EXHIBIT 10.53
EXECUTION COPY
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CREDIT AGREEMENT
Dated as of August 15, 2002
among
AFS FUNDING CORP.,
and
AFS SENSUB CORP.
as the Borrowers
AMERICREDIT CORP., and
AMERICREDIT FINANCIAL SERVICES, INC.,
each as a Contingent Obligor
THE FINANCIAL INSTITUTIONS
FROM TIME TO TIME PARTY HERETO AS LENDERS
as the Lenders
DEUTSCHE BANK AG, NEW YORK BRANCH,
as an Agent,
and
THE OTHER AGENTS FROM TIME TO TIME PARTY HERETO
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Lender Collateral Agent
and
DEUTSCHE BANK TRUST COMPANY AMERICAS
as the Administrative Agent
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TABLE OF CONTENTS
- i -
LIST OF SCHEDULES
Schedule I List of Applicable Lending Offices
Schedule II Cumulative Net Loss Ratio Triggers
Schedule III Approved Interest Rate Cap Counterparties
Schedule IV Certain Information Regarding Designated Series
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LIST OF EXHIBITS
Exhibit A Form of Note
Exhibit B Form of Notice of Borrowing
Exhibit C Form of Notice of Conversion/Continuation
Exhibit D Form of Assignment and Assumption Agreement
Exhibit E Form of Confidentiality Agreement
Exhibit F Form of Joinder Supplement
Exhibit G Form of Interest Rate Hedge Assignment Acknowledgment
Exhibit H Form of Interest Rate Cap
Exhibit I Form of Agreed Upon Procedures Letter
Exhibit J Form of Revolver Servicer's Certificate
Exhibit K Form of Revolver Borrowing Base Certificate
Exhibit L-1 Form of Guaranty
Exhibit L-2 Form of Limited Guaranty
Exhibit M Form of Collateral Summary Report
Exhibit N Form of Monthly Compliance Certificate
LIST OF APPENDICES
Appendix A Certain Definitions
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CREDIT AGREEMENT, dated as of August 15, 2002, by and among AFS
FUNDING CORP., a Nevada corporation, ("AFS Funding"), AFS SENSUB CORP., a Nevada
corporation ("SenSub"; together with AFS Funding, each a "Borrower" and
collectively, the "Borrowers"), AMERICREDIT CORP., a Texas corporation ("ACC"),
AMERICREDIT FINANCIAL SERVICES, INC., a Delaware corporation ("ACFS"; together
with ACC, each a "Contingent Obligor" and collectively, the "Contingent
Obligors"), the LENDERS from time to time parties hereto, DEUTSCHE BANK AG, a
German banking corporation acting through its New York Branch ("DBNY"), as an
agent, and the other AGENTS for the Lender Groups from time to time parties
hereto (each such party, together with their respective successors in such
capacity, an "Agent"), DEUTSCHE BANK TRUST COMPANY AMERICAS, a New York banking
organization ("DBTCA"), as collateral agent under the Security Agreement
referred to below (together with its successors in such capacity, the "Lender
Collateral Agent"), and DBTCA, as administrative agent for the Lenders (together
with its successors in such capacity, the "Administrative Agent").
RECITALS
1. The Borrowers have sold and contemplate selling, from
time to time, pools of receivables to various trusts which have issued and may
issue various series of notes or certificates (each a "Series") which will be
repaid by the proceeds of, or represent an interest in, as the case may be, such
pools of receivables.
2. The Borrowers have requested that the Lenders establish
a revolving line of credit to the Borrowers, which line of credit will be
secured by certain securities rated at least Ba2 by Xxxxx'x and BB by S & P of
various Series and will be secured, ratably with certain other obligations of
the Borrowers, by certain amounts payable to the Borrowers with respect to other
Series.
3. Upon the terms and conditions contained in this
Agreement and the other Transaction Agreements, the Lenders are willing to
provide such a line of credit to the Borrowers.
4. Pursuant to the Security Agreement (as defined herein),
the Lender Collateral Agent, for the benefit of the Secured Parties (as such
term is defined in the Security Agreement), as security for the obligations of
the Borrowers under this Agreement, shall hold a security interest in certain
securities of various Series rated at least Ba2 by Xxxxx'x and BB by S & P and
certain other property of the Borrowers.
5. Pursuant to the Master Collateral and Intercreditor
Agreement (as defined herein), Deutsche Bank Trust Company Americas, as
collateral agent (the "Master Collateral Agent"), shall hold a security interest
in certain amounts payable to the Borrowers with respect to certain Series for
the benefit of the Lenders and certain other creditors of the Borrowers.
6. Each of the Borrowers is a Subsidiary of ACC and AFCS
and as such, each Contingent Obligor will benefit from the extensions of credit
to the Borrowers under this Agreement.
AGREEMENTS
In consideration of the premises and of the agreements herein
contained, and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the Borrowers, the Contingent
Obligors, the Lenders, the Agents, the Lender Collateral Agent and the
Administrative Agent hereby agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01 Certain Defined Terms. Certain capitalized terms
used in this Agreement and not otherwise defined herein shall have the
respective meanings set forth in Appendix A hereto or, if not defined therein,
shall have the respective meanings set forth in the Security Agreement.
SECTION 1.02 Computation of Time Periods. In this Agreement
in the computation of periods of time from a specified date to a later specified
date, the word "from" means "from and including" and the words "to" and "until"
each means "to but excluding." Periods of days referred to in this Agreement
shall be counted in calendar days unless Business Days are expressly prescribed
and references in this Agreement to months and years shall be to calendar months
and calendar years unless otherwise specified.
SECTION 1.03 Accounting Terms. All accounting terms not
specifically defined otherwise herein shall have the meaning customarily given
in accordance with GAAP, and all financial computations hereunder shall be
computed, unless specifically provided otherwise herein, in accordance with
GAAP.
SECTION 1.04 Other Terms. Any references herein to Exhibits,
Schedules, Appendices, Sections or Articles are references to Exhibits,
Schedules, Appendices, Sections or Articles of this Agreement, unless otherwise
specified. The words "including" and "include" are deemed to be followed by the
words "without limitation."
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01 The Line of Credit; Notes.
(a) On and subject to the terms and conditions hereinafter
set forth, during the Commitment Period, the Borrowers shall be entitled, from
time to time prior to the Termination Date, to request Advances from the
Lenders. The Conduit Lenders may, and to the extent a Conduit Lender has elected
not to make an Advance, the Committed Lenders for such Conduit Lender, subject
to and in accordance with subsection 2.02(e), shall make such Advances to the
Borrowers as herein provided. Each Lender's pro rata share of any Borrowing
hereunder shall be as set forth in Section 2.02. The Borrowers may not request
Advances, and a Conduit Lender may elect not to make, and no Committed Lender
shall be required to make, Advances, if after giving effect to such Advance the
aggregate outstanding principal amount of such Conduit
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Lender's Advances would exceed its Maximum Conduit Amount or if the aggregate
outstanding principal amount of such Committed Lender's Advances would exceed
its Commitment Amount or if the aggregate outstanding principal amount of all
Advances owing to all Lenders in the Lender Group related to such Conduit Lender
or Committed Lender (as the case may be) would exceed the sum of the Commitment
Amounts of all Committed Lenders in such Lender Group or if the aggregate
outstanding principal amount of all Advances would exceed the Borrowing Base.
Within the limits set forth in this Agreement and within the limits of the
Borrowing Base and of each Committed Lender's Commitment Amount and each Conduit
Lender's Maximum Conduit Amount and each Lender Group's maximum amount of
Advances, as applicable, during the Commitment Period the Borrowers may borrow,
repay pursuant to Section 2.04 and reborrow under this Section 2.01 and Section
2.02. Subject to the terms of Section 2.04, prior to the Facility Maturity Date
and notwithstanding the termination of the Commitment Period, any outstanding
Advances may, at the option of the Borrowers, be Converted or Continued pursuant
to the terms of Section 2.07.
(b) The Advances made by each Lender shall be evidenced by a
promissory note of the Borrowers, substantially in the form of Exhibit A, with
appropriate insertions therein as to date and principal amount (each, as
indorsed or modified from time to time, a "Note" and, collectively with the
Notes of all other Lenders, the "Notes"), payable to the order of such Lender or
the Agent for such Lender (as such Lender may elect), dated the Closing Date
(or, if later, the date of the Assignment and Assumption or Joinder Supplement
pursuant to which such Lender became a party to this Agreement) and in the
stated principal amount equal to the Commitment of such Lender or the Maximum
Conduit Amount for the Lender Group of which such Agent is a part, as the case
may be.
(c) In the event the Revolver Borrowing Base is less than
the aggregate outstanding principal amount of Advances, the portion of the
Advances equal to such deficiency shall be due and payable immediately, together
with all accrued and unpaid amounts due under this Agreement or other
Transaction Documents with respect to that portion of the Advances, including
without limitation any amounts which may be due under Section 2.13. In the event
that a Senior Borrowing Base Deficiency is outstanding, all Advances together
with all accrued and unpaid amounts due under this Agreement or other
Transaction Documents with respect to such Advances, including without
limitation any amounts which may be due under Section 2.13 shall become
immediately due and payable. Without limiting the foregoing, the entire
outstanding principal amount of all Advances shall mature and be due and payable
on the Facility Maturity Date, together with all accrued and unpaid interest
thereon and all other accrued and unpaid amounts due under this Agreement and
the other Transaction Documents.
(d) The obligation to repay each Advance, and all interest
thereon, is a joint and several obligation of the Borrowers.
SECTION 2.02 Borrowings; Notices of Borrowing and Advances.
(a) The Borrowers shall give the Administrative Agent
written notice (a "Notice of Borrowing") not later than 2:00 p.m. (New York City
time) on the fourth Business Day prior to a Borrowing hereunder if any portion
of such Borrowing is to consist of Eurodollar Rate Advances or, if no portion of
the Borrowing is to consist of Eurodollar Rate Advances, on
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the Business Day prior to such Borrowing. If a Notice of Borrowing is
transmitted by telecopy, the Borrowers shall promptly provide written
confirmation thereof to the Administrative Agent. A Notice of Borrowing shall be
substantially in the form of Exhibit B hereto and shall specify, subject to the
terms and conditions of this Agreement, (i) the date of the proposed Borrowing
(the "Borrowing Date"), (ii) the amount of the proposed Borrowing, (iii) the
Type or Types of the Advances to be made as part of such proposed Borrowing and
(iv) if any portion of the Borrowing is to consist of Eurodollar Rate Advances,
the Interest Period with respect thereto. Each Notice of Borrowing shall be
irrevocable. If the Administrative Agent receives a Notice of Borrowing at or
before 4:00 p.m. (New York City time) on a Business Day, it shall provide each
Agent with a copy thereof on such Business Day, and otherwise it shall provide
each Lender with a copy thereof before 1:00 p.m. (New York City time) on the
following Business Day. Each Agent shall promptly provide each Lender in its
Lender Group with a copy of each Borrowing Notice received by it.
(b) The Borrowing Date specified in any Notice of Borrowing
shall be a Business Day during the Commitment Period.
(c) The amount of any proposed Borrowing shall be at least
$10,000,000.
(d) All Advances in respect of a Borrowing specified in a
Notice of Borrowing shall be of the same Type.
(e) On and subject to the terms and conditions of this
Agreement, following receipt by the Administrative Agent and the Agent of a
proper Notice of Borrowing, each Conduit Lender may elect to make an Advance on
the applicable Borrowing Date in an amount equal to its Lending Percentage of
the requested Borrowing. Each Conduit Lender shall notify the Agent for its
Lender Group at or before 11:30 a.m. (New York City time) on the applicable
Borrowing Date whether it has elected to make its Advance pursuant to this
Section 2.02(e) in respect of the Borrowing to be made on such date. In the
event that a Conduit Lender shall not have timely provided such notice, such
Conduit Lender shall be deemed to have elected not to make such purchase. Such
Agent shall notify each Committed Lender for such Conduit Lender on or prior to
12:00 noon, New York City time, on the applicable Borrowing Date if such Conduit
Lender has not elected to purchase its entire Lending Percentage of the
Borrowing, which notice shall specify (i) the identity of such Conduit Lender,
(ii) the portion of the Borrowing which such Conduit Lender has not elected to
purchase as provided above, and (iii) the respective Liquidity Percentages of
such Committed Lenders on such Borrowing Date (as determined by such Agent in
good faith; for purposes of such determination, such Agent shall be entitled to
rely conclusively on the most recent information provided by such Conduit Lender
or its agent or by the agent for its Support Parties). Subject to receiving such
notice and to the satisfaction of the applicable conditions set forth in Article
III hereof, each of such Conduit Lender's Committed Lenders shall make an
Advance on the applicable Borrowing Date in an amount equal to its Liquidity
Percentage of the Advance which such Conduit Lender has not elected to make.
(f) Each applicable Lender shall (subject to Section 2.02(g)
in the case of Conduit Lenders), before 12:30 p.m. (New York City time) on a
Borrowing Date, make available for the account of its Applicable Lending Office
to the Agent for its Lender Group at its account
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referred to in Section 2.12(a), by wire transfer of immediately available funds,
such Lender's pro rata share of such requested Borrowing. Each Agent shall
promptly notify the Borrowers in the event that any Lender in its Lender Group
either fails to make such funds available to such Agent before such time or
notifies such Agent that it will not make such funds available to such Agent
before such time; provided, however, that no Agent shall have any liability for
failing to give any notice as provided in this sentence. Subject to (x) such
Agent's receipt of such funds and (y) the fulfillment of the applicable
conditions set forth in Article III, as determined by such Agent, each Agent
will by no later than 1:00 p.m. (New York City time) on such Borrowing Date make
such funds available, in the same type of funds received, by wire transfer
thereof to the account designated by the Borrowers in the Notice of Borrowing.
