EXHIBIT 10.22.2
EXECUTION COPY
________________________________________________________________________________
NOTE PURCHASE AGREEMENT
among
AMERICREDIT BARCLAYS TRUST
as Issuer,
AMERICREDIT FINANCIAL SERVICES, INC.,
SHEFFIELD RECEIVABLES CORPORATION,
as Company,
and
BARCLAYS BANK PLC,
as Agent and Administrative Agent
Dated as of June 30, 2000
________________________________________________________________________________
Table of Contents
Page
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ARTICLE I DEFINITIONS........................................................................................ 1
Section 1.1. Definitions............................................................................... 1
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ARTICLE II FUNDINGS; THE NOTE................................................................................ 5
Section 2.1. Funding; The Note......................................................................... 5
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Section 2.2. Sharing of Payments, Etc.................................................................. 7
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Section 2.3. Right of Setoff........................................................................... 7
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Section 2.4. Fees...................................................................................... 8
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Section 2.5. Selection of Funding Periods and Interest Rates........................................... 8
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ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE ISSUER.................................................... 10
Section 3.1. Representations and Warranties of the Issuer.............................................. 10
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ARTICLE IV INDEMNIFICATION................................................................................... 12
Section 4.1. Indemnity................................................................................. 12
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Section 4.2. Indemnity for Taxes, Reserves and Expenses................................................ 14
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Section 4.3. Other Costs, Expenses and Related Matters................................................. 16
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Section 4.4. Taxes..................................................................................... 16
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ARTICLE V THE AGENT.......................................................................................... 17
Section 5.1. Authorization and Action.................................................................. 17
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Section 5.2. Agent's Reliance, Etc..................................................................... 18
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Section 5.3. Termination Event or Potential Termination Event.......................................... 18
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Section 5.4. Agent and Affiliates...................................................................... 18
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Section 5.5. Indemnification of the Agent.............................................................. 19
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Section 5.6. Non-Reliance.............................................................................. 19
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Section 5.7. Resignation of Agent...................................................................... 19
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Section 5.8. Payments by the Agent..................................................................... 20
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ARTICLE VI MISCELLANEOUS..................................................................................... 20
Section 6.1. Term of Agreement......................................................................... 20
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Section 6.2. Waivers; Amendments....................................................................... 20
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Section 6.3. Notices................................................................................... 21
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Section 6.4. Governing Law; Submission to Jurisdiction; Integration.................................... 23
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Section 6.5. Counterparts.............................................................................. 23
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Section 6.6. Successors and Assigns.................................................................... 23
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Section 6.7. Waiver of Confidentiality................................................................. 25
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Section 6.8. Confidentiality Agreement................................................................. 25
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Section 6.9. No Bankruptcy Petition Against the Company................................................ 25
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Section 6.10 Further Assurances........................................................................ 25
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Section 6.11. Headings.................................................................................. 25
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Section 6.12. Limitation of Liability................................................................... 25
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Section 6.13. Intended Tax Characterization............................................................. 26
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Section 6.14. No Recourse............................................................................... 26
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ii
EXHIBITS
EXHIBIT A Form of Initial Funding Request A-1
EXHIBIT B Form of Subsequent Funding Notice B-1
EXHIBIT C Form of Note C-1
iii
NOTE PURCHASE AGREEMENT
NOTE PURCHASE AGREEMENT (this "Agreement"), dated as of June 30, 2000,
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among SHEFFIELD RECEIVABLES CORPORATION, a Delaware corporation, as lender
(together with its successors and assigns, the "Company"), AMERICREDIT BARCLAYS
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TRUST, a Delaware business trust, as borrower (together with its successors and
assigns, the "Issuer"), AMERICREDIT FINANCIAL SERVICES, INC., a Delaware
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corporation ("AmeriCredit") and BARCLAYS BANK PLC ("Barclays"), as agent for the
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Company and the other Owners (in such capacity, together with its successors,
the "Agent") and as administrative agent for the Company (the "Administrative
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Agent").
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W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, subject to the terms and conditions of this Agreement and the
Security Agreement, the Issuer desires to obtain funds from the Company and to
evidence the obligation to repay such amounts, together with interest thereon,
through the issuance of the Note;
WHEREAS, pursuant to the Security Agreement, the Issuer will pledge to
the Collateral Agent for the benefit of the Secured Parties its interest in the
Collateral, including the Issuer's interest in the Contracts;
NOW THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1. Definitions. All capitalized terms used herein and not
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otherwise defined herein shall have the meanings specified in the Security
Agreement. The following terms shall have the meanings specified below, and
shall include in the singular number the plural and in the plural number the
singular:
"Administrative Agent" means Barclays, as administrative agent for the
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Company.
"AFC III" means AmeriCredit Funding Corp. III, a Delaware corporation.
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"Agent" means Barclays, in its capacity as agent for the Company and
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the other Owners, and any successor thereto appointed pursuant to Article V of
this Agreement.
"Agreement" means this Note Purchase Agreement, as it may from time to
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time be amended, supplemented or otherwise modified in accordance with the terms
hereof.
"AmeriCredit" means AmeriCredit Financial Services, Inc., a Delaware
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corporation.
"Barclays" means Barclays Bank PLC.
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"Closing Date" means June 30, 2000.
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"Collateral Agent" means Barclays, or any successor thereto, as
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Collateral Agent under the Security Agreement.
"Commercial Paper" means promissory notes of the Company issued by the
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Company in the commercial paper market.
"Commitment" means the commitment of the Company to make acquisitions
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from the Issuer in accordance herewith in an amount not to exceed the dollar
amount set forth opposite the Company's signature on the signature page hereto
under the heading "Commitment", plus the dollar amount of any increase to the
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Company's Commitment consented to by the Company prior to the time of
determination; provided, however, that in the event that the Facility Limit is
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reduced, the Commitment shall be reduced in a like amount; provided, further,
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that from and after the occurrence of the Termination Date, the Commitment shall
be zero.
"Company" means Sheffield Receivables Corporation, a Delaware
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corporation, together with its successors and assigns, including any Conduit
Assignee.
"Conduit Assignee" means any commercial paper conduit administered by
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Barclays and designated by Barclays from time to time to accept an assignment of
the Company of all or a portion of the Net Investment.
"CP Disruption Event" means, at any time for any reason whatsoever,
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the Company shall be unable to raise, or shall be precluded or prohibited from
raising, funds through the issuance of Commercial Paper in the United States'
commercial paper market including, without limitation, by virtue of (a)
insufficient availability under a Liquidity Provider Agreement entered into by
the Company with respect to this Agreement or (b) a downgrade of the rating of
one or more Liquidity Providers under a Liquidity Provider Agreement which
relates to this Agreement to a level lower than that required by the rating
agencies rating the Commercial Paper.
"CP Rate" means, with respect to any funding period with respect to
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which Discount is to be calculated by reference to the rate of interest based on
Commercial Paper, the per annum rates equivalent to the rate (or if more than
one rate, the weighted average of the rates) at which Commercial Paper allocated
by the Administrative Agent to the acquisition or maintenance of its interest in
the Note during such funding period, provided, however, that if the rate (or
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rates) is a discount rate, then the rate (or if more than one rate, the weighted
average of the rates) resulting from the Company's converting such discount rate
(or rates) to an interest-bearing equivalent rate per annum.
"Early Collection Fee" means, for any funding period during which the
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portion of the Net Investment that was allocated to such funding period is
reduced for any reason whatsoever, the amount payable in accordance with Section
4.3(b) hereof, equal to the excess, if any, of (i) the additional Discount that
would have accrued during such funding period if such reductions had not
occurred, minus (ii) the income, if any, received by the recipient of such
reductions from investing the proceeds of such reductions.
"Effective Date" has the meaning set forth in Section 5.9(a) hereof.
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"Eurodollar Rate" means, with respect to any funding period with
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respect to which Discount is to be calculated by reference to the LIBOR Rate, a
rate which is 1.25% in excess of a rate
2
per annum equal to the sum (rounded upwards, if necessary, to the next higher
1/100 of 1%) of (A) the rate obtained by dividing (i) the applicable LIBOR Rate
by (ii) a percentage equal to 100% minus the reserve percentage used for
determining the maximum reserve requirement as specified in Regulation D
(including, without limitation, any marginal, emergency, supplemental, special
or other reserves), that is applicable to the Agent during such funding period
in respect of eurocurrency or eurodollar funding, lending or liabilities (or, if
more than one percentage shall be so applicable, the daily average of such
percentage for those days in such funding period during which any such
percentage shall be applicable) plus (B) the then daily net annual assessment
rate (rounded upwards, if necessary, to the nearest 1/100 of 1%) as estimated by
the Agent for determining the current annual assessment payable by the Agent to
the Federal Deposit Insurance Corporation in respect of eurocurrency or
eurodollar funding, lending or liabilities.
"Funding" means the Initial Funding and any Subsequent Funding.
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"Funding Date" means the date upon which any Funding occurs.
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"GAAP" means generally accepted accounting principles set forth in the
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opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements of the Financial
Accounting Standards Board or in such other statements or pronouncements by such
other entity as approved by a significant segment of the accounting profession,
which are in effect from time to time.
"Indemnified Amounts" has the meaning set forth in Section 4.1 hereof.
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"Indemnified Parties" has the meaning set forth in Section 4.1 hereof.
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"Initial Funding" has the meaning set forth in Section 2.1(a) hereof.
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"Initial Funding Date" means the date upon which the Initial Funding
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occurs.
"Initial Funding Request" has the meaning set forth in 2.1(a) hereof.
