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SECURITY AND FUNDING AGREEMENT
BY AND AMONG
AMERICREDIT MANHATTAN TRUST, as Borrower,
THE CHASE MANHATTAN BANK,
as Administrative Agent on behalf
of the Secured Parties
and as Securities Intermediary
AND
THE SEVERAL SECURED PARTIES AND FUNDING AGENTS
PARTY HERETO FROM TIME TO TIME
Dated as of September 14, 2000
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TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS
Section 1.1 Defined Terms..........................................................................1
ARTICLE II
THE COLLATERAL
Section 2.1 Grant of Security Interest by the Borrower.............................................2
Section 2.2 No Transfer of Duties..................................................................3
Section 2.3 Termination and Release of Rights......................................................3
ARTICLE III
THE ADMINISTRATIVE AGENT
Section 3.1 Appointment and Powers.................................................................4
Section 3.2 Performance of Duties..................................................................4
Section 3.3 Limitation on Liability................................................................5
Section 3.4 Indemnification........................................................................5
Section 3.5 Compensation and Reimbursement.........................................................6
Section 3.6 Waiver of Setoffs......................................................................6
Section 3.7 Control by the Required Lending Groups.................................................6
Section 3.8 Successor Administrative Agent.........................................................6
Section 3.9 Notices to Funding Agents..............................................................7
ARTICLE IV
REPRESENTATIONS, WARRANTIES AND COVENANTS
OF THE BORROWER
Section 4.1 Representations and Warranties of the Borrower.........................................7
Section 4.2 Covenants of the Borrower.............................................................10
ARTICLE V
REQUIRED LENDING GROUPS; INTERCREDITOR PROVISIONS
Section 5.1 Authority of Required Lending Groups..................................................14
Section 5.2 Rights of Secured Parties.............................................................14
Section 5.3 Degree of Care........................................................................14
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ARTICLE VI
TERMINATION EVENTS; REMEDIES
Section 6.1 Termination Events; Remedies..........................................................15
Section 6.2 Restoration of Rights and Remedies....................................................17
Section 6.3 No Remedy Exclusive...................................................................18
ARTICLE VII
FUNDINGS; THE VFN
Section 7.1 Loans to Borrower; Funding Procedures; the VFN........................................18
Section 7.2 Sharing of Payments, Etc..............................................................28
Section 7.3 Right of Setoff.......................................................................28
Section 7.4 Interest..............................................................................29
Section 7.5 Payments Generally....................................................................29
Section 7.6 Broken Funding........................................................................30
Section 7.7 Conversion and Continuation of Outstanding Advances Made by the APA Banks.............30
Section 7.8 Illegality............................................................................31
Section 7.9 Inability to Determine Eurodollar Rate................................................32
Section 7.10 Fees..................................................................................32
ARTICLE VIII
INDEMNIFICATION
Section 8.1 Indemnity.............................................................................32
Section 8.2 Indemnity for Reserves and Expenses...................................................34
Section 8.3 Indemnity for Taxes...................................................................36
Section 8.4 Other Costs, Expenses and Related Matters.............................................37
ARTICLE IX
MISCELLANEOUS
Section 9.1 Further Assurances....................................................................38
Section 9.2 Waiver................................................................................38
Section 9.3 Amendments; Waivers...................................................................38
Section 9.4 Severability..........................................................................39
Section 9.5 Nonpetition Covenant..................................................................39
Section 9.6 Notices...............................................................................39
Section 9.7 Term of this Agreement................................................................40
Section 9.8 Assignments; Third-Party Rights.......................................................40
Section 9.9 Consent of Required Lending Groups....................................................40
Section 9.10 Limitation of Liability...............................................................40
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Section 9.11 Counterparts..........................................................................40
Section 9.12 Headings..............................................................................40
Section 9.13 No Recourse Against Certain Parties...................................................40
Section 9.14 Respective Rights of the Borrower and the Secured Parties in the Collateral...........41
Section 9.15 Consents to Jurisdiction..............................................................41
Section 9.16 Trial by Jury Waived..................................................................42
Section 9.17 Liabilities and Rights of Funding Agents..............................................42
Section 9.18 CP Lenders Generally..................................................................43
Section 9.19 Governing Law.........................................................................44
Section 9.20 No Recourse...........................................................................44
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SECURITY AND FUNDING AGREEMENT
SECURITY AND FUNDING AGREEMENT, dated as of September 14,
2000 (this "AGREEMENT"), by and among AMERICREDIT MANHATTAN TRUST, a Delaware
business trust (the "BORROWER"), THE CHASE MANHATTAN BANK, a New York banking
corporation, as administrative agent on behalf of the Secured Parties and as
securities intermediary hereunder (together with its successors and assigns
in such capacities, the "ADMINISTRATIVE AGENT" and the "SECURITIES
INTERMEDIARY", respectively) and THE SEVERAL SECURED PARTIES AND FUNDING
AGENTS PARTY HERETO FROM TIME TO TIME.
W I T N E S S E T H :
WHEREAS, pursuant to the Sale and Servicing Agreement,
dated as of the date hereof (the "SALE AND SERVICING AGREEMENT"), among the
Sellers, the Servicer, the Backup Servicer, the Borrower, and the
Administrative Agent, the Sellers intend to sell to the Borrower from time to
time all of their rights, title and interests in and to certain receivables,
securities and the other property specified therein; and
WHEREAS, the Borrower desires to obtain financing for the
purchase of such receivables and securities; and
WHEREAS, it is a condition, among others, to the Borrower's
obtaining advances hereunder that the Borrower grant to the Administrative
Agent on behalf of the Secured Parties a first priority security interest in
all of the Borrower's right, title and interest in and to the Receivables,
the Asset Backed Securities and the other property specified herein;
NOW THEREFORE, for good and valuable consideration, the
adequacy, receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 DEFINED TERMS. Terms defined in Annex A to the
Sale and Servicing Agreement, unless otherwise defined herein, shall have
such defined meanings when used herein.
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ARTICLE II
THE COLLATERAL
Section 2.1 GRANT OF SECURITY INTEREST BY THE BORROWER.
(a) The Borrower hereby grants to the Administrative Agent,
on behalf of and for the benefit of the Secured Parties to secure the payment
and performance of the respective Secured Obligations, a security interest in
all of the Borrower's right, title and interest, whether now owned or
hereafter acquired and wherever located, in, to and under all accounts,
contract rights, general intangibles, chattel paper, instruments, documents,
money, cash, deposit accounts, certificates of deposit, goods, letters of
credit, advices of credit securities investment property, financial assets,
security entitlements or instruments consisting of, arising from or relating
to any of the following property: (i) the Receivables; (ii) the Other
Conveyed Property related thereto; (iii) the Asset Backed Securities
(including, in the case of Asset Backed Securities in certificated form, each
certificate evidencing the Asset Backed Securities); (iv) the rights and
benefits of the Borrower under (x) the Sale and Servicing Agreement, (y) each
Receivables Sale Agreement and ABS Sale Agreement entered into between the
relevant Seller and the Borrower pursuant to the Sale and Servicing
Agreement, including, but not limited to, the right to cause the relevant
Seller to repurchase Receivables or Asset Backed Securities, as the case may
be, from the Borrower under certain circumstances, and (z) the ABS Documents
relating to the Asset Backed Securities; (v) all amounts required to be
deposited, or delivered to the Administrative Agent for deposit, from time to
time to the Collection Account; (vi) the Pledged Accounts and all funds on
deposit from time to time in Pledged Accounts and all property credited
thereto, and in all investments and proceeds thereof (including all income
thereon); (vii) all funds on deposit from time to time in the Lockbox Account
and all property credited thereto and all rights and benefits of the Borrower
under the Lockbox Agreement; (viii) all amounts owing to the Borrower and all
other rights of the Borrower under any Hedge Contract; and (ix) all present
and future claims, demands, causes and choses in action in respect of any or
all of the foregoing and all payments on or under and all proceeds of every
kind and nature whatsoever in respect of any and all of the foregoing,
including all proceeds of the conversion, voluntary or involuntary, into cash
or other liquid property, all cash proceeds, accounts, accounts receivables,
notes, drafts, acceptances, chattel paper, checks, deposit accounts,
insurance proceeds, condemnation awards, rights to payment of any and every
kind and other forms of obligations and receivables, investment property,
financial assets, security entitlements or instruments and other property
which at any time constitute all or part of or are included in the proceeds
of any of the foregoing (collectively, the "COLLATERAL").
The Administrative Agent, for the benefit of the Secured
Parties, acknowledges such grant of a security interest.
(b) The Borrower hereby assigns to the Administrative Agent
for the benefit of the Secured Parties all of its rights under the Sale and
Servicing Agreement (but not its obligations).
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(c) In order to effect the provisions and purposes of this
Agreement, including for the purpose of perfecting the security interests
granted hereunder, the Borrower represents and warrants that it has, on or
prior to or on the date of this Agreement, executed and filed or caused to be
filed appropriate UCC-1 financing statements in Delaware and has taken all
other action necessary to ensure that the Administrative Agent, as agent for
the Secured Parties, has a first priority perfected security interest in all
of the Collateral that can be perfected by the filing of a financing
statement. Furthermore, on and as of each Receivables Sale Date, the Borrower
hereby represents and warrants that the Borrower and the relevant Seller have
taken all other steps necessary under all applicable law in order to cause to
exist in favor of the Administrative Agent, on behalf of the Secured Parties,
a valid, subsisting and enforceable first priority perfected security
interest in the Borrower's first priority perfected security interest in each
Asset Backed Security and in the Financed Vehicle securing each Receivable
pledged hereunder on such date (and the proceeds of such Financed Vehicle)
(PROVIDED, HOWEVER, that, prior to (X) the occurrence of a Servicer
Termination Event, a Potential Servicer Termination Event, a Termination
Event or a Potential Termination Event and the request by the Administrative
Agent or, (Y) at any time, the request by the Required Lending Groups, for
the recordation of the Borrower's and/or the Administrative Agent's lien on
such Financed Vehicle's certificate of title, no such recordation shall be
required), and such security interest is and shall be prior to all other
liens upon and security interests in such Financed Vehicle that now exist or
may hereafter arise or be created.
Section 2.2 NO TRANSFER OF DUTIES. The security interests
granted hereby are granted as security only and shall not (i) transfer or in
any way affect or modify, or relieve the Borrower from, any obligation to
perform or satisfy any term, covenant, condition or agreement to be performed
or satisfied by the Borrower under or in connection with this Agreement or
any other Basic Agreement to which it is a party or (ii) impose any
obligation on any of the Secured Parties or the Administrative Agent to
perform or observe any such term, covenant, condition or agreement or impose
any liability on any of the Secured Parties or the Administrative Agent for
any act or omission on its part relative thereto or for any breach of any
representation or warranty on its part contained therein or made in
connection therewith except, in each case, to the extent specifically
provided herein and in the other Basic Agreements.
Section 2.3 TERMINATION AND RELEASE OF RIGHTS.
(a) On each VFN Prepayment Date, the Administrative Agent
shall, at the expense of the Borrower: execute such instruments of release
with respect to the Prepayment Related Collateral, in recordable form if
necessary, in favor of the Borrower as the Borrower may reasonably request;
deliver any Prepayment Related Collateral in its possession to the Borrower;
and otherwise take such actions, and/or cause or permit the Servicer to take
such actions, at the Borrower's expense, as are necessary and appropriate to
release the lien of this Agreement and release and deliver to the Borrower
the Prepayment Related Collateral.
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(b) On the Termination Date, except as otherwise provided
herein, the rights, remedies, powers, duties, authority and obligations
conferred upon the Administrative Agent and each Secured Party pursuant to
this Agreement shall terminate and be of no further force and effect and all
rights, remedies, powers, duties, authority and obligations of the
Administrative Agent and each Secured Party with respect to the Collateral
shall be automatically released. On the Termination Date, the Administrative
Agent and each Secured Party agrees, at the expense of the Borrower, to
execute such instruments of release, in recordable form if necessary, in
favor of the Borrower as the Borrower may reasonably request, to deliver any
Collateral in its possession to the Borrower, and otherwise to take such
actions, and/or cause or permit the Servicer to take such actions, as are
necessary and appropriate to release the lien of this Agreement and release
and deliver to the Borrower the Collateral.
(c) To the extent, if any, otherwise required of the
Borrower by the terms of any Basic Agreement and permitted by the terms
hereof and thereof, the Administrative Agent may, and otherwise upon the
prior written instructions of a respective Authorized Officer of each Funding
Agent that is a member of the Required Lending Groups, the Administrative
Agent shall, at the expense of the Borrower take (in each case) such steps as
may be necessary, or as the Borrower, in a manner consistent with the Basic
Agreements, may reasonably request, to release the interests of the Secured
Parties in any items of the Collateral, including but not limited to
redelivering and reassigning to the Borrower any releases necessary to permit
the Borrower to transfer its interest in such items of the Collateral in
accordance with the terms of the Basic Agreements.
(d) No more than twice per month, the Administrative Agent
shall, at the Borrower's request and at the expense of the Borrower: execute
such instruments of release with respect to Receivables or Asset Backed
Securities that are not part of the Pool Balance, in recordable form if
necessary in favor of the Borrower as the Borrower may request; deliver any
related Collateral in its possession to the Borrower; and otherwise take such
actions, and/or cause the Servicer to take such action, at the Borrower's
expense, as are necessary or appropriate to release the lien of this
Agreement and release and deliver to the Borrower the related Collateral.
ARTICLE III
THE ADMINISTRATIVE AGENT
Section 3.1 APPOINTMENT AND POWERS. The Secured Parties
hereby appoint The Chase Manhattan Bank as the Administrative Agent, and The
Chase Manhattan Bank has accepted such appointment and has agreed to act as
Administrative Agent with respect to the Collateral for the Secured Parties
and to perform the other duties of the Administrative Agent in accordance
with the provisions of this Agreement and the other Basic Agreements.
Section 3.2 PERFORMANCE OF DUTIES. The Administrative
Agent shall have no duties or responsibilities except those expressly set
forth in this Agreement and
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the other Basic Agreements to which the Administrative Agent is a party or as
directed by the Required Lending Groups in accordance with this Agreement.
The Administrative Agent shall not be required to take any discretionary
actions hereunder except at the written direction and with the
indemnification of the Required Lending Groups.
Section 3.3 LIMITATION ON LIABILITY. Neither the
Administrative Agent nor any of its directors, officers or employees, shall
be liable for any action taken or omitted to be taken by it or them
hereunder, or in connection herewith, except that the Administrative Agent
shall be liable for its gross negligence, bad faith or willful misconduct;
nor shall the Administrative Agent be responsible for the validity,
effectiveness, value, sufficiency or enforceability against any Seller, the
Servicer or the Borrower of this Agreement or any of the Collateral (or any
part thereof). Notwithstanding any term or provision of this Agreement, the
Administrative Agent shall incur no liability to any Seller, the Servicer,
the Borrower, the Funding Agents or the Secured Parties for any action taken
or omitted by the Administrative Agent in connection with the Collateral,
except for the gross negligence, bad faith or willful misconduct on the part
of the Administrative Agent, and shall incur no liability to any Seller, the
Servicer, the Borrower, the Funding Agents or the Secured Parties except for
gross negligence, bad faith or willful misconduct in carrying out its duties.
Subject to Section 3.4, the Administrative Agent shall be protected and shall
incur no liability to any such party in relying upon the genuineness of any
notice, demand, certificate, signature, instrument or other document
reasonably believed by the Administrative Agent to be genuine and to have
been duly executed by the appropriate signatory, and (absent actual knowledge
to the contrary) the Administrative Agent shall not be required to make any
independent investigation with respect thereto. The Administrative Agent
shall at all times be free independently to establish to its reasonable
satisfaction, but shall have no duty to independently verify, the existence
or nonexistence of facts that are a condition to the exercise or enforcement
of any right or remedy hereunder or under any of the other Basic Agreements.