(g) In the event that a Conduit Lender elected to make an
Advance on a Borrowing Date but failed to do so by the time contemplated by
Section 2.02(f), such Conduit Lender shall be deemed to have rescinded its
election to make such Advance, and neither the Borrowers nor any other party
shall have any claim against such Conduit Lender by reason for its failure to
timely make such Advance. In any such case, the Agent for such Conduit Lender
shall give notice of such failure not later than 12:00 noon (New York City time)
on the Borrowing Date to each Committed Lender with respect to such Conduit
Lender, which notice shall specify the identity of such Conduit Lender, the
amount of the Advance which it had elected to make and the respective Liquidity
Percentages of such Committed Lenders on such Borrowing Date (as determined by
such Agent in good faith; for purposes of such determination, such Agent shall
be entitled to rely conclusively on the most recent information provided by such
Conduit Lender or its agent or by the agent for its Support Parties). Subject to
receiving such notice, each of such Conduit Lender's Committed Lenders shall
make an Advance on such Borrowing Date in an amount equal to its Liquidity
Percentage of such Conduit Lender's Lending Percentage of the Borrowing to be
made on such Borrowing Date at or before 1:00 p.m. (New York City time) on such
Borrowing Date and otherwise in accordance with Section 2.02(f). Subject to (x)
such Agent's receipt of such funds and (y) the fulfillment of the applicable
conditions set forth in Article III, as determined by such Agent, the related
Agent will by no later than 1:30 p.m. (New York City time) on such Borrowing
Date make such funds available, in the same type of funds received, by wire
transfer thereof to the account designated by the Borrowers in the Notice of
Borrowing. In the event that any Committed Lender made an Advance on a Borrowing
Date in lieu of a Conduit Lender, not later than the Business Day following such
Borrowing Date, the related Agent shall give notice to the Borrowers specifying
the amount of such Advance and identifying such Committed Lender.
(h) Advances made by Lenders in respect of a Notice of
Borrowing shall initially be of the Type or Types specified in such Notice of
Borrowing.
(i) The obligations of Lenders hereunder, including the
obligations of the Committed Lenders to make Advances, shall be several and not
joint obligations of such Lenders. The failure of any Committed Lender to make
the Advance to be made by it as part of any Borrowing shall not relieve any
other Committed Lender of its obligation hereunder to make its Advance on the
date of such Borrowing, but except as provided in Section 2.02(e) and (g) with
respect to Committed Lenders, no Lender shall be responsible for the failure of
any other Lender to make the Advance to be made by such other Lender on the date
of any Borrowing.
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(j) Notwithstanding anything in this Section to the
contrary, the Administrative Agent may, in its sole discretion, accept and act
without liability upon the basis of a telephonic notice of borrowing (which
notice shall be irrevocable and shall be promptly confirmed by a written Notice
of Borrowing sent by facsimile) believed by the Administrative Agent in good
faith to be from an Authorized Officer of any Borrower. The Administrative
Agent's records regarding the terms of such telephone notice of borrowing shall
be presumptively correct absent manifest error. The fact that the Administrative
Agent may so act in any circumstance shall not be deemed a waiver of compliance
with the procedures of this Section 2.02 in any other circumstance.
SECTION 2.03 Reductions of Commitments.
(a) The Borrowers shall have the right, upon at least five
Business Day's prior written notice to the Administrative Agent (with a copy to
the Lender Collateral Agent), at any time to permanently reduce the Total
Commitment Amount to zero and terminate all Commitments or from time to time to
permanently reduce the Total Commitment Amount in part; provided, however, that
each partial reduction shall be in the amount of at least $20,000,000 or an
integral multiple of $1,000,000 in excess of that amount.
(b) Each reduction in the Total Commitment Amount shall be
applied pro rata to the Maximum Conduit Amount of each Conduit Lender according
to such Lender's Lending Percentage. Each reduction in the Maximum Conduit
Amount of a Conduit Lender shall automatically result in a pro rata reduction of
the Commitment Amount of each Committed Lender relating to such Conduit Lender
according to each such Committed Lender's Commitment Amount. The Total
Commitment Amount shall not be reduced below an amount equal to the outstanding
principal amount of all Advances.
SECTION 2.04 Prepayments of the Borrowings.
(a) Mandatory Prepayment of the Borrowings Arising from
Asset Backed Security Distributions. All Asset Backed Security Distributions
paid to the Lender Collateral Agent pursuant Section 5.01(u) shall be applied by
the Lender Collateral Agent in accordance with the terms of Section 6 of the
Security Agreement.
(b) Optional Prepayment of the Borrowings. The Borrowers
may, from time to time, prepay the Advances in whole or in part provided written
notice (setting forth the date and the amount of such prepayment) is sent to the
Administrative Agent (with a copy to the Lender Collateral Agent) not later than
three Business Days prior to the proposed prepayment; provided that any partial
prepayment shall be in the amount of at least $10,000,000.
(c) In General. Any prepayments of Advances in full to any
Lender pursuant to this Section 2.04 shall be made together with accrued
interest to the date of such prepayment on the amount prepaid. All prepayments
of Borrowings shall be applied pro rata based on the outstanding principal
amount of Advances owed to each Lender. Each prepayment of Advances owed to a
Lender shall be applied to Base Rate Advances and Eurodollar Rate Advances in
any manner deemed appropriate by the related Agent, after consultation with the
Borrowers. If any prepayment is made in respect of any Eurodollar Rate Advance,
in whole or in part, prior to the
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last day of the applicable Interest Period, the Borrowers agree to indemnify the
affected Lenders in accordance with Section 2.13.
SECTION 2.05 Interest on the Advances.
(a) The Borrowers agree (on a joint and several basis) to
pay to the Administrative Agent for the account of each Lender interest on the
unpaid principal amount of each Advance made by such Lender from the date of
such Advance until such principal amount shall be paid in full, at the following
rates per annum:
(i) for Eurodollar Rate Advances, a rate per annum
equal at all times during the Interest Period for such Advance to the
sum of (A) the Adjusted Eurodollar Rate for such Interest Period; and
(B) two and one-quarter percent (2.25%); and
(ii) for Base Rate Advances, a rate per annum equal
to the Alternate Base Rate in effect from time to time.
(b) Interest on each Advance shall be payable on each
Interest Payment Date for such Advance and upon each payment (including
prepayment) of the Advance.
(c) Any amount of principal of any Advance or any other
amount owing hereunder which (i) remains outstanding following the Facility
Maturity Date or (ii) is not paid when due (whether at stated maturity, by
acceleration or otherwise) shall bear interest, from the date on which such
amount is due until such amount is paid in full, payable on the date of demand,
at a rate per annum equal at all times (whether before or after the entry of a
judgment thereon) to 3% plus the rate which would otherwise be applicable
pursuant to Section 2.05(a) or, with respect to amounts for which no rate is
specified in Section 2.05(a), to 3% plus the Alternate Base Rate in effect from
time to time.
(d) Interest on (i) Base Rate Advances shall be calculated
on the basis of a 365 or 366-day year (as the case may be) when the Alternate
Base Rate is determined by reference to the base commercial lending rate of
DBNY, and (ii) other Advances shall be calculated on the basis of a 360-day
year, in each case, for the actual number of days elapsed. Any change in the
interest rate on the Borrowings resulting from a change in any applicable rate
shall become effective as of the opening of business on the day on which such
change in the applicable rate shall become effective.
(e) The Administrative Agent shall promptly notify the
Borrowers and the Lenders of the applicable interest rate determined by the
Administrative Agent for purposes of Section 2.05(a), but any failure to so
notify shall not in any manner affect the obligation of the Borrowers to pay
interest on the Borrowings in the amounts and on the dates required.
SECTION 2.06 Interest Rate Protection.
(a) If, with respect to any Eurodollar Rate Advances, the
Committed Lenders collectively holding greater than 50% of the outstanding
principal amount of Eurodollar Rate Advances, or in the event that no Eurodollar
Rate Advances are then outstanding, then the Committed Lenders holding greater
than 50% of the Total Commitment Amount notify the
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Administrative Agent that they have determined (which determination shall be
conclusive and binding upon the Borrowers) that by reasons of circumstances
affecting the interbank Eurodollar market either adequate and reasonable means
do not exist for ascertaining the Adjusted Eurodollar Rate applicable pursuant
to Section 2.05(a)(ii) or that the applicable Adjusted Eurodollar Rate will not
adequately and fairly reflect the cost to such Lenders of making, funding or
maintaining their respective Eurodollar Rate Advances, the Administrative Agent
shall forthwith so notify the Borrowers and the Lenders, whereupon
(i) each Eurodollar Rate Advance, to the extent not
then repaid, will automatically, on the last day of the then existing
Interest Period therefor, Convert into a Base Rate Advance, and
(ii) the obligation of the Lenders to make or to
Continue, or to Convert Advances into, Eurodollar Rate Advances shall be
suspended until the Administrative Agent is notified by Committed
Lenders holding greater than 50% of the Total Commitment Amount that the
circumstances causing such suspension no longer exist, and upon receipt
of such notice, the Administrative Agent shall so notify the Borrowers
and the Lenders.
(b) On the date on which the aggregate unpaid principal
amount of Advances constituting any Borrowing shall be reduced, by payment or
prepayment or otherwise, to less than $5,000,000, such Advances shall, if they
constitute Eurodollar Rate Advances, automatically Convert into Base Rate
Advances, and on and after such date the right of the Borrowers to Convert such
Advances into Advances of a Type other than Base Rate Advances shall terminate
unless such Advances are combined with the Advances constituting another
Borrowing, as contemplated by Section 2.07(a), with the result that the
aggregate unpaid principal balance of all the Advances so combined equals or
exceeds $5,000,000.
SECTION 2.07 Voluntary Conversion and Continuation of
Advances.
(a) Prior to the Facility Maturity Date, the Borrowers shall
have the option with respect to any outstanding Advance, (i) so long as no Event
of Default has occurred and is continuing, to Convert all or any portion thereof
which constitutes Base Rate Advances to Eurodollar Rate Advances on any Interest
Payment Date; (ii) to Convert all or any portion of any outstanding Eurodollar
Rate Advances to Base Rate Advances upon the expiration date of the Interest
Period applicable to such Eurodollar Rate Advances; or (iii) so long as no Event
of Default has occurred and is continuing, to Continue all or any portion of
such Eurodollar Rate Advances as Eurodollar Rate Advances upon the expiration of
the Interest Periods applicable to any outstanding Eurodollar Rate Advances. The
Borrowers' right to Convert or Continue Advances pursuant to this Section 2.07
shall be understood to include the right (i) to divide any Borrowing into two or
more Borrowings having aggregate principal equal to the principal of such
Borrowing or (ii) to combine any two or more Borrowings into a single Borrowing
having principal equal to the aggregate principal of such Borrowings. If, after
giving effect to any combination or division of Borrowings as contemplated by
this Section 2.07(a), the aggregate unpaid principal amount of the Advances
constituting a Borrowing is less than $5,000,000, those Advances may not be
Converted into or Continued as Eurodollar Rate Advances.
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(b) To Convert or Continue any Advance under Section
2.07(a), the Borrowers shall deliver a Notice of Conversion/Continuation to the
Administrative Agent not later than 2:00 p.m. (New York City time) on (i) the
fourth Business Day prior to the date of the proposed Conversion/Continuation if
such Advance is to be Converted into or Continued as a Eurodollar Rate Advance
or if the Advance is to be Converted from a Eurodollar Rate Advance into any
other Type of Advance, and (ii) the Business Day prior to the date of the
proposed Conversion/Continuation in any other case. If a Notice of
Conversion/Continuation is transmitted by telecopy, the Borrowers shall promptly
provide written confirmation thereof to the Administrative Agent. If the
Administrative Agent receives such a Notice of Conversion/Continuation at or
before 4:00 p.m. (New York City time) on a Business Day, it shall provide each
Agent with a copy thereof on such Business Day, and otherwise it shall provide
each Agent with a copy thereof at or before 1:00 p.m. (New York City time) on
the following Business Day. Each Agent shall promptly provide to each Lender in
its Lender Group a copy of each Notice of Conversion/Continuation received by
it. Each Notice of Conversion/Continuation shall be in the form attached hereto
as Exhibit C and shall specify (i) the date of such proposed
Conversion/Continuation (which shall be a Business Day), (ii) the Advances to be
Converted and/or Continued, (iii) the principal amount of the Advances to be
Converted and/or Continued, (iv) whether such Advance is to be Converted or
Continued and (iv) if any portion of such Advance is to be Converted or
Continued as a Eurodollar Rate Advance, the Interest Period with respect
thereto. Any Notice of Conversion/Continuation shall be irrevocable, and the
Borrowers shall be bound to Convert or to Continue the Advances in accordance
therewith. If the Borrowers shall fail to deliver a Notice of
Conversion/Continuation to the Administrative Agent as aforesaid with respect to
any Type of Advance, such Advance shall automatically be Continued as the same
Type of Advance if otherwise permitted by this Agreement on the last day of the
then existing Interest Period therefor or if, not permitted to be so Continued,
shall automatically Convert to a Base Rate Advance on such date.
(c) Notwithstanding any provision of Section 2.07(b) to the
contrary, the Administrative Agent may, in its sole discretion, accept and act
without liability upon the basis of a telephonic notice of
Conversion/Continuation (which notice shall be irrevocable and shall be promptly
confirmed by a written Notice of Conversion/Continuation sent by facsimile)
believed by the Administrative Agent in good faith to be from an Authorized
Officer of the Borrowers. The Administrative Agent's records regarding the terms
of such telephone notice of such borrowing shall be presumptively correct absent
manifest error. The fact that the Administrative Agent may so act in any
circumstance shall not be deemed a waiver of compliance with the procedures of
Section 2.07(b) in any other circumstance.
SECTION 2.08 Fees. The Borrowers agree (on a joint and
several basis) to pay to the Administrative Agent and, to the extent set forth
in any Supplemental Fee Letter, the Agents and the Lenders those Fees set forth
in the Supplemental Fee Letters in accordance with the terms thereof. The
parties hereto acknowledge that there is one Supplemental Fee Letter in effect
on the Effective Date.
SECTION 2.09 Extensions of Commitment Expiration Dates.
(a) On the Lending Termination Date for a Committed Lender,
the Commitment of such Lender shall be automatically reduced to zero.
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(b) So long as no Event of Default or Event of Early
Termination has occurred and is continuing, no more than 90 and no less than 60
days prior to the applicable Commitment Expiration Date, the Borrowers may
request, through the Administrative Agent, that each Lender consent to an
extension of the Commitment Expiration Date for a 364-day period as herein
provided, which decision will be made by each Lender in its sole discretion.
Upon receipt of any such request, the Administrative Agent shall promptly notify
each Agent thereof, which shall notify each Lender in its Lender Group thereof.