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"Interest Component" has the meaning specified in the Security
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Agreement.
"Issuer" means AmeriCredit Barclays Trust, a Delaware business trust,
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and its successors and permitted assigns.
"Law" has the meaning specified in the Security Agreement.
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"LIBOR Rate" means, with respect to any funding period (which shall be
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either one month or three months, as selected by the Issuer or the Agent, as
appropriate) with respect to which Discount is to be calculated by reference to
the LIBOR Rate, the rate at which deposits in U.S. dollars are offered by the
Reference Banks, in the London interbank market at approximately 11:00 a.m.
(London time) two Business Days before the first day of such funding period in
an amount approximately equal to the Net Investment (or portion thereof) to be
funded by reference to the LIBOR Rate and for a period of time approximately
equal to the applicable funding period. The Agent will request the principal
London office of each of the Reference Banks to provide a quotation of its rate.
If at least two such quotations are provided, the rate for that day will be the
arithmetic mean of the
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quotations. If fewer than two such quotations are provided as requested, the
rate for that day will be the arithmetic mean of the rates quoted by two or more
major banks in New York City, selected by the Agent, in its sole discretion at
approximately 11:00 a.m., New York City time, on that day for loans in United
States dollars from leading European banks for a period of one month.
"Liquidity Provider Agreement" means the agreement between the Company
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and the Liquidity Provider evidencing the obligation of the Liquidity Provider
to provide liquidity support to the Company in connection with the issuance of
Commercial Paper.
"Liquidity Provider" means the Person or Persons who will provide
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liquidity support to the Company in connection with the issuance by the Company
of its Commercial Paper, and shall include any Person which acquires a
participation interest therein.
"Majority Owners" means at any time, Owners which hold interests in
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the Note aggregating in excess of 51% of the outstanding principal amount of the
Note as of such date.
"Moody's" means Xxxxx'x Investors Service, Inc.
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"Note" means the variable funding note issued to the Agent for the
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benefit of the Company and the other Owners, as applicable, pursuant to Section
2.1 hereof, in the form of Exhibit C hereto.
"Other Transferor" means any Person other than the Issuer that has
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entered into a receivables purchase agreement, transfer and administration
agreement, note purchase agreement, security agreement or other similar
agreement with the Company.
"Owner" means the Company and each other Person (including a
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participant to the extent of its undivided interest) that has purchased, or has
entered into a commitment to purchase an interest in the Note from the Company
pursuant to the Liquidity Provider Agreement.
"Purchased Interest" means the interest, if any, in the Note acquired
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by the Liquidity Provider pursuant to the Liquidity Provider Agreement.
"Reference Banks" means Barclays and three other major banks in the
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London interbank market selected by the Administrative Agent.
"Requirements of Law" means, for any Person, the certificate of
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incorporation or articles of association and by-laws or other organizational or
governing documents of such Person, and any law, treaty, rule or regulation, or
determination of an arbitrator or Governmental Authority, in each case
applicable to or binding upon such Person or to which such Person is subject,
whether Federal, state or local (including, without limitation, usury laws, the
Federal Truth in Lending Act and Regulation Z and Regulation B of the Board of
Governors of the Federal Reserve System).
"S&P" means Standard & Poor's Ratings Services, a Division of The
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XxXxxx-Xxxx Companies.
"Section 4.2 Costs" has the meaning set forth in Section 4.2(d)
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hereof.
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"Security Agreement" means the Security Agreement, dated as of the
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date hereof, among AmeriCredit, AFC III, the Issuer, the Collateral Agent and
the Company, as such agreement may be amended, supplemented or otherwise
modified from time to time.
"Subsequent Funding" means any advance which is made pursuant to
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Section 2.1(b) hereof.
"Subsequent Funding Notice" has the meaning set forth in Section
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2.1(b) hereof.
"Subsidiary" means any corporation more than 50% of the outstanding
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voting securities of which shall at any time be owned or controlled, directly or
indirectly, by the Issuer or one or more Subsidiaries, or any similar business
organization which is so owned or controlled.
"Transaction Costs" has the meaning set forth in Section 4.3 hereof.
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"Transfer Price" has the meaning set forth in Section 2.1(f) hereof.
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"Transfer Price Deficit" has the meaning set forth in Section 2.1(g)
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hereof.
"Uniform Commercial Code" or "UCC" means, with respect to any state,
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the Uniform Commercial Code as from time to time in effect in such state.
ARTICLE II
FUNDINGS; THE NOTE
Section 2.1. Funding; The Note.
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(a) Initial Funding. Upon the terms and subject to the
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conditions herein set forth, provided that the Termination Date shall not have
occurred, the Company shall make an initial advance (the "Initial Funding") to
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the Issuer on or after the Closing Date. In connection with the Initial Funding,
the Issuer shall, by notice in the form of Exhibit A hereto (the "Initial
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Funding Request") request such Funding at least one Business Day by 12:00 p.m.
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(New York time) prior to the proposed date of such Initial Funding. Such notice
shall specify the proposed Funding Amount (which shall be at least $1,000,000)
and the proposed date of the Initial Funding.
(b) Subsequent Fundings. Upon the terms and subject to the
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conditions herein set forth, provided that the Termination Date shall not have
occurred, the Company shall make a subsequent advance from time to time (each, a
"Subsequent Funding") to the Issuer on or after the Initial Funding Date. In
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connection with each Subsequent Funding, the Issuer shall provide the Agent with
a written notice in substantially the form of Exhibit B (a "Subsequent Funding
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Notice") setting forth the amount of the proposed Subsequent Funding, which
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shall be at least $1,000,000 and integral multiples of $100,000 in excess
thereof (or, to the extent that the then available unused portion of the
Facility Limit is less than such amount, such amount). The Subsequent Funding
Notice shall be provided to the Agent no later than 10:00 a.m. (New York time)
(i) on the related Subsequent Funding Date for Fundings of up to and including
$50 million and (ii) on the Business Day prior to the related Subsequent Funding
Date for Fundings in excess of $50 million. Subsequent Fundings shall not occur
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more than twice per week. The Agent will promptly notify the Company of the
Agent's receipt of any Subsequent Funding Notice to be made to the Agent on its
behalf.
(c) By making any advance hereunder, neither the Company nor the Agent
assumes or shall have any obligations or liability under any of the Receivables,
all of which shall remain the obligations and liabilities of the Issuer,
AmeriCredit and AFC III.
(d) Conditions to Funding. The Company shall have no obligation to
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advance any funds to the Issuer in connection with any Funding if on the date of
the proposed Funding, (i) the sum of the Net Investment after giving effect to
the Funding, plus the Interest Component of Commercial Paper issued in
connection with such Funding would exceed the Facility Limit or the Commitment;
(ii) the Issuer is not in compliance with Section 5.3 of the Security Agreement;
(iii) the Issuer shall not have deposited in the Reserve Account, or shall not
have given irrevocable instructions to the Agent to withhold from proceeds of
such Funding, an amount equal to the amount necessary to cause the amount on
deposit in the Reserve Account to equal the Reserve Account Floor; (calculated
as if such Funding shall have occurred); (iv) a Potential Termination Event or
Termination Event shall have occurred and be continuing; (v) the conditions
precedent set forth in Sections 4.1 and 4.2 of the Security Agreement shall not
be satisfied; (vi) the representations and warranties in Section 3.1 hereof
shall not be true and correct; or (vii) after giving effect to such Funding, the
Net Investment shall be greater than the product of (a) the Noteholder's
Percentage and (b) the sum of the Net Receivables Balance and Collections on
deposit in the Collection Account.
(e) Initial Funding Request and Subsequent Funding Notices
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Irrevocable. The Initial Funding Request and any Subsequent Funding Notice shall
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be irrevocable and binding on the Issuer and the Issuer shall indemnify the
Agent and the Company against any loss or expense incurred by the Company,
either directly or indirectly (including through the Liquidity Provider
Agreement) as a result of any failure by the Issuer to complete the requested
Funding including, without limitation, any loss (including loss of anticipated
profits) or expense incurred by the Agent or the Company, either directly or
indirectly (including pursuant to the Liquidity Provider Agreement), by reason
of the liquidation or reemployment of funds acquired by the Company (or the
Liquidity Provider) (including, without limitation, funds obtained by issuing
commercial paper or promissory notes or obtaining deposits or loans from third
parties) for the Company to complete the requested Funding.
(f) Payments. By no later than 11:00 a.m. (New York time) on the date
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of any Funding, the Company shall remit the amount of such Funding to be
advanced by the Company to the Issuer as set forth in the Initial Funding
Request or the applicable Subsequent Funding Notice, as the case may be (the
"Transfer Price"), to the account of the Agent specified therefor from time to
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time by the Agent by notice to the Company. Promptly following each Funding,
and in any event no later than 3:00 p.m. (New York City time) on the day of such
Funding, and the Agent's receipt of funds from the Company as set forth above,
the Agent shall remit such funds received in respect of the Transfer Price to
the Issuer's account at the location indicated in Section 6.3 hereof, in
immediately available funds.
(g) The Note.
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(i) The Issuer's obligation to pay the principal of and
interest on all amounts advanced by the Company pursuant to any Funding shall be
evidenced by a single note of the Issuer (the "Note") which shall (1) be dated
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the Closing Date; (2) be in the stated principal amount equal to the 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 Agent for the
account of the Owners and mature on the Remittance Date occurring in the sixth
calendar month following the calendar month in which the latest maturing
Receivable (determined as of the Termination Date) is scheduled to mature
(without regard to extensions subsequently granted on any Receivable by the
Issuer or the Collection Agent); (5) be entitled to the benefit of the Security
Agreement and (6) be substantially in the form of Exhibit C to this Agreement,
with blanks appropriately completed in conformity herewith. The Agent shall, and
is hereby authorized to, make a notation on the schedule attached to the Note 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 Note, the Agent shall
endorse the outstanding principal amount of the Note on the schedule attached
thereto; provided, however, that failure to make such notation shall not
adversely affect the Company's or any other Owner's rights with respect to the
Note.