The Administrative Agent may consult with counsel, and shall not be liable
for any action taken or omitted to be taken by it hereunder in good faith and
in accordance with the advice of such counsel. The Administrative Agent shall
not be under any obligation to exercise any of the remedial rights or powers
vested in it by this Agreement or to follow any direction from the Required
Lending Groups or any Secured Party, unless it shall have received reasonable
security or indemnity satisfactory to the Administrative Agent against the
costs, expenses and liabilities which might be incurred by it.
Section 3.4 INDEMNIFICATION. The Borrower shall indemnify
the Administrative Agent, its directors, officers, employees and agents for,
and hold the Administrative Agent, its directors, officers, employees and
agents harmless against, any loss, liability or expense (including the costs
and expenses of defending against any claim of liability) arising out of or
in connection with the Administrative Agent's acting as Administrative Agent
hereunder, except such loss, liability or expense as shall result from the
gross negligence, bad faith or willful misconduct of the Administrative Agent
or its officers or agents. The obligation of the Borrower under this Section
3.4 shall survive the termination of this Agreement and the resignation or
removal of the Administrative Agent.
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Section 3.5 COMPENSATION AND REIMBURSEMENT. The Borrower
agrees for the benefit of the Secured Parties and as part of the Secured
Obligations (a) to pay to the Administrative Agent, from time to time,
reasonable compensation for all services rendered by it hereunder as set
forth in the Fee Letter (which compensation shall not be limited by any
provision of law in regard to the compensation of a collateral trustee); and
(b) to reimburse the Administrative Agent upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Administrative
Agent in accordance with any provision of, or carrying out its duties and
obligations under, this Agreement (including the reasonable compensation and
fees and the expenses and disbursements of its agents, any independent
certified public accountants and independent counsel), except any expense,
disbursement or advances as may be attributable to gross negligence, bad
faith or willful misconduct on the part of the Administrative Agent.
Section 3.6 WAIVER OF SETOFFS. The Administrative Agent
hereby expressly waives any and all rights of setoff that the Administrative
Agent may otherwise at any time have under applicable law with respect to any
Pledged Account and agrees that amounts in the Pledged Accounts shall at all
times be held and applied solely in accordance with the provisions hereof and
of the other Basic Agreements.
Section 3.7 CONTROL BY THE REQUIRED LENDING GROUPS. To the
extent the Administrative Agent is entitled to consent to or withhold its
consent to any waiver or amendment of this Agreement or the other Basic
Agreements in accordance with the terms hereof or thereof or otherwise take
or omit to take action upon the occurrence of a Servicer Termination Event, a
Potential Servicer Termination Event, Termination Event or Potential
Termination Event, the Administrative Agent shall (a) give prompt notice to
the Funding Agents of any such waiver, amendment, Servicer Termination Event,
Potential Servicer Termination Event, Termination Event or Potential
Termination Event of which it is aware and (b) take such action with respect
to such waiver, amendment, Servicer Termination Event, Potential Servicer
Termination Event, Termination Event or Potential Termination Event as shall
be directed by the Funding Agents of all Lending Groups (unless the direction
of the Required Lending Groups is expressly required with respect to a
particular provision).
Section 3.8 SUCCESSOR ADMINISTRATIVE AGENT. The
Administrative Agent may, upon 15 days' notice to each Funding Agent (with a
copy to the Sellers), and the Administrative Agent will, at the direction of
the Required Lending Groups, resign as Administrative Agent; PROVIDED, in
either case, that such resignation shall not become effective until a
successor Administrative Agent has been appointed hereunder in accordance
with the next sentence. If the Administrative Agent shall resign as
Administrative Agent under this Agreement, then all Lending Groups shall
appoint from among the APA Banks and Funding Agents a successor agent,
whereupon such successor agent shall succeed to the rights, powers and duties
of the Administrative Agent, and the term "Administrative Agent" shall mean
such successor agent, effective upon its acceptance of such appointment and
its delivery of a duly executed counterpart of this Agreement and an
acknowledgment of such appointment to each Funding Agent, and the former
Administrative Agent's rights, powers and duties as Administrative Agent
shall be terminated, without any other or further act or deed on the part of
such former
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Administrative Agent or any of the parties to this Agreement. After the
retiring Administrative Agent's resignation hereunder as Administrative
Agent, the provisions of this Article III shall inure to its benefit as to
any actions taken or omitted to be taken by it while it was Administrative
Agent under this Agreement.
The resigning Administrative Agent shall be entitled to
compensation accrued up to the date of resignation. The resigning
Administrative Agent shall be liable (under the terms hereof) for its actions
or inaction prior to the effective date of resignation.
Section 3.9 NOTICES TO FUNDING AGENTS. The Administrative
Agent shall promptly (and in any case no later than five (5) Business Days
from receipt) forward to the Funding Agents copies of any report, certificate
or other document delivered by the Borrower, the Servicer or any Seller to
the Administrative Agent under the Basic Agreements.
ARTICLE IV
REPRESENTATIONS, WARRANTIES AND COVENANTS
OF THE BORROWER
Section 4.1 REPRESENTATIONS AND WARRANTIES OF THE
BORROWER. The Borrower represents and warrants to the Administrative Agent,
the Funding Agents and the Secured Parties as of the date hereof, the
Effective Date and each Funding Date that:
(a) ORGANIZATION AND GOOD STANDING. The Borrower has been
duly organized and is validly existing as a business trust under the laws of
the State of Delaware, with power and authority to own its properties and to
conduct its business as such properties are currently owned and such business
is currently conducted. The Borrower had at all relevant times and now has,
power, authority and legal right to acquire and own the Conveyed Property,
Conveyed Securities and the Other Conveyed Property, and to grant to the
Administrative Agent a security interest in the Collateral and to enter into
and perform its obligations under this Agreement.
(b) DUE QUALIFICATION; POWER AND AUTHORITY; NO VIOLATION.
The Borrower is duly qualified to do business as a foreign entity in good
standing, and has obtained all necessary licenses and approvals, in all
jurisdictions in which the ownership or lease of its property or the conduct
of its business requires such qualification. The Borrower has the power and
authority to execute and deliver this Agreement and the other Basic
Agreements to which it is a party and to carry out its terms and their terms,
respectively; the Borrower has full power and authority to grant to the
Administrative Agent, for the benefit of the Secured Parties, a perfected
first priority security interest in the Collateral and has duly authorized
such grant by all necessary trust action; and the execution, delivery and
performance of this Agreement and the other Basic Agreements to which it is a
party have been duly authorized by the Borrower by all necessary corporate
action. The Trustee is duly authorized to execute for and on behalf of the
Borrower this Agreement and the other Basic Agreements to which the Borrower
is a
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party. The execution, delivery and performance by the Borrower of this
Agreement and the other Basic Agreements to which it is a party require no
action by or in respect of, or filing with, any governmental body, agency or
official, and do not contravene, or constitute a default under, any provision
of applicable law or regulation or of the Trust Agreement or of any
agreement, judgment, injunction, order, decree or other instrument binding
upon the Borrower or result in the creation or imposition of any Lien on
assets of the Borrower (other than the Lien of this Agreement), or require
the consent or approval of, or the filing of any notice or other
documentation with, any governmental authority or other Person. The Borrower
has not entered into any other Agreements other than the Basic Agreements and
agreements necessary for the transactions contemplated thereby.
(c) BINDING EFFECT. Each of this Agreement and the other
Basic Agreements to which it is a party constitutes the legal, valid and
binding obligation of the Borrower, enforceable against the Borrower in
accordance with its terms, subject to applicable bankruptcy, insolvency,
moratorium or other similar laws affecting the rights of creditors.
(d) ACCURACY OF INFORMATION. All information heretofore
furnished by the Borrower to the Administrative Agent, the Funding Agents and
the Secured Parties for purposes of, or in connection with, this Agreement or
any transaction contemplated hereby is, and all such information hereafter
furnished by the Borrower to the Administrative Agent and the Secured Parties
will be, true and accurate in every material respect, on the date such
information is stated or certified.
(e) TAX STATUS. All tax returns (Federal, state and local)
required to be filed with respect to the Borrower have been filed, and there
has been paid or adequate provision made for the payment of all taxes,
assessments and other governmental charges in respect of the Borrower.
(f) ACTION, SUITS. There are no actions, suits or
proceedings pending or threatened against or affecting the Borrower or its
properties, in or before any court, arbitrator or other body, which may have
a material adverse effect on the Borrower's ability to perform its
obligations hereunder or under the other Basic Agreements.
(g) USE OF PROCEEDS. The proceeds of any Funding will be
used by the Borrower to acquire the Receivables, the Asset Backed Securities
and Other Conveyed Property related to the Receivables and Asset-Backed
Securities from the Sellers pursuant to the Sale and Servicing Agreement.
(h) PLACE OF BUSINESS. The chief place of business and
chief executive office of the Borrower are located at the Corporate Trust
Office.
(i) MERGER AND CONSOLIDATION. The Borrower has not changed
its name, merged with or into or been consolidated with any other entity or
been the subject of any proceeding under Title 11, United States Code
(Bankruptcy).
(j) SOLVENCY. The Borrower is not insolvent and will not be
rendered insolvent immediately following the consummation on the Effective
Date and on any
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Funding Date of the transactions contemplated by this Agreement and the other
Basic Agreements, including (but not limited to) the pledge by the Borrower
to the Administrative Agent of the Collateral in accordance with this
Agreement.
(k) NO TERMINATION EVENT. After giving effect to each
Funding, no Potential Termination Event or Termination Event exists.
(l) COMPLIANCE. The Borrower has complied in all material
respects with all Requirements of Law in respect of the conduct of its
business and ownership of its property.
(m) NOT AN INVESTMENT COMPANY. The Borrower is not an
"investment company" within the meaning of the Investment Company Act of
1940, as amended, or is exempt from all provisions of such Act.
(n) ERISA. The Borrower is in compliance in all material
respects with ERISA, and no lien in favor of the Pension Benefit Guaranty
Corporation on any of the Receivables or Other Conveyed Property shall exist.
(o) OWNERSHIP OF THE BORROWER. One hundred percent (100%)
of the outstanding beneficial interest in the Borrower is and will be
directly owned (both beneficially and of record) by two holders and such
holders shall not include any Person other than the Primary Seller and the
Secondary Seller. All such certificates are and will be validly issued, and
there are no options, warrants or other rights to acquire such certificates
of the Borrower.
(p) NO MATERIAL ADVERSE CHANGE. Since June 30, 2000, and in
the case of the Borrower, as of the date of its formation, there has been no
material adverse change in the business, assets, operations, prospects or
conditions (financial or otherwise) of the Sellers, or the Servicer, either
individually or taken as a whole.
(q) CHARACTERISTICS OF RECEIVABLES AND ASSET BACKED
SECURITIES. Each of the statements listed on Schedules B and C of the Sale
and Servicing Agreement is true and correct.
Any document, instrument, certificate or notice delivered
to the Administrative Agent or the Secured Parties by, or on behalf of, the
Borrower or its Affiliates hereunder or under the other Basic Agreements
shall be deemed a representation and warranty of the contents thereof by the
Borrower.
The representations and warranties set forth in this
Section 4.1 shall survive the pledge and assignment of the Collateral to the
Administrative Agent for the benefit of the Secured Parties. Upon discovery
by the Borrower, the Secured Parties or the Administrative Agent of a breach
of any of the foregoing representations and warranties, the party discovering
such breach shall give prompt written notice to the others.
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Section 4.2 COVENANTS OF THE BORROWER. The Borrower hereby
covenants with the Administrative Agent and the Secured Parties that, for so
long as this Agreement shall be in effect:
(a) PRESERVATION OF COLLATERAL. Subject to the rights,
powers and authorities granted to the Administrative Agent and the Secured
Parties in this Agreement, the Borrower shall take such action as is
necessary and proper with respect to the Collateral in order to preserve and
maintain such Collateral and to cause (subject to the rights of the Secured
Parties) the Administrative Agent to perform its obligations with respect to
such Collateral as provided herein. The Borrower will do, execute,
acknowledge and deliver, or cause to be done, executed, acknowledged and
delivered, such instruments of transfer or take such other steps or actions
as may be necessary, or required by the Required Lending Groups, to perfect
the security interests granted hereunder in the Collateral, to ensure that
such security interests rank prior to all other Liens and to preserve the
priority of such security interests and the validity and enforceability
thereof. Upon any delivery or substitution of Collateral, the Borrower shall
be obligated to execute such documents and perform such actions as are
necessary to create in the Administrative Agent for the benefit of the
Secured Parties a valid first Lien on, and valid and perfected first priority
security interest in, the Collateral so delivered and to deliver such
Collateral to the Administrative Agent, free and clear of any other Lien,
together with satisfactory assurances thereof, and to pay any reasonable
costs incurred by any of the Secured Parties or the Administrative Agent
(including its agents) or otherwise in connection with such delivery. The
Borrower will not take any action to cause the Collateral or any portion
thereof to be an instrument (as such term is defined in the Relevant UCC).
(b) NOTICES. In the event that the Borrower acquires
knowledge of the occurrence and continuance of any Termination Event or
Potential Termination Event under any of the Basic Agreements, the Borrower
shall immediately give notice thereof to the Administrative Agent and the
Funding Agents. The Funding Agents shall immediately forward such notices to
the Secured Parties.
(c) WAIVER OF STAY OR EXTENSION LAWS; MARSHALLING OF
ASSETS. To the fullest extent permitted by applicable law, the Borrower will
not at any time insist upon, plead, or in any manner whatsoever claim or take
the benefit or advantage of, any appraisement, valuation, stay, extension or
redemption law wherever enacted, now or at any time hereafter in force, in
order to prevent or hinder the enforcement of this Agreement or any absolute
sale of the Collateral or any part thereof, or the possession thereof by any
purchaser at any sale under Article VI of this Agreement; and the Borrower,
to the fullest extent permitted by applicable law, for itself and all who may
claim under it, hereby waives the benefit of all such laws, and covenants
that it will not hinder, delay or impede the execution of any power herein
granted to the Administrative Agent, but will suffer and permit the execution
of every such power as though no such law had been enacted.
(d) NONINTERFERENCE, ETC. The Borrower shall not (i) except
to the extent expressly permitted or contemplated by Section 5.2 of the Sale
and Servicing
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Agreement, waive or alter, or permit to be waived or altered any of its
rights under the Collateral (or any agreement or instrument relating thereto)
without the prior written consent of the Administrative Agent (acting at the
direction of the Required Lending Groups); or (ii) fail to pay any tax,
assessment, charge or fee levied or assessed against the Collateral, or to
defend any action, if such failure to pay or defend may adversely affect the
priority or enforceability of the Borrower's right, title or interest in and
to the Collateral or the Administrative Agent's lien on, and security
interest in, the Collateral for the benefit of the Secured Parties; or (iii)
take any action, or fail to take any action, if such action or failure to
take action will interfere with the enforcement of any rights under the Basic
Agreements.
(e) CHANGE IN NAME, STRUCTURE, ETC. The Borrower shall not
change its name, identity or corporate structure unless it shall have given
the Administrative Agent at least 30 days' prior written notice thereof,
shall have effected any necessary or appropriate filings of financing
statements or amendments thereto, and shall have delivered to the
Administrative Agent an Opinion of Counsel either (a) stating that, in the
opinion of such counsel, such action has been taken with respect to the
execution and filing of any amendments to previously recorded financing
statements and continuation statements and other actions as are necessary to
perfect, maintain and protect the lien and security interest of the
Administrative Agent (and the priority thereof), on behalf of the Secured
Parties, with respect to such Collateral and reciting the details of such
action, or (b) stating that, in the opinion of such counsel, no such action
is necessary to maintain such perfected lien and security interest.
(f) RELOCATION OF THE BORROWER. The Borrower shall not
change its chief executive office unless it gives the Administrative Agent at
least 30 days' prior written notice thereof. If the Borrower relocates its
chief executive office or principal place of business from the Corporate
Trust Office, the Borrower shall effect whatever appropriate recordations and
filings are necessary and shall provide an Opinion of Counsel to the
Administrative Agent, on behalf of the Required Lending Groups, to the effect
that, upon the recording of any necessary assignments or amendments to
previously-recorded assignments and filing of any necessary amendments to the
previously filed financing or continuation statements or upon the filing of
one or more specified new financing statements, and the taking of such other
actions as may be specified in such opinion, the security interests in the
Collateral shall remain, after such relocation, valid and perfected.
