceptions to the above stated policy.<\/p>\n
Use of Payment Deferments<\/p>\n
A payment deferral is offered to customers who have the desire and capacity to
\nmake future payments but who have encountered temporary financial difficulties,
\nwith management approval.<\/p>\n
K. Without prior approval, minimum of six payments have been made on the
\n account and a minimum of nine payments have been made since the most recent
\n deferment (if any).<\/p>\n
L. The account will be brought current with the deferment, but not paid ahead,
\n without management approval.<\/p>\n
M. A deferment fee is collected on all transactions.<\/p>\n
-3-<\/p>\n
N. No more than eight total payments may be deferred over the life of the
\n loan, without management approval.<\/p>\n
An Officer must approve any exceptions to the above stated policy.<\/p>\n
Charge-Offs<\/p>\n
It is AmeriCredit Canada’s policy that any account that is not successfully
\nrecovered by 120 days delinquent is submitted to an Officer for approval and
\ncharge-off.<\/p>\n
It is AmeriCredit Canada’s policy to carry all bankruptcy accounts until 120
\ndays delinquent. A partial charge-off is taken for the unsecured portion of the
\naccount. On fully reaffirmed bankruptcy accounts, the accounts can be deferred
\ncurrent at the time of discharge.<\/p>\n
Deficiency Collections<\/p>\n
Accounts are assigned to third party collection agencies for deficiency
\ncollections.<\/p>\n
EXHIBIT A-1<\/p>\n
CLASS A-1 CERTIFICATE<\/p>\n
– See Attached –<\/p>\n
EXHIBIT A-2<\/p>\n
CLASS A-2 CERTIFICATE<\/p>\n
– See Attached –<\/p>\n
EXHIBIT A-3<\/p>\n
CLASS A-3 CERTIFICATE<\/p>\n
– See Attached –<\/p>\n
EXHIBIT A-4<\/p>\n
CLASS B CERTIFICATE<\/p>\n
– See Attached –<\/p>\n
EXHIBIT A-5<\/p>\n
CLASS C CERTIFICATE<\/p>\n
– See Attached –<\/p>\n
EXHIBIT A-6<\/p>\n
CLASS R CERTIFICATE<\/p>\n
– See Attached –<\/p>\n
EXHIBIT B<\/p>\n
SERVICER’S CERTIFICATE<\/p>\n
– See Attached –<\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6685,6848,6850],"corporate_contracts_industries":[9415,9416],"corporate_contracts_types":[9564,9560],"class_list":["post-41210","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-americredit-corp","corporate_contracts_companies-bank-of-montreal","corporate_contracts_companies-bank-one-corp","corporate_contracts_industries-financial__banks","corporate_contracts_industries-financial__credit","corporate_contracts_types-finance__factor","corporate_contracts_types-finance"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/41210","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=41210"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=41210"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=41210"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=41210"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}