(ii) Although the Note shall be dated the Closing Date,
interest in respect thereof shall be payable only for the periods during which
amounts are outstanding thereunder. In addition, although the stated principal
amount of the Note shall be equal to the Facility Limit, the Note shall be
enforceable with respect to the Issuer's obligation to pay the principal thereof
only to the extent of the unpaid principal amount of the Fundings outstanding
thereunder at the time such enforcement shall be sought.
Section 2.2. Sharing of Payments, Etc. If any Owner (for purposes of this
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Section only, being a "Recipient") shall obtain any payment (whether voluntary,
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involuntary, through the exercise of any right of setoff, or otherwise) on
account of any interest in the Note owned by it in excess of its ratable share
of payments on account of any interest in the Note obtained by such Owner
entitled thereto, such Recipient shall forthwith purchase from the Company
and/or the other Owners 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
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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.
Section 2.3. Right of Setoff. Without in any way limiting the provisions of
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Section 2.2 hereof, each of the Agent, the Company and each other Owner 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 set-off, 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 the Agent, the Company
or such Owner to, or for the account of, the Issuer against the Aggregate
Unpaids owing by the Issuer to such Person (even if contingent or unmatured).
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Section 2.4. Fees. The Issuer shall pay, in accordance with the Fee Letter,
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such fees as are described therein, all of which shall be non-refundable.
Section 2.5. Selection of Funding Periods and Interest Rates.
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(a) Prior to the Termination Date. At all times hereafter,
but prior to the Termination Date and with respect to the Transferred Interest
held by the Agent on behalf of the Company, the Issuer may, subject to the
Company's approval and the limitations described below, request funding periods
and allocate a portion of the Net Investment to each selected funding period, so
that the aggregate amounts allocated to outstanding funding periods at all times
shall equal the Net Investment held on behalf of the Company. The Issuer shall
give the Company irrevocable notice by telephone of the requested funding
period(s) at least one (1) Business Day prior by 12:00 p.m. (New York time) to
the requested Funding Date or the expiration of any then existing funding
period; provided, however, that the Company may select, in its sole discretion,
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any such funding period if (i) the Issuer fails to provide such notice on a
timely basis or (ii) the Company determines, in its sole discretion, that the
funding period requested by the Issuer is unavailable or for any reason
commercially undesirable to any party. The Company confirms that it is its
intention to allocate all or substantially all of the Net Investment held on
behalf of it to one or more funding periods with respect to which the interest
rate applicable thereto is calculated by reference to the CP Rate; provided that
the Company may determine, from time to time, in its sole discretion (whether as
a result of a CP Disruption Event or otherwise), that funding such Net
Investment by means of the issuance of Commercial Paper is not possible or is
not desirable for any reason. Upon such determination, Discount shall be
calculated at the Eurodollar Rate. If the Liquidity Provider acquires from the
Company a Purchased Interest pursuant to the terms of the Liquidity Provider
Agreement, Barclays, on behalf of the Liquidity Provider, may exercise the right
of selection granted to the Company hereby. The initial funding period
applicable to any such Purchased Interest shall be a period of not greater than
14 days and Discount with respect thereto shall be calculated by reference to
the Base Rate. Thereafter, provided that the Termination Date caused by a
Termination Event shall not have occurred, Discount shall be calculated by
reference to the Eurodollar Rate and, if such rate is not available, the Base
Rate. In the case of any funding period outstanding upon the occurrence of the
Termination Date, such funding period shall end on the date of such occurrence.
(b) After the Termination Date. At all times on and after the
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Termination Date, with respect to any portion of the Transferred Interest which
shall be held by the Agent on behalf of the Company, the Agent shall select all
funding periods. At all times after the Termination Date but prior to the
occurrence of a Termination Event, Discount shall be calculated by reference to
the CP Rate; provided that the Company may determine, from time to time, in its
sole discretion (whether as a result of a CP Disruption Event or otherwise),
that funding such Net Investment by means of the issuance of Commercial Paper is
not possible or is not desirable for any reason. Upon such determination,
Discount shall be calculated at the Eurodollar Rate. If the Liquidity Provider
acquires from the Company a Purchased Interest pursuant to the terms of the
Liquidity Provider Agreement, Barclays, on behalf of the Liquidity Provider, may
exercise the right of selection granted to the Company hereby. The initial
funding period applicable to any such Purchased Interest shall be a period of
not greater than 14 days and Discount with respect thereto shall be calculated
by reference to the Base Rate. Thereafter, provided that a Termination Event
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shall not have occurred, Discount shall be calculated by reference to the
Eurodollar Rate and, if such rate is not available, the Base Rate. After the
occurrence of a Termination Event, Discount in respect of any Transferred
Interest held by
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the Company or any Purchased Interest held by a Liquidity Provider shall be
determined as set forth in Section 6.2 of the Security Agreement.
(c) Eurodollar Rate Protection; Illegality.
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(i) If the Agent is unable to obtain on a timely basis
the information necessary to determine the Eurodollar Rate for any proposed
funding period, then
(1) the Agent shall forthwith notify the Company
or the other Owners, as applicable and the Issuer that the Eurodollar Rate
cannot be determined for such funding period, and
(2) while such circumstances exist, neither the
Company, the other Owners nor the Agent shall allocate the Net Investment of any
additional advances during such period or reallocate the Net Investment
allocated to any then existing funding period ending during such period, to a
funding period with respect to which Discount is calculated by reference to the
Eurodollar Rate.
(ii) If, with respect to any outstanding funding
period, the Company or any of the other Owners on behalf of which the Agent
holds any Transferred Interest therein notifies the Agent that it is unable to
obtain matching deposits in the London interbank market to fund any advance or
to maintain such Transferred Interest or that the Eurodollar Rate applicable to
such Transferred Interest will not adequately reflect the cost to the Person of
funding or maintaining its respective Transferred Interest for such funding
period then the Agent shall forthwith so notify the Issuer, whereupon neither
the Agent nor the Company or the other Owners, as applicable, shall, while such
circumstances exist, allocate any Net Investment of any additional Transferred
Interest purchased during such period or reallocate the Net Investment allocated
to any funding period ending during such period, to a funding period with
respect to which Discount is calculated by reference to the Eurodollar Rate.
(iii) Notwithstanding any other provision of this
Agreement, if the Company or any of the other Owners, as applicable, shall
notify the Agent that such Person has determined (or has been notified by any
Liquidity Provider) that the introduction of or any change in or in the
interpretation of any law or regulation makes it unlawful (either for the
Company, such other Owner, or such Liquidity Provider, as applicable), or any
central bank or other governmental authority asserts that it is unlawful, for
the Company, such other Owner or such Liquidity Provider, as applicable, to fund
any advance or to maintain the Transferred Interest the Discount with respect to
which is calculated by reference to the Eurodollar Rate, then (x) as of the
effective date of such notice from such Person to the Agent, the obligation or
ability of the Company or such other Owner, as applicable, to fund its purchase
or maintenance of the Transferred Interest at a Discount calculated by reference
to the Eurodollar Rate shall be suspended until such Person notifies the Agent
that the circumstances causing such suspension no longer exist and (y) the Net
Investment of each funding period in which such Person owns an interest shall
either (1) if such Person may lawfully continue to maintain the Transferred
Interest at a Discount calculated by reference to the Eurodollar Rate until the
last day of the applicable funding period, be reallocated on the last day of
such funding period to another funding period in respect of which the Net
Investment allocated thereto accrues Discount determined other than with respect
to the Eurodollar Rate or (2) if such Person shall determine that it
9
may not lawfully continue to maintain the Transferred Interest at a Discount
calculated by reference to the Eurodollar Rate until the end of the applicable
funding period, such Person's share of the Net Investment allocated to such
funding period shall be deemed to accrue Discount at the Base Rate from the
effective date of such notice until the end of such funding period.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
OF THE ISSUER
Section 3.1. Representations and Warranties of the Issuer. The Issuer
--------------------------------------------
represents and warrants to and covenants with the Agent, the Company and the
other Owners as of the Closing Date and, except as otherwise provided herein, as
of any Funding Date that:
(a) Corporate Existence and Power. The Issuer is a business
-----------------------------
trust duly organized, validly existing and in good standing under the laws of
Delaware and has all power and all material governmental licenses,
authorizations, consents and approvals required to carry on its business in each
jurisdiction in which its business is now conducted.
(b) Corporate and Governmental Authorization; Contravention. The
-------------------------------------------------------
execution, delivery and performance by the Issuer of this Agreement and the
other Transaction Documents are within the Issuer's powers, have been duly
authorized by all necessary action, require no action by or in respect of, or
filing with, any governmental body, agency or official (except as contemplated
by Section 2.6 of the Security Agreement), and do not contravene, or constitute
a default under, any provision of applicable law or regulation or of the
Issuer's Trust Agreement or of any agreement, judgment, injunction, order,
decree or other instrument binding upon the Issuer or result in the creation or
imposition of any lien on assets of the Issuer (except as contemplated by
Section 2.6 of the Security Agreement), or require the consent or approval of,
or the filing of any notice or other documentation with, any governmental
authority or other Person.