(g) LIMITATIONS ON ACTIVITIES. The Borrower shall not,
without the prior written consent of the Administrative Agent (acting at the
direction of all Lending Groups):
(i) engage in any business or activity other
than those set forth in Section 2.3 of the Trust Agreement;
(ii) incur any indebtedness, assume or guaranty
any indebtedness of any other entity, other than any indebtedness to
either Seller thereof incurred in connection with the acquisition of
Receivables and Other
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Conveyed Property, which indebtedness shall be subordinated as set
forth in the Receivables Sale Agreement, or engage in any transactions
with any Affiliates, except as contemplated under this Agreement and
the other Basic Agreements (PROVIDED that this clause shall not be
deemed to prohibit the sale of Receivables, on arm's-length terms, to
an Affiliate of the Borrower in connection with an Optional Prepayment
pursuant to this Agreement; PROVIDED, FURTHER, that no such sales
shall be permitted to be made to AFS unless such sale is in connection
with a public asset-backed transaction);
(iii) institute proceedings to be adjudicated
bankrupt or insolvent, or consent to the institution of bankruptcy or
insolvency proceedings against it, or file a petition seeking or
consent to reorganization or relief under any applicable federal or
state law relating to bankruptcy, or consent to the appointment of a
receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of the trust or a substantial part of its property, or make
any assignment for the benefit of creditors, or admit in writing its
inability to pay its debts generally as they become due, or take any
action in furtherance of any such action;
(iv) fail to (A) to the extent the Borrower's
office is located in the offices of either Seller or any Affiliate of
either Seller, pay fair market rent for its executive office space
located in the offices of either Seller or any Affiliate of either
Seller, (B) maintain the Borrower's books, financial statements,
accounting records and other corporate documents and records separate
from those of the Sellers or any other entity, (C) not commingle the
Borrower's assets with those of the Sellers or any other entity,
(D) act solely in its name and through its own authorized officers
and agents, (E) make investments directly or by brokers engaged and
paid by the Borrower or its agents (PROVIDED that if any such agent
is an Affiliate of the Borrower, it shall be compensated at a fair
market rate for its services), (F) separately manage the Borrower's
liabilities from those of the Sellers or any Affiliates of the Sellers
and pay its own liabilities, including all administrative expenses,
from its own separate assets, and (G) pay from the Borrower's own
assets all obligations and indebtedness of any kind incurred by the
Borrower;
(v) amend, alter, change or repeal the Trust
Agreement as in effect on the date hereof;
(vi) make any distribution to its equity
holders, if: (A) any Termination Event or Potential Termination Event
has then occurred and remains continuing or would result from such
payment or other distribution; or (B), after giving effect thereto, the
Borrower's net worth, determined in accordance with GAAP (but exclusive
of funds that constitute the Collection Account Reserve and exclusive
of the value of the Hedge Contract(s)), would be less than the greater
of (x) five percent (5%) of the VFN Balance and (y) five percent (5%)
of the largest VFN Balance that had at any time during the Facility
Term been outstanding; or (C) such distribution is Receivables or Asset
Backed Securities and such
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distribution is not in connection with a public-asset backed
transaction; or (D) such distribution is Receivables or Asset Backed
Securities which are not included in the Pool Balance; and
(vii) merge with or into or be consolidated
with any other entity.
(h) FINANCIAL REPORTING. The Borrower will maintain for
itself a system of accounting established and administered in accordance with
GAAP, and will furnish to the Administrative Agent for the benefit of the
Secured Parties:
(i) QUARTERLY REPORTING. Within forty-five
(45) days after the close of the first three quarterly periods of each
of the Borrower's fiscal years, for AmeriCredit Corp., consolidated
unaudited balance sheets (which shall include those of the Borrower
and the Servicer) as at the close of such period and consolidated
related statements of operations and cash flows for the period from
the beginning of such fiscal year to the end of such quarter, all
certified by an Authorized Officer of AmeriCredit Corp.
(ii) ANNUAL REPORTING. Within ninety (90) days
after the close of the final quarterly period of each of the Borrower's
fiscal years, for AmeriCredit Corp., consolidated audited balance
sheets reported on by the Independent Accountants (which shall include
those of the Borrower and the Servicer) as at the close of each such
fiscal year and consolidated related statements of operations and cash
flows reported on by the Independent Accountants for the period from
the beginning of such fiscal year to the end of such fiscal year, all
certified by an Authorized Officer of AmeriCredit Corp.
(iii) COMPLIANCE CERTIFICATE. Together with the
financial statements required hereunder, a compliance certificate
signed by an Authorized Officer of the Trustee stating that (x) the
attached financial statements have been prepared in accordance with
generally accepted accounting principles and accurately reflect the
financial condition of the Borrower and (y) to the best of such
Person's knowledge, no Termination Event, Potential Termination Event,
Servicer Termination Event or Potential Servicer Termination Event
exists, or if any Termination Event, Potential Termination Event,
Potential Servicer Termination Event or Servicer Termination Event
exists, stating the nature and status thereof.
(iv) SEPARATENESS. The Borrower shall take all
reasonable steps (including, without limitation, all steps that the
Administrative Agent may from time to time reasonably request) to
maintain the Borrower's identity as a separate legal entity from AFS
or any of its Affiliates and to make it manifest to third parties that
the Borrower is an entity with assets and liabilities distinct from
those of AFS and each other Affiliate thereof. Without limiting the
generality of the foregoing, the Borrower shall (1) maintain
appropriate books and records, (2) cause its financial statements to be
prepared in accordance with generally accepted accounting principles in
a manner that indicates the separate existence of
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the Borrower and its assets and liabilities, (3) pay all its
liabilities when due, (4) not assume the liabilities of either Seller
or any Affiliate of either Seller, (5) not guarantee the liabilities
of either Seller or any Affiliate of either Seller and (6) comply with
(and cause the Sellers and the Servicer to comply with) all assumptions
upon which counsel to the Borrower is relying in rendering its true
sale and nonconsolidation opinions with respect to the Borrower and
the Sellers.
(v) ACCESS TO RECORDS. The Borrower shall
(but in any event, prior to a Termination Event, Potential Termination
Event, Servicer Termination Event or Potential Servicer Termination
Event on no more than four occasions per year), permit only the
Secured Parties and the Administrative Agent or their duly authorized
representatives, attorneys or auditors to inspect the books and records
maintained by the Borrower pursuant hereto at such times as the
Secured Parties or the Administrative Agent may reasonably request.
ARTICLE V
REQUIRED LENDING GROUPS; INTERCREDITOR PROVISIONS
Section 5.1 AUTHORITY OF REQUIRED LENDING GROUPS. The
Borrower hereby irrevocably appoints the Administrative Agent for the benefit
of the Secured Parties its true and lawful attorney, with full power of
substitution, in the name of the Borrower, the Secured Parties or otherwise,
but at the expense of the Borrower, to the extent permitted by law to
exercise in its sole and absolute discretion, at any time and from time to
time while any Termination Event has occurred and is continuing, any or all
of the rights and powers with respect to all or any of the Collateral as are
specified or referred to in Article VI hereof.
Section 5.2 RIGHTS OF SECURED PARTIES. Each Secured Party
that from time to time is not a part of the Required Lending Groups expressly
agrees that it shall not assert any right that it may otherwise have, as a
Secured Party with respect to the Collateral, to direct the maintenance, sale
or other disposition of the Collateral or any portion thereof,
notwithstanding the occurrence and continuation of any Termination Event or
any non-performance by the Borrower of any obligation owed to such Secured
Party hereunder or under any other Basic Agreement, and each party hereto
agrees that the Required Lending Groups (or the Administrative Agent, as
directed by the Required Lending Groups) shall be the only Persons entitled
to assert and exercise such rights.
Section 5.3 DEGREE OF CARE. Notwithstanding any term or
provision of this Agreement, no Secured Party (including any Secured Party
that is a member of the Required Lending Groups) shall incur any liability to
AmeriCredit Corp., the Sellers, the Servicer or the Borrower for any action
taken or omitted by any Secured Party (including any Secured Party that is a
member of the Required Lending Groups) in connection with the Collateral and,
further, shall incur no liability to any other Secured Party (including any
Secured Party that is part of the Required Lending Groups); PROVIDED,
HOWEVER, that the foregoing shall not be deemed to relieve any Secured Party
of liability for its own gross negligence, bad faith or willful misconduct.
Each Secured Party (including any
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Secured Party that is a member of the Required Lending Groups) shall be
protected and shall incur no liability to any such party in relying upon the
accuracy, acting in reliance upon the contents and assuming the genuineness
of any notice, demand, certificate, signature, instrument or other document
believed by such Secured Party to be genuine and to have been duly executed
by the appropriate signatory, and (absent manifest error or actual knowledge
to the contrary), no such Secured Party shall be required to make any
independent investigation with respect thereto. Each Secured Party shall, at
all times, be free independently to establish to its reasonable satisfaction
the existence or nonexistence, as the case may be, of any fact the existence
or nonexistence of which shall be a condition to the exercise or enforcement
of any right or remedy under this Agreement or any of the other Basic
Agreements.
ARTICLE VI
TERMINATION EVENTS; REMEDIES
Section 6.1 TERMINATION EVENTS; REMEDIES.
(a) If a Termination Event has occurred and is continuing,
then, and in any such event, (A) if such Termination Event is one, only with
respect to the Borrower, specified in clause (v) of the definition of
Termination Event, the commitments of the APA Banks to the Borrower shall
automatically terminate and the VFN Balance (together with accrued and unpaid
interest thereon and all fees and other obligations of the Borrower accrued
under and in connection with the Basic Agreements) shall automatically become
due and payable, without presentment, demand, protest or other notice of any
kind, all of which are hereby waived by the Borrower, and (B) in the case of
any other Termination Event, the Administrative Agent shall, at the direction
of the Required Lending Groups, by notice to the Borrower, take either or
both of the following actions, at the same or different times: (i) declare
the commitments of the APA Banks to the Borrower to be terminated, and
thereupon the obligations of the APA Banks to make Fundings to the Borrower
shall terminate immediately, and (ii) declare the VFN Balance (together with
accrued and unpaid interest thereon and all fees and other obligations of the
Borrower accrued under and in connection with the Basic Agreements) to be due
and payable, and thereupon such amounts shall be immediately due and payable,
without presentment, demand, protest or other notice of any kind, all of
which are hereby waived by the Borrower. In any of such events, the
Administrative Agent shall, at the direction of the Required Lending Groups,
take whatever action at law or in equity as may appear necessary or desirable
in the judgment of the Required Lending Groups to collect and satisfy all
Secured Obligations (including, but not limited to, foreclosure upon the
Collateral and sale or securitization of the Collateral and all other rights
available to secured parties under applicable law) or to enforce performance
and observance of any obligation, agreement or covenant under any of the
Basic Agreements. In addition to all other rights and remedies granted to the
Administrative Agent for the benefit of the Secured Parties by this
Agreement, the other Basic Agreements, the UCC and other applicable law,
rules, or regulations, the Administrative Agent may with the consent of the
Required Lending Groups, and shall upon the request of the Required Lending
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Groups, upon the occurrence and during the continuance of any such
Termination Event, exercise any one or more of the following rights and
remedies: (i) foreclose upon or otherwise enforce the security interests in
any or all Collateral in any manner permitted by applicable law, rules, or
regulations or in this Agreement; (ii) notify any or all Obligors to make
payments with respect to Receivables directly to the Administrative Agent for
the benefit of the Secured Parties; (iii) sell or otherwise dispose of any or
all Collateral at one or more public or private sales, for cash or credit or
future delivery, on such terms and in such manner as the Required Lending
Groups may determine; (iv) require the Borrower to assemble the Collateral
and make it available to the Administrative Agent at a place to be designated
by the Administrative Agent; (v) enter onto any property where any Collateral
is located and take possession thereof with or without judicial process; and
(vi) enforce any rights of the Borrower under any Receivable or other
agreement to the extent the Required Lending Groups deems appropriate.
In furtherance of the Administrative Agent's rights
hereunder, the Borrower hereby grants to the Administrative Agent for the
benefit of the Secured Parties an irrevocable, non-exclusive license
(exercisable without royalty or other payment by the Administrative Agent) to
use, license or sublicense any patent, trademark, tradename, copyright or
other intellectual property in which the Borrower now or hereafter has any
right, title or interest, together with the right of access to all media in
which any of the foregoing may be recorded or stored. Notwithstanding the
foregoing, the Administrative Agent shall not be entitled to take any action
and the Required Lending Groups shall not be entitled to give any direction
with respect to the Collateral, except to the extent provided herein and in
the Sale and Servicing Agreement or the other Basic Agreements.
(b) In the event of any sale, collection, conversion or
other disposition into cash of the Collateral, or any part thereof, after
deducting any actual costs and expenses incurred in connection with any such
disposition, the Administrative Agent shall deposit the proceeds thereof into
the Collection Account for distribution on the next succeeding Distribution
Date in accordance with the priorities set forth in Section 6.8 of the Sale
and Servicing Agreement. The Borrower hereby agrees that ten (10) days'
notice of any intended sale or disposition of any Collateral is reasonable.
(c) The Administrative Agent on behalf of the Secured
Parties shall be entitled to obtain from the Borrower all records and
documentation in the possession of the Borrower pertaining to any Collateral.
Upon consummation of any sale pursuant to this Section 6.1, the Required
Lending Groups, or the Administrative Agent acting on behalf of and at the
direction of the Required Lending Groups, shall have the right to assign,
transfer, indorse and deliver to the purchaser or purchasers thereof, free
and clear of any Lien, the Collateral, or any portion thereof or any interest
therein, so sold. Each purchaser at any such sale shall hold the property
purchased by it absolutely free and clear from any claim or right on the part
of the Secured Parties or the Borrower; and the Borrower hereby irrevocably
waives all rights of redemption, stay, marshalling of assets or appraisal
that it now has or may at any time in the future have under applicable law or
statute now existing or hereafter enacted.
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(d) In addition to the remedies granted in this Agreement
and the other Basic Agreements, if a Termination Event has occurred and is
continuing, the Administrative Agent shall, at the direction of the Required
Lending Groups, take whatever action at law or in equity as may appear
necessary or desirable in the judgment of the Required Lending Groups to
collect the amounts then due and thereafter to become due under this
Agreement and any of the other Basic Agreements (including but not limited
to, all rights available to secured parties under applicable law) or to
enforce performance and observance of any obligation, agreement or covenant
under any of the Basic Agreements, including the exercise of the following
powers with respect to the Collateral: (i) to demand, sue for, collect,
receive and give acquittance for any and all monies due or to become due upon
or by virtue thereof, (ii) to settle, compromise, compound, prosecute or
defend any action or proceeding with respect thereto, (iii) to sell,
securitize, transfer, assign or otherwise deal with the same or the proceeds
thereof as fully and effectively as if the Administrative Agent were the
absolute owner thereof, and (iv) to extend the time of payment of any or all
thereof and to make any allowance or other adjustment with respect thereto.
All proceeds of any portion of the Collateral liquidated pursuant to this
Section 6.1 shall be applied as set forth in subsection (b) above.
(e) The Administrative Agent and the Required Lending
Groups, as the case may be, may exercise the powers and rights granted by
this Section 6.1, without notice or demand to the Borrower except as provided
in (a) above.
(f) In addition to other remedies granted in this Agreement
and the other Basic Agreements, if a Termination Event has occurred and is
continuing, the Borrower, at the direction of the Administrative Agent
(acting at the direction of the Required Lending Groups) or the Required
Lending Groups, shall at its own expense (or shall cause the Servicer at its
own expense pursuant to section 5.5 of the Sale and Servicing Agreement)
promptly take all additional steps, if any, as are necessary to create and
maintain perfection of the security interest in the Financed Vehicle related
to each Receivable (and the proceeds of such Financed Vehicle) on behalf of
the Borrower and to create and maintain perfection of the security interest
in the Borrower's security interest in the Financed Vehicle related to each
Receivable (and the proceeds of such Financed Vehicle) on behalf of the
Administrative Agent, for the benefit of the Secured Parties, including, if
required by applicable law, having a notation of the Borrower's and/or the
Administrative Agent's respective security interests recorded on such
Financed Vehicle's certificate of title.