Not more than 30 days following the date of a request for an extension (such
30-day period, the "Election Period"), each Lender shall notify the Agent for
its Lender Group of its willingness or refusal to so consent to an extension of
the Commitment Expiration Date, and such Agent shall notify the Borrowers and
the Administrative Agent of such willingness or refusal by each Lender not later
than the Business Day following the last day of the Election Period. Any Lender
which notifies the applicable Agent of its refusal to consent to the extension
or which does not expressly notify such Agent that it is willing to consent to
an extension of the Commitment Expiration Date during the applicable Election
Period shall be deemed to be a (x) Nonextending Lender after the Commitment
Expiration Date then in effect (such occurrence, unless such Nonextending Lender
is replaced pursuant to Section 2.09(c) of this Agreement or unless the Lending
Termination Date shall have occurred, a "Partial Expiration Event") and (y)
"Dissenting Lender" from the date of its refusal notice or the end of the
applicable Election Period. If a Lender has agreed to extend its Commitment
Expiration Date, and, at the end of the applicable Election Period no Event of
Default or Event of Early Termination shall have occurred, the Commitment
Expiration Date for such Lender then in effect shall be extended to the date
which is 364 days following the first day of the Election Period or, if such day
is not a Business Day, the next preceding Business Day.
(c) Within two Business Days following the end of an
Election Period, the Agent for each Lender Group shall notify each other Lender
in such Lender Group, the Administrative Agent and the Borrowers of the identity
of any Dissenting Lender and the amount of its Commitment, if any. Any of such
Agent, the Borrowers or, if the Dissenting Lender is a Committed Lender, the
affected Conduit Lenders, may (but shall not be required to) request one or more
other Lenders in such Lender Group, with the consent of the applicable Agent
(which shall not be unreasonably withheld) and, if the Dissenting Lender is a
Committed Lender, the affected Conduit Lender in its sole discretion, or seek
another financial institution reasonably acceptable to such Agent and, if the
Dissenting Lender is a Committed Lender, acceptable to the affected Conduit
Lender in its sole discretion, to acquire all or a portion of the Commitment of
the Dissenting Lender and all amounts payable to it hereunder in accordance with
Section 8.01 of this Agreement. Each Dissenting Lender hereby agrees to assign
all or a portion of its Commitment and the amounts payable to it hereunder to a
replacement lender identified by the Agent for its Lender Group in accordance
with the preceding sentence, subject to ratable payment of such Dissenting
Lender's Advances, together with all accrued and unpaid interest thereon, and a
ratable portion of all fees and other amounts due to it hereunder.
(d) If a Partial Expiration Event shall have occurred, on
each succeeding Distribution Date after the applicable Commitment Expiration
Date, the Limited Amortization Amount with respect to such Distribution Date and
each Nonextending Lender shall be due and payable.
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SECTION 2.10 Increased Costs; Increased Capital.
(a) In the event that any Lender shall have reasonably
determined that any Regulatory Change shall:
(i) subject such Lender to any Taxes of any kind
whatsoever, other than Excluded Taxes, with respect to this Agreement,
its Commitment or its Advances, or change the basis of taxation of
payments in respect thereof; or
(ii) impose, modify or hold applicable any reserve,
special deposit, compulsory loan, assessment, increased cost or similar
requirement against assets held by, deposits or other liabilities in or
for the account of, advances, loans or other extensions of credit by, or
any other acquisition of funds by, such Lender or any office of such
Lender in respect of its Commitment or Advances and which, in the case
of Eurodollar Rate Advances, is not otherwise included in the
determination of the Adjusted Eurodollar Rate,
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of maintaining its
Commitment or of making, renewing, Converting, Continuing or maintaining its
Advances or to reduce any amount receivable in respect thereof, then, in any
such case, after submission by such Lender to the Administrative Agent of a
written request therefor and the submission by the Administrative Agent to the
Borrowers of such written request therefor, the Borrowers shall pay (on a joint
and several basis) to the Administrative Agent for the account of such Lender
any additional amounts necessary to compensate such Lender for such increased
cost or reduced amount receivable.
(b) In the event that any Lender shall have determined that
any Regulatory Change regarding capital adequacy has the effect of reducing the
rate of return on such Lender's capital or on the capital of any Person directly
or indirectly owning or controlling such Lender as a consequence of its
obligations hereunder or its maintenance of its Commitment or its making,
renewing, Converting, Continuing or maintaining its Advances to a level below
that which such Lender or such Person could have achieved but for such
Regulatory Change (taking into consideration such Lender's or such Person's
policies with respect to capital adequacy) by an amount deemed by such Lender or
such Person to be material, then, from time to time, after submission by such
Lender to the Administrative Agent of a written request therefor and submission
by the Administrative Agent to the Borrowers of such written request therefor,
the Borrowers shall pay (on a joint and several basis) to the Administrative
Agent for the account of such Lender such additional amount or amounts as will
compensate such Lender or such Person, as the case may be, for such reduction.
(c) Each Lender agrees that it shall use its reasonable
efforts to reduce or eliminate any claim for compensation pursuant to this
Section 2.10, including but not limited to designating a different Applicable
Lending Office for its Advances (or any interest therein) if such designation
will avoid the need for, or reduce the amount of, any increased amounts referred
to in this Section 2.10 and will not, in the opinion of such Lender, be unlawful
or otherwise disadvantageous to such Lender or inconsistent with its policies or
result in an
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unreimbursed cost or expense to such Lender or in an increase in the aggregate
amount payable under both this Section 2.10 or under Section 2.11.
(d) Each Lender claiming increased amounts described in this
Section 2.10 will furnish to the related Agent (together with its request for
compensation) a certificate prepared in good faith setting forth the basis and
the amount of each request by such Lender for any such increased amounts
referred to in this Section 2.10. Any such certificate shall be conclusive
absent manifest error, and such Agent shall deliver a copy thereof to the
Borrowers. Failure on the part of any Lender to demand compensation for any
amount pursuant to this Section 2.10 with respect to any period shall not
constitute a waiver of such Lender's right to demand compensation with respect
to such period. All such amounts shall be due and payable to the Administrative
Agent on behalf of such Lender or for its own account, as the case may be,
within five Business Days following receipt by the Borrowers of such certificate
(or, if earlier, on the Facility Maturity Date or when earlier required to be
paid as provided herein).
SECTION 2.11 Taxes.
(a) All payments made to the Lenders, the Agents or the
Administrative Agent under this Agreement and the Notes and the other
Transaction Documents shall, to the extent allowed by law, be made free and
clear of, and without deduction or withholding for or on account of, any present
or future income, stamp or other taxes, levies, imposts, duties, charges, fees,
deductions or withholdings, now or hereafter imposed, levied, collected,
withheld or assessed by any Governmental Authority (collectively, "Taxes"),
excluding income taxes, franchise taxes imposed in lieu of income taxes or any
other taxes based on or measured by the overall net income of the Lender or its
Applicable Lending Office or the Agent or the Administrative Agent (as the case
may be) by the jurisdiction in which such Lender, such Agent or the
Administrative Agent (as the case may be) is incorporated or has its principal
place of business or such Applicable Lending Office (such excluded taxes being
herein called "Excluded Taxes"). If any Taxes, other than Excluded Taxes, are
required to be withheld from any amounts payable to a Lender, an Agent or the
Administrative Agent hereunder or under any Note or other Transaction Document,
then after submission by any Lender to the related Agent (in the case of an
amount payable to a Lender) and by such Agent to the Borrowers of a written
request therefor, the amounts so payable to such Lender, such Agent or the
Administrative Agent, as applicable, shall be increased, and, the Borrowers
shall be liable to pay (on a joint and several basis) to the Administrative
Agent for the account of such Lender, such Agent or for its own account, as
applicable, the amount of such increase, to the extent necessary to yield to
such Lender, such Agent or the Administrative Agent, as applicable (after
payment of all such Taxes) interest or any such other amounts payable hereunder
or thereunder at the rates or in the amounts specified herein or therein;
provided, however, that the amounts so payable to such Lender, such Agent or the
Administrative Agent shall not be increased pursuant to this Section 2.11(a) to
the extent such requirement to withhold results from the failure of such Person
to comply with Section 2.11(c). Whenever any Taxes are payable on or with
respect to amounts payable to a Lender, an Agent or the Administrative Agent, as
promptly as possible thereafter the Borrowers shall send to the Administrative
Agent or the related Agent, on behalf of such Lender (if applicable), a
certified copy of an original official receipt showing payment thereof. If the
Borrowers fail to pay any Taxes when due to the appropriate taxing authority or
fails to remit to the Administrative Agent or the related Agent, on behalf of
itself or such Lender (as applicable),
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the required receipts or other required documentary evidence, the Borrowers
shall pay (on a joint and several basis) to the Administrative Agent on behalf
of such Lender, such Agent or for its own account, as applicable, any
incremental taxes, interest or penalties that may become payable by such Lender,
such Agent or the Administrative Agent, as applicable, as a result of any such
failure.
(b) A Lender claiming increased amounts under Section
2.11(a) for Taxes paid or payable by such Lender will furnish to the related
Agent a certificate prepared in good faith setting forth the basis and amount of
each request by such Lender for such Taxes, and such Agent shall deliver a copy
thereof to the Borrowers. The Administrative Agent or an Agent claiming
increased amounts under Section 2.11(a) for its own account for Taxes paid or
payable by the Administrative Agent or such Agent will furnish to the Borrowers
a certificate prepared in good faith setting forth the basis and amount of each
request by the Administrative Agent or such Agent for such Taxes. Any such
certificate of a Lender, an Agent or the Administrative Agent shall be
conclusive absent manifest error. Failure on the part of any Lender, any Agent
or the Administrative Agent to demand additional amounts pursuant to Section
2.11(a) with respect to any period shall not constitute a waiver of the right of
such Lender, such Agent or the Administrative Agent, as the case may be, to
demand compensation with respect to such period. All such amounts shall be due
and payable to the Administrative Agent on behalf of such Lender or such Agent
or for its own account, as the case may be, on the date five Business Days
following receipt by the Borrowers of such certificate (or, if earlier, on the
Series Maturity Date or on the Facility Maturity Date or when earlier required
to be paid as provided herein).
(c) The Administrative Agent, each Agent and each Lender
that is not a United States person (as such term is defined in Section
7701(a)(30) of the Code) for Federal income tax purposes shall, to the extent
that it may then do so under applicable laws and regulations, deliver to the
Borrowers (with, in the case of each Lender, a copy to the Administrative Agent)
(i) within 15 days after the date hereof, or, if later, the date on which such
Lender becomes a Lender pursuant to Section 8.06 hereof, two (or such other
number as may from time to time be prescribed by applicable laws or regulations)
duly completed copies of such IRS forms or other certificates or statements
which may be required from time to time by the relevant United States taxing
authorities or applicable laws or regulations, as appropriate, to permit the
Borrowers to make payments hereunder for the account of such Lender or the
Administrative Agent, as the case may be, without deduction or withholding of
United States federal income or similar taxes and (ii) upon the obsolescence of
or after the occurrence of any event requiring a change in, any form or
certificate previously delivered pursuant to this Section 2.11(c), copies (in
such numbers as may be from time to time be prescribed by applicable laws or
regulations) of such additional, amended or successor forms, certificates or
statements as may be required under applicable laws or regulations to permit the
Borrowers, the Administrative Agent and the related Agent to make payments
hereunder for the account of such Lender, such Agent or the Administrative
Agent, as the case may be, without deduction or withholding of United States
federal income or similar taxes.
(d) In addition, the Borrowers agree to pay (on a joint and
several basis) any present or future stamp or documentary taxes or any other
excise or property taxes, charges or similar levies that arise from any payment
made hereunder or from the execution, delivery or
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registration of, or otherwise with respect to, this Agreement or any Note or
other Transaction Document.
SECTION 2.12 Payments and Computations.
(a) The Borrowers shall make each payment hereunder (to the
extent not paid pursuant to Section 6 of the Security Agreement or Section 6 of
the Master Collateral and Intercreditor Agreement), not later than 2:00 p.m.
(New York City time) on the day when due by wire transfer in Dollars and in
immediately available funds, without set-off or counterclaim, to the Lender
Collateral Agent at its LA Asset Backed Account (Account # 00000000 Reference:
AmeriCredit Corp Attn: CDO Administration) maintained at Deutsche Bank Trust
Company Americas, Xxx Xxxx, XX 00000 (ABA# 021-001-033), with facsimile notice
(including wire number) to the CDO Administration Department of the Lender
Collateral Agent (facsimile number (000) 000-0000), or such other account as the
Lender Collateral Agent shall designate in writing to the Borrowers. Promptly
upon receipt thereof by the Lender Collateral Agent, each payment of principal
on the Borrowings shall be remitted by the Lender Collateral Agent in
immediately available funds to each Agent pro rata in accordance with Section
2.04 or, in the case of payments received in respect of the Facility Maturity
Date or at any time thereafter, pro rata according to the aggregate outstanding
principal balance of the Advances owed to the Lenders in each Lender Group;
provided that on each Distribution Date from and after the occurrence of a
Partial Expiration Event until the earlier to occur of (i) the Lending
Termination Date and (ii) the date on which the outstanding principal amount of
Advances held by each Nonextending Lender has been reduced to zero, principal
payments of Advances other than payments required to cure Borrowing Base
Deficiencies shall be allocated and applied to the Limited Amortization Amounts
due to the Nonextending Lenders and related Conduit Lenders pro rata based on
their respective Limited Amortization Amounts for such Distribution Date.
Promptly upon receipt thereof by an Agent, each payment of principal on the
Borrowings shall be remitted by such Agent in like funds as received to each
Lender in its Lender Group (subject to the proviso to the immediately preceding
sentence) for the account of its Applicable Lending Office pro rata in
accordance with Section 2.04 or, in the case of payments received in respect of
the Facility Maturity Date or at any time thereafter, pro rata according to the
aggregate outstanding principal balance of the Advances owed to such Lenders.