(c) Binding Effect. Each of this Agreement and the other
--------------
Transaction Documents constitutes the legal, valid and binding obligation of the
Issuer, enforceable against the Issuer 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 Issuer (including without limitation, the Servicer's
Certificate and AmeriCredit Corp.'s financial statements) to the Company, the
other Owners or the Agent for purposes of or in connection with this Agreement
or any transaction contemplated hereby is, and all such information hereafter
furnished by the Issuer to the Company, the other Owners or the Agent will be,
true and accurate in every material respect, and the Issuer has not omitted to
disclose any information which is material to the transaction, 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 Issuer have been filed (which filings
may be made by an Affiliate of the Issuer on a consolidated basis covering the
Issuer and other Persons) and there has been paid or adequate
10
provision made for the payment of all taxes, assessments and other governmental
charges in respect of the Issuer (or in the event consolidated returns have been
filed, with respect to the Persons subject to such returns).
(f) Action, Suits. There are no actions, suits or proceedings
-------------
pending, or to the knowledge of the Issuer threatened, against or affecting the
Issuer or any Affiliate of the Issuer or their respective properties, in or
before any court, arbitrator or other body.
(g) Use of Proceeds. (i) The proceeds of any Funding will be used by
---------------
the Issuer to (a) acquire the Receivables, the Contracts related thereto and the
Related Security with respect thereto from each of AmeriCredit and AFC III, as
the case may be, pursuant to the Master Receivables Purchase Agreement, (b) to
pay down debt in connection with the purchase of the Receivables and Contracts
pursuant to the Master Receivables Purchase Agreement, or (c) to make
distributions constituting a return of capital and (ii) no proceeds of any
Funding will be used by the Issuer to acquire any security in any transaction
which is subject to Section 12 of the Securities Exchange Act of 1934, as
amended or for any purpose that violates any applicable law, rule or regulation,
including Regulation U of the Federal Reserve Board.
(h) Place of Business. The chief place of business and chief
-----------------
executive office of the Issuer are located at the address of the Issuer
indicated in Section 8.3 of the Security Agreement and the offices where the
Issuer keeps all its records, are located at the address indicated in Section
8.3 of the Security Agreement.
(i) Merger and Consolidation. As of the date hereof the Issuer has
------------------------
not changed its name, merged with or into or been consolidated with any other
entity or been the subject of any proceeding under Xxxxx 00, Xxxxxx Xxxxxx Code
(Bankruptcy).
(j) Solvency. The Issuer is not insolvent and will not be rendered
--------
insolvent immediately following the consummation on the Closing Date of the
transactions contemplated by this Agreement and the Security Agreement,
including the pledge by the Issuer to the Collateral Agent of the Collateral.
(k) No Termination Event. After giving effect to each Funding, no
--------------------
Potential Termination Event or Termination Event exists.
(l) Compliance. The Issuer has complied in all material respects with
----------
all Requirements of Law in respect of the conduct of its business and ownership
of its property including the Receivables.
(m) Not an Investment Company or a Holding Company. The Issuer is
----------------------------------------------
not, and is not controlled by, an "investment company" within the meaning of the
Investment Company Act of 1940, as amended, or is exempt from all provisions of
such Act. The Issuer is not a "holding company", or a subsidiary or affiliate
of a "holding company", within the meaning of the Public Utility Holding Company
Act of 1935, as amended.
(n) ERISA. The Issuer is in compliance in all material respects with
-----
ERISA and no lien in favor of the PBGC on any of the Receivables shall exist.
11
(o) Subsidiaries. The Issuer does not have any Subsidiaries.
------------
Any document, instrument, certificate or notice delivered to the
Company, any other Owners or the Agent by the Issuer hereunder shall be deemed a
representation and warranty by the Issuer.
The representations and warranties set forth in this Section 3.1 shall
survive the pledge and assignment of the Collateral to the Collateral Agent for
the benefit of the Secured Parties. Upon discovery by the Issuer, the Company,
the Agent or any other Owner of a breach of any of the foregoing representations
and warranties, the party discovering such breach shall give prompt written
notice to the others.
ARTICLE IV
INDEMNIFICATION
Section 4.1. Indemnity. Without limiting any other rights which the
---------
Agent, the Company or any other Owner may have hereunder or under applicable
law, each of the Issuer and AmeriCredit agrees to jointly and severally
indemnify the Company, any other Owner, the Collateral Agent, the Agent, the
Administrative Agent, the Liquidity Provider, the Credit Support Provider and
any permitted assigns and their respective agents, officers, directors and
employees (collectively, "Indemnified Parties") from and against any and all
-------------------
all damages, losses, claims, liabilities, costs and expenses, including
reasonable attorneys' fees (which such attorneys may be employees of the
Company, any other Owner, the Agent, the Collateral Agent, the Administrative
Agent, the Liquidity Provider and the Credit Support Provider) and disbursements
(all of the foregoing being collectively referred to as "Indemnified Amounts")
-------------------
awarded against or incurred by any of them in any action or proceeding between
the Issuer, AmeriCredit (including in its capacity as Collection Agent) or AFC
III and any of the Indemnified Parties or between any of the Indemnified Parties
and any third party or otherwise arising out of or as a result of this
Agreement, the other Transaction Documents or the ownership or maintenance,
either directly or indirectly, by the Company, the other Owners, the Agent, the
Administrative Agent, the Liquidity Provider or the Credit Support Provider of
the Note (or any interest therein), or any other transactions contemplated
hereby or thereby 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) for uncollectible Receivables. Such Indemnified Amounts shall be
paid in accordance with Section 2.3(a)(ix) of the Security Agreement. Without
limiting the generality of the foregoing, each of the Issuer and AmeriCredit
shall indemnify each Indemnified Party for Indemnified Amounts relating to or
resulting from :
(a) any representation or warranty made by the Issuer, AmeriCredit,
AFC III or the Collection Agent (or any officers of the Issuer or the Collection
Agent) under or in connection with this Agreement, the Security Agreement, any
other Transaction Document, the Initial Funding Request, any Subsequent Funding
Notice, any Servicer's Certificate or any other information or report delivered
by the Issuer, AmeriCredit, AFC III or the Collection Agent pursuant hereto or
thereto, which shall have been false or incorrect in any material respect when
made or deemed made;
12
(b) the failure by the Issuer, AmeriCredit, AFC III or the Collection
Agent to comply with any applicable law, rule or regulation with respect to the
Collateral, or the nonconformity of any portion of the Collateral with any such
applicable law, rule or regulation;
(c) the failure to vest and maintain vested in the Collateral Agent a
first priority perfected security interest in the Collateral, free and clear of
any Adverse Claim;
(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 which failure has an adverse effect on the validity,
perfected status or priority of the security interest granted to the Collateral
Agent under the Security Agreement;
(e) any dispute, claim, offset or defense (other than discharge in
bankruptcy of the 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
services related to such Receivable or the furnishing or failure to furnish such
services;
(f) any failure of the Issuer or the Collection Agent to perform its
duties or obligations in accordance with the provisions of the Security
Agreement or any other Transaction Document to which it is a party;
(g) any products 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 related merchandise or services which are the subject of
any Receivable;
(h) the transfer of an ownership interest in any Receivable other than
an Eligible Receivable;
(i) the failure by the Issuer, AmeriCredit (individually or as
Collection Agent) or AFC III to comply with any term, provision or covenant
contained in this Agreement or any of the other Transaction Documents to which
it is a party or to perform any of its respective duties under the Receivables
or the Contracts;
(j) the failure of AmeriCredit or AFC III to pay when due any taxes,
including without limitation, sales, excise or personal property taxes payable
in connection with any of the Receivables or the Contracts;
(k) any repayment by any Indemnified Party of any amount previously
distributed in reduction of Net Investment which such Indemnified Party believes
in good faith is required to be made;
(l) the commingling by the Issuer, AmeriCredit, AFC III or the
Collection Agent of Collections in respect of Receivables at any time with other
funds;
13
(m) any investigation, litigation or proceeding related to this
Agreement, any of the other Transaction Documents, the use of proceeds of
Fundings by the Issuer, AmeriCredit or AFC III, the ownership of an interest in
the Note, or any Contract, Receivable or Related Security;
(n) the failure of any Lock-Box Bank to remit any amounts held in any
Lock-Box Account pursuant to the instructions of the Collection Agent, the
Issuer, AmeriCredit, AFC III or the Agent (to the extent such Person is entitled
to give such instructions in accordance with the terms hereof and of any
applicable Lock-Box Agreement) whether by reason of the exercise of set-off
rights or otherwise;
(o) any inability to obtain any judgment in or utilize the court or
other adjudication system of, any state in which an Obligor may be located as a
result of the failure of the Issuer, AmeriCredit or AFC III to qualify to do
business or file any notice of business activity report or any similar report;
(p) any failure of the Issuer to give reasonably equivalent value to
AmeriCredit or AFC III, as applicable, in consideration of the purchase by the
Issuer from AmeriCredit or AFC III, as the case may be, of any Receivable, or
any attempt by any Person to void, rescind or set-aside any such transfer under
statutory provisions or common law or equitable action, including, without
limitation, any provision of the Bankruptcy Code;
(q) any action taken by the Issuer, AmeriCredit, AFC III or the
Collection Agent (if the Issuer, AmeriCredit or any Affiliate or designee of the
Issuer or AmeriCredit) in the enforcement or collection of any Receivable; or
(r) the use of the proceeds of any Funding;
provided, however, that if the Company enters into agreements for the purchase
-------- -------
of interests in receivables from one or more Other Transferors, the Company
shall allocate such Indemnified Amounts which are in connection with the
Liquidity Provider Agreement or the Credit Support Agreement to the Issuer and
each Other Transferor; and provided, further, that if such Indemnified Amounts
-------- -------
are attributable to the Issuer and not attributable to any Other Transferor,
each of the Issuer and AmeriCredit shall be jointly and severally liable for
such Indemnified Amounts or if such Indemnified Amounts are attributable to
Other Transferors and not attributable to the Issuer, such Other Transferors
shall be solely liable for such Indemnified Amounts.