Section 6.2 RESTORATION OF RIGHTS AND REMEDIES. If the
Administrative Agent has instituted any proceeding to enforce any right or
remedy under this Agreement, and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the
Administrative Agent, then and in every such case the Borrower, the
Administrative Agent and each of the Secured Parties shall, subject to any
determination in such proceeding, be restored severally and respectively to
their former positions hereunder, and thereafter all rights and remedies of
the Secured Parties shall continue as though no such proceeding had been
instituted.
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Section 6.3 NO REMEDY EXCLUSIVE. No right or remedy herein
conferred upon or reserved to the Administrative Agent, the Required Lending
Groups or any of the Secured Parties is intended to be exclusive of any other
right or remedy, and every right or remedy shall, to the extent permitted by
law, be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law, in equity or otherwise and each
and every right, power and remedy whether specifically herein given or
otherwise existing may be exercised by the Required Lending Groups, and the
exercise of or the beginning of the exercise of any right or power or remedy
shall not be construed to be a waiver of the right to exercise at the same time
or thereafter any other right, power or remedy.
ARTICLE VII
FUNDINGS; THE VFN
Section 7.1 LOANS TO BORROWER; FUNDING PROCEDURES; THE VFN.
(a) FUNDING GENERALLY. Upon the terms and subject to the
conditions set forth herein, prior to the Commitment Expiry Date, and PROVIDED
that (i) in the case of HLS no Potential Wind-Down Event or Wind-Down Event
shall have occurred and be continuing and (ii) in the case of APA Banks, no
Termination Event or Potential Termination Event shall have occurred and be
continuing, each of the CP Lenders may, in its sole discretion, and the APA
Banks shall (subject to the terms and conditions specified herein),
collectively make an advance under the terms and conditions hereof (any such
advance, a "FUNDING" and the first such advance, the "INITIAL FUNDING") to the
Borrower from time to time on or after the Effective Date. Each Funding by a
Lending Group shall be made on a pro rata basis based on such Lending Group's
Facility Limit as a percentage of the aggregate Facility Limit of all Lending
Groups (except for any same day Funding which shall only be made by PARCO as
set forth below); each Funding by an APA Bank in a Lending Group shall be made
on a PRO RATA basis based on such APA Bank's Commitment as a percentage of the
aggregate Commitment of all APA Banks in such Lending Group. Amounts advanced
by the Lending Groups on any day in connection with a Funding may include CP
Fundings, Eurodollar Fundings and ABR Fundings or any combination thereof.
To request Fundings hereunder, the Borrower shall notify the
Administrative Agent of such request by telephone (a) in the case of a
Eurodollar Funding, not later than 11:00 A.M. (New York time) three (3)
Business Days before the date of the proposed Funding, (b) in the case of an
ABR Funding, not later than 12:30 P.M. (New York Time) on the proposed date of
such Funding and (c) in the case of a CP Funding, (x) not later than 11:00 A.M.
(New York time) on the date of the proposed Funding if same day Funding is
requested (such request to include a list of Receivables to be pledged for such
same day Funding) or otherwise (y) not later than 12:30 P.M. (New York time)
one (1) Business Day before the date of the proposed Funding. Each day on which
a Funding is made hereunder shall be a Business Day. Each such telephonic
request for a Funding shall be irrevocable and shall be confirmed promptly by
hand delivery or telecopy to the Administrative Agent of a written funding
request (each, a
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"FUNDING REQUEST") in a form approved by the Administrative Agent and signed by
the Borrower. Each such telephonic and written Funding Request shall specify
the following information in compliance with Section 7.1(b):
(i) the requested Advance Amount (calculated
in accordance with the definition thereof, and which shall be at least
$1,000,000 or integral multiples of $100,000 in excess thereof);
(ii) the date of such Funding, which shall be
a Business Day;
(iii) whether such Funding is to be a CP Funding,
an ABR Funding or a Eurodollar Funding (PROVIDED that with respect to
HLS prior to the occurrence of a Wind-Down Event applicable to HLS (or
upon the termination of such Wind-Down Event, if applicable), all
Fundings on behalf of HLS, as applicable, shall be CP Fundings);
(iv) in the case of a CP Funding or a Eurodollar
Funding, the CP Funding Period or Eurodollar Funding Period to be
applicable thereto, which shall be a period contemplated by the
definition of the term "CP FUNDING PERIOD" and "EURODOLLAR FUNDING
PERIOD", respectively; PROVIDED, HOWEVER, that the funding period for
same day Funding shall be no more than five Business Days; and
(v) the location and number of the Borrower's
account to which funds are to be disbursed, which shall comply with the
requirements of Section 7.1(e).
If no election as to the type of Funding is specified, then the requested
Funding shall be at the discretion of each Funding Agent (with the consent of
the related CP Lender if the related Funding Agent so selects a CP Funding).
Promptly following receipt of a Funding Request in accordance with this Section
7.1(a), each Funding Agent shall promptly advise each Secured Party in its
Lending Group of the details thereof and of the amount of such Secured Party's
loan to be made as part of the requested Funding (if any). Notwithstanding
anything to the contrary in this Section 7.1(a), the Borrower shall be
permitted to request up to two (2) Fundings per calendar week, and up to nine
(9) Fundings per calendar month.
(b) CONDITIONS TO FUNDING. No Secured Party shall have any
obligation to advance any funds to the Borrower in connection with any Funding
unless, on the date of such Funding, (i) after giving effect to such Funding,
the Aggregate Net Investment PLUS the Interest Component of all Commercial
Paper issued by the CP Lenders to fund the Aggregate Net Investment (it being
understood that, for purposes of determining whether the Interest Component of
Commercial Paper may be paid from the proceeds of Commercial Paper issued on
the maturity date of such Commercial Paper, the amount of such capitalized
Interest Component shall constitute a "Funding") would not exceed the Maximum
Facility Limit and, in the case of a Funding for the acquisition of Asset
Backed Securities, after giving effect to such Funding, the aggregate Net
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Investment as it relates to Asset Backed Securities would not exceed the ABS
Funding Sub-Limit and in the case of a same day Funding, after giving effect to
such Funding, the sum of all outstanding same day Fundings, would not exceed
the Swing Line Funding Limit (such same day Funding only to be provided by
PARCO); (ii) with respect to each Lending Group, after giving effect to such
Funding, the related Net Investment of such Lending Group PLUS the Interest
Component of all Commercial Paper issued by the CP Lenders in such Lending
Group to fund such Net Investment (it being understood that, for purposes of
determining whether the Interest Component of Commercial Paper may be paid from
the proceeds of Commercial Paper issued on the maturity date of such Commercial
Paper, the amount of such capitalized Interest Component shall constitute a
"Funding") would not exceed the related Facility Limit and, in the case of a
Funding for the acquisition of Asset Backed Securities after giving effect to
such Funding, the related Net Investment as it relates to Asset Backed
Securities would not exceed the ABS Funding Sub-Limit and, in the case of a
same day Funding, after giving effect to such Funding, the sum of all
outstanding same day Fundings would not exceed the Swing Line Funding Limit
(such same day Funding only to be provided by PARCO); (iii) each APA Bank's PRO
RATA share of such Funding, would not exceed the amount of its unused
Commitment (it being understood that, for purposes of determining whether the
Interest Component on Commercial Paper may be paid from the proceeds of
Commercial Paper issued on the maturity date of such Commercial Paper, the
amount of such capitalized Interest Component shall constitute a "Funding");
(iv) the Borrower has provided a Funding Request to the Administrative Agent
and each Funding Agent, which Funding Request shall include the calculations
necessary to satisfy the requirement set forth in clauses (i), (ii) and (iii)
above and shall also include a certification by an authorized officer of the
Trustee on behalf of the Borrower that, to the best of such officer's
knowledge, no event has occurred since the most recent Funding that would have
a material and adverse effect on the Receivables, AmeriCredit Corp., the
Sellers, the Servicer or the Borrower; (v) the Borrower shall have deposited in
the Collection Account, or shall have given irrevocable instructions to the
Administrative Agent to withhold from the proceeds of such Funding and to
deposit in the Collection Account, as the case may be, in each case for
allocation to the Collection Account Reserve, an amount equal to the Collection
Account Reserve Shortfall Amount, if any; (vi) the VFN is rated at least "A2"
by Moody's and the VFN is rated at least "A" by S&P; (vii) one or more binding
and enforceable Hedge Contracts in an aggregate notional amount equal to the
Aggregate Net Investment (including any Aggregate Net Investment to be made in
connection with such Funding) are in full force and effect in accordance with
the terms of the Sale and Servicing Agreement; (viii) each representation and
warranty of the Borrower herein shall be true and correct with respect to the
Borrower and each Receivable as of the date of such Funding; (ix) a Potential
Wind-Down Event or a Wind-Down Event (each only in the case of a Funding to be
made by HLS), or a Potential Termination Event or a Termination Event, shall
not have occurred and be continuing; (x) if the Funding is to be made by a CP
Lender through the issuance of Commercial Paper, such CP Lender has advised the
Administrative Agent that, in its sole discretion, it has elected to make such
Funding; (xi) in connection with the initial Funding following the Effective
Date, the conditions precedent set forth in Section 7.1(g) hereof and Section
3.2 of the Sale and Servicing Agreement shall be satisfied; and (xii) after
giving effect to
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such Funding, no Pool Limitation would be exceeded. Any Funding made the same
day such Funding is requested shall be made solely by PARCO, at PARCO's sole
discretion, in an amount not to exceed the Swing Line Funding Limit.
Notwithstanding anything to the contrary set forth in this
Agreement, no APA Bank shall have any obligation to advance funds to the
Borrower on any Funding Date if, on such day, any Termination Event or
Potential Termination Event shall have occurred and be continuing. The
Administrative Agent shall notify each Funding Agent of the receipt and content
of any Funding Request by no later than 2:30 P.M. on the date on which such
Funding Request was received by the Administrative Agent and, in connection
therewith, shall advise such Funding Agent of the portion of such Funding which
its related Lending Group is required to make available to the Borrower; if
such notification is provided to the Funding Agents after 2:30 P.M. on such
date, then the Funding Request shall be deemed to be received on the following
Business Day. Each Funding Agent shall promptly advise the APA Banks in its
related Lending Group (by telecopy or by telephone call promptly confirmed in
writing by telecopy) of the receipt and content of any Funding Request.
The APA Banks' several obligations to provide the Borrower
with funds pursuant to this Article VII shall terminate on the Commitment
Expiry Date. Notwithstanding anything contained in this Section 7.1 or
elsewhere in this Agreement to the contrary, no APA Bank shall be obligated to
provide the Borrower with aggregate funds in connection with a Funding Request
in an amount that would exceed such APA Bank's unused Commitment then in
effect, and the failure of any APA Bank to make its PRO RATA share of the
Funding available to the Borrower (subject to the terms and conditions set
forth herein) shall not relieve any other APA Bank of its obligations
hereunder. The obligations of the Lending Groups hereunder to provide Fundings
shall be several and not joint.
(c) ADVANCE PERCENTAGE. With respect to any Funding Date, the
advance percentage with respect to Receivables and Asset Backed Securities (the
"ADVANCE PERCENTAGE") to determine the Advance Amount shall be 100% with
respect to Asset Backed Securities, subject to the reserve requirement to be
established at or prior to the initial funding under the ABS Funding Sublimit,
as acceptable to each Lending Group and the Primary Seller, and shall be 89%
with respect to Receivables, subject in the case of Receivables to downward
adjustment on such Funding Date as described below:
(1) if a "Trigger Event" (such term meaning,
for purposes of this Section 7.1(c), (i) a "Trigger Event" as
defined in any public asset-backed transaction, which
transaction has been outstanding for twenty-four months or
less from the date hereof or (ii) if applicable, any
comparable "spread capture event" in any automobile
receivables transaction conducted by any Securitization Trust,
which transaction has been outstanding for twenty-four months
or less from the date hereof, whether or not defined in such
transaction as a "Trigger Event" and whether or not such
transaction is a public transaction) occurs which continues
unremedied for two (2) monthly reporting periods and is waived
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by the party or parties entitled to exercise such waiver under
the related transaction documentation, then the Advance
Percentage in effect at the opening of business on such
Funding Date shall be reduced by 2%; PROVIDED that if the
Trigger Event relates to a delinquency test failure and occurs
after the Pool Factor (as defined in the related transaction
documentation) is below 25%, the Advance Percentage shall not
be so reduced; PROVIDED, FURTHER, that if the Advance
Percentage has been reduced as a result of the application of
this clause (1), the Advance Percentage shall remain at such
reduced percentage until such time as the related Trigger
Event has been cured for a period of three (3) consecutive
months;
(2) if a Trigger Event occurs, and is not
waived by the Person or Persons entitled to exercise such
waiver under the related transaction documentation, within the
twenty-four month period referred to in (1) above for any
particular asset-backed transaction (whether or not such
transaction is a public transaction) (and such Trigger Event
shall be deemed unwaived if there is no Person or Persons
entitled to so waive), then the Advance Percentage in effect
at the opening of business on such Funding Date shall be
reduced by 6% (without duplication of any reduction pursuant
to clause (1) above); and
(3) if there is an Excess Spread Deficiency
(calculated as of the close of business one (1) Business Day
prior to such Funding Date), then the Advance Percentage shall
be reduced by the product of (i) the amount of such Excess
Spread Deficiency (stated as a percentage) MULTIPLIED BY (ii)
2.0; PROVIDED that if the Advance Percentage has been reduced
as a result of the application of this clause (3), the Advance
Percentage shall remain at such reduced percentage until such
time as the Excess Spread Deficiency has been cured.
(d) FUNDING REQUEST IRREVOCABLE. The notice of any proposed
Funding shall be irrevocable and binding on the Borrower, and the Borrower
shall indemnify the Secured Parties against any loss or expense incurred by the
Secured Parties as provided in Section 7.6 hereof.
(e) DISBURSEMENT OF FUNDS. No later than 3:00 P.M. (New York
City time) on the date on which a Funding is to be made, each Secured Party
will make available to the Borrower, in immediately available funds, the amount
of the Funding required to be made by it on such day by remitting the required
amount thereof to an account of the Borrower as designated in the related
Funding Request.
(f) THE VFN.
(i) The Borrower's obligation to pay the
principal of, and interest on, all amounts advanced by the Secured
Parties pursuant to any Funding shall be evidenced by a single note of
the Borrower (as amended, supplemented or
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otherwise modified and in effect from time to time, the "VFN") which
shall (1) be dated the date hereof; (2) be in the stated principal
amount equal to the Maximum Facility Limit (as reflected from time to
time on the grid attached thereto); (3) bear interest as provided
therein; (4) be payable to the order of the Administrative Agent for
the account of the Secured Parties (in proportion to the pro rata
shares of the Lending Groups based upon their respective aggregate Net
Investments) and mature on the Distribution Date occurring in the
calendar month seventy-eight (78) months following the Commitment
Expiry Date (unless otherwise accelerated pursuant to the terms of the
Basic Agreements); PROVIDED, HOWEVER, that the principal amount of any
same day Funding shall be due not later than the fifth Business Day
immediately following such same day Funding date; (5) be entitled to
the benefits of this Agreement and the other Basic Agreements; and (6)
be substantially in the form of Exhibit A to this Agreement, with
blanks appropriately completed in conformity herewith. In consultation
with the Funding Agents, the Administrative Agent shall, and is hereby
authorized to, make a notation on the schedule attached to the VFN of
the date and the amount of each Funding and the date and amount of the
payment of principal thereon, and prior to any transfer of the VFN,
the Administrative Agent, on behalf of the Secured Parties, shall
indorse the outstanding principal amount of the VFN on the schedule
attached thereto. The entries made by the Administrative Agent
pursuant to the preceding sentence shall be PRIMA FACIE evidence of
the existence and amounts of the obligations recorded therein;
PROVIDED, HOWEVER, that failure to make such notation shall not
adversely affect the rights of the Secured Parties with respect to the
payment obligations of the Borrower hereunder and under the VFN.