Each payment of interest on the Borrowings shall be remitted by the
Administrative Agent in immediately available funds as received to each Agent
pro rata in accordance with Section 2.04 or, in the case of payments received in
respect of the Facility Maturity Date or at any time thereafter, pro rata
according to the aggregate outstanding principal balance of the Advances owed to
the Lenders in each Lender Group. Promptly upon receipt thereof by an Agent,
each payment of interest on the Borrowings shall be remitted by such Agent in
immediately available funds as received to each Lender in its Lender Group for
the account of its Applicable Lending Office pro rata in accordance with the
aggregate amount of unpaid interest owed to each of such Lenders. Promptly upon
receipt thereof by the Administrative Agent, each payment of Commitment Fees,
Usage Fees or other fees shall be remitted by the Administrative Agent in
immediately available funds as received to the Agent for each Lender entitled
thereto, pro rata according to the amount thereof owed to each such Lender. Upon
its acceptance of an Assignment and Assumption from and after the "Transfer
Effective Date" specified in such Assignment and Assumption, the Administrative
Agent shall make all payments hereunder in respect of the interest assigned
thereby to the Agent of the Lender's assignee thereunder, for the account of its
Applicable Lending Office, and the
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parties to such Assignment and Assumption shall make all appropriate adjustments
in such payments for periods prior to such effective date directly between
themselves.
(b) Whenever any payment hereunder shall be stated to be due
on a day other than a Business Day, such payment shall be made on the next
succeeding Business Day, and such extension of time shall in such case be
included in the computation of payment of interest or any fee payable hereunder,
as the case may be, provided, however, that, if such extension would cause
payment of interest on or principal of Eurodollar Rate Advances to be made in
the next following month, such payment shall be made on the immediately
preceding Business Day.
(c) All computations of fees shall be made by the
Administrative Agent on the basis of a year of 360 days, in each case for the
actual number of days (including the first day but excluding the last day)
occurring in the period for which such fee is payable.
SECTION 2.13 Indemnification for Loss. Notwithstanding
anything contained herein to the contrary, (i) if the Borrowers shall fail to
borrow an Advance after it has requested such Advance as a Eurodollar Rate
Advance pursuant to Section 2.02 or shall fail to Convert or Continue an Advance
after it shall have given notice to do so in which it shall have requested a
Eurodollar Rate Advance pursuant to Section 2.07, (ii) if a Eurodollar Rate
Advance shall be terminated for any reason prior to the last day of the Interest
Period applicable thereto (including by reason of its Conversion), or (iii) if
any repayment or prepayment of some or all of the principal amount of a
Eurodollar Rate Advance is made for any reason on a date which is prior to the
last day of the Interest Period applicable thereto, then, in any such case the
Borrowers agree to indemnify (on a joint and several basis) each affected Lender
against, and to promptly pay, on demand, directly to such Lender the amount
equal to any loss or reasonable out-of-pocket expense suffered by such Lender as
a result of such failure to borrow, Convert or Continue, or such termination,
repayment or prepayment, including (A) in the case of a Eurodollar Rate Advance,
any loss, cost or expense suffered by such Lender in liquidating or employing
deposits acquired to fund or maintain the funding of such Eurodollar Rate
Advance, or redeploying funds prepaid or repaid, in amounts which correspond to
its such Eurodollar Rate Advance, and (B) any internal processing charge
customarily charged by such Lender in connection therewith. At the election of
such Lender, and without limiting the generality of the foregoing, but without
duplication, such compensation on account of losses may include an amount equal
to the excess of (i) the interest that would have been received from the
Borrowers under this Agreement on any amounts to be reemployed during an
Interest Period or its remaining portion over (ii) the interest component of the
return that such Lender determines it could have obtained had it placed such
amount on deposit in the interbank eurodollar market selected for a period equal
to the applicable Interest Period or its remaining portion. A statement setting
forth in reasonable detail the calculations of any additional amounts payable
pursuant to this Section submitted by a Lender or an Agent, as the case may be,
to the Borrowers shall be conclusive absent manifest error.
SECTION 2.14 Illegality. Notwithstanding any other provision
of this Agreement, if any Lender shall notify the related Agent that any
Regulatory Change makes it unlawful, or any central bank or other governmental
authority asserts that it is unlawful, for any Lender or its Applicable Lending
Office to perform its obligations hereunder to make Eurodollar Rate Advances or
to fund or maintain Eurodollar Rate Advances hereunder, then (a) as of the
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effective date of such notice the obligation of such Lender to make or to
Continue, or to Convert Advances into, Eurodollar Rate Advances shall be
suspended until such Lender shall notify the related Agent and the Borrowers
that the circumstances causing such suspension no longer exist and (b) each
Eurodollar Rate Advance of such Lender shall be Converted into a Base Rate
Advance either (i) on the last day of such Interest Period if such Lender may
lawfully continue to maintain and fund such Advance to the last day of the
Interest Period applicable to such Eurodollar Rate Advance on the effective date
of such notice, or (ii) on the effective date of such notice, if such Lender
shall determine that it may not lawfully continue to maintain and fund such
Advance to the end of the then current Interest Period. Notwithstanding any
provision herein to the contrary, until such affected Lender shall give the
rescinding notice described in clause (a) above, any Advance made by such
Lender, whether in connection with a new Borrowing or the Conversion of an
existing Borrowing, shall be a Base Rate Advance, notwithstanding that each
other Advance comprised by such Borrowing may be a Eurodollar Rate Advance.
SECTION 2.15 Option to Fund. Each Lender has indicated that,
if the Borrowers request a Eurodollar Rate Advance, such Lender may wish to
purchase one or more deposits in order to fund or maintain its funding of its
Lending Percentage of such Eurodollar Rate Advance during the Interest Period
with respect thereto; it being understood that the provisions of this Agreement
relating to each such funding, if any, are included only for the purpose of
determining the rate of interest to be paid on such Eurodollar Rate Advance and
any amounts owing under Sections 2.10 and 2.13. Each Lender shall be entitled to
fund and maintain its funding of all or any part of each Eurodollar Rate Advance
in any manner such Lender sees fit, but all such determination under Sections
2.10 and 2.13 shall be made as if each Lender had actually funded and maintained
its funding of its Lending Percentage of such Eurodollar Rate Advance during the
applicable Interest Period, in each case through the purchase of deposits in an
amount equal to the amount of its Lending Percentage of such Eurodollar Rate
Advance and having a maturity corresponding to such Interest Period.
SECTION 2.16 Sharing of Payments, Etc. If any Lender shall
obtain any payment (whether voluntary or involuntary) on account of the Advances
made by it (other than pursuant to Sections 2.09(d), 2.10, 2.11 or 2.13) in
excess of its ratable share of payments on account of the Advances obtained by
all the Lenders, such Lender shall forthwith (i) notify each of the other
Lenders of such receipt and (ii) purchase from the other Lenders for cash such
participation in the Advances made by them as shall be necessary to cause such
purchasing Lender to share the excess payment ratably with each of them;
provided, however, that, if all or any portion of such excess payment is
thereafter recovered from such purchasing Lender, such purchase from each Lender
shall be rescinded and such Lender shall repay to the purchasing Lender the
purchase price to the extent of such recovery together with an amount equal to
such Lender's ratable share (according to the proportion of (i) the amount of
such Lender's required repayment to (ii) the total amount so recovered from the
purchasing Lender) of any interest or other amount paid or payable by the
purchasing Lender in respect of the total amount so recovered. The Borrowers
agree that any Lender so purchasing a participation from another Lender pursuant
to this Section 2.16 may exercise all its rights of setoff with respect to such
participation as fully as if such Lender were the direct creditor of the
Borrowers in the amount of such participation.
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SECTION 2.17 Administrative Agent's Records. The
Administrative Agent's records regarding the amount of each Borrowing, each
payment by the Borrowers of principal and interest on the Borrowings and other
information relating to the Borrowings shall be presumptively correct absent
manifest error.
ARTICLE II-A
GUARANTY
SECTION 2A.01 Guaranty of Payment and Performance. Each Contingent
Obligor hereby, jointly and severally, guarantees to the Administrative Agent
(on behalf of the Lenders) the payment and performance, of all liabilities,
agreements and other obligations of each Borrower to the Administrative Agent,
each Agent, the Lender Collateral Agent (on behalf of itself and the Lenders)
and to each of the Lenders under the Transaction Documents, whether direct or
indirect, absolute or contingent, due or to become due, secured or unsecured,
now existing or hereafter arising or acquired excluding, however, the payment of
the Advances and interest thereon (such non-excluded obligations, collectively,
the "Guaranteed Obligations"). The guaranty provided hereunder is an absolute,
unconditional and irrevocable guaranty of the full and punctual payment and
performance of the Guaranteed Obligations and not of their collectibility only
and is in no way conditioned upon any requirement that the Administrative Agent,
the Lender Collateral Agent, the Master Collateral Agent, any Agent or any
Lender first attempt to collect any of the Guaranteed Obligations from either
Borrower or resort to any security or other means of obtaining their payment.
Should either Borrower default in the payment or performance of any of the
Guaranteed Obligations, the obligations with respect to the payment or
performance in default of each Contingent Obligor hereunder shall become
immediately due and payable to the Administrative Agent (on behalf of the
Lenders), without demand or notice of any nature, all of which are expressly
waived by each Contingent Obligor. Payments by the Contingent Obligors hereunder
may be required by the Administrative Agent (on behalf of the Lenders) on any
number of occasions.
SECTION 2A.02 Contingent Obligor's Agreement to Pay. Each Contingent
Obligor agrees, jointly and severally, as the principal obligor and not as a
guarantor only, to pay to the Administrative Agent, on demand, all reasonable
costs and expenses (including court costs and reasonable legal expenses)
incurred or expended by the Administrative Agent in connection with enforcement
of the obligations of any of the Contingent Obligors under this Article II-A
from the time such amounts become due until payment, at the rate per annum equal
to 3% plus the Alternate Base Rate in effect from time to time; provided that,
if such interest exceeds the maximum amount permitted to be paid under
applicable law, then such interest shall be reduced to such maximum permitted
amount.
ARTICLE III
CONDITIONS PRECEDENT
SECTION 3.01 Conditions Precedent to the Effectiveness of
this Agreement. The following constitute conditions precedent to the
effectiveness of this Agreement and the Commitments of the Lenders to make
Advances under this Agreement:
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(a) Representations and Warranties. On the Effective Date
and after giving effect to any Borrowings on such date, all representations and
warranties of the Borrowers and the Contingent Obligors contained herein or in
any Transaction Document or otherwise made by it in writing pursuant to any of
the provisions hereof or thereof shall be true and correct in all material
respects with the same force and effect as though such representations and
warranties had been made on and as of such date.
(b) No Defaults. On the Effective Date and after giving
effect to any Borrowings on such date, no Event of Early Termination, Default or
Event of Default shall have occurred.
(c) Notes. The Borrowers shall have duly executed and
delivered, and each Lender or Agent, as the case may be, shall have received, a
Note in accordance with Section 2.01(b).
(d) Security Agreement, etc. The parties thereto shall have
duly entered into the Security Agreement and the Master Collateral and
Intercreditor Agreement, each in form and substance satisfactory to the
Administrative Agent and each Agent; the Administrative Agent and each Agent
shall have received an executed copy thereof; and each Lender shall have
received a true and correct copy thereof.
(e) Financing Statements, etc. The Administrative Agent and
each Agent shall have received evidence reasonably satisfactory to it that
proper financing statements, describing the Revolver Collateral and naming the
Borrowers as debtors and the Lender Collateral Agent, on behalf of the Secured
Parties, as secured party, or other similar instruments or documents, as may be
necessary or, in the opinion of the Administrative Agent, any Agent, the Lender
Collateral Agent, or any Lender, desirable under the Uniform Commercial Code of
all appropriate jurisdictions or any comparable law to perfect the security
interest granted under the Security Agreement in the Revolver Collateral, have
been delivered and, if appropriate, have been duly filed or recorded and that
all filing fees, taxes or other amounts required to be paid in connection
therewith have been paid. The Administrative Agent and each Agent shall have
received evidence reasonably satisfactory to it that proper financing
statements, describing the Shared Collateral and naming the Borrowers as debtors
and the Master Collateral Agent, as secured party, or other similar instruments
or documents, as may be necessary or, in the opinion of the Administrative Agent
or any Lender, desirable under the Uniform Commercial Code of all appropriate
jurisdictions or any comparable law to perfect the security interest granted
under the Master Collateral and Intercreditor Agreement in the Shared
Collateral, have been delivered and, if appropriate, have been duly filed or
recorded and that all filing fees, taxes or other amounts required to be paid in
connection therewith have been paid. For all purposes hereunder, the
Administrative Agent, each Agent and the Lender Collateral Agent may rely upon
an opinion of counsel as to their respective determinations. The Administrative
Agent and each Agent shall have received (i) an acknowledgment in form and
substance satisfactory to it from the Master Collateral Agent acknowledging
Delivery (as defined in the Master Collateral and Intercreditor Agreement) to it
of the AFSFT Class A Certificate and each of the certificates evidencing the
Series 2000-1 Residual Interest, the Series 2001-1 Residual Interest and the
Series 2002-1 Residual Interest (each as defined in the Master Collateral and
Intercreditor Agreement) and (ii)
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evidence of the termination of the lien on the AFSFT Class A Certificate
previously held by the collateral agent for FSA.
(f) Lien Search Reports. The Administrative Agent and each
Agent shall have received certified copies of requests for information or copies
(or a similar search report certified by a party acceptable to the
Administrative Agent and each Agent), dated a date reasonably near to the
Effective Date, listing all effective financing statements which name the
Borrowers or AFS Funding Trust (in any case, under its present name and any
previous name) as debtor and which are filed in the jurisdictions in which the
statements referred to in Section 3.01(e) were or are to be filed, together with
copies of such financing statements (none of which, other than financing
statements naming the Lender Collateral Agent, for the benefit of the Secured
Parties, or the Master Collateral Agent, as secured party, shall cover any of
the Revolver Collateral or the Shared Collateral). The Administrative Agent
shall have no responsibility or obligation, at any time, to review, evaluate,
verify, monitor, inquire or investigate any document, reports or information
received pursuant to this Section 3.01(f), it being the specific understanding
and agreement of the parties hereto that the Administrative Agent's sole
responsibility and obligation under this Section 3.01(f) is to receive the
documents, reports and information as and when provided.
(g) Other Transaction Documents. Each other Transaction
Document not otherwise referred to in this Section 3.01 (other than the Interest
Rate Caps, the Interest Rate Hedge Assignment Acknowledgments, and the
guarantees delivered pursuant to clause (p) of the definition of Eligible
Security) shall have been duly executed and delivered by the parties thereto;
each Agent and the Administrative Agent shall have received an executed copy of
its Supplemental Fee Letter and the Administrative Agent and each Agent shall
have received a copy of each such other Transaction Document.