Section 4.2. Indemnity for Taxes, 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 administration,
interpretation or application 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 subject any Indemnified Party (or its
applicable lending office) to any tax, duty or other charge (other than Excluded
Taxes (as defined in Section 4.4 hereof)) with respect to this Agreement, the
-----------
Security Agreement, the Note, the Net Investment, the Collateral or payments of
amounts due hereunder, or shall change the basis of taxation of payments to
14
any Indemnified Party of amounts payable in respect of this Agreement, the Net
Investment, the Collateral, the maintenance or financing of the Note or payments
of amounts due hereunder or its obligation to advance funds under the Liquidity
Provider Agreement, the Credit Support Agreement or otherwise in respect of this
Agreement, the Security Agreement, the Net Investment the Collateral or the
maintenance or financing of the Note or any interest therein (except for changes
in the rate of federal, state or local general corporate, franchise, net income
or other income or similar tax imposed on such Indemnified Party by the
jurisdiction in which such Indemnified Party's principal executive office is
located);
(2) 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 Security Agreement, the
Net Investment, the Collateral, the maintenance or financing of the Note or any
interest therein or payments of amounts due hereunder or its obligation to
advance funds under the Liquidity Provider Agreement, the Credit Support
Agreement or otherwise in respect of this Agreement, the Net Investment, the
Collateral or the maintenance or financing of the Note; or
(3) imposes upon any Indemnified Party any other
expense (including, without limitation, any loss of margin, reasonable
attorneys' fees and expenses, and expenses of litigation or preparation therefor
in contesting any of the foregoing) with respect to this Agreement, the Security
Agreement, the Net Investment, the Collateral, the maintenance or financing of
the Note (or any interest therein) or payments of amounts due hereunder or its
obligation to advance funds under the Liquidity Provider Agreement or the Credit
Support Agreement or otherwise in respect of this Agreement, the Net Investment,
the Collateral or the maintenance or financing of the Note; and the result of
any of the foregoing is to increase the cost to or to reduce the amount of any
sum received or receivable by such Indemnified Party with respect to this
Agreement, the Security Agreement, the Note, the Net Investment, the Collateral,
the obligations hereunder, the funding of any purchases hereunder, the Liquidity
Provider Agreement or the Credit Support Agreement, by an amount reasonably
deemed by such Indemnified Party to be material, then within 10 days after
demand by the Agent, either the Issuer or AmeriCredit shall pay to the Agent
such additional amount or amounts as will compensate such Indemnified Party for
such increased cost or reduction.
(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 or administration 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 with respect hereto 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 10 days after demand by the
Agent, either the Issuer or AmeriCredit shall pay to the Agent such additional
amount or amounts as will compensate such Indemnified Party (or its parent) for
such reduction.
15
(c) The Agent or the Company will promptly notify the Issuer
and AmeriCredit of any event of which it has knowledge, occurring after the date
hereof, which will entitle an Indemnified Party to compensation pursuant to this
Section 4.2. A notice by the Agent claiming compensation under this Section 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
Agent may use any reasonable averaging and attributing methods.
(d) Anything in this Section 4.2 to the contrary
notwithstanding, if the Company enters into agreements for the acquisition of
interests in receivables from one or more Other Transferors, the Company shall
allocate the liability for any amounts under this Section 4.2 ("Section 4.2
-----------
Costs") ratably to the Issuer and AmeriCredit and each Other Transferor;
-----
provided, however, that if such Section 4.2 Costs are attributable to the Issuer
-------- -------
and not attributable to any Other Transferor, the Issuer and AmeriCredit shall
be liable for the full amount of such Section 4.2 Costs or if such Section 4.2
Costs are attributable to Other Transferors and not attributable to the Issuer,
such Other Transferors shall be solely liable for such Section 4.2 Costs.
Section 4.3. Other Costs, Expenses and Related Matters.
-----------------------------------------
(a) Each of the Issuer and AmeriCredit agrees, upon receipt
of a written invoice, to pay or cause to be paid, and to save the Company, the
other Owners, the Collateral Agent, the Agent and the Administrative Agent
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, any filing fees and expenses
incurred by officers or employees of the Company or any other Owners) incurred
by or on behalf of the Company, any other Owners, the Collateral Agent, the
Agent or the Administrative Agent (i) in connection with the negotiation,
execution, delivery and preparation of this Agreement, the Note and the Security
Agreement and any other Transaction Document and the transactions contemplated
hereby and thereby; and (ii) from time to time (a) relating to any amendments,
waivers or consents under this Agreement, the Note, the Security Agreement and
any other Transaction Document, (b) arising in connection with the Agent's, the
Company's, any other Owner's or any of their agent's enforcement or preservation
of rights (including, without limitation, the perfection and protection of the
Collateral Agent's security interest in the Collateral), or (c) arising in
connection with any audit, dispute, disagreement, litigation or preparation for
litigation involving this Agreement or any other Transaction Document (all of
such amounts, collectively, "Transaction Costs").
-----------------
(b) Either the Issuer or AmeriCredit shall pay to the Agent,
for the account of the Company or the other Owners, as applicable, on demand any
Early Collection Fee due on account of the Company's investment allocated to a
funding period on a day prior to the last day of its funding period.
Section 4.4. Taxes. All payments made hereunder by the Issuer and
-----
AmeriCredit (each a "payor") to the Company, any Bank Investor or the Agent
-----
(each, a "recipient") shall be made free and clear of and without deduction for
---------
any present or future income, excise, stamp or franchise taxes and any other
taxes, fees, duties, withholdings or other charges of any nature whatsoever
imposed by any taxing authority on any recipient (or any assignee of such
parties) (such non-excluded items being called "Taxes"), but excluding franchise
-----
taxes and taxes imposed on or measured by the recipient's net
16
income or gross receipts ("Excluded Taxes"). In the event that any withholding
--------------
or deduction from any payment made by the payor hereunder is required in respect
of any Taxes, then such payor shall:
(a) pay directly to the relevant authority the full amount
required to be so withheld or deducted;
(b) promptly forward to the Agent an official receipt or other
documentation satisfactory to the Agent evidencing such payment to such
authority; and
(c) pay to the recipient such additional amount or amounts as is
necessary to ensure that the net amount actually received by the recipient will
equal the full amount such recipient would have received had no such withholding
or deduction been required.
Moreover, if any Taxes are directly asserted against any recipient
with respect to any payment received by such recipient hereunder, the recipient
may pay such Taxes and the payor will promptly pay such additional amounts
(including any penalties, interest or expenses) as shall be necessary in order
that the net amount received by the recipient after the payment of such Taxes
(including any Taxes on such additional amount) shall equal the amount such
recipient would have received had such Taxes not been asserted.
If the payor fails to pay any Taxes when due to the appropriate taxing
authority or fails to remit to the recipient the required receipts or other
required documentary evidence, the payor shall indemnify the recipient for any
incremental Taxes, interest, or penalties that may become payable by any
recipient as a result of any such failure.
ARTICLE V
THE AGENT
Section 5.1. Authorization and Action. The Company and each other Owner
------------------------
hereby appoints and authorizes the Agent to act as its agent under this
Agreement and the other Transaction Documents with such powers and discretion as
are specifically delegated to the Agent by the terms hereof and thereof,
together with such powers as are reasonably incidental thereto. The Agent (which
term as used in this sentence and in Section 5.5 and the first sentence of
Section 5.6 hereof shall include its affiliates and its own and its affiliates'
officers, directors, employees, and agents): (a) shall not have any duties or
responsibilities except those expressly set forth in this Agreement and shall
not be a trustee or fiduciary for the Company or any other Owner; (b) shall not
be responsible to the Company or any other Owner for any recital, statement,
representation, or warranty (whether written or oral) made in or in connection
with any Transaction Document or any certificate or other document referred to
or provided for in, or received by any of them under, any Transaction Document,
or for the value, validity, effectiveness, genuineness, enforceability, or
sufficiency of any Transaction Document, or any other document referred to or
provided for therein or for any failure by any of the Issuer, AmeriCredit, AFC
III or the Collection Agent or any other Person to perform any of its
obligations thereunder; (c) shall not be responsible for or have any duty to
ascertain, inquire into, or verify the performance or observance of any
covenants or agreements by any of the Issuer, AmeriCredit, AFC III or the
Collection Agent or the satisfaction of any condition or to inspect the property
(including the books and records) of any of the Issuer, AmeriCredit, AFC III or
the Collection Agent or any of their
17
Subsidiaries or affiliates; (d) shall not be required to initiate or conduct any
litigation or collection proceedings under any Transaction Document; and (e)
shall not be responsible for any action taken or omitted to be taken by it under
or in connection with any Transaction Document, except for its own gross
negligence or willful misconduct. The Agent may employ agents and attorneys-in-
fact and shall not be responsible for the negligence or misconduct of any such
agents or attorneys-in-fact selected by it with reasonable care.