(ii) The Borrower shall have the option to
prepay all or a portion of the VFN Balance on any Business Day
selected by the Borrower (each, an "OPTIONAL PREPAYMENT"), subject to
the following terms and conditions:
(1) The Borrower shall have given the
Administrative Agent at least two (2) Business Days' prior
written notice of its intent to effect an Optional Prepayment;
(2) Unless such Optional Prepayment is to be
effected on a Distribution Date (in which case the relevant
calculations with respect to such Optional Prepayment shall be
reflected on the applicable Servicer's Determination Date
Certificate), the Borrower shall cause the Servicer to deliver
to the Administrative Agent, the Backup Servicer and the
Rating Agencies a Servicer's VFN Prepayment Date Certificate
substantially in the form of Exhibit B-2 to the Sale and
Servicing Agreement, together with evidence to the
Administrative Agent, the Funding Agents, the Backup Servicer
and the Rating Agencies (which evidence may consist solely of
the Servicer's VFN Prepayment Date Certificate) that the
Borrower shall have sufficient funds on the contemplated VFN
Prepayment Date to effect the Optional Prepayment in
accordance with this Agreement. Any such Servicer's VFN
Prepayment
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Date Certificate and related evidence shall be delivered to
the Administrative Agent no later than 1:00 P.M. (New York
time), in draft form at least two (2) Business Days prior to
the contemplated VFN Prepayment Date and in final form at
least one Business Day prior to the contemplated VFN
Prepayment Date. In effecting an Optional Prepayment, the
Borrower may (i) use the proceeds of sales of the Receivables
and/or Asset Backed Securities (which sales must be made in
arm's-length transactions to Persons other than AFS unless
such sale is in connection with a public asset-backed
transaction), and (ii) give effect to Collections on deposit
in the Collection Account at such time to the extent
consistent with the requirements of paragraph 4 below (as
evidenced by the Servicer's VFN Prepayment Date Certificate).
(3) In connection with any such Optional
Prepayment that does not constitute a prepayment in full of
the outstanding VFN Balance, then, following receipt by each
Funding Agent of the amounts referred to in paragraph 5 below
(and confirmation by each such Funding Agent to the
Administrative Agent), there shall be released from the Lien
of this Agreement (subject to the requirements of paragraph 4
below): (i) a portion of the Receivables constituting a part
of the Pool Balance selected by the Borrower in accordance
with the eligibility criteria established for the related
asset-backed transaction and additionally selected in
accordance with the earliest origination date of all
Receivables; PROVIDED, however, that the Borrower shall not
have used any adverse selection procedures with respect to the
Receivables; and (ii) such other Receivables or Asset Backed
Securities not then constituting part of the Pool Balance,
excluding, however, any Receivable or Asset Backed Securities
subject to a Repurchase Obligation ("OTHER DESIGNATED
RECEIVABLES" or "OTHER DESIGNATED ASSET BACKED SECURITIES," as
applicable) as the Borrower intends to sell or distribute in
accordance with the terms hereof and as are designated by the
Borrower and specified in the Servicer's VFN Prepayment Date
Certificate (such Receivables and/or Asset Backed Securities
and such Other Designated Receivables or Other Designated
Asset Backed Securities, together, in each case, with the
related Other Conveyed Property, being collectively referred
to as the "PREPAYMENT RELATED COLLATERAL").
(4) After giving effect to the Optional
Prepayment and the release of Prepayment Related Collateral
from the Lien of this Agreement on any VFN Prepayment Date,
(x) the remaining VFN Balance MINUS Adjusted Collections, PLUS
the amount of accrued and unpaid interest or discount, as
applicable, on all outstanding Fundings, together with all
accrued and unpaid fees and other costs and expenses due and
owing to the Lending Groups, shall be less than or equal to
the amount resulting when the effective Advance Percentage is
multiplied by the remaining Pool Balance, (y) none of the Pool
Limitations shall be
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exceeded and (z) a Termination Event or Potential Termination
Event shall not have resulted;
For purposes of the foregoing, Adjusted
Collections means the product of (i) the effective Advance
Percentage, and (ii) the amount of Collections on deposit in
the Collection Account as of the close of business on the
Business Day preceding the date of the Servicer's VFN
Prepayment Date Certificate (which Collections shall be
available for distribution in accordance with Article VI of
the Sale and Servicing Agreement).
(5) On the related VFN Prepayment Date, the
Administrative Agent shall have received, for the benefit of
the Secured Parties, in immediately available funds, an amount
equal to the sum of (i) the portion of the VFN Balance to be
prepaid PLUS (ii) an amount equal to all unpaid Carrying Costs
(including Carrying Costs not yet accrued) to the extent
reasonably determined by the Funding Agents (and notified to
the Administrative Agent) to be attributable to that portion
of the Aggregate Net Investment to be prepaid PLUS (iii) an
aggregate amount equal to the sum of all other amounts due and
owing to the Administrative Agent, the Funding Agents and the
Secured Parties under this Agreement and the other Basic
Agreements, to the extent accrued to such date and to accrue
thereafter, as reasonably determined by the Funding Agents
(and notified to the Administrative Agent) to be attributable
to that portion of the Aggregate Net Investment to be prepaid.
(6) In connection with the Optional
Prepayment of any Funding made to the Borrower with the
proceeds of Commercial Paper, the Borrower shall, on the
related Interest Payment Date, pay to the related CP Lenders
all interest or discount, as applicable, accrued and unpaid
and to accrue through the maturity date(s) related to such
Commercial Paper.
The Borrower hereby agrees to pay the
reasonable legal fees and expenses of the Administrative
Agent, the Funding Agents and the Secured Parties in
connection with any Optional Prepayment (including, but not
limited to, expenses incurred in connection with the release
of the Lien of the Administrative Agent over the Receivables,
related Other Conveyed Property in connection with such
Optional Prepayment) not to exceed $25,000 annually.
(iii) Although the VFN shall be dated the date
hereof, Carrying Costs in respect thereof shall be payable in the
manner specified therein and in the other Basic Agreements only for
the periods during which amounts are outstanding thereunder. In
addition, although the stated principal amount of the VFN shall be
equal to the Maximum Facility Limit, the VFN shall be enforceable with
respect to the Borrower's obligation to pay the principal thereof only
to the extent of the unpaid principal amount outstanding thereunder at
the time such
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enforcement shall be sought. Principal on the VFN shall be payable by
the Borrower in the manner and on the dates specified in the VFN and in
the other Basic Agreements.
(g) CONDITIONS PRECEDENT. The obligations of the Secured
Parties under this Agreement on any Funding Date are subject to the accuracy of
the representations and warranties on the part of the Borrower made herein and
in the other Basic Agreements as of such Funding Date. This Agreement shall
become effective on the first day on which all of the following conditions
precedent have been satisfied (the "EFFECTIVE DATE"):
(i) The Administrative Agent shall have
received such opinions of counsel to the Sellers, the Servicer and the
Borrower, in form and substance acceptable to the Administrative Agent
and each Funding Agent, addressing such matters as each Funding Agent
and the Administrative Agent, on behalf of the Secured Parties, shall
request.
(ii) The Administrative Agent shall have
received a certificate of the Borrower, dated the date hereof, stating
that (1) its representations and warranties made herein and in the
other Basic Agreements are true and correct as of the date hereof, and
(2) the Borrower has complied with all agreements and satisfied all
conditions to be satisfied on its part pursuant to this Agreement and
the other Basic Agreements on or prior to the date hereof.
(iii) All conditions precedent to the
authentication and delivery of the VFN under this Agreement shall have
been satisfied.
(iv) Each party to a Basic Agreement shall have
performed and complied with all agreements and conditions contained in
such Basic Agreement and all other documents delivered in connection
herewith or therewith which are required to be performed or complied
with by such party.
(v) This Agreement, the other Basic Agreements
(other than the Hedge Contracts, the Receivables Sale Agreements and
the ABS Sale Agreements which will be delivered in connection with the
sale of Receivables or Asset Backed Securities, as applicable), the
Fee Letters, and all agreements, certificates, instruments and other
documents required to be delivered in connection herewith and
therewith shall have been duly authorized, executed and delivered by
the respective parties thereto, shall be in full force and effect and
shall be in form and substance satisfactory to the Administrative
Agent and the Secured Parties.
(vi) The Administrative Agent shall have
received the following, in each case in form and substance satisfactory
to it:
(1) copy of the Trust Agreement, certified
by the Secretary or an Assistant Secretary of the Trustee as
of the date hereof, duly authorizing the execution, delivery
and performance by the Borrower
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<PAGE>
of the documents executed by or on behalf of the Borrower in
connection with the transactions contemplated by this
Agreement and the other Basic Agreements to which it is a
party; and attesting to the names and true signatures of the
person or persons executing and delivering each such document;
(2) a copy of the resolutions of the Board
of Directors of each Seller (or if either Seller is not a
corporation, then comparable documents) and the Servicer,
certified by the Secretary or an Assistant Secretary of such
Sellers and the Servicer as of the date hereof, duly
authorizing the execution, delivery and performance by the
Sellers and the Servicer of each of the Basic Agreements to
which each of them is a party and any other documents executed
by or on behalf of the Sellers and the Servicer in connection
with the transactions contemplated thereby; and an incumbency
certificate of each Seller and the Servicer as to the person
or persons executing and delivering each such document; and
(3) such other documents and evidence with
respect to the Borrower, the Sellers, the Servicer and the
Back-Up Servicer as the Administrative Agent and the Funding
Agents may reasonably request in order to establish the trust
or corporate existence and good standing of each thereof, the
proper taking of all appropriate corporate or other
proceedings in connection with the transactions contemplated
by this Agreement and the other Basic Agreements and the
compliance with the conditions set forth herein and therein.
(vii) No fact or condition shall exist under
applicable law or applicable regulations thereunder or interpretations
thereof by any regulatory authority which, in the reasonable opinion
of the Administrative Agent and the Funding Agents, would make it
unlawful to issue the VFN or for the Borrower or any of the other
parties thereto to perform their respective obligations under this
Agreement and the other Basic Agreements.
(viii) The Sellers and the Borrower shall have
filed any financing statements or amendments thereto, wherever
necessary or advisable in the judgment of the Administrative Agent and
the Funding Agents, in order to perfect the transfer and assignment of
the Receivables to the Borrower and the grant of the security interest
therein to the Administrative Agent and shall have delivered
file-stamped copies of such financing statements or other evidence of
the filing thereof to the Administrative Agent.
(ix) All taxes and fees due in connection with
the filing of the financing statements referred to in clause (viii) of
this Section 7.1(g) shall have been paid in full or duly provided for.
(x) No action or proceeding shall have been
instituted nor shall any governmental action be threatened before any
court or governmental agency
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<PAGE>
nor shall any order, judgment or decree have been issued or proposed
to be issued by any court or governmental agency to set aside,
restrain, enjoin or prevent the performance of this Agreement or any
of the other Basic Agreements or the transactions contemplated hereby
or thereby.
(xi) If applicable, each Funding Agent shall
have received written confirmation from each of the Rating Agencies
that the then-current ratings assigned by each of them to the
Commercial Paper issued by its related CP Lender will not be reduced
or withdrawn as a result of the execution and delivery of this
Agreement by such CP Lender.
(h) MATURITY OF COMMERCIAL PAPER. HLS shall not issue any
Commercial Paper related to the VFN with a maturity in excess of ninety (90)
days in connection with any financing or refinancing of an increase in the VFN.
Section 7.2 SHARING OF PAYMENTS, ETC. If any Secured Party
(for purposes of this Section 7.2 only, being a "RECIPIENT") shall obtain any
payment (whether voluntary, involuntary, through the exercise of any right of
setoff, or otherwise) on account of any interest in the VFN owned by it (other
than payments made in connection with any same day Funding) in excess of its
ratable share (based on the proportion of its Net Investment to the aggregate
Net Investment of all Lender Groups) of payments on account of any interest in
the VFN obtained by such Secured Parties entitled thereto, such Recipient shall
forthwith purchase from such Secured Parties entitled to a share of such amount
participations in the percentage interests owned by such Persons as shall be
necessary to cause such Recipient to share the excess payment ratably with each
such other Person entitled thereto; PROVIDED, HOWEVER, that if all or any
portion of such excess payment is thereafter recovered from such Recipient,
such purchase from each such other Person shall be rescinded and each such
other Person shall repay to the Recipient the purchase price paid by such
Recipient for such participation to the extent of such recovery, together with
an amount equal to such other Person's ratable share (according to the
proportion of (a) the amount of such other Person's required payment to (b) the
total amount so recovered from the Recipient) of any interest or other amount
paid or payable by the Recipient in respect of the total amount so recovered.
Payments received by a Recipient in connection with any same day Funding shall
be treated by PARCO APA Banks in the SAME manner set forth in this Section.
Section 7.3 RIGHT OF SETOFF. Without in any way limiting the
provisions of Section 7.2, each of the Secured Parties is hereby authorized (in
addition to any other rights it may have) at any time after the occurrence of a
Termination Event or during the continuance of a Potential Termination Event to
setoff, appropriate and apply (without presentment, demand, protest or other
notice which are hereby expressly waived) any deposits and any other
indebtedness held or owing by such Secured Party to, or for the account of, the
Borrower against the amount owing by the Borrower hereunder to such Person
(even if contingent or unmatured).
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Section 7.4 INTEREST.
(a) Any Funding (or portion thereof) funded by a CP Lender
through the issuance of Commercial Paper shall bear interest calculated at
such CP Lender's applicable CP Rate.
(b) At the option of the Borrower and in the case of HLS,
following a Wind-Down Event for HLS, any Funding (or portion thereof) made by
a CP Lender other than through the issuance of Commercial Paper or by an APA
Bank in such Lending Group to the Borrower pursuant to Section 7.1 hereof
shall bear interest at either (i) if available from such APA Bank to the
Borrower on the related Funding Date, the related Eurodollar Rate for such
APA Bank or (ii) in all other cases the related Alternate Base Rate for such
APA Bank.
(c) If any principal of, or interest on, any portion of any
Funding or any fee or other amount payable by the Borrower hereunder is not
paid when due, whether at stated maturity, upon acceleration or otherwise,
such overdue amount shall bear interest, after as well as before judgment, at
a rate per annum equal to the applicable Alternate Base Rate plus 2%.
(d) Accrued Interest on each Funding shall be payable in
arrears on each Interest Payment Date for such Funding and upon the
Commitment Expiry Date and, if applicable, upon each Interest Payment Date
following the Commitment Expiry Date; PROVIDED that (i) interest accrued
pursuant to paragraph (c) of this Section 7.4 shall be payable on demand,
(ii) in the event of any repayment of any Funding or prepayment (other than
with respect to a CP Funding) of any Funding, accrued interest on the
principal amount repaid or prepaid shall be payable on the date of such
repayment or prepayment and (iii) in the event of any conversion of any ABR
Funding or Eurodollar Funding pursuant to Section 7.7, accrued interest on
such ABR Funding or Eurodollar Funding shall be payable on the Distribution
Date occurring immediately after such conversion.
(e) All interest on Fundings hereunder shall be computed on
the basis of a year of 360 days, except that interest computed when an
Alternate Base Rate is based on the Prime Rate shall be computed on the basis
of a year of 365 days (or 366 days in a leap year), and in each case shall be
payable for the actual number of days elapsed (including the first day but
excluding the last day). The applicable Alternate Base Rate or Eurodollar
Rate shall be determined by each Funding Agent (with notice to the
Administrative Agent), and such determination shall be conclusive absent
manifest error.
(f) If a Termination Event (other than a Termination Event
described in clause (p) of the definition thereof) has occurred and is
continuing, then interest thereafter accruing on all Fundings then existing
or thereafter made shall accrue at the Alternate Base Rate plus 2.00%.