(h) Expenses. The Borrowers shall have paid all reasonable
and appropriately invoiced fees, costs and expenses of the Administrative Agent,
the Master Collateral Agent, the Agents and the Lender Collateral Agent payable
by the Borrowers in connection with the transactions contemplated hereby.
(j) Other Documents. The Administrative Agent and each Agent
shall have received the following, each dated as of the Effective Date or as
otherwise permitted below:
(i) A certificate of the Secretary of State of
Nevada as to the legal existence and good standing of AFS Funding dated
on or within 20 days prior to the Effective Date;
(ii) A certificate of the Secretary of State of
Nevada as to the legal existence and good standing of SenSub dated on or
within 20 days prior to the Effective Date;
(iii) A certificate of the Secretary of State of the
applicable jurisdiction of incorporation of each Contingent Obligor as
to the legal existence and good standing of such Contingent Obligor
dated on or within 20 days prior to the Effective Date;
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(iv) A certificate of the Secretary of State of
Delaware as to the legal existence and good standing of AFS Funding
Trust dated on or within 20 days prior to the Effective Date;
(v) A certificate of an Authorized Officer of each
of the Borrowers, certifying (A) the names and true signatures of the
Authorized Officers of such Borrower, (B) that the copies of the charter
and the Bylaws of such Borrower attached thereto are complete and
correct copies and that such charter and Bylaws have not been amended,
modified or supplemented and are in full force and effect, and (C) that
the copy of the resolutions of the Board of Directors of such Borrower
approving the transactions contemplated by the Transaction Documents is
a complete and correct copy and that such resolutions are in full force
and effect and are the only resolutions relating to the matters
contemplated by the Transaction Documents;
(vi) A certificate of an Authorized Officer of each
of the Borrowers, certifying that (i) the copies of the unaudited
balance sheet of each of the Borrowers for its fiscal year ended June
30, 2001, and the related statements of income, shareholders' equity and
cash flows for such fiscal year and the unaudited consolidated balance
sheet as at March 31, 2002, and the related unaudited consolidated
statements of income, shareholders' equity and cash flows for the fiscal
quarter then ended attached to such certificate are complete, true and
correct and have been prepared in accordance with GAAP consistently
applied and present fairly the financial position of such Borrower as of
such date and the results of its operations for such periods, and (ii)
there have been no changes since the end of the fiscal year ended June
30, 2001 in the assets, liabilities, financial condition, operations,
business or prospects of such Borrower, other than changes in the
ordinary course of business the effect of which have not, in the
aggregate, been materially adverse to the Borrowers;
(vii) A certificate of an Authorized Officer of each
Contingent Obligor, certifying (A) the names and true signatures of the
Authorized Officers of such Contingent Obligor, (B) that the copies of
the charter and Bylaws of such Contingent Obligor attached thereto are
complete and correct copies and that such charter and Bylaws have not
been amended, modified or supplemented and are in full force and effect,
and (C) that the copy of the resolutions of the Board of Directors of
such Contingent Obligor approving the transactions contemplated by the
Transaction Documents is a complete and correct copy and that such
resolutions are in full force and effect and are the only resolutions
relating to the matters contemplated by the Transaction Documents;
(viii) A certificate of an Authorized Officer of AFS
Funding certifying that the copy of the AFSFT Trust Agreement attached
thereto is a complete and correct copy and that such trust agreement has
not been amended, modified or supplemented and is in full force and
effect;
(ix) A certificate from an Authorized Officer of ACC
certifying that (i) the copies of the audited consolidated balance sheet
of ACC for its fiscal year ended June 30, 2001, and the related
consolidated statements of income, shareholders' equity and
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cash flow for such fiscal year and the unaudited consolidated balance
sheet of ACC as at March 31, 2002, and the related unaudited
consolidated statements of income, shareholders' equity and cash flows
for the fiscal quarter then ended attached to such certificate are
complete, true and correct and have been prepared in accordance with
GAAP consistently applied and present fairly, on a consolidated basis,
the financial position of ACC and its Subsidiaries (including the
Borrowers) as of such dates and the results of their operations for such
periods, and (ii) there have been no changes since the end of the fiscal
year ended on June 30, 2001 in the assets, liabilities, financial
condition, operations, business or prospects of ACC or its Subsidiaries,
other than changes in the ordinary course of business the effect of
which have not, in the aggregate, been materially adverse to ACC and its
Subsidiaries;
(x) except in the case of ACC, certificates of the
Secretary of State of Texas as to the qualification of each of the
Contingent Obligors to do business, and the good standing thereof, in
Texas, each dated on or within 20 days prior to the Closing Date;
(xi) Certificates of Authorized Officers of the
Borrowers and the Contingent Obligors to the effect that the conditions
set forth in Sections 3.01(a) and 3.01(b) have been satisfied and all
conditions under the Master Collateral and Intercreditor Agreement and
the Security Agreement have been satisfied;
(xii) A certificate from each party (other than the
Borrowers, the Agents and the Lenders), in form and substance
satisfactory to the Administrative Agent and each Agent, covering its
due execution and delivery of the Transaction Documents to which it is a
party and the other documents executed by it in connection herewith and
therewith and the incumbency and specimen signatures of its officers
executing such documents;
(xiii) Opinions of Xxxxx Xxxxxxxxxx and Xxxxx Xxxxxx,
Esq., counsel for the Borrowers, AFS Funding Trust and the Contingent
Obligors, and of special Delaware and Nevada counsel (who shall be
reasonably acceptable to the Administrative Agent) to AFS Funding Trust
and the Borrowers, respectively, each dated the Closing Date and
addressed to, and reasonably satisfactory in form and substance to, the
Administrative Agent, the Lender Collateral Agent, the Master Collateral
Agent, each Lender and each Agent;
(xiv) An irrevocable letter of direction from AFS
Funding and AFS Funding Trust to each trustee with respect to a FSA
Series which is a Designated Series instructing such trustee to pay all
amounts otherwise payable to either of the Borrowers or AFS Funding
Trust to the Master Collateral Agent, acknowledged and agreed to by such
trustee, and an irrevocable letter of direction from SenSub to each
trustee with respect to each Series which is a Designated Series
originated by SenSub, i.e., Series 2000-1, Series 2001-1 and Series
2002-1, instructing such trustee to pay all amounts otherwise payable to
SenSub to the Master Collateral Agent, acknowledged and agreed to by
such trustee;
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(xv) Written evidence satisfactory to the
Administrative Agent and each Agent that the Notes have been rated at
least BBB- by S & P;
(xvi) [Reserved];
(xvii) A "field report" from RSM McGladrey, Inc. in
form and substance acceptable to each Lender;
(xviii) An executed copy of the Release and
Reconfirmation Agreement, dated as of August 15, 2002, by and among
AmeriCredit Corp., ACFS, AFS Funding Trust, AFS Funding and FSA; and
(xix) Such other documents, instruments, opinions and
certificates and completion of such other matters, as the Administrative
Agent and each Agent may reasonably deem necessary or desirable.
SECTION 3.02 Conditions Precedent to Borrowings, Conversions
and Continuations.
(a) The obligation of each Lender to Convert any Advance or
Continue any Advance shall be subject to the condition precedent that on the
date of such Conversion or Continuation no Event of Default has occurred and is
continuing.
(b) The obligation of each Lender to make any Advance as a
part of any Borrowing (other than as a result of a Conversion or Continuation)
shall be subject to the further conditions precedent that:
(i) The Administrative Agent shall have timely
received a properly completed Notice of Borrowing, executed by an
Authorized Officer of the Borrowers, which Notice of Borrowing shall
include a calculation of the Borrowing Base (including a calculation of
the Revolver Borrowing Base and the Senior Borrowing Base) and shall
demonstrate that, after giving effect to such Borrowing, no Borrowing
Base Deficiency shall exist;
(ii) The Administrative Agent shall have received an
Officer's Certificate of each of the Borrowers, ACFS and ACC stating
that on the Borrowing Date and after giving effect to the Borrowing on
that date, all representations and warranties of such person contained
herein or in any Transaction Document or otherwise made by them in
writing pursuant to any of the provisions hereof or thereof are true and
correct in all material respects with the same force and effect as
though such representations and warranties had been made on and as of
such date, except to the extent that such representations and warranties
specifically relate to an earlier date, in which case such
representations and warranties were true and correct on and as of such
date;
(iii) The Administrative Agent shall have received an
Officer's Certificate of each of the Borrowers stating that on the
Borrowing Date and after giving effect to the Borrowing on that date, no
Event of Early Termination, condition, event or
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act which with notice or lapse of time or both will become an Event of
Early Termination, Default or Event of Default has occurred and is
continuing;
(iv) The Administrative Agent shall have received an
Officer's Certificate of each of the Borrowers stating (a) that the
related Asset Backed Security has been delivered to the Lender
Collateral Agent and is an Eligible Security, (b) that the Lender
Collateral Agent has a first priority perfected security interest in the
Revolver Collateral, and there shall be no other security interests or
Liens on the Revolver Collateral and (c) that the Master Collateral
Agent has a first priority perfected security interest in the Shared
Collateral, and there shall be no other security interests or Liens on
the Shared Collateral;
(v) The Administrative Agent shall have received an
Officer's Certificate of each of the Borrowers stating that there shall
have been no changes in the assets, liabilities, financial condition,
operations, business or prospects of such Borrower or any of the
Contingent Obligors which may have a Material Adverse Effect, including
without limitation the performance of the receivables owned or serviced
by any such party;
(vi) At least four Business Days prior to the date on
which the Borrowers request that the Maximum Advance Amount with respect
to an Eligible Security be included in the Revolver Borrowing Base, the
Borrowers shall provide to the Administrative Agent an Officer's
Certificate certifying that it has delivered to the Administrative Agent
a true and correct copy of the prospectus or other offering document
relating to the Series of which the Eligible Security is a part;
(vii) If the date of such Borrowing is a Ratings
Reaffirmation Date, the Administrative Agent shall have received written
confirmation that the Notes shall remain rated at least BBB- by S & P,
after giving effect to such Borrowing;
(viii) The Commitment Period Termination Date shall not
have occurred;
(ix) If an Asset Backed Security shall be initially
included in the calculation of the Revolver Borrowing Base in connection
with such Borrowing, such Asset Backed Security shall have been
delivered upon its issuance to the Lender Collateral Agent in accordance
with the provisions of the Security Agreement and this Agreement, and,
if such Asset Backed Security is not rated at least BBB by S & P and
Baa2 by Xxxxx'x, the Administrative Agent shall have calculated a
schedule of Maximum Advance Percentages with respect to such Eligible
Security by stressing the base case cash flows (as presented in the
related prospectus supplement or other offering document) by increasing
the base case losses by an additional 25%;
(x) The Administrative Agent and each Lender shall
have received a Revolver Borrowing Base Certificate and a Senior
Borrowing Base Certificate from the Borrowers and ACFS;
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(xi) The Administrative Agent shall have received an
irrevocable letter of direction from SenSub, AFS Funding and/or AFS
Funding Trust, as appropriate, to each trustee with respect to each
Asset Backed Security to be initially included in the calculation of the
Revolver Borrowing Base in connection with such Borrowing instructing
such trustee to pay all amounts otherwise payable to either of the
Borrowers or AFS Funding Trust to the Lender Collateral Agent,
acknowledged and agreed to by such trustee;
(xii) If required pursuant to Section 5.01(n) hereof,
the Administrative Agent shall have received an executed copy of an
Interest Rate Cap and Interest Rate Hedge Assignment Acknowledgement
satisfying the requirements of such Section;
(xiii) If required pursuant to Section 5.01(x) hereof,
the Borrowers shall have paid to the Lender Collateral Agent for deposit
to the "Interest Reserve Account" maintained pursuant to the Security
Agreement, an amount equal to the Interest Reserve Deposit Amount;
(xiv) The Administrative Agent shall have received the
guaranties, if any, required by clause (p) the definition of Eligible
Security with respect to the Eligible Security being financed by such
Borrowing and an opinion of counsel, in form and substance satisfactory
to the Lenders, to the Persons providing such guaranties as to the
authorization, execution, delivery and enforceability of such
guaranties; and
(xv) The Administrative Agent and the Agents shall
have received such other documents, instruments, opinions, certificates
as the Administrative Agent or any such Agent may reasonably deem
necessary or desirable.
(c) The obligation of each Lender to make its initial
Advance shall be subject to the further conditions precedent that the
Administrative Agent and each Lender shall have received:
(i) A report, as of a recent date, prepared by a
firm of nationally recognized independent accountants and addressed to
the Lenders setting forth the result of agreed upon procedures
acceptable to the Administrative Agent to (1) verify the modeling inputs
against the underlying terms of the Designated Term Series, (2)
recalculate the cash flows using the methodology outlined in Annex 1 of
the Master Collateral and Intercreditor Agreement and (3) calculate the
total Senior Borrowing Base pursuant to said Annex 1; and
(ii) An Accountants' Letter with respect to the
audited financial statements of ACC for the year ended June 30, 2001.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01 Representations and Warranties with respect to
the Borrowers. Each Borrower represents and warrants as follows on the date of
this Agreement, the Effective Date and the date that any Advance is made,
Continued or Converted, in each case, with reference to the facts and
circumstances then existing:
(a) Organization and Good Standing. It has been duly
organized and is validly existing as a corporation under the laws of the State
of Nevada, with power and authority to own its properties and to conduct its
business as such properties are currently owned and such business is currently
conducted.
(b) Due Qualification. It is duly qualified to do business
as a foreign entity in good standing, and has obtained all necessary licenses
and approvals, in all jurisdictions in which the ownership or lease of its
properties or the conduct of its business requires such qualification.
(c) Power and Authority. It has the power and authority to
execute and deliver this Agreement and the other Transaction Documents to which
it is a party and to carry out its terms and their terms, respectively; it has
full power and authority to grant to the Lender Collateral Agent, for the
benefit of the Secured Parties, a perfected security interest in the Revolver
Collateral and has duly authorized such grant by all necessary corporate action;
it has full power and authority to grant to the Master Collateral Agent, for the
benefit of the Secured Parties, a perfected security interest in the Shared
Collateral and has duly authorized such grant by all necessary corporate action;
and the execution, delivery and performance of this Agreement and the other
Transaction Documents to which it is a party have been duly authorized by it by
all necessary corporate action.