Section 5.2. Agent's Reliance, Etc. The Agent shall be entitled to rely
----------------------
upon any certification, notice, instrument, writing, or other communication
(including, without limitation, any thereof by telephone or telecopy) believed
by it to be genuine and correct and to have been signed, sent or made by or on
behalf of the proper Person or Persons, and upon advice and statements of legal
counsel (including counsel for any of the Issuer, AmeriCredit, AFC III or the
Collection Agent), independent accountants, and other experts selected by the
Agent. As to any matters not expressly provided for by this Agreement, the Agent
shall not be required to exercise any discretion or take any action, but shall
be required to act or to refrain from acting (and shall be fully protected in so
acting or refraining from acting) upon the instructions of the Majority Owners,
and such instructions shall be binding on the Company and all of the other
Owners; provided, however, that the Agent shall not be required to take any
-------- -------
action that exposes the Agent to personal liability or that is contrary to any
Transaction Document or applicable law or unless it shall first be indemnified
to its satisfaction by the Owners against any and all liability and expense
which may be incurred by it by reason of taking any such action.
Section 5.3. Termination Event or Potential Termination Event. The Agent
------------------------------------------------
shall not be deemed to have knowledge or notice of the occurrence of a Potential
Termination Event or a Termination Event unless the Agent has received written
notice from the Company, any other Owner or the Issuer specifying such Potential
Termination Event or Termination Event and stating that such notice is a "Notice
of Termination Event or Potential Termination Event". In the event that the
Agent receives such a notice of the occurrence of a Potential Termination Event
or Termination Event, the Agent shall give prompt notice thereof to the Company
and the other Owners. The Agent shall (subject to Section 5.2 hereof) take such
action with respect to such Potential Termination Event or Termination Event as
shall reasonably be directed by the Majority Owners, provided that, unless and
--------
until the Agent shall have received such directions, the Agent may (but shall
not be obligated to) take such action, or refrain from taking such action, with
respect to such Potential Termination Event or Termination Event as it shall
deem advisable in the best interest of the Company.
Section 5.4. Agent and Affiliates. To the extent that the Agent or any of
--------------------
its affiliates shall become an Owner, the Agent or such affiliate, in such
capacity, shall have the same rights and powers hereunder as any other Owner and
may exercise the same as though it were not acting as the Agent or such
affiliate (as the case may be). Barclays (and any successor acting as Agent) and
its affiliates may (without having to account therefor to the Company or any
other Owner) accept deposits from, lend money to, make investments in, provide
services to, and generally engage in any kind of lending, trust, or other
business with any of the Issuer, AmeriCredit, AFC III and the Collection Agent
or any of their Subsidiaries or affiliates as if it were not acting as Agent,
and Barclays (and any successor acting as Agent or such affiliate) and its
affiliates may accept fees and other consideration from any of the Issuer,
AmeriCredit, AFC III and the Collection Agent or any of their Subsidiaries or
Affiliates for services in connection with this Agreement or otherwise without
having to account for the same to the Company or any other Owner.
18
Section 5.5. Indemnification of the Agent. Each Owner (other than the
----------------------------
Company) agrees to indemnify the Agent (to the extent not reimbursed by the
Issuer), ratably in accordance with its share of the outstanding principal
balance of the Note, from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses
(including attorneys' fees), or disbursements of any kind or nature whatsoever
which may be imposed on, incurred by, or asserted against the Agent (including
by the Company or any other Owner) in any way relating to or arising out of this
Agreement or any other Transaction Document or the transactions contemplated
thereby or any action taken or omitted by the Agent under this Agreement or any
other Transaction Document, provided that no Owner shall be liable for any of
--------
the foregoing to the extent they arise from the gross negligence or willful
misconduct of the Agent. Without limitation of the foregoing, each Owner
(including the Company but only to the extent that the Company is reimbursed by
the Issuer for such expenses) agrees to reimburse the Agent, ratably in
accordance with its share of the outstanding principal balance of the Note,
promptly upon demand for any out-of-pocket expenses (including attorneys' fees)
incurred by the Agent in connection with the administration, modification,
amendment or enforcement (whether through negotiations, legal proceedings or
otherwise) of, or legal advice in respect of rights or responsibilities under,
this Agreement and the other Transaction Documents, to the extent that such
expenses are incurred in the interests of or otherwise in respect of the Owners
hereunder and/or thereunder and to the extent that the Agent is not reimbursed
for such expenses by the Issuer. The agreements contained in this Section shall
survive payment in full of the Net Investment and all other amounts payable
under this Agreement.
Section 5.6. Non-Reliance. Each Owner agrees that it has, independently
------------
and without reliance on the Agent or the Company or any other Owner, and based
on such documents and information as it has deemed appropriate, made its own
credit analysis of the Receivables, the Contracts, the Issuer, AmeriCredit, AFC
III and the Collection Agent and their respective Subsidiaries and decision to
enter into this Agreement and that it will, independently and without reliance
upon the Agent, the Company or any other Owner, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
analysis and decisions in taking or not taking action under the Transaction
Documents. Except for notices, reports, and other documents and information
expressly required to be furnished to the Company and the other Owners by the
Agent hereunder, the Agent shall not have any duty or responsibility to provide
the Company or any other Owner with any credit or other information concerning
the affairs, financial condition, or business of any of the Issuer, AmeriCredit,
AFC III or the Collection Agent or any of their respective Subsidiaries or
affiliates that may come into the possession of the Agent or any of its
affiliates.
Section 5.7. Resignation of Agent. The Agent may resign at any time by
--------------------
giving notice thereof to the Company, the other Owners and the Issuer. Upon any
such resignation, the Majority Owners shall have the right to appoint a
successor Agent. If no successor Agent shall have been so appointed by the
Majority Owners and shall have accepted such appointment within thirty (30) days
after the retiring Agent's giving of notice of resignation, then the retiring
Agent may, on behalf of the Company and the other Owners, appoint a successor
Agent which shall be a commercial bank organized under the laws of the United
States having combined capital and surplus of at least $100,000,000. Upon the
acceptance of any appointment as Agent hereunder by a successor, such successor
shall thereupon succeed to and become vested with all the rights, powers,
discretion, privileges, and duties of the retiring Agent, and the retiring Agent
shall be discharged from its duties and obligations hereunder. After any
retiring Agent's resignation hereunder as Agent, the provisions
19
of this Article V shall continue in effect for its benefit in respect of any
actions taken or omitted to be taken by it while it was acting as Agent.
Section 5.8. Payments by the Agent. Unless specifically allocated to an
---------------------
Owner pursuant to the terms of this Agreement, all amounts received by the Agent
on behalf of the Owners shall be paid by the Agent to the Owners (at their
respective accounts designated in writing to the Agent) in accordance with their
respective related pro rata interests in the Net Investment on the Business Day
received by the Agent, unless such amounts are received after 12:00 noon on such
Business Day, in which case the Agent shall use its reasonable efforts to pay
such amounts to the Owners on such Business Day, but, in any event, shall pay
such amounts to the Owners in accordance with their respective related pro rata
interests in the Net Investment not later than the following Business Day.
ARTICLE VI
MISCELLANEOUS
Section 6.1. Term of Agreement. This Agreement shall terminate on the
-----------------
date following the Termination Date upon which the Net Investment has been
reduced to zero, all accrued Discount and Servicing Fees have been indefeasibly
paid in full and all other Aggregate Unpaids have been indefeasibly paid in
full, in each case, in cash; provided, however, that (i) the rights and remedies
-------- -------
of the Agent, the Company, the other Owners and the Administrative Agent with
respect to any representation and warranty made or deemed to be made by the
Issuer pursuant to this Agreement, (ii) the indemnification and payment
provisions of Article IV, and (iii) the agreement set forth in Section 6.9
hereof, shall be continuing and shall survive any termination of this Agreement.
Section 6.2. Waivers; Amendments.
-------------------
(a) No failure or delay on the part of the Agent, the
Company, the Administrative Agent or any other Owners in exercising any power,
right or remedy under this Agreement shall operate as a waiver thereof, nor
shall any single or partial exercise of any such power, right or remedy preclude
any other further exercise thereof or the exercise of any other power, right or
remedy. The rights and remedies herein provided shall be cumulative and
nonexclusive of any rights or remedies provided by law.
(b) Any provision of this Agreement or any other Transaction
Document may be amended or waived if, but only if, such amendment or waiver is
in writing and is signed by the Issuer, the Collection Agent, the Company and
the Majority Owners (and, if Article V or the rights or duties of the Agent are
affected thereby, by the Agent); provided that no such amendment or waiver
--------
shall, unless signed by each Owner directly affected thereby, (i) increase the
Commitment of the Company, (ii) reduce the Net Investment or rate of interest to
accrue thereon or any fees or other amounts payable hereunder, (iii) postpone
any date fixed for the payment of any scheduled distribution in respect of the
Net Investment or interest with respect thereto or any fees or other amounts
payable hereunder or for termination of the Commitment, (iv) change the
percentage of the Owners which shall be required for the Owners or any of them
to take any action under this section or any other provision of this Agreement,
(v) release all or substantially all of the property with respect to which a
security or ownership interest therein has been granted hereunder or under the
Security Agreement to the Agent or the Owners or (vi) extend or permit the
extension of the Commitment Termination Date. In the event
20
the Agent requests the Company's or any other Owner's consent pursuant to the
foregoing provisions and the Agent does not receive a consent (either positive
or negative) from the Company or such Owner within 10 Business Days of the
Company's or any other Owner's receipt of such request, then the Company or such
Owner (and its percentage interest hereunder) shall be disregarded in
determining whether the Agent shall have obtained sufficient consent hereunder.