Section 7.5 PAYMENTS GENERALLY. All payments by the
Borrower hereunder shall be at the times, and in the manner, specified in
Section 6.8 of the Sale and
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Servicing Agreement. Notwithstanding any provision of this Agreement or the
other Basic Agreements to the contrary, all amounts due and owing to the
Administrative Agent, the Funding Agents and the Secured Parties by the
Borrower hereunder and under the other Basic Agreements (if not due on an
earlier date in accordance with the terms hereof or the other Basic
Agreements) will be due and payable on the Distribution Date occurring in the
month seventy-eight (78) months following the Commitment Expiry Date.
Section 7.6 BROKEN FUNDING. In the event of (a) the
payment of any principal of any Eurodollar Funding other than on the last day
of a Eurodollar Funding Period applicable thereto (including as a result of a
Termination Event, Potential Termination Event or Optional Prepayment), (b)
the conversion of any Eurodollar Funding other than on the applicable
Interest Payment Date or (c) any failure to borrow, convert, continue or
prepay any Eurodollar Funding on the date specified in any notice delivered
pursuant hereto, then, in any such event, the Borrower shall compensate the
APA Banks, for the loss, cost and expense attributable to such event . Such
loss, cost or expense to any APA Bank shall be deemed to include an amount
determined by such APA Bank to be the excess, if any, of (i) the amount of
interest which would have accrued on the principal amount of such Eurodollar
Funding had such event not occurred, at the Eurodollar Rate that would have
been applicable to such Eurodollar Funding, for the period from the date of
such event to the Interest Payment Date therefor (or, in the case of a
failure to borrow, convert or continue, for the period that would have been
the related Eurodollar Funding Period), over (ii) the amount of interest
which would accrue on such principal amount for such period at the interest
rate which such APA Bank would bid were it to bid, at the commencement of
such period, for dollar deposits of a comparable amount and period from other
banks in the interbank eurodollar market. A certificate of any APA Bank
setting forth any amount or amounts that such APA Bank is entitled to receive
pursuant to this Section 7.6 shall be delivered to the Borrower and shall be
conclusive absent manifest error. The Borrower shall pay each such APA Bank
the amount shown as due on any such certificate on the next succeeding
Distribution Date after receipt thereof.
Section 7.7 CONVERSION AND CONTINUATION OF OUTSTANDING
ADVANCES MADE BY THE APA BANKS. Prior to the occurrence of a Termination
Event or a Potential Termination Event, (a) each ABR Funding hereunder may,
at the option of the Borrower, be converted to a Eurodollar Funding, (b) each
Eurodollar Funding hereunder may, at the option of the Borrower, be continued
as a Eurodollar Funding or converted to an ABR Funding. If a Termination
Event or Potential Termination Event has occurred and is continuing, then,
for so long as any such Termination Event or Potential Termination Event is
continuing, (i) no outstanding Funding may be converted to, or continued as,
a Eurodollar Funding, (ii) unless repaid, each Eurodollar Funding shall be
converted to an ABR Funding on the next succeeding Interest Payment Date
related thereto. For any such conversion or continuation, the Borrower shall
give the applicable Funding Agent irrevocable notice (each, a
"CONVERSION/CONTINUATION NOTICE") of such request not later than 12:30 P.M.
(New York time) (i) in the case of a conversion of an ABR Funding into a
Eurodollar Funding, or a continuation of a Eurodollar Funding as a Eurodollar
Funding, three (3) Business Days before the date of such conversion or
continuation, as applicable,
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and (ii) following the occurrence and continuation of a Termination Event or
a Potential Termination Event, in the case of a conversion of a Eurodollar
Funding into an ABR Funding or a continuation of an ABR Funding as an ABR
Funding, on the Business Day of such conversion (with a copy to the
Administrative Agent). If a Conversion/ Continuation Notice has not been
timely delivered with respect to any ABR Funding or Eurodollar Funding, such
Funding shall be automatically continued as, or converted to, an ABR Funding.
Each Conversion/Continuation Notice shall specify (a) the requested date
(which shall be a Business Day) of such conversion or continuation, (b) the
aggregate amount and rate option applicable to the Funding which is to be
converted or continued and (c) the amount and rate option(s) of Funding(s)
into which such Funding is to be converted or continued. Each CP Funding and
in the case of HLS, prior to the occurrence of a Wind-Down Event with respect
to HLS (or upon the termination of such Wind-Down Event, if applicable),
shall be continued, subject to the terms and conditions hereof, for another
CP Funding Period of a duration to be agreed upon between the Borrower and
such CP Lender (or, if the Borrower does not specify the duration, for a
duration specified by such CP Lender).
Section 7.8 ILLEGALITY.
(a) Notwithstanding any other provision herein, if, after
the Effective Date, the adoption of any Law or bank regulatory guideline or
any amendment or change in the interpretation of any existing or future Law
or bank regulatory guideline by any Official Body charged with the
administration, interpretation or application thereof, or the compliance with
any directive of any Official Body (in the case of any bank regulatory
guideline, whether or not having the force of Law), shall make it unlawful
for any APA Bank to acquire or maintain a Eurodollar Funding as contemplated
by this Agreement, (i) such APA Bank shall promptly, after becoming aware
thereof, notify the Funding Agent and the Borrower thereof, (ii) the
commitment of such APA Bank hereunder to make a portion of a Eurodollar
Funding, continue any portion of a Eurodollar Funding as such and convert an
ABR Funding to a Eurodollar Funding shall forthwith be cancelled, and such
cancellation shall remain in effect so long as the circumstance described
above exists, and (iii) such APA Bank's portion of any Eurodollar Funding
then outstanding shall be converted automatically to an ABR Funding on the
last day of the related Eurodollar Funding Period, or within such earlier
period as required by law.
If any such conversion of a portion of a Eurodollar Funding
occurs on a day which is not the last day of the related Eurodollar Funding
Period, the Borrower shall pay to such APA Bank such amounts, if any, as may
be required to compensate such APA Bank pursuant to Section 7.6 hereof. If
circumstances subsequently change so that it is no longer unlawful for an
affected APA Bank to acquire or to maintain a portion of a Eurodollar Funding
as contemplated hereunder, such APA Bank will, as soon as reasonably
practicable after such APA Bank knows of such change in circumstances, notify
the Borrower, and the related Funding Agent (with a copy to the
Administrative Agent), and upon receipt of such notice, the obligations of
such APA Bank to acquire or maintain its acquisition of portions of
Eurodollar Fundings or to convert its portion of an ABR Funding into portions
of Eurodollar Fundings shall be reinstated.
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(b) Each APA Bank agrees that, upon the occurrence of any
event giving rise to the operation of Section 7.8(a) with respect to such APA
Bank, it will, if requested by the Borrower and to the extent permitted by
law or by the relevant Official Body, endeavor in good faith to change the
office at which it books its portions of Eurodollar Fundings hereunder if
such change would make it lawful for such APA Bank to continue to acquire or
to maintain its acquisition of portions of Eurodollar Fundings hereunder;
PROVIDED that such change may be made in such manner that such APA Bank, in
its sole determination, suffers no unreimbursed cost or expense or any other
disadvantage whatsoever.
Section 7.9 INABILITY TO DETERMINE EURODOLLAR RATE. If,
prior to the first day of any Eurodollar Period:
(i) the applicable Funding Agent shall have
determined (which determination in the absence of manifest error
shall be conclusive and binding upon the Borrower) that, by reason of
circumstances affecting the relevant market, adequate and reasonable
means do not exist for ascertaining the Eurodollar Rate for such
Eurodollar Funding Period; or
(ii) the applicable Funding Agent shall have
received notice from one or more of the APA Banks in its Lending
Group that the Eurodollar Rate determined or to be determined for such
Eurodollar Funding Period will not adequately and fairly reflect the
cost to such APA Banks (as conclusively certified by such APA Banks) of
purchasing or maintaining their affected portions of Eurodollar
Fundings during such Eurodollar Funding Period;
then, in either such event, such Funding Agent shall give telecopy or
telephonic notice thereof (confirmed in writing) to the Administrative Agent,
the Borrower and the APA Banks in its Lending Group as soon as practicable
thereafter. Until such notice has been withdrawn by such Funding Agent, no
further Eurodollar Fundings shall be made with respect to such Lending Group.
Each Funding Agent agrees to withdraw any such notice as soon as reasonably
practicable after it is notified of a change in circumstances which makes
such notice inapplicable.
Section 7.10 FEES. The Borrower hereby agrees to pay to
each Funding Agent, for the account of the Secured Parties in its Lending
Group (and, if applicable, itself), the fees specified in the Fee Letter.
Such payments shall be made to the Funding Agents on the dates and in the
manner specified in the Fee Letters.
ARTICLE VIII
INDEMNIFICATION
Section 8.1 INDEMNITY. Without limiting any other rights
which the Secured Parties may have hereunder or under applicable law, the
Borrower agrees to indemnify the Secured Parties, the Administrative Agent
and the Securities Intermediary and any of their permitted assigns and their
respective agents, officers, directors and
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employees (collectively, "INDEMNIFIED PARTIES") from and against any and all
damages, losses, claims, liabilities, costs and expenses, including
reasonable attorneys' fees (which such attorneys may be employees of the
Secured Parties, the Administrative Agent and the Securities Intermediary)
and disbursements (all of the foregoing being collectively referred to as
"INDEMNIFIED AMOUNTS") awarded against or incurred by any of them arising out
of or as a result of this Agreement and the other Basic Agreements,
excluding, however, (i) Indemnified Amounts to the extent resulting from
gross negligence or willful misconduct on the part of an Indemnified Party or
(ii) recourse (except as otherwise specifically provided in this Agreement
and the other Basic Agreements) for uncollectible Receivables, Asset Backed
Securities and Other Conveyed Property. Such Indemnified Amounts shall be
paid in accordance with the terms of the other Basic Agreements. Without
limiting the generality of the foregoing, the Borrower shall indemnify each
Indemnified Party for Indemnified Amounts relating to or resulting from:
(a) reliance on any representation or warranty made by the
Borrower (or any officers of the Borrower) under or in connection with this
Agreement or any of the other Basic Agreements, any Funding Request or any
other information or report delivered by the Borrower pursuant hereto or
thereto, which shall have been false or incorrect in any material respect
when made or deemed made;
(b) the failure by the Borrower to comply with any
applicable law, rule or regulation with respect to the Collateral, or the
nonconformity of the Collateral with any such applicable law, rule or
regulation;
(c) the failure to vest and maintain vested in the
Administrative Agent on behalf of the Secured Parties a first priority
perfected security interest in the Collateral (including, without limitation,
all Financed Vehicles securing Receivables), free and clear of any Lien
(other than the Lien of this Agreement);
(d) the failure to file, or any delay in filing, financing
statements, continuation statements, or other similar instruments or
documents under the UCC of any applicable jurisdiction or other applicable
laws with respect to all or any part of the Collateral or the failure to note
the lien of the Borrower and/or the Administrative Agent, on behalf of the
Secured Parties, on the certificate of title to any Financed Vehicle securing
a Receivable, which failure has an adverse effect on the validity, perfected
status or priority of the security interest granted to the Administrative
Agent on behalf of the Secured Parties under this Agreement;
(e) any valid dispute, claim, offset or defense (other than
discharge in bankruptcy of the related Obligor) of the Obligor to the payment
of any Receivable (including, without limitation, a defense based on such
Receivable not being legal, valid and binding obligation of such Obligor
enforceable against it in accordance with its terms), or any other claim
resulting from the sale of a Financed Vehicle or services related to such
Receivable or the furnishing or failure to furnish such Financed Vehicle or
services;
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(f) any failure of the Borrower to perform its duties,
covenants or obligations in accordance with the provisions of this Agreement;
(g) any product liability claim or personal injury or
property damage suit or other similar or related claim or action of whatever
sort arising out of or in connection with the related Financed Vehicle or
related merchandise or services which are the subject of any Receivable; or
(h) the co-mingling of Collections with any other funds;
PROVIDED, HOWEVER, that if a CP Lender enters into agreements for the
purchase of interests in receivables from one or more Other Transferors, such
CP Lender shall allocate such Indemnified Amounts which are in connection
with its activities to the Borrower and each Other Transferor; and PROVIDED
FURTHER that if such Indemnified Amounts are attributable to the Borrower and
not attributable to any Other Transferor, the Borrower shall be solely liable
for such Indemnified Amounts or, if such Indemnified Amounts are attributable
to Other Transferors and not attributable to the Borrower, such Other
Transferors shall be solely liable for such Indemnified Amounts.
Section 8.2 INDEMNITY FOR RESERVES AND EXPENSES.
(a) If after the date hereof, the adoption of any Law or
bank regulatory guideline or any amendment or change in the interpretation of
any existing or future Law or bank regulatory guideline by any Official Body
charged with the administration, interpretation or application thereof, or
the compliance with any directive of any Official Body (in the case of any
bank regulatory guideline, whether or not having the force of Law):
(1) shall impose, modify or deem applicable
any reserve, special deposit or similar requirement
(including, without limitation, any such requirement imposed
by the Board of Governors of the Federal Reserve System)
against assets of, deposits with or for the account of, or
credit extended by, any Indemnified Party or shall impose on
any Indemnified Party or on the United States market for
certificates of deposit or the London interbank market any
other condition affecting this Agreement, the other Basic
Agreements, any Asset Purchase Agreement, any liquidity
agreement between a CP Lender and one or more financial
institutions relating to this Agreement, the Collateral or
payments of amounts due hereunder or thereunder or its
obligation to advance funds under any agreement or otherwise
in respect of this Agreement, the other Basic Agreements, any
Asset Purchase Agreement, any liquidity agreement between a CP
Lender and one or more financial institutions relating to this
Agreement, or the Collateral; or
(2) imposes upon any Indemnified Party any
other expense (including, without limitation, reasonable
attorneys' fees and expenses, and expenses of litigation or
preparation therefor in contesting
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any of the foregoing) with respect to this Agreement, the
other Basic Agreements, any Asset Purchase Agreement, any
liquidity agreement between a CP Lender and one or more
financial institutions relating to this Agreement, the
Collateral or payments of amounts due hereunder or thereunder
or its obligation to advance funds under any agreement or
otherwise in respect of this Agreement, the other Basic
Agreements, any Asset Purchase Agreement, any liquidity
agreement between a CP Lender and one or more financial
institutions relating to this Agreement, or the Collateral;
and the result of any of the foregoing is to increase the cost to such
Indemnified Party with respect to this Agreement, the other Basic Agreements,
any Asset Purchase Agreement, any liquidity agreement between a CP Lender and
one or more financial institutions relating to this Agreement, the Collateral
and the obligations hereunder and thereunder, by an amount reasonably deemed
by such Indemnified Party to be material, then, on the next succeeding
Distribution Date after demand by a Funding Agent, the Borrower shall pay to
such Funding Agent, for the benefit of such Indemnified Party, such
additional amount or amounts as will compensate such Indemnified Party for
such increased cost; PROVIDED that no such amount shall be payable with
respect to any period commencing more than two hundred seventy (270) days
prior to the date such Funding Agent first notifies the Borrower of its
intention to demand compensation therefor under this Section 8.2(a);
PROVIDED, FURTHER, that if such change in Law, rule or regulation giving rise
to such increased costs or reductions is retroactive, then such 270-day
period shall be extended to include the period of retroactive effect thereof.