(d) Security Interest; Binding Obligations. This Agreement
and the Transaction Documents to which it is a party have been duly executed and
delivered and create a valid security interest in the Revolver Collateral in
favor of the Lender Collateral Agent, on behalf of the Secured Parties,
enforceable against it and creditors of and purchasers from such Borrower; the
Master Collateral and Intercreditor Agreement creates a valid security interest
in the Shared Collateral in favor of the Master Collateral Agent, for the
benefit of the Secured Parties, enforceable against each such Borrower and
creditors of and purchasers from such Borrower; and this Agreement and the other
Transaction Documents to which it is a party have been duly executed and
delivered by it and constitute legal, valid and binding obligations of such
Borrower enforceable against such Borrower in accordance with their respective
terms, except as enforceability may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of creditors'
rights generally and by equitable limitations on the availability of specific
remedies, regardless of whether such enforceability is considered in a
proceeding in equity or at law.
(e) No Violation. The consummation of the transactions
contemplated by this Agreement and the other Transaction Documents to which it
is a party, and the fulfillment of the terms of this Agreement and the other
Transaction Documents to which it is a party, shall not conflict with, result in
any breach of any of the terms and provisions of, or constitute (with or
- 25 -
without notice or lapse of time) a default under any indenture, agreement,
mortgage, deed of trust or other instrument to which it is a party or by which
it is bound or any of its properties are subject, or result in the creation or
imposition of any Lien upon any of its properties pursuant to the terms of any
such indenture, agreement, mortgage, deed of trust or other instrument, other
than this Agreement, or violate any law, order, rule or regulation applicable to
its Governmental Authority having jurisdiction over it or any of its properties,
or in any way adversely affect its ability to perform its obligations under this
Agreement or the other Transaction Documents to which it is a party.
(f) No Proceedings. There are no proceedings or
investigations pending or, to its knowledge, threatened against it, before any
court or other Governmental Authority having jurisdiction over it or its
properties (A) asserting the invalidity of this Agreement or any of the other
Transaction Documents, (B) seeking to prevent the consummation of any of the
transactions contemplated by this Agreement or any of the other Transaction
Documents, (C) seeking any determination or ruling that might materially and
adversely affect the performance by it of its obligations under, or the validity
or enforceability of, this Agreement or any of the other Transaction Documents
or the security interests created hereunder or thereunder, (D) involving it, AFS
Funding Trust, the Revolver Collateral or the Shared Collateral, or (E) that
could have a Material Adverse Effect.
(g) No Consents. It is not required to obtain the consent of
any other Person which has not been obtained, or any consent, license, approval
or authorization of, or registration or declaration with, any Governmental
Authority in connection with the execution, delivery, performance, validity or
enforceability of this Agreement or the other Transaction Documents to which it
is a party.
(h) Use of Proceeds. No part of the proceeds of the
Borrowings will be used, directly or indirectly, for a purpose which violates
any law, rule or regulation of any Governmental Authority, including the
provisions of Regulations T, U or X of the Board of Governors of the Federal
Reserve System, as amended.
(i) Solvency. It is solvent and will not become insolvent
after giving effect to the transactions contemplated by this Agreement and the
Transaction Documents. After giving effect to the transactions contemplated by
this Agreement and the other Transaction Documents, it will have adequate funds
to conduct its business in the foreseeable future.
(j) Compliance With Laws. It has complied and will comply in
all material respects with all applicable laws, rules, regulations, judgments,
agreements, decrees and orders with respect to its business and properties, all
Shared Collateral and all Revolver Collateral.
(k) Taxes. It has filed on a timely basis all tax returns
(including, without limitation, foreign, federal, state, local and otherwise)
required to be filed, is not liable for taxes payable by any other Person and
has paid or made adequate provisions for the payment of all taxes, assessments
and other governmental charges due from it. No tax lien or similar adverse claim
has been filed, and no claim is being asserted, with respect to any such tax,
assessment or other governmental charge. Any taxes, fees and other governmental
charges payable by it in connection with the execution and delivery of this
Agreement and the other Transaction
- 26 -
Documents and the transactions contemplated hereby or thereby have been paid or
shall have been paid if and when due at or prior to the Effective Date and each
Borrowing Date.
(l) No Liens, Etc. It has and will have good title to the
Revolver Collateral and the Shared Collateral it owns. Such Revolver Collateral
and the Shared Collateral is and will be owned by it free and clear of any Lien
or restrictions on transferability (other than Liens in favor of the Lender
Collateral Agent or the Master Collateral Agent) and it has the full right,
corporate power and lawful authority to assign, transfer and pledge the same and
interests therein. No effective financing statement or other instrument similar
in effect covering all or any part of the Revolver Collateral or the Shared
Collateral is on file in any recording office, except such as may have been
filed in favor of the Lender Collateral Agent pursuant to the Security
Agreement, or such as may have been filed in favor of the Master Collateral
Agent pursuant to the Master Collateral and Intercreditor Agreement. It has
delivered all physical collateral constituting the Revolver Collateral and the
Shared Collateral it owns to the Lender Collateral Agent or the Master
Collateral Agent, as applicable.
(m) Information True and Correct. All information heretofore
or hereafter furnished by or on behalf of it, AFS Funding Trust or any
Contingent Obligor to any Lender, any Agent or the Administrative Agent in
connection with this Agreement or any Transaction Document or any transaction
contemplated hereby or thereby (other than any Series Transaction Document or
any prospectus or prospectus supplement relating to a Designated Series) is and
will be true and complete in all material respects and does not and will not
omit to state a material fact necessary to make the statements contained therein
not misleading. All information set forth in a Series Transaction Document or a
prospectus or prospectus supplement relating to a Designated Series was true and
complete in all material respects and did not omit to state a material fact
necessary to make the statements contained therein not misleading as of the date
of such document, prospectus or prospectus supplement.
(n) ERISA Compliance. It is in compliance with ERISA and has
not incurred and does not expect to incur any liabilities (except for premium
payments arising in the ordinary course of business) to the Pension Benefit
Guaranty Corporation (or any successor thereto) under ERISA.
(o) Financial or Other Condition. There has been no event
which may have a Material Adverse Effect since March 31, 2002, other than
changes in general economic conditions which might have affected the value of
the Revolver Collateral or the Shared Collateral.
(p) Investment Company Status. It is not an "investment
company" within the meaning of the Investment Company Act of 1940, as amended,
or is exempt from all provisions of such Act
(q) No Trade Names. It has no trade names, fictitious names,
assumed names or "doing business as" names.
(r) Separate Existence. It is operated, and since its
incorporation has been operated, as an entity with assets and liabilities
distinct from those of any of the Contingent
- 27 -
Obligors and any of its other Affiliates and any other Person, and each such
Contingent Obligor hereby acknowledges that the Administrative Agent, each of
the Agents and each of the Lenders are entering into the transactions
contemplated by this Agreement in reliance upon each Borrower's identity as a
separate legal entity from each of the Contingent Obligors and each such
Affiliate and any other Person. There is not now, nor will there be at any time
in the future, any agreement or understanding between it and any other Person
providing for the allocation or sharing of obligations to make payments or
otherwise in respect of any taxes, fees, assessments or other governmental
charges other than the management services agreement dated as of January 1, 1999
and the tax sharing agreement dated as of December 22, 1994.
(s) Business of each Borrower. It engages exclusively in the
business of acquiring pools of receivables and/or payment obligations from its
Affiliates and transferring such assets to various trusts which issue various
Series related to such pools of receivables and/or payment obligations, and such
other activities as may be incidental to or reasonably necessary and appropriate
in connection with the conduct of the foregoing.
(t) Investments. It does not own or hold, directly or
indirectly, any capital stock or equity security of, or any equity interest in,
any Person other than, in the case of AFS Funding, equity interests in AFS
Funding Trust.
(u) Representations and Warranties True and Correct. Each of
its representations and warranties contained in the Transaction Documents is
true and correct in all material respects.
(v) Series Transaction Documents Relating to Eligible
Security. Each of the Series Transaction Documents relating to each Eligible
Security is in full force and effect, no default, unmatured default, servicer
default, trigger event or other like event has occurred and is continuing
thereunder, and all of its representations and warranties set forth in such
Series Transaction Documents are true and correct (except to the extent such
representations and warranties specifically relate to an earlier date, then such
representations and warranties shall be true and correct as of such earlier
date). It has furnished to the Administrative Agent true, correct and complete
copies of the Series Transaction Documents relating to each Eligible Security
constituting part of the Revolver Collateral, each of which document is
certified by the Borrowers to be in full force and effect and shall furnish to
the Administrative Agent all amendments to such documents permitted hereunder
which may be entered into from time to time.
(w) Financial Statements. (i) The copies of (a) its and
ACFS's unaudited balance sheets for their respective fiscal years ended June 30,
2001, and the related statements of income, shareholders' equity and cash flows
for such fiscal years, and the unaudited consolidated balance sheet as at March
31, 2002, and the related unaudited consolidated statements of income,
shareholders' equity and cash flows for the fiscal quarter then ended and (b)
the audited consolidated balance sheet of ACC for its fiscal year ended on June
30, 2001, and the related consolidated statements of income, shareholders'
equity and cash flows for such fiscal year and the unaudited consolidated
balance sheet as at March 31, 2002, and the related unaudited consolidated
statements of income, shareholders' equity and cash flows for the fiscal quarter
then ended provided to the Lenders, are complete, true and correct and have been
prepared in
- 28 -
accordance with GAAP consistently applied and present fairly the financial
position of such Persons as of such date and the results of their operations for
such periods, and (ii) the copies of the Accountants' Letter for the fiscal year
ended on June 30, 2001 are true and correct.
(x) Borrowing Base. At the time any Revolver Borrowing Base
Certificate is delivered pursuant hereto, each Asset Backed Security included in
the calculation of the Revolver Borrowing Base is an Eligible Security.
(y) Location. Its principal place of business is 000 Xxxxxx
Xxxx, Xxxxx 000, Xxxx, Xxxxxx 00000. "AFS Funding Corp." and "AFS SenSub Corp."
are the correct legal names of the Borrowers indicated on the public records of
such Borrower's jurisdiction of organization.
(z) Debt. It has no outstanding Debt other than any Debt
owing to the Lenders hereunder and secured by the Security Agreement and any
Debt secured by Liens in favor of the Master Collateral Agent pursuant to the
Master Collateral and Intercreditor Agreement.
(aa) FSA Series. There are no FSA Series which are not
"Designated FSA Series" under the Master Collateral and Intercreditor Agreement.
(bb) Series Transaction Documents Relating to Shared
Collateral. Each of the Series Transaction Documents relating to the Shared
Collateral is in full force and effect, no default, unmatured default, servicer
default, trigger event or other like event has occurred and is continuing
thereunder, and all of its representations and warranties set forth in such
Series Transaction Documents are true and correct (except to the extent such
representations and warranties specifically relate to an earlier date, then such
representations and warranties shall be true and correct as of such earlier
date). It has furnished to the Administrative Agent true, correct and complete
copies of the Series Transaction Documents relating to the Shared Collateral,
each of which document is certified by the Borrowers to be in full force and
effect and shall furnish to the Administrative Agent all amendments to such
documents permitted hereunder which may be entered into from time to time.
SECTION 4.02 Representations and Warranties with respect to
AFS Funding Trust. AFS Funding represents and warrants as follows on the date of
this Agreement, the Effective Date and the date that any Advance is made,
Continued or Converted, in each case, with reference to the facts and
circumstances then existing:
(a) Organization and Good Standing. The AFS Funding Trust
has been duly organized and is validly existing as a business trust under the
laws of the State of Delaware, with power and authority to own its properties
and to conduct its business as such properties are currently owned and such
business is currently conducted.
(b) Due Qualification. The AFS Funding Trust is duly
qualified to do business as a foreign entity in good standing, and has obtained
all necessary licenses and approvals, in all jurisdictions in which the
ownership or lease of its properties or the conduct of its business requires
such qualification.
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(c) [Reserved]
(d) No Violation. The consummation of the transactions
contemplated by this Agreement and the other Transaction Documents, and the
fulfillment of the terms of this Agreement and the other Transaction Documents,
shall not conflict with, result in any breach of any of the terms and provisions
of, or constitute (with or without notice or lapse of time) a default under any
indenture, agreement, mortgage, deed of trust or other instrument to which AFS
Funding Trust is a party or by which it is bound or any of its properties are
subject, or result in the creation or imposition of any Lien upon any of its
properties pursuant to the terms of any such indenture, agreement, mortgage,
deed of trust or other instrument, other than this Agreement, or violate any
law, order, rule or regulation applicable to its Governmental Authority having
jurisdiction over it or any of its properties.
(e) No Proceedings. There are no proceedings or
investigations pending or, to its knowledge, threatened against AFS Funding
Trust, before any court or other Governmental Authority having jurisdiction over
it or its properties (A) asserting the invalidity of this Agreement or any of
the other Transaction Documents, (B) seeking to prevent the consummation of any
of the transactions contemplated by this Agreement or any of the other
Transaction Documents, (C) seeking any determination or ruling that might
materially and adversely affect the performance by it of its obligations under,
or the validity or enforceability of, this Agreement or any of the other
Transaction Documents, (D) involving it, the Revolver Collateral or the Shared
Collateral, or (E) that could have a Material Adverse Effect.
(f) No Consents. AFS Funding Trust is not required to obtain
the consent of any other Person which has not been obtained, or any consent,
license, approval or authorization of, or registration or declaration with, any
Governmental Authority in connection with the execution, delivery, performance,
validity or enforceability of this Agreement or the other Transaction Documents.
(g) Compliance With Laws. The AFS Funding Trust has complied
and will comply in all material respects with all applicable laws, rules,
regulations, judgments, agreements, decrees and orders with respect to its
business and properties.
(h) Taxes. The AFS Funding Trust has filed on a timely basis
all tax returns (including, without limitation, foreign, federal, state, local
and otherwise) required to be filed, is not liable for taxes payable by any
other Person and has paid or made adequate provisions for the payment of all
taxes, assessments and other governmental charges due from AFS Funding Trust. No
tax lien or similar adverse claim has been filed, and no claim is being
asserted, with respect to any such tax, assessment or other governmental charge.