Section 6.3. Notices. Except as provided below, all communications and
-------
notices provided for hereunder shall be in writing (including telecopy or
electronic facsimile transmission or similar writing) and shall be given to the
other party at its address or telecopy number set forth below or at such other
address or telecopy number as such party may hereafter specify for the purposes
of notice to such party. Each such notice or other communication shall be
effective (i) if given by telecopy, when such telecopy is transmitted to the
telecopy number specified in this Section 6.3 and confirmation is received, (ii)
if given by mail, three (3) Business Days following such posting, if postage
prepaid, or if sent via U.S. certified or registered mail, (iii) if given by
overnight courier, one (1) Business Day after deposit thereof with a national
overnight courier service, or (iv) if given by any other means, when received at
the address specified in this Section 6.3. However, anything in this Section 6.3
to the contrary notwithstanding, the Issuer hereby authorizes the Company to
effect Subsequent Fundings, funding period and interest rate selections based on
telephonic notices made by any Person which the Company in good faith believes
to be acting on behalf of the Issuer. The Issuer agrees to deliver promptly to
the Company a written confirmation of each telephonic notice signed by an
authorized officer of Issuer. However, the absence of such confirmation shall
not affect the validity of such notice. If the written confirmation differs in
any material respect from the action taken by the Company, the records of the
Company shall govern absent manifest error.
If to the Company:
Sheffield Receivables Corporation
c/o Barclays Bank PLC
000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
(with a copy to the Administrative Agent)
If to the Issuer:
AmeriCredit Barclays Trust
c/o Bankers Trust (Delaware)
E.A. Delle Donne Corporate Center
Xxxxxxxxxx Building
0000 Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Administration
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Payment Information:
21
Xxxxx Fargo Bank
ABA: 000000000
Account: 4159701481
Reference: AmeriCredit Corp.
Operational Contact: Xxxxxx Xxxxxxx, Treasury Operations
Supervisor, Telephone: 000-000-0000
With a copy to:
Bankers Trust Company
0 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Asset Backed Finance Unit
and a copy to:
AmeriCredit Financial Services, Inc.
000 Xxxxxx Xxxxxx
Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to AmeriCredit:
AmeriCredit Financial Services, Inc.
000 Xxxxxx Xxxxxx
Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to the Agent or the Administrative Agent:
Barclays Bank PLC
000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Payment Information:
Barclays Bank
ABA: 000000000
Account: 050791516
Reference: Sheffield 4(2) Funding Account
22
Operational Contact: Xxxxxxx Xxxxxxxxx Telephone:
(000) 000-0000
Section 6.4. Governing Law; Submission to Jurisdiction; Integration.
------------------------------------------------------
(a) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE
CONFLICTS OF LAW PRINCIPLES THEREOF EXCEPT SECTION 5-1401 OF THE NEW YORK
GENERAL OBLIGATIONS LAW. THE ISSUER HEREBY SUBMITS TO THE NONEXCLUSIVE
JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
NEW YORK AND OF ANY NEW YORK STATE COURT SITTING IN THE CITY OF NEW YORK FOR
PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT
OR THE TRANSACTIONS CONTEMPLATED HEREBY. The Issuer hereby irrevocably waives,
to the fullest extent it may effectively do so, any objection which it may now
or hereafter have to the laying of the venue of any such proceeding brought in
such a court and any claim that any such proceeding brought in such a court has
been brought in an inconvenient forum. Nothing in this Section 6.4 shall affect
the right of the Company to bring any action or proceeding against the Issuer or
its property in the courts of other jurisdictions.
(b) EACH OF THE PARTIES HERETO HEREBY WAIVES ANY RIGHT TO HAVE A
JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT OR
OTHERWISE AMONG ANY OF THEM ARISING OUT OF, CONNECTED WITH, RELATING TO OR
INCIDENTAL TO THE RELATIONSHIP BETWEEN THEM IN CONNECTION WITH THIS AGREEMENT OR
THE OTHER TRANSACTION DOCUMENTS.
(c) This Agreement contains the final and complete integration of
all prior expressions by the parties hereto with respect to the subject matter
hereof and shall constitute the entire Agreement among the parties hereto with
respect to the subject matter hereof superseding all prior oral or written
understandings.
(d) Each of the Issuer and AmeriCredit hereby appoints
Corporation Service Company, located at 00 Xxxxx Xxxxxx, Xxxxxx, Xxx Xxxx 00000-
2543 as the authorized agent upon whom process may be served in any action
arising out of or based upon this Agreement, the other Transaction Documents to
which the Issuer is a party or the transactions contemplated hereby or thereby
that may be instituted in the United States District Court for the Southern
District of New York and of any New York State court sitting in The City of New
York by the Company, the Agent, any Owner, the Administrative Agent, the
Collateral Agent or any assignee of any of them.
Section 6.5. Counterparts. This Agreement may be executed in any number of
------------
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which when
taken together shall constitute one and the same Agreement.
Section 6.6. Successors and Assigns.
----------------------
23
(a) This Agreement shall be binding on, and inure to the benefit of,
the Agent, the Administrative Agent, the Owners, the Issuer and AmeriCredit, and
their respective successors and assigns; provided, however, that neither
-------- -------
AmeriCredit nor the Issuer may not assign any of its rights or delegate any of
its duties hereunder or under the Master Receivables Purchase Agreement or under
any of the other Transaction Documents to which it is a party without the prior
written consent of the Agent except as may be otherwise expressly provided in
the Master Receivables Purchase Agreement or the other Transaction Documents.
No provision of this Agreement shall in any manner restrict the ability of the
Company or any other Owner to assign, participate, grant security interests in,
or otherwise transfer any portion of the Note or interest therein.
(b) Without limiting the foregoing, the Company may, from time to
time, with prior or concurrent notice to the Issuer and the Collection Agent, in
one transaction or a series of transactions, assign all or a portion of the Note
and the Net Investment and its rights and obligations under this Agreement and
any other Transaction Documents to which it is a party to a Conduit Assignee.
Upon and to the extent of such assignment by the Company to a Conduit Assignee,
(i) such Conduit Assignee shall be the owner of the assigned portion of the Note
and the Net Investment, (ii) the related administrative agent for such Conduit
Assignee will act as the Administrative Agent for such Conduit Assignee, with
all corresponding rights and powers, express or implied, granted to the
Administrative Agent hereunder or under the other Transaction Documents, (iii)
such Conduit Assignee and its liquidity support provider(s) and credit support
provider(s) and other related parties shall have the benefit of all the rights
and protections provided to the Company and its Liquidity Provider(s) and Credit
Support Provider(s), respectively, herein and in the other Transaction Documents
(including, without limitation, any limitation on recourse against such Conduit
Assignee or related parties, any agreement not to file or join in the filing of
a petition to commence an insolvency proceeding against such Conduit Assignee,
and the right to assign to another Conduit Assignee as provided in this
paragraph), (iv) such Conduit Assignee shall assume all (or the assigned or
assumed portion) of the Company's obligations, if any, hereunder or any other
Transaction Document, and the Company shall be released from such obligations,
in each case to the extent of such assignment, and the obligations of the
Company and such Conduit Assignee shall be several and not joint, (v) all
distributions in respect of the Net Investment shall be made to the applicable
agent or administrative agent, as applicable, on behalf of the Company and such
Conduit Assignee on a pro rata basis according to their respective interests,
(vi) the definition of the term "CP Rate" with respect to the portion of the Net
Investment funded with commercial paper issued by the Company from time to time
shall be determined in the manner set forth in the definition of "CP Rate"
applicable to the Company on the basis of the interest rate or discount
applicable to commercial paper issued by such Conduit Assignee (rather than the
Company), (vii) the defined terms and other terms and provisions of this
Agreement and the other Transaction Documents shall be interpreted in accordance
with the foregoing, and (viii) if requested by the Agent or administrative agent
with respect to the Conduit Assignee, the parties will execute and deliver such
further agreements and documents and take such other actions as the Agent or
such administrative agent may reasonably request to evidence and give effect to
the foregoing.
(c) The Issuer hereby agrees and consents to the assignment by the
Company from time to time of all or any part of its rights under, interest in
and title to this Agreement, the other Transaction Documents and the Note to any
Liquidity Provider. In addition, the Issuer hereby consents to and acknowledges
the assignment by the Company of all of its rights under, interest in and title
to this Agreement, the other Transaction Documents and the Note to the
Collateral Agent.
24
Section 6.7. Waiver of Confidentiality. Each of the Issuer and AmeriCredit
-------------------------
hereby consents to the disclosure of any non-public information with respect to
it received by the Company, the Agent, any other Owner or the Administrative
Agent to any of the Company, the Agent, any nationally recognized rating agency
rating the Company's Commercial Paper, the Administrative Agent, the Collateral
Agent, any Owner or potential Owner, the Liquidity Provider or the Credit
Support Provider in relation to this Agreement.
Section 6.8. Confidentiality Agreement. Each of the Issuer and AmeriCredit
-------------------------
hereby agrees that it will not disclose the contents of this Agreement or any
other proprietary or confidential information of the Company, the Agent, the
Administrative Agent, the Collateral Agent, any Liquidity Provider or any Bank
Investor to any other Person except (i) its auditors and attorneys, employees or
financial advisors (other than any commercial bank) and any nationally
recognized rating agency, provided such auditors, attorneys, employees,
financial advisors or rating agencies are informed of the highly confidential
nature of such information or (ii) as otherwise required (x) by applicable law,
(y) under the Securities Exchange Act of 1934, as amended, in connection with an
offering of securities issued by the Issuer or an Affiliate thereof, or (z) by
order of a court of competent jurisdiction (provided, however, that in the case
-------- -------
of this clause (z) no such disclosure shall occur without the prior review by
the Administrative Agent of the material to be disclosed).