(b) If any Indemnified Party shall have determined that
after the date hereof, the adoption of any applicable Law or bank regulatory
guideline regarding capital adequacy, or any change therein, or any change in
the interpretation thereof by any Official Body, or any directive regarding
capital adequacy (in the case of any bank regulatory guideline, whether or
not having the force of law) of any such Official Body, has or would have the
effect of reducing the rate of return on capital of such Indemnified Party
(or its parent) as a consequence of such Indemnified Party's obligations
hereunder or under any of the Basic Agreements, any Asset Purchase Agreement,
any liquidity agreement between a CP Lender and one or more financial
institutions relating to this Agreement, or with respect hereto or thereto to
a level below that which such Indemnified Party (or its parent) could have
achieved but for such adoption, change, request or directive (taking into
consideration its policies with respect to capital adequacy) by an amount
reasonably deemed by such Indemnified Party to be material, then from time to
time, within ten (10) days after demand by a Funding Agent, the Borrower
shall pay to such Funding Agent, for the benefit of such Indemnified Party,
such additional amount or amounts as will compensate such Indemnified Party
(or its parent) for such reduction; PROVIDED that no such amount shall be
payable with respect to any period commencing two hundred seventy (270) days
prior to the date such Funding Agent first notifies the Borrower of its
intention to demand compensation under this Section 8.2(b); PROVIDED,
FURTHER, that if such change in Law, rule or regulation giving rise to such
increased costs or reductions is retroactive, then such 270-day period shall
be extended to include the period of retroactive effect thereof.
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(c) The Administrative Agent, the Securities Intermediary
and each Funding Agent will promptly notify the Borrower of any event of
which it has knowledge, occurring after the date hereof, which will entitle
an Indemnified Party to compensation pursuant to this Article VIII. A notice
by the Administrative Agent or a Funding Agent claiming compensation for the
benefit of an Indemnified Party under this Article VIII and setting forth the
additional amount or amounts to be paid to it hereunder shall be conclusive
in the absence of manifest error. In determining such amount, the
Administrative Agent, the Securities Intermediary or such Funding Agent may
use any reasonable averaging and attributing methods.
Section 8.3 INDEMNITY FOR TAXES.
(a) All payments made by the Borrower under this Agreement
and any other Basic Agreement shall be made free and clear of, and without
deduction or withholding for or on account of, any present or future income,
stamp or other taxes, levies, imposts, duties, charges, fees, deductions or
withholdings, now or hereafter imposed, levied, collected, withheld or
assessed by any Official Body, EXCLUDING (i) taxes imposed on the net income
of the Administrative Agent, the Securities Intermediary, any Funding Agent
or any other Indemnified Party, however denominated, and (ii) franchise taxes
imposed on any of them in lieu of income taxes, in each case imposed: (1) by
the United States or any political subdivision or taxing authority thereof or
therein; (2) by any jurisdiction under the laws of which the Administrative
Agent, the Securities Intermediary, any Funding Agent or such Indemnified
Party or lending office is organized or in which its lending office is
located, managed or controlled or in which its principal office is located or
any political subdivision or taxing authority thereof or therein; or (3) by
reason of any connection between the jurisdiction imposing such tax and the
Administrative Agent, the Securities Intermediary, any such Funding Agent,
such Indemnified Party or such lending office other than a connection arising
solely from this Agreement or any other Basic Agreement or any transaction
hereunder or thereunder (all such non-excluded taxes, levies, imposts,
duties, charges, fees, deductions or withholdings, collectively or
individually, "TAXES"). If any such Taxes are required to be withheld from
any amounts payable to the Administrative Agent, the Securities Intermediary,
any Funding Agent or any Indemnified Party hereunder, the amounts so payable
to the Administrative Agent, the Securities Intermediary, any such Funding
Agent or such Indemnified Party shall be increased to the extent necessary to
yield to such Person (after payment of all Taxes) all amounts payable
hereunder at the rates or in the amounts specified in this Agreement and the
other Basic Agreements. The Borrower shall indemnify the Administrative
Agent, the Securities Intermediary, any Funding Agent or any such Indemnified
Party for the full amount of any such Taxes on the Distribution Date
immediately succeeding the date of written demand therefor by such Person.
(b) Each Indemnified Party that is not incorporated under
the laws of the United States of America or a state thereof or the District
of Columbia shall:
(i) deliver to the Borrower and to the related
Funding Agent (A) two duly completed copies of IRS Form 1001 or
Form 4224, or successor
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applicable form, as the case may be, and (B) if applicable, an IRS
Form W-8 or W-9, or successor applicable form, as the case may be;
(ii) deliver to the Borrower and to the related
Funding Agent two (2) further copies of any such form or certification
on or before the date that any such form or certification expires or
becomes obsolete and after the occurrence of any event requiring a
change in the most recent form previously delivered by it to the
Borrower; and
(iii) obtain such extensions of time for filing
and complete such forms or certifications as may reasonably be
requested by the Borrower or such Funding Agent;
unless, in any such case, an event (including, without limitation, any change
in treaty, law or regulation) has occurred prior to the date on which any
such delivery would otherwise be required which renders all such forms
inapplicable or which would prevent such Indemnified Party from duly
completing and delivering any such form with respect to it, and such
Indemnified Party so advises the Borrower and the related Funding Agent. Each
such Indemnified Party so organized shall certify (i) in the case of an IRS
Form 1001 or IRS Form 4224, that it is entitled to receive payments under the
this Agreement and the other Basic Agreements without deduction or
withholding of any United States federal income taxes and (ii) in the case of
an IRS Form W-8 or IRS Form W-9, that it is entitled to an exemption from
United States backup withholding tax. Each Person that becomes a party to
this Agreement as an APA Bank, shall, prior to the effectiveness of such
assignment, participation or addition, as applicable, be required to provide
all of the forms and statements required pursuant to this Section 8.3.
Section 8.4 OTHER COSTS, EXPENSES AND RELATED MATTERS. The
Borrower agrees, upon receipt of a written invoice, to pay or cause to be
paid, and to save the Secured Parties, the Administrative Agent, and the
Securities Intermediary harmless against liability for the payment of, all
reasonable out-of-pocket expenses (including, without limitation, all
reasonable attorneys', accountants' and other third parties' fees and
expenses, and any filing fees and expenses incurred by officers or employees
of the Secured Parties, the Administrative Agent, or the Securities
Intermediary) incurred by or on behalf of any Secured Party, the
Administrative Agent or the Securities Intermediary (i) in connection with
the negotiation, execution, delivery and preparation of this Agreement and
the other Basic Agreements and any documents or instruments delivered
pursuant hereto or thereto and the transactions contemplated hereby and
thereby and (ii) from time to time (a) relating to any amendments, waivers or
consents under this Agreement and the other Basic Agreements, (b) arising in
connection with the Administrative Agent's, the Securities Intermediary, the
Secured Parties' or their respective agents' enforcement or preservation of
rights (including, without limitation, the perfection and protection of the
Administrative Agent's first priority security interest in the Collateral),
or (c) arising in connection with any audit, dispute, disagreement,
litigation or preparation for litigation involving this Agreement.
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ARTICLE IX
MISCELLANEOUS
Section 9.1 FURTHER ASSURANCES. Each party hereto shall
take such action and deliver such instruments to any other party hereto, in
addition to the actions and instruments specifically provided for herein, as
may be reasonably requested or required to effectuate the purpose or
provisions of this Agreement or to confirm or perfect any transaction
described or contemplated herein.
Section 9.2 WAIVER. Any waiver by any party of any
provision of this Agreement or any right, remedy or option hereunder shall
only prevent and estop such party from thereafter enforcing such provision,
right, remedy or option if such waiver is given in writing and only as to the
specific instance and for the specific purpose for which such waiver was
given. The failure or refusal of any party hereto to insist in any one or
more instances, or in a course of dealing, upon the strict performance of any
of the terms or provisions of this Agreement by any party hereto or the
partial exercise of any right, remedy or option hereunder shall not be
construed as a waiver or relinquishment of any such term or provision, but
the same shall continue in full force and effect.
Section 9.3 AMENDMENTS; WAIVERS.
(a) Subject to the next succeeding provisos and Section
9.3(b), no amendment, waiver, supplement, modification or discharge of any
provision of this Agreement shall be effective unless the Rating Agency
Condition shall have been satisfied and such waiver or modification shall be in
writing and signed by the Borrower, the Administrative Agent, and the Funding
Agents in respect of the Required Lending Groups, and then such amendment,
waiver, supplement, modification or discharge shall be effective only in the
specific instance and for the specific purpose for which given; PROVIDED that no
such action that (i) increases or decreases the Facility Limit of any Lending
Group hereunder, (ii) reduces amounts payable hereunder to the Administrative
Agent, any Secured Party or any Funding Agent, (iii) modifies in any way the
payment of interest and/or discount, fees, indemnities and other amounts to any
Secured Party hereunder (or to the Administrative Agent or to any Funding Agent
on its behalf), including any defined terms necessary to calculate any such
amounts, (iv) extends the Commitment Expiry Date or maturity of any amount due
hereunder or, except in the case of HLS, affects the ability of any CP Lender to
assign its interests to its related APA Banks under its Asset Purchase
Agreement, (v) amends, modifies or waives any definition used herein which
relates to or refers to a specific Secured Party, (vi) increases the Commitment
of any APA Bank, or (vii) modifies the provisions of Section 7.1 or this Section
9.3 or the definition of "Required Lending Group" or any other provision hereof
specifying the number or percentage of APA Banks required to waive, amend or
modify any rights hereunder or make any determination or grant any consent
hereunder; shall in any case be effective without the prior written consent of
such Person(s) affected thereby; PROVIDED, FURTHER, that no such action that
affects the rights, duties or obligations of the Administrative Agent or of any
Funding Agent shall be effective without the prior written consent of the
Person(s) affected thereby. In the case of any waiver, each of the parties
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hereto shall be restored to its former position and rights hereunder, and any
Termination Event or Servicer Termination Event waived shall be deemed to be
cured and not continuing; but no such waiver shall extend to any subsequent
or other Termination Event or Servicer Termination Event, or impair any right
consequent thereon.
(b) It is the intent of the parties hereto that the
Borrower have the right to amend this Agreement solely to add an additional
lender or additional lenders, subject to the approval of the Administrative
Agent and each Funding Agent party hereto, which shall not be unreasonably
withheld or delayed.
Section 9.4 SEVERABILITY. In the event that any provision
of this Agreement or the application thereof to any party hereto or to any
circumstance or in any jurisdiction governing this Agreement shall, to any
extent, be invalid or unenforceable under any applicable statute, regulation
or rule of law, then such provision shall be deemed inoperative to the extent
that it is invalid or unenforceable and the remainder of this Agreement, and
the application of any such invalid or unenforceable provision to the
parties, jurisdictions or circumstances other than to whom or to which it is
held invalid or unenforceable, shall not be affected thereby nor shall the
same affect the validity or enforceability of any other provision of this
Agreement. The parties hereto further agree that the holding by any court of
competent jurisdiction that any remedy pursued by the Administrative Agent or
any of the Secured Parties hereunder is unavailable or unenforceable shall
not affect in any way the ability of the Administrative Agent or any of the
Secured Parties to pursue any other remedy available to it or them (subject,
however, to any provisions of this Agreement that expressly limit the
exercise of such remedies).
Section 9.5 NONPETITION COVENANT. Notwithstanding any prior
termination of this Agreement, each of the parties hereto agrees that it
shall not, prior to one year and one day after the Termination Date,
institute against, or join with any other Person in instituting against, the
Borrower any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceeding or other similar proceeding under the laws of any
jurisdiction. The parties agree that damages will be an inadequate remedy for
breach of this covenant and that this covenant may be specifically enforced.
Section 9.6 NOTICES. All notices, demands, certificates,
requests and communications hereunder ("notices") shall be in writing and
shall be effective (a) upon receipt when sent through the U.S. mails,
registered or certified mail, return receipt requested, postage prepaid, with
such receipt to be effective the date of delivery indicated on the return
receipt, or (b) one Business Day after delivery to an overnight courier, or
(c) on the date personally delivered to an Authorized Officer of the party to
which sent, or (d) on the date transmitted by legible telecopier transmission
with a confirmation of receipt, in all cases addressed to the recipient at
its address set forth in Annex A to the Sale and Servicing Agreement. A copy
of each notice given hereunder to any party hereto shall also be given to
(without duplication) the Borrower, the Funding Agents and the Administrative
Agent. Each party hereto may, by notice given in accordance herewith to each
of the other parties hereto, designate any further or different address to
which subsequent notices shall be sent.
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Section 9.7 TERM OF THIS AGREEMENT. This Agreement shall
continue in effect until the Termination Date. On such Termination Date, this
Agreement shall terminate, all obligations of the parties hereunder shall
cease and terminate and the Collateral, if any, held hereunder and not to be
used or applied in discharge of any obligations of the Borrower in respect of
the Secured Obligations or otherwise under this Agreement or any of the other
Basic Agreements, shall be released to and in favor of the Borrower; PROVIDED
that the provisions of Sections 3.4, 3.5, 7.6, 9.5, and 9.13 and Article VIII
shall survive any termination of this Agreement and the release of any
Collateral upon such termination.
Section 9.8 ASSIGNMENTS; THIRD-PARTY RIGHTS. This Agreement
shall be a continuing obligation of the parties hereto and shall (i) be
binding upon the parties and their respective successors and assigns, and
(ii) inure to the benefit of and be enforceable by each Secured Party and the
Administrative Agent for the benefit of the Secured Parties, and by their
respective successors, transferees and assigns. The Borrower may not assign
this Agreement, or delegate any of its duties hereunder, without the prior
written consent of all of the Secured Parties.
Section 9.9 CONSENT OF REQUIRED LENDING GROUPS. In the
event that the consent of the Required Lending Groups is required under the
terms hereof or under the terms of any Basic Agreement, it is understood and
agreed that, except as otherwise provided expressly herein, the determination
whether to grant or withhold such consent shall be made solely by each
Secured Party in its sole and absolute discretion.
Section 9.10 LIMITATION OF LIABILITY. The Administrative
Agent shall not have any obligations under this Agreement or any other Basic
Agreement other than those specifically set forth herein or therein, and no
implied obligations of the Administrative Agent shall be read into this
Agreement or any other Basic Agreement. Without limiting any other provision
hereof, the parties further expressly acknowledge and agree that in no event
shall The Chase Manhattan Bank be liable under or in connection with this
Agreement for indirect, special or consequential losses or damages of any
kind, including lost profits, even if advised of the possibility thereof and
regardless of the form of action by which such losses or damages may be
claimed.
Section 9.11 COUNTERPARTS. This Agreement may be executed
in two or more counterparts by the parties hereto, and each such counterpart
shall be considered an original and all such counterparts shall constitute
one and the same instrument.
Section 9.12 HEADINGS. The headings of Sections and
paragraphs and the Table of Contents contained in this Agreement are provided
for convenience only. They form no part of this Agreement and shall not
affect its construction or interpretation.
Section 9.13 NO RECOURSE AGAINST CERTAIN PARTIES. No
recourse under or with respect to any obligation, covenant or agreement
(including, without limitation, any obligation or agreement to pay fees or
any other amount) of the Borrower contained in this Agreement or any other
agreement, instrument or document entered into by it
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pursuant hereto or in connection herewith shall be had against any
incorporator, Affiliate, stockholder, officer, employee, director or agent of
the Borrower solely by virtue of its acting in such capacity, by the
enforcement of any assessment, by any legal or equitable proceeding, by
virtue of any statute or otherwise; it being expressly agreed and understood
that the agreements of the Borrower contained in this Agreement and all of
the other agreements, instruments and documents entered into by it pursuant
thereto or in connection herewith are, in each case, solely the corporate
obligations of the Borrower, and that no personal liability whatsoever shall
attach to or be incurred by any incorporator, stockholder, Affiliate,
officer, employee, director or agent of the Borrower, or any of them, under
or by reason of any of the obligations, covenants or agreements of the
Borrower contained in this Agreement or in any other such instrument,
document or agreement, or which are implied therefrom, and that any and all
personal liability of every such incorporator, stockholder, affiliate,
officer, employee, director or agent of the Borrower for breaches by the
Borrower of any such obligations, covenants or agreements, which liability
may arise either at common law or at equity, by statute or constitution, or
otherwise, is hereby expressly waived as a condition of and in consideration
for the execution of this Agreement; PROVIDED that the foregoing shall not
relieve any such Person from any liability it might otherwise have as a
result of its fraudulent actions or omissions.