(i) No Liens, Etc. The Spread Accounts are and will be owned
by AFS Funding Trust free and clear of any Lien or restrictions on
transferability (other than Liens in favor of the collateral agent specified in
the Spread Account Agreement) and AFS Funding Trust has the full right,
corporate power and lawful authority to assign, transfer and pledge the same and
interests therein. No effective financing statement or other instrument similar
in effect covering all or any part of the Spread Accounts is on file in any
recording office, except such as
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may have been filed in favor of the collateral agent specified in the supplement
to the Spread Account Agreement.
(j) Separate Existence. The AFS Funding Trust is operated,
and since its creation has been operated, as an entity with assets and
liabilities distinct from those of the Borrowers, any of the Contingent Obligors
and any other Affiliates of the Borrowers and any other Person, and the
Borrowers and the Contingent Obligors hereby acknowledge that the Administrative
Agent, each of the Agents and each of the Lenders are entering into the
transactions contemplated by this Agreement in reliance upon AFS Funding Trust's
identity as a separate legal entity from each of the Borrowers, the Contingent
Obligors and each such Affiliate and any other Person. There is not now, nor
will there be at any time in the future, any agreement or understanding between
AFS Funding Trust and any other Person providing for the allocation or sharing
of obligations to make payments or otherwise in respect of any taxes, fees,
assessments or other governmental charges other than the management services
agreement dated as of January 1, 1999 and the tax sharing agreement dated as of
December 22, 1994.
(k) Business of AFS Funding Trust. The AFS Funding Trust
engages exclusively in the businesses of establishing, depositing funds in, and
holding the rights to, the Spread Accounts, purchasing and selling Receivables
in connection with securitizations, and holding certificates of beneficial
interests in trust established in connection with securitizations of
Receivables, each as described in the AFSFT Trust Agreement.
(l) Investments. The AFS Funding Trust does not own or hold,
directly or indirectly, any capital stock or equity security of, or any equity
interest in, any Person other than equity interests in the issuers of the
Series.
(m) ERISA Compliance. AFS Funding Trust is in compliance
with ERISA and has not incurred and does not expect to incur any liabilities
(except for premium payments arising in the ordinary course of business) to the
Pension Benefit Guaranty Corporation (or any successor thereto) under ERISA.
(n) Investment Company Status. AFS Funding Trust is not an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended, or is exempt from all provisions of such Act.
SECTION 4.03 Representations and Warranties with respect to
each Contingent Obligor. Each Contingent Obligor represents and warrants as
follows on the date of this Agreement, the Effective Date and the date that any
Advance is made, Continued or Converted, in each case, with reference to the
facts and circumstances then existing:
(a) Organization and Good Standing. It has been duly
organized and is validly existing as a corporation under the laws of the
jurisdiction of its incorporation, with power and authority to own its
properties and to conduct its business as such properties are currently owned
and such business is currently conducted.
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(b) Due Qualification. It is duly qualified to do business
as a foreign entity in good standing, and has obtained all necessary licenses
and approvals, in all jurisdictions in which the ownership or lease of its
properties or the conduct of its business requires such qualification.
(c) Power and Authority. It has the power and authority to
execute and deliver the Transaction Documents to which it is a party and to
carry out their respective terms.
(d) Binding Obligations. The execution, delivery and
performance of the Transaction Documents to which it is a party have been duly
authorized by it by all necessary corporate action. The Transaction Documents to
which it is a party have been executed and delivered by such Contingent Obligor
and constitute legal, valid and binding obligations of such Contingent Obligor
enforceable against such Contingent Obligor in accordance with their respective
terms, except as enforceability may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of creditors'
rights generally and by equitable limitations on the availability of specific
remedies, regardless of whether such enforceability is considered in a
proceeding in equity or at law.
(e) No Violation. The consummation of the transactions
contemplated by this Agreement and the other Transaction Documents to which it
is a party, and the fulfillment of the terms of this Agreement and the other
Transaction Documents to which it is a party, shall not conflict with, result in
any breach of any of the terms and provisions of, or constitute (with or without
notice or lapse of time) a default under any indenture, agreement, mortgage,
deed of trust or other instrument to which it is a party or by which it is bound
or any of its properties are subject, or result in the creation or imposition of
any Lien upon any of its properties pursuant to the terms of any such indenture,
agreement, mortgage, deed of trust or other instrument, other than this
Agreement, or violate any law, order, rule or regulation applicable to its
Governmental Authority having jurisdiction over it or any of its properties, or
in any way adversely affect its ability to perform its obligations under this
Agreement or the other Transaction Documents to which it is a party.
(f) No Proceedings. There are no proceedings or
investigations pending or, to its knowledge, threatened against it, before any
court or other Governmental Authority having jurisdiction over it or its
properties (A) asserting the invalidity of this Agreement or any of the other
Transaction Documents, (B) seeking to prevent the consummation of any of the
transactions contemplated by this Agreement or any of the other Transaction
Documents, (C) seeking any determination or ruling that might materially and
adversely affect the performance by it of its obligations under, or the validity
or enforceability of, this Agreement or any of the other Transaction Documents,
(D) involving it, either Borrower, AFS Funding Trust, the Revolver Collateral or
the Shared Collateral, or (E) that could have a Material Adverse Effect.
(g) No Consents. It is not required to obtain the consent of
any other Person which has not been obtained, or any consent, license, approval
or authorization of, or registration or declaration with, any Governmental
Authority in connection with the execution, delivery, performance, validity or
enforceability of this Agreement or the other Transaction Documents to which it
is a party.
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(h) Compliance With Laws. It has complied and will comply in
all material respects with all applicable laws, rules, regulations, judgments,
agreements, decrees and orders with respect to its business and properties.
(i) Taxes. It has filed on a timely basis all tax returns
(including, without limitation, foreign, federal, state, local and otherwise)
required to be filed, is not liable for taxes payable by any other Person and
has paid or made adequate provisions for the payment of all taxes, assessments
and other governmental charges due from it. No tax lien or similar adverse claim
has been filed, and no claim is being asserted, with respect to any such tax,
assessment or other governmental charge.
(j) Information on Designated Series. ACFS has delivered a
prospectus and prospectus supplement for each Designated Series to the
Administrative Agent; and each such prospectus and prospectus supplement was
true and correct at the time such Designated Series was issued. The information
set forth on Schedule IV with respect to the Designated Series is true and
correct as of the date hereof.
(k) Information True and Correct. All information heretofore
or hereafter furnished by or on behalf of it, AFS Funding Trust or any Borrower
to any Lender, any Agent or the Administrative Agent in connection with this
Agreement or any Transaction Document or any transaction contemplated hereby or
thereby (other than any Series Transaction Document or any prospectus or
prospectus supplement relating to a Designated Series) is and will be true and
complete in all material respects and does not and will not omit to state a
material fact necessary to make the statements contained therein not misleading.
All information set forth in a Series Transaction Document or a prospectus or
prospectus supplement relating to a Designated Series was true and complete in
all material respects and did not omit to state a material fact necessary to
make the statements contained therein not misleading as of the date of such
document, prospectus or prospectus supplement.
(l) ERISA Compliance. It is in compliance with ERISA and has
not incurred and does not expect to incur any liabilities (except for premium
payments arising in the ordinary course of business) to the Pension Benefit
Guaranty Corporation (or any successor thereto) under ERISA.
(m) Financial or Other Condition. There has been no event
which may have a Material Adverse Effect since March 31, 2002, other than
changes in general economic conditions which might have affected the value of
the Revolver Collateral or the Shared Collateral.
(n) Investment Company Status. It is not an "investment
company" within the meaning of the Investment Company Act of 1940, as amended,
or is exempt from all provisions of such Act.
(o) Representation and Warranties True and Correct. Each of
its representations and warranties contained in the Transaction Documents is
true and correct in all material respects.
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(p) Financial Statements. (i) The copies of (a) its
unaudited balance sheets for their respective fiscal years ended June 30, 2001,
and the related statements of income, shareholders' equity and cash flows for
such fiscal years, and the unaudited consolidated balance sheet as at March 31,
2002, and the related unaudited consolidated statements of income, shareholders'
equity and cash flows for the fiscal quarter then ended and (b) the audited
consolidated balance sheet of ACC for its fiscal year ended on June 30, 2001,
and the related consolidated statements of income, shareholders' equity and cash
flows for such fiscal year and the unaudited consolidated balance sheet as at
March 31, 2002, and the related unaudited consolidated statements of income,
shareholders' equity and cash flows for the fiscal quarter then ended provided
to the Lenders, are complete, true and correct and have been prepared in
accordance with GAAP consistently applied and present fairly the financial
position of such Persons as of such date and the results of their operations for
such periods, and (ii) the copies of the Accountants' Letter for the fiscal year
ended on June 30, 2001 are true and correct.
(q) FSA Series. There are no FSA Series which are not
"Designated FSA Series" under the Master Collateral and Intercreditor Agreement.
ARTICLE V
COVENANTS WITH RESPECT TO THE BORROWERS
SECTION 5.01 Affirmative Covenants. Until this Agreement
shall have been terminated in accordance with its terms, all outstanding
Advances (including principal, interest and fees) and all other amounts owed to
the Lenders under the Transaction Documents shall have been repaid to the
Lenders and all Commitments of the Lenders shall have been terminated, ACFS and
the Borrowers agree as follows:
(a) Reporting Requirements. ACFS will furnish to the
Administrative Agent and each Lender:
(i) as soon as available and in any event within 45
days after the end of each of the first three quarters of each fiscal
year of the Borrowers and ACC, balance sheets of the Borrowers and ACC
(which in the case of ACC shall be consolidated), for the fiscal quarter
of such Person most recently ended, and the related statements of
income, shareholders' equity and cash flows for such fiscal quarter and
for the period beginning with the end of the fiscal year most recently
ended and ending at the end of such quarter, prepared in accordance with
GAAP consistently applied and certified by an Authorized Officer of the
Borrowers or ACC, as the case may be; plus, with respect to ACC, a
certificate from an Authorized Officer of ACFS certifying the percentage
of total delinquencies and repossessed assets in ACFS's serviced
portfolio as of the end of such quarter, together with back-up financial
information with respect thereto as reasonably requested by the
Administrative Agent or any Lender;
(ii) as soon as available and in any event within 90
days after the end of each fiscal year of the Borrowers and ACC, copies
of the balance sheet of the Borrowers and of the consolidated balance
sheet of ACC for the fiscal year most recently ended, and, in the case
of the Borrowers, the related statements of income, shareholders' equity
and cash flows for such fiscal year, and, in the case of ACC, the
related
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consolidated statements of income, shareholders' equity and cash flows
for such fiscal year, prepared in accordance with GAAP consistently
applied together with a report from a firm of independent certified
public accountants selected by ACC and acceptable to the Administrative
Agent (the "Independent Accountants"), to the effect that such firm has
audited the books and records of ACC, in which the Borrowers and ACFS
are included as consolidated Subsidiaries for such fiscal year most
recently completed, and that (a) such audit was made in accordance with
GAAP, and accordingly included such test of the accounting records and
such other auditing procedures as such firm considered necessary in the
circumstances, and (b) based on such audit, such consolidated financial
statements for such fiscal year present fairly, in all material
respects, the consolidated financial position of ACC and its
Subsidiaries as the end of such fiscal year and the result of its
operations and its cash flows for such fiscal year in accordance with
GAAP. ACFS will furnish to the Administrative Agent and each Lender, as
soon as available and in any event within 180 days after the end of each
fiscal year of the Borrowers and ACC, copies of a letter (the
"Accountants' Letter") from the Independent Accountants to the effect
that the Independent Accountants are independent accountants with
respect to ACC under the requirements of the American Institute of
Certified Public Accountants and the requirements of the U.S. Securities
and Exchange Commission. ACFS will furnish to the Administrative Agent
and each Lender, as soon as available and in any event within 120 days
after the end of each fiscal year of the Borrowers and ACC, copies of a
report (the "Procedures Report") on the application of agreed upon
procedures (such procedures to be substantially similar to those set
forth in the letter attached as Exhibit I hereto) to certain Revolver
Servicer's Certificates and MCA Servicer's Certificates, including
applying certain procedures to three randomly selected Revolver
Servicer's Certificates and MCA Servicer's Certificates with respect to
the delinquency, default and loss statistics required to be specified
therein noting whether any exceptions or errors in the Revolver
Servicer's Certificates and MCA Servicer's Certificates were found. If
the long-term senior unsecured debt of ACC is rated by either S & P or
Xxxxx'x below B or Ba2, respectively, or if an Event of Default shall
have occurred and be continuing, then ACFS will cause the Independent
Accountants to deliver a Procedures Report semi-annually to the Lender
Collateral Agent, the Agents, the Administrative Agent and the Rating
Agency, on or before January 31 and July 31 of each year with respect to
the six months ended the immediately preceding September 30 and March
31, as applicable.
(iii) together with the financial statements and
reports described in (i) or (ii) above, a certificate of an Authorized
Officer of the applicable Person (in the case of information concerning
the Borrowers, such certificate shall be provided by an Authorized
Officer of ACFS) confirming the absence of any Event of Early
Termination, Default or Event of Default as of such date and as of the
date of such certificate;
(iv) promptly upon the same becoming available to the
Borrowers or ACC, a copy of each material report, notice, certificate,
statement, letter or other communication relating to the Designated
Series, including, without limitation, each annual accountants' report
relating to the servicer's certificates for any Designated Series
required to be delivered under the terms of the related Series
Transaction Documents (together with a letter permitting the
Administrative Agent and the Agents on behalf of the Lenders and
Assignees to rely on such report), each monthly servicer report, any
- 35 -
report relating to withdrawals from a Spread Account for a Series for
application to amounts due with respect to another Series or for deposit
to the Spread Account for another Series, and any report or
communication required to be delivered to FSA, any other applicable
credit enhancer or the holders of any of the Designated Series or any
Rating Agency (or any other similar entity) rating any of the Designated
Series;
(v) as soon as available and in any event within 10
days after the end of each month, a collateral summary report in
substantially the form of Exhibit M hereto with respect to all Series
then outstanding, in form and substance acceptable to the Administrative
Agent;
(vi) as soon as available and in any event within 10
days after the end of each month, a report in substantially the form of
Exhibit N hereto on the compliance of the Borrowers with the trigger
events and events of default set forth in the agreements pursuant to
which any third party insurer has insured the Designated Series, and
promptly (and in no event later than 3 days) following the occurrence of
any default under any such agreement, notice of such default (with a
copy to the Lender Collateral Agent);
(vii) as soon as available and in any event on or
before each Determination Date, a Revolver Servicer's Certificate
(including a Revolver Borrowing Base Certificate) and an MCA Servicer's
Certificate (including a Senior Borrowing Base Certificate); and
(viii) any other financial information relating to the
Borrowers, AFS Funding Trust, any of the Contingent Obligors, or any of
the Revolver Collateral or Shared Collateral as shall be reasonably
requested by the Administrative Agent, any Agent or any Lender.