Section 6.9. No Bankruptcy Petition Against the Company. The Issuer,
------------------------------------------
AmeriCredit and each other Owner hereby covenants and agrees that, prior to the
date which is one year and one day after the payment in full of all outstanding
Commercial Paper or other indebtedness of the Company or any Conduit Assignee,
it will not institute against, or join any other Person in instituting against,
the Company or any Conduit Assignee, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings or other similar proceeding
under the laws of the United States or any state of the United States.
Section 6.10. Further Assurances. The Issuer agrees to do such
------------------
further acts and things and to execute and deliver to the Company or the
Collateral Agent such additional assignments, agreements, powers and instruments
as are required by the Company to carry into effect the purposes of this
Agreement or the Security Agreement or to better assure and confirm unto the
Company or the Collateral Agent its rights, powers and remedies hereunder or
thereunder.
Section 6.11. Headings. Section headings used in this Agreement are for
--------
convenience of reference only and shall not affect the construction or
interpretation of this Agreement.
Section 6.12. Limitation of Liability. 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 Issuer, 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 Issuer is made and intended not as a personal
representation, undertaking and agreement by Bankers Trust (Delaware) but is
made and intended for the purpose for binding only the Issuer, (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 Issuer
or be liable for the
25
breach or failure of any obligation, representation, warranty or covenant made
or undertaken by the Issuer under this Agreement or any other related documents;
provided, however, that no provision of this Agreement shall be construed to
-------- -------
relieve the Trustee from liability for its own negligent action, its own
negligent failure to act, its action in bad faith or its own willful misconduct.
Section 6.13. Intended Tax Characterization. The parties hereto agree that
-----------------------------
it is their mutual intent that, for all applicable tax purposes, the Note will
constitute indebtedness and that for all applicable tax purposes, accordingly,
the Issuer will be treated as owner of the Collateral. Further, each party
hereto and the holder of the Note (or an interest therein) (by receiving and
holding the Note or an interest therein), hereby covenants to every other party
hereto to treat the Note as indebtedness for all applicable tax purposes in all
tax filings, reports and returns and otherwise, and further covenants that
neither it nor any of its affiliates will take, or participate in the taking of
or permit to be taken, any action that is inconsistent with the treatment of the
Note as indebtedness for tax purposes unless otherwise directed by law, rule or
regulation or order of any governmental authority. All successors and assigns of
the parties hereto shall be bound by the provisions hereof.
Section 6.14. No Recourse. No recourse under or with respect to any
-----------
obligation, covenant or agreement (including, without limitation, the payment of
any fees or any other obligations) of the Company or any other agreement,
instrument or document entered into by it pursuant hereto or in connection
herewith shall be had against any incorporator, affiliate, stockholder, officer,
employee or director of the Company, by the enforcement of any assessment or by
any legal or equitable proceeding, by virtue of any statute or otherwise (except
to the extent that recourse against the Company arises from the gross negligence
or willful misconduct of the Company); it being expressly agreed and understood
-- ----- --------- ------ --- ----------
that the agreements of the Company contained in this Agreement and all of the
other agreements, instruments and documents entered into by it pursuant hereto
or in connection herewith are, in each case, solely the corporate obligations of
the Company, and that no personal liability whatsoever shall attach to or be
incurred by any incorporator, stockholder, affiliate, officer, employee or
director of the Company, as such, or any of them, under or by reason of any of
the obligations, covenants or agreements of the Company contained in this
Agreement or in any other such instruments, documents or agreements, or which
are implied therefrom, and that any and all personal liability of each
incorporator, stockholder, affiliate, officer, employee or director of the
Company, or any of them, for breaches by the Company of any such obligations,
covenants or agreements, which liability may arise either at common law or at
equity, or by statute or constitution, or otherwise, is hereby expressly waived
except to the extent that such personal liability of the Company arises from the
gross negligence or willful misconduct of the Company. The provisions of this
Section 6.14 shall survive the termination of this Agreement.
------------
26
IN WITNESS WHEREOF, the Issuer, the Company, the Agent and the
Administrative Agent have caused this Note Purchase Agreement to be executed by
their respective officers thereunto duly authorized as of the day and year first
above written.
AMERICREDIT BARCLAYS TRUST,
as Issuer
By: BANKERS TRUST (DELAWARE), not in its
individual capacity but solely as Trustee
By: ___________________________________
Name:
Title:
$300,000,000 SHEFFIELD RECEIVABLES CORPORATION,
Commitment as Company
By: ___________________________________
Name:
Title:
BARCLAYS BANK PLC,
as Agent and as Administrative Agent
By: ___________________________________
Name:
Title:
AMERICREDIT FINANCIAL SERVICES, INC.
By: ___________________________________
Name:
Title:
27
EXHIBIT A
Sheffield Receivables Corporation
c/o Barclays Bank PLC
000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxx
RE: BORROWING BASE CONFIRMATION - INITIAL FUNDING
Ladies and Gentlemen:
Relevant Cutoff Date: [__________]
Initial Funding Date: [__________]
Pledged Receivables: See Schedule A hereto
I. Funding
(1) Outstanding Balance of Eligible Receivables to be pledged _____________________
(2) Amount of Deposit in Collection Account _______________
91%
(3) Noteholder's Percentage* _______________
(4) Maximum Borrowing Base ((1+2) times 3) _______________
(5) Funding Requested _____________________
(6) Remaining Availability after Funding Request (4 minus 6) _____________________
/*/ Noteholder's Percentage equals 91% less the product of (i) 7.0 and (ii) the amount, if any, by which the highest
Cumulative Net Loss Percentage of the three most recent static pools of AmeriCredit's monthly originations with at least six
months of seasoning exceeds 2.0%.
II. Remaining Availability Under Agreement
(1) Facility Limit 300,000,000
_______________
(2) Net Investment after Funding Request _____________________
(3) Interest Component of Related Commercial Paper _______________
(4) Remaining Availability Under Agreement _______________
III. Minimum Reserve Account Requirement
(1) Current Reserve Account Balance _______________
(2) Reserve Account Floor
(greater of (i) $500,000 and (ii) 1% of Net
Receivables Balance) _____________________
(3) Reserve Account (Shortfall) / Surplus _____________________
IV. Funding Allocation
(1) Wire Amount to Debtor _______________
(2) Wire Amount to Reserve Account _______________
(3) Wire Amount to Other __________________ _______________
(4) Total Amount of Funding _______________
V. Have all conditions in Section 2.1(d) of the Note Purchase _____________________
Agreement been satisfied?
AmeriCredit Barclays Trust AmeriCredit Financial Services, Inc.,
as Servicer
By: ________________________ By: _____________________________
Name: Name:
Title: Title:
EXHIBIT B
EXHIBIT C
FORM OF
VARIABLE FUNDING NOTE
New York, New York
_____________, 2000
FOR VALUE RECEIVED, the undersigned, AMERICREDIT BARCLAYS TRUST, a
Delaware business trust (the "Issuer"), promises to pay to the order of BARCLAYS
------
BANK PLC, as Agent, on behalf of the Company, on the date specified in Section
2.1(i) of the Note Purchase Agreement (as hereinafter defined, at [address], in
lawful money of the United States of America and in immediately available funds,
the principal amount of Three Hundred Million Dollars ($300,000,000), or, if
less, the aggregate unpaid principal amount of all Fundings made by the Company
to the Issuer pursuant to the Note Purchase Agreement and the Security Agreement
and to pay interest at such office, in like money, from the date hereof on the
unpaid principal amount of such Fundings from time to time outstanding at the
rates and on the dates specified in the Note Purchase Agreement and the Security
Agreement.
The Agent is authorized to record, on the schedules annexed hereto and
made a part hereof or on other appropriate records of the Agent, the date and
the amount of each Funding made by the Company, each continuation thereof, the
funding period for such Funding and the date and amount of each payment or
prepayment of principal thereof. Any such recordation shall constitute prima
-----
facie evidence of the accuracy of the information so recorded; provided that the
----- --------
failure of the Agent to make any such recordation (or any error in such
recordation) shall not affect the obligations of the Issuer hereunder, under the
Note Purchase Agreement or under the Security Agreement in respect of the
Fundings.
This Variable Funding Note is the Note referred to in the Note
Purchase Agreement, dated as of June 30, 2000 (as amended, supplemented, or
otherwise modified and in effect from time to time, the "Note Purchase
-------------
Agreement"), among the Company, the Issuer and Barclays Bank PLC, as agent for
---------
the Company (in such capacity, the "Agent"), and is entitled to the benefits
-----
thereof. Capitalized terms used herein and not defined herein have the meanings
given them in the Note Purchase Agreement.
This Variable Funding Note is subject to optional and mandatory
prepayment as provided in the Note Purchase Agreement and the Security
Agreement.
Upon the occurrence of a Termination Event, the Company shall have all
of the remedies specified in the Security Agreement. The Issuer hereby waives
presentment, demand, protest, and all notices of any kind.
THIS VARIABLE FUNDING NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
AMERICREDIT BARCLAYS TRUST,
as Issuer
By: BANKERS TRUST (DELAWARE),
not in its individual capacity but solely
as Trustee
By: _________________________________
Name:
Title:
2
Schedule 1 to
VARIABLE FUNDING NOTE
Principal Discount Prepayment
Of on of
Fundings Fundings Fundings Notation By
-------- -------- -------- -----------
Date
----