Section 9.14 RESPECTIVE RIGHTS OF THE BORROWER AND THE
SECURED PARTIES IN THE COLLATERAL. The Borrower hereby acknowledges and
agrees that its interest in the Collateral is subject and subordinate in all
respects to its pledge of the Collateral to the Secured Parties under this
Agreement and that the Administrative Agent holds the Collateral for the
Secured Parties hereunder.
Section 9.15 CONSENTS TO JURISDICTION. Each of the parties
hereto irrevocably submits to the jurisdiction of the United States District
Court for the Southern District of New York, any court in the State of New
York located in the city and county of New York, and any appellate court from
any thereof, in any action, suit or proceeding brought against it and related
to or in connection with this Agreement, the other Basic Agreements or the
transactions contemplated hereunder or thereunder or for recognition or
enforcement of any judgment and each of the parties hereto irrevocably and
unconditionally agrees that all claims in respect of any such suit or action
or proceeding may be heard or determined in such New York State court or, to
the extent permitted by law, in such federal court. Each of the parties
hereto agrees that a final judgment in any such action, suit or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. To the extent permitted by
applicable law, each of the parties hereby waives and agrees not to assert by
way of motion, as a defense or otherwise in any such suit, action or
proceeding, any claim that it is not personally subject to the jurisdiction
of such courts, that the suit, action or proceeding is brought in an
inconvenient forum, that the venue of the suit, action or proceeding is
improper or that this Agreement or any of the other Basic Agreements or the
subject matter hereof or thereof may not be litigated in or by such courts.
The Borrower hereby irrevocably appoints and designates The Prentice-Hall
Corporation System, 500 Central Avenue, Albany, New York 12206-2290, as its
true and lawful attorney and duly authorized agent for acceptance of service
of legal process. The
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Borrower agrees that service of such process upon such Person shall
constitute personal service of such process upon it. Nothing contained in
this Agreement shall limit or affect the rights of any party hereto to serve
process in any other manner permitted by law or to start legal proceedings
relating to any of the Basic Agreements against the Borrower or its property
in the courts of any jurisdiction.
Section 9.16 TRIAL BY JURY WAIVED. Each of the parties
hereto waives, to the fullest extent permitted by law, any right it may have
to a trial by jury in respect of any litigation arising directly or
indirectly out of, under or in connection with this Agreement, any of the
other Basic Agreements or any of the transactions contemplated hereunder or
thereunder. Each of the parties hereto (a) certifies that no representative,
agent or attorney of any other party has represented, expressly or otherwise,
that such other party would not, in the event of litigation, seek to enforce
the foregoing waiver and (b) acknowledges that it has been induced to enter
into this Agreement and the other Basic Agreements to which it is a party, by
among other things, this waiver.
Section 9.17 LIABILITIES AND RIGHTS OF FUNDING AGENTS.
(a) Notwithstanding any provision of this Agreement or any
other Basic Agreement: (i) no Funding Agent shall have any obligations under
this Agreement or any other Basic Agreement other than those specifically set
forth herein and therein, and no implied obligations of any Funding Agent
shall be read into this Agreement or any other Basic Agreement; and (ii) in
no event shall any Funding Agent be liable under or in connection with this
Agreement or any other Basic Agreement for indirect, special, or
consequential losses or damages of any kind, including lost profits, even if
advised of the possibility thereof and regardless of the form of action by
which such losses or damages may be claimed. Neither shall any Funding Agent
nor any of their respective directors, officers, agents or employees be
liable for any action taken or omitted to be taken in good faith by it or
them under or in connection with this Agreement or any other Basic Agreement,
except for its or their own gross negligence or willful misconduct. Without
limiting the foregoing, each Funding Agent (a) may consult with legal
counsel, independent public accountants and other experts selected by it and
shall not be liable for any action taken or omitted to be taken in good faith
by it in accordance with the advice of such counsel, accountants or experts,
(b) shall not be responsible to the Secured Parties, the Sellers, the
Servicer or the Borrower for any statements, warranties or representations
made in or in connection with this Agreement or the other Basic Agreements
(except for its own), (c) shall not be responsible to the Secured Parties,
the Sellers, the Servicer or the Borrower for the due execution, legality,
validity, enforceability, genuineness, sufficiency or value of this Agreement
or the other Basic Agreements (except with respect to itself), (d) shall
incur no liability under or in respect of any of the Commercial Paper or
other obligations of the CP Lenders under this Agreement or the other Basic
Agreements and (e) shall incur no liability under or in respect of this
Agreement or the other Basic Agreements by acting upon any notice (including
notice by telephone), consent, certificate or other instrument or writing
(which may be by facsimile) believed by it to be genuine and signed or sent
by the proper party or parties. Notwithstanding anything else herein or in
the other Basic Agreements, it is agreed that where a Funding Agent may be
required under this Agreement or the other
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Basic Agreements to give notice of any event or condition or to take any
action as a result of the occurrence of any event or the existence of any
condition, such Funding Agent agrees to give such notice or take such action
only to the extent that it has actual knowledge of the occurrence of such
event or the existence of such condition, and shall incur no liability for
any failure to give such notice or take such action in the absence of such
knowledge.
(b) Each of the Funding Agents hereby represents and
warrants to the Sellers and the Servicer that it is duly authorized to act on
behalf of any CP Lender and APA Bank in its related Lending Group.
(c) Each Funding Agent other than the HLS Funding Agent
hereby confirms that the APA Banks in its related Lender Group have executed
and delivered the related Asset Purchase Agreement and, by such execution and
delivery, have assumed all of the rights and obligations of the APA Banks
hereunder and under the other Basic Agreements. Except with respect to HLS,
upon effectiveness of this Agreement and, with respect to each APA Bank, upon
effectiveness of its related Asset Purchase Agreement, each APA Bank shall
have all of the rights and benefits of an "APA Bank" hereunder and under the
other Basic Agreements, and each APA Bank shall assume, and be bound by and
liable for, all of the duties and obligations of an "APA Bank" hereunder and
thereunder to the extent specified herein and therein, in each case as if
such rights, benefits, duties, and obligations were set forth in their
entirety in the related Asset Purchase Agreement.
(d) All actions taken by the Secured Parties in a Lending
Group hereunder and under the Basic Agreements shall be taken by the related
Funding Agent on behalf of such Secured Party.
Section 9.18 CP LENDERS GENERALLY.
(a) Each of the parties hereto hereby agrees that it will
not institute against, or join with any other Person in instituting against,
a CP Lender any bankruptcy, insolvency, reorganization or similar proceeding
so long as any Commercial Paper or other notes issued by such Purchaser shall
be outstanding or there shall not have elapsed one year plus one day since
the last day on which any such CP Lender's Commercial Paper or other notes
shall have been outstanding.
(b) Notwithstanding anything to the contrary contained
herein, the obligations of a CP Lender under this Agreement are solely the
corporate obligations of such CP Lender and (i) in the case of obligations of
a CP Lender other than Commercial Paper, shall be payable at such time as
funds are actually received by, or are available to, such CP Lender, in
excess of funds necessary to pay in full all of its outstanding Commercial
Paper and, to the extent funds are not available to pay such obligations, the
claims relating thereto shall not constitute a claim against such CP Lender,
but shall continue to accrue. Each party hereto agrees that the payment of
any claim (as defined in Section 101 of Title 11, United States Code
(Bankruptcy)) of any such party against a CP
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Lender, shall be subordinated to the payment in full of all of such Lender's
outstanding Commercial Paper.
No recourse under any obligation, covenant or agreement of
a CP Lender contained in this Agreement shall be had against any
incorporator, stockholder, officer, director, member, manager, employee or
agent of such CP Lender or any of their Affiliates (solely by virtue of such
capacity) by the enforcement of any assessment or by any legal or equitable
proceeding, by virtue of any statute or otherwise; it being expressly agreed
and understood that this Agreement is solely a corporate obligation of each
CP Lender, and that no personal liability whatever shall attach to or be
incurred by any incorporator, stockholder, officer, director, member,
manager, employee or agent of such CP Lender or any of its Affiliates (solely
by virtue of such capacity) or any of them under or by reason of any of the
obligations, covenants or agreements of such CP Lender contained in this
Agreement, or implied therefrom, and that any and all personal liability for
breaches by a CP Lender of any of such obligations, covenants or agreements,
either at common law or at equity, or by statute, rule or regulation, of
every such incorporator, stockholder, officer, director, member, manager,
employee or agent is hereby expressly waived as a condition of and in
consideration for the execution of this Agreement; PROVIDED that the
foregoing shall not relieve any such Person from any liability it might
otherwise have as a result of their willful misconduct or of fraudulent
actions taken or fraudulent omissions made by them.
(c) Each of the parties hereto hereby waives any right to
setoff which it may have or to it may be entitled against a CP Lender or its
assets.
Section 9.19 GOVERNING LAW. This Agreement shall be
governed by and construed, and the obligations, rights and remedies of the
parties hereunder shall be determined, in accordance with the laws of the
State of New York.
Section 9.20 No Recourse. It is expressly understood and
agreed by the parties hereto that (a) this Agreement is executed and
delivered by Bankers Trust (Delaware), not individually or personally but
solely as trustee of the Borrower, in the exercise of the powers and
authority conferred and vested in it, (b) each of the representations,
undertakings and agreements herein made on the part of the Borrower is made
and intended not as personal representations, undertakings and agreements by
Bankers Trust (Delaware) but is made and intended for the purpose of binding
only the Borrower, (c) nothing herein contained shall be construed as
creating any liability on Bankers Trust (Delaware), individually or
personally, to perform any covenant either expressed or implied contained
herein, all such liability, if any, being expressly waived by the parties
hereto and by any Person claiming by, through or under the parties hereto and
(d) under no circumstances shall Bankers Trust (Delaware) be personally
liable for the payment of any indebtedness or expenses of the Borrower or be
liable for the breach or failure of any obligation, representation, warranty
or covenant made or undertaken by the Borrower under this Agreement or any
other related documents.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date set forth on the first page hereof.
AMERICREDIT MANHATTAN TRUST,
as Borrower
By: Bankers Trust (Delaware), solely in its
capacity as Trustee
By:
--------------------------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK,
as Administrative Agent on behalf of the Secured
Parties
By:
--------------------------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK,
as PARCO Funding Agent
By:
--------------------------------------------------
Name:
Title:
PARK AVENUE RECEIVABLES CORPORATION,
as a Secured Party
By:
--------------------------------------------------
Name:
Title:
<PAGE>
ING BARING (U.S.) CAPITAL MARKETS, LLC,
as HLS Funding Agent
By:
--------------------------------------------------
Name:
Title:
HOLLAND LIMITED SECURITIZATION, INC.,
as a Secured Party
By:
--------------------------------------------------
Name:
Title:
<PAGE>
EXHIBIT A
FORM OF
VARIABLE FUNDING NOTE
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"). ANY RESALE OF TRANSFER OF THIS NOTE WITHOUT
REGISTRATION THEREOF UNDER THE ACT MAY ONLY BE MADE IN A TRANSACTION
EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND (A) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(A)(1), (2), (3) OR (7) OF REGULATION D OF THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT") OR (B) TO A PERSON WHO THE
TRANSFEROR REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER
WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT THAT IS AWARE
THAT THE RESALE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE
144A.
September [14], 2000
Reference is hereby made to that certain Security and
Funding Agreement, dated as of September [14], 2000 (as amended, supplemented
or otherwise modified and in effect from time to time, the "SECURITY AND
FUNDING AGREEMENT") by and among AmeriCredit Manhattan Trust, a Delaware
business trust, as borrower (the "BORROWER"), The Chase Manhattan Bank, a New
York banking corporation, as administrative agent (in such capacity, the
"ADMINISTRATIVE AGENT") and as securities intermediary, and the several
funding agents, lenders and financial institutions party thereto from time to
time (collectively, the "SECURED PARTIES") Capitalized terms used herein and
not otherwise defined herein shall have the meanings assigned to such terms
in, or incorporated by reference into, the Security and Funding Agreement.
FOR VALUE RECEIVED, the Borrower hereby promises to pay to
the order of the Administrative Agent, for the account of and for the benefit
of the Secured Parties at the principal office of the Administrative Agent at
450 West 33rd Street, 15th Floor, New York, New York 10001, Attention:
Structured Finance Services, a principal sum equal to _____________ MILLION
DOLLARS ($____________), in lawful money of the United States of America and
in immediately available funds.
The date and amount of each Funding extended by the Secured
Parties to the Borrower under the Security and Funding Agreement, and each
payment of principal thereof, shall be recorded by the Administrative Agent,
for the account of the applicable Secured Parties, on its books and, prior to
any transfer of this Note (or, at the discretion of the Secured Parties, at
any other time), indorsed by the Administrative Agent, on behalf of the
Secured Parties, on the schedule attached hereto or on any continuation
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<PAGE>
thereof. Although the stated principal amount of this Note is as stated
above, this Note shall be enforceable only with respect to the Borrower's
obligation to pay the principal hereof to the extent of the unpaid principal
amount of the Fundings outstanding under the Security and Funding Agreement
at the time such enforcement shall be sought.
Carrying Costs in respect of the outstanding principal
amount of this Note shall accrue at the rate or rates from time to time in
effect pursuant to the Security and Funding Agreement and payable to the
Administrative Agent for the benefit of the Secured Parties of such Carrying
Costs on the dates and in the manner provided for in the Sale and Servicing
Agreement and the Security and Funding Agreement; PROVIDED that, in all
events, Carrying Costs constituting Accrued Discount shall be payable by the
Borrower on any day on which outstanding Commercial Paper issued by a CP
Lender to fund its Net Investment matures. Carrying Costs due and payable
hereunder shall be payable in accordance with the priorities set forth in
Section 6.8 of the Sale and Servicing Agreement.
Principal in an amount equal to the Targeted Monthly
Principal Payment, if any, will be due and payable on each Distribution Date
in accordance with the priorities set forth in Section 6.8 of the Sale and
Servicing Agreement. Unless otherwise due and payable on an earlier date in
accordance with the terms of the Basic Agreements, the entire outstanding
principal amount of this Note and accrued interest thereon will be due and
payable on the Distribution Date occurring in the calendar month
seventy-eight (78) months following the Commitment Expiry Date; PROVIDED,
HOWEVER, that the principal amount of any same day Funding shall be due no
later than the fifth Business Day immediately following such same day Funding
date.
Following the occurrence of a Termination Event, the
Administrative Agent may, with the consent of the Required Lending Groups, or
shall, at the direction of the Required Lending Groups, declare all amounts
due hereunder to be immediately due and payable and exercise all remedies
available to it pursuant to the Basic Agreements and applicable law; PROVIDED
that, upon the occurrence of an Insolvency Event with respect to the
Borrower, all such amounts immediately shall become due and owing
automatically without the need for presentment, demand, protest or other
notice of any kind, all of which are hereby waived by the Borrower.
The Borrower's obligation to make payments hereunder shall
be a limited recourse obligation of the Borrower, payable solely from the
Collateral, and no recourse shall be had hereunder to the Borrower for
payment hereunder except to the extent of the Collateral. This Note does not
purport to summarize the Security and Funding Agreement or the other Basic
Agreements, and reference is hereby made to such agreements for information
with respect to the interests, rights, benefits, obligations, proceeds and
duties evidenced hereby.
The Borrower shall pay all costs of collection of any
amount due hereunder when incurred including, without limitation, reasonable
attorney's fees and expenses, and including all costs and expenses actually
incurred in connection with the pursuit by the Administrative Agent, on
behalf of and at the direction of the Secured
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Parties, of any of their rights or remedies referred to herein or in the
Security and Funding Agreement, or the protection of, or realization upon,
Collateral, and all such costs shall be payable in accordance with the terms
of the Security and Funding Agreement.
The Borrower hereby waives presentment, notice of dishonor,
protest and other notice or formality with respect to this Note.
This Note shall be governed by, and construed in accordance
with, the laws of the State of New York.
IN WITNESS WHEREOF, the undersigned has executed and
delivered this Variable Funding Note as of the date and year first above
written.
AMERICREDIT MANHATTAN TRUST
By: Bankers Trust (Delaware), solely in its capacity
as Trustee
By:
--------------------------------------------------
Name:
Title:
A-3