(b) Other Certificates and Information. ACFS will furnish to
the Administrative Agent and each Lender:
(i) Immediately after ACFS or a Borrower knows of
the occurrence of any Event of Early Termination, Event of Default or
any event or condition which with the giving of notice or lapse of time,
or both, would constitute an Event of Early Termination or Event of
Default, a certificate of an Authorized Officer of ACFS specifying the
nature of such event or condition and the action which the Borrowers
have taken and/or propose to take with respect thereto (with a copy to
the Lender Collateral Agent);
(ii) Prompt written notice of the occurrence of any
default or event of default under any of the Series Transaction
Documents relating to any of the Eligible Securities or the Shared
Collateral, including any amortization events, facility termination
events, insurance agreement trigger events or events of default,
servicer termination events, which notice shall be given not later than
the Business Day following the ACFS's knowledge of the occurrence
thereof and which notice shall (A) specify the nature thereof, and (B)
be accompanied by copies of all notices delivered to any party to any of
- 36 -
the Series Transaction Documents relating to such Eligible Security with
respect thereto to the extent not delivered pursuant to any other
provision of this Agreement;
(iii) Prompt written notice if (A) any Debt by any
Borrower or AFS Funding Trust in excess of $50,000 is declared or shall
become due and payable prior to its stated maturity, or is called and
not paid when due, (B) a payment or other default by any Borrower or AFS
Funding Trust shall have occurred under or with respect to any other
Debt (other than the Notes) of such Borrower or AFS Funding Trust in
excess of $50,000 or the holder of any such Debt has the right to
declare any such Debt due and payable prior to its stated maturity as a
result of such default, (C) any drawing has been made under any
insurance policy issued by any insurer of any Series which insurance
policy relates to such Series; or (D) any drawing has been made under
any Spread Account relating to any Series with respect to which the
cumulative outstanding drawings from such Spread Account exceed
$250,000;
(iv) Prompt written notice if (A) any citation,
summons, subpoena, order to show cause or other order naming any
Borrower, or ACFS or any Contingent Obligor a party to any proceeding
before any Governmental Authority which related in any way to any
Transaction Document, or any Designated Series, could reasonably be
expected to have a Material Adverse Effect or calls into question the
validity or enforceability of any of the Transaction Documents or any
Series Transaction Documents relating to any Designated Series, and
include with such notice a copy of such citation, summons, subpoena,
order to show cause or other order, (B) any lapse or other termination
of any material license, permit, franchise or other authorization issued
to any Borrower, or ACFS or any Contingent Obligor by any Governmental
Authority, the lapse or termination of which could reasonably be
expected to result in a Material Adverse Effect, (C) any refusal by any
Governmental Authority or any other Person to renew or extend any such
material license, permit, franchise or other authorization with respect
to which such refusal could reasonably be expected to result in a
Material Adverse Effect and (D) any dispute between any Borrower, or
ACFS or any Contingent Obligor and any Person, which dispute could
reasonably be expected to have a Material Adverse Effect;
(v) Prompt written notice of any change or publicly
announced consideration of any change by any Rating Agency in the rating
of the unsecured debt of any of the Contingent Obligors that would give
rise to an Event of Early Termination, or a change in or withdrawal of
the rating of any of the Designated Series or Eligible Security;
(vi) Prompt written notice of any change in the
rating of any security which is part of a Designated Series;
(vii) Promptly copies of all amendments to the Series
Transaction Documents relating to any FSA Series, any Designated Series
or any Series relating to Shared Collateral;
- 37 -
(viii) Promptly copies of all prospectuses and
prospectus supplements relating to Asset Backed Securities rated
BBB/Baa2 or BB/Ba2 by S & P and Xxxxx'x which are not issued as part of
Designated Series; and
(ix) Promptly furnish such other information and
financial data as the Administrative Agent, any Agent or any Lender may
reasonably request.
(c) Preservation of Corporate Existence and Separate
Existence. The Borrowers will do or cause to be done, and cause AFS Funding
Trust to do or cause to be done, all things necessary on its part to preserve
and keep in full force and effect its existence and good standing as a
corporation or business trust, as applicable, under the laws of the jurisdiction
of its incorporation or establishment, as applicable. The Borrowers will comply,
and cause AFS Funding Trust to comply, fully with the Underlying Transaction
Documents to which each of them is a party so as to maintain each of the
Borrower's identity and AFS Funding Trust's identity as a separate legal entity
from its Affiliates and to make it manifest to third parties that each of the
Borrowers and AFS Funding Trust is an entity with assets and liabilities
distinct from its Affiliates.
(d) Compliance with Laws. The Borrowers will comply, and
cause AFS Funding Trust to comply, with all applicable laws, rules and
regulations and orders of any Governmental Authority, the noncompliance with
which could have a Material Adverse Effect and, without limiting the generality
of the foregoing, comply with all applicable laws, rules and regulations and
orders of any Governmental Authority regarding the use of the proceeds of the
Borrowings and the Designated Series, including the provisions of Regulations T,
U and X of the Board of Governors of the Federal Reserve System, as amended.
(e) Payment of Taxes. The Borrowers will pay and discharge,
and cause AFS Funding Trust to pay and discharge, promptly or cause to be paid
and discharged promptly, all Taxes imposed upon each of them or upon their
respective income or profits or upon any of their respective assets; provided
that the payment of any such Tax shall not be required so long as the amount,
applicability or validity thereof shall be contested in good faith by
appropriate proceedings, such Borrower or AFS Funding Trust, as the case may be,
shall have set aside adequate cash reserves in respect thereof, and ACFS shall
have given the Administrative Agent and the Agents prompt notice of such
contest.
(f) Payment of Debt and Performance of Obligations. The
Borrowers will pay and discharge, and cause AFS Funding Trust to pay and
discharge, when due all lawful Debt, obligations and claims for labor, materials
and supplies or otherwise which, if unpaid, could reasonably be expected to (i)
have a Material Adverse Effect or (ii) become a Lien upon any property of any of
the Borrowers or AFS Funding Trust, as the case may be, other than a Permitted
Lien, unless and to the extent only that the validity of such Debt, obligation
or claim shall be contested in good faith and by appropriate proceedings
diligently conducted by such Borrower or AFS Funding Trust, as the case may be,
and that any such contested Debt, obligations or claims shall not constitute or
create a Lien upon property of any of the Borrowers or AFS Funding Trust, as the
case may be, and provided further that ACFS shall give the Administrative Agent
and the Agents prompt notice of any such contest and shall have retained
adequate cash reserves in respect thereof.
- 38 -
(g) Books and Records; Visitation. The Borrowers will keep,
and cause AFS Funding Trust to keep, proper books of record and account in which
complete, true and correct entries in conformity with GAAP and all requirements
of law shall be made of all material dealings and transactions in relation to
its business and activities; upon reasonable notice, permit representatives of
the Administrative Agent, each Agent and each Lender to visit the offices of the
Borrowers or AFS Funding Trust, as the case may be, or such other place where
such books of record and accounts are kept and to discuss the operations and
financial condition of the Borrowers or AFS Funding Trust, as the case may be,
with the Authorized Officers thereof.
(h) Reserved.
(i) Series Transaction Documents. The Borrowers will deliver
a copy of (i) all Series Transaction Documents relating to a Designated Series
to the Administrative Agent promptly after the closing of such Series together
with an Officer's Certificate of the Borrowers that such copy is true, correct
and complete and (ii) any rating agency presentation prepared and delivered
after the Effective Date relating to a Designated Series. The Administrative
Agent will promptly deliver copies of all such documents to each Agent.
(j) Compliance with Transaction Documents. The Borrowers
will comply, and cause AFS Funding Trust to comply, in all material respects,
with the terms of the Transaction Documents to which each of them is a party,
including without limitation performing any and all additional actions
reasonably required by the Administrative Agent to perfect or continue the
perfection of the Lien on the Revolver Collateral or the Shared Collateral.
(k) Compliance with Series Transaction Documents. The
Borrowers will comply, and cause AFS Funding Trust to comply, in all material
respects, with the terms of the Series Transaction Documents to which each of
them is a party relating to any Designated Series.
(l) Conformity of Issued Designated Series to Relevant
Series Transaction Documents. The Borrowers will cause, and cause AFS Funding
Trust to cause, each Designated Series issued to be in compliance in all
material respects with the terms of the Series Transaction Documents relating to
such Designated Series, including without limitation, the existence of the
credit enhancement and/or overcollateralization contemplated by such documents.
(m) Accountant's Letters; Legal Opinions. ACFS will provide
to the Administrative Agent copies of all accountant's letters and accountant's
annual statements of compliance with respect to each Designated Series and
copies of all opinions of counsel rendered in connection with any Designated
Series and a reliance letter with each such document pursuant to which the
Administrative Agent (on behalf of the Lenders) may rely on all such documents.
The Administrative Agent will deliver copies of all such documents to each
Agent.
(n) Interest Rate Caps. The Borrowers will maintain, with
respect to any Eligible Security which bears a fixed rate of interest, at all
times on and after the date such Eligible Security is included in the
determination of the Revolving Borrowing Base hereunder, LIBOR interest rate cap
agreements (a) between a Borrower and any bank or other financial institution
whose long-term rating is at least A+ from S & P and A1 from Moody's and whose
short-term unsecured debt obligation rating is at least A-1/P-1 by S & P and
Moody's,
- 39 -
respectively, and is listed on Schedule III hereto, (b) with an initial
aggregate notional principal amount not less than the outstanding principal
balance at such time and with an amortization schedule setting forth an amount
for each month not less than the product of the original face amount of such
Eligible Security and the Maximum Advance Percentage for such Eligible Security
and such month, (c) with respect to which the Lender Collateral Agent has
received an Interest Rate Hedge Assignment Acknowledgment, (d) which is either
(I) substantially in the form of Exhibit H or (II) otherwise in form and
substance reasonably acceptable to the Required Lenders and the Rating Agency,
(e) with a cap strike price equal to or less than the fixed interest rate
applicable to such Eligible Security minus the sum of 2.25% and, if such
Eligible Security is not rated at least "BBB" or better by S & P and "Baa2" or
better by Moody's, the Usage Fee Rate (as defined in the Supplemental Fee
Letters) and (f) a copy of which has been delivered to the Administrative Agent,
the Agents and the Lender Collateral Agent (each, an "Interest Rate Cap").
The Borrowers shall not, without the prior written consent of
the Required Lenders, (i) sell, assign (by operation of law or otherwise),
convey, transfer, deliver or otherwise dispose of, any of its rights under the
Interest Rate Caps, or create or permit to exist any lien, security interest,
option or other charge or encumbrance upon or with respect to any its rights
under the Interest Rate Caps, except for the assignment to the Lender Collateral
Agent; (ii) cancel or terminate the Interest Rate Cap or consent to or accept
any cancellation or termination thereof; (iii) amend, supplement or otherwise
modify the Interest Rate Cap or give any consent, waiver or approval thereunder;
(iv) waive any default under or breach of the Interest Rate Cap; or (v) take any
other action in connection with the Interest Rate Cap which would impair the
value of the interest or rights of the Borrowers thereunder or which would
impair the interests or rights of the Lender Collateral Agent, any Lender or any
other party under the Security Agreement.
(o) AFS Funding Trust Liens. AFS Funding will cause AFS
Funding Trust not to create, assume, or suffer to exist any Lien on any personal
property of AFS Funding Trust whether now owned or hereafter acquired by AFS
Funding Trust; provided, however, that such restriction shall not apply to: (i)
any Lien for taxes, assessments or other governmental charges or levies not yet
subject to penalties for non-payment or the validity, applicability or amount of
which is being contested in good faith by appropriate legal proceedings and with
respect to which adequate reserves in accordance with GAAP have been established
by AFS Funding Trust; (ii) any Lien which is imposed by law (such as those of
mechanics, carriers and warehousemen), if payment of the obligation secured
thereby is not yet due or the validity, the applicability or amount of which is
being contested in good faith by appropriate legal proceedings and with respect
to which adequate reserves in accordance with GAAP have been established by AFS
Funding Trust; (iii) judgment Liens in existence less than five days after the
entry thereof or with respect to which execution has been stayed, so long as the
aggregate amount of all such judgment Liens at any time does not exceed
$100,000, or judgment Liens the payment of which is covered in full (subject to
a customary deductible) by insurance; and (iv) Liens on Spread Accounts in favor
of the collateral agent specified in the Spread Account Agreement.
(p) AFS Funding Trust Merger, Consolidation, Etc. AFS
Funding will cause AFS Funding Trust not to merge or consolidate with or into,
or sell, convey, transfer, exchange,
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lease or otherwise dispose of (whether in one transaction or in a series of
transactions) all or substantially all of its assets (whether now owned or
hereafter acquired) to, acquire all or substantially all of the assets of, any
Person or division of any Person; or sell, convey, transfer, exchange, lease or
otherwise dispose of any of its assets.
(q) AFS Funding Trust Change in Name. AFS Funding will cause
AFS Funding Trust not to make any change to its jurisdiction of organization or
name or use any trade names, fictitious names, assumed names or "doing business
as" names.
(r) AFS Funding Trust Protection of Collateral. AFS Funding
will cause AFS Funding Trust not to sell, transfer, exchange or otherwise
dispose of, or pledge, mortgage, hypothecate or otherwise encumber (or permit
such to occur or suffer such to exist), any part of its personal property, or
permit any Lien (other than (i) any Lien for taxes, assessments or other
governmental charges or levies not yet subject to penalties for non-payment or
the validity, applicability or amount of which is being contested in good faith
by appropriate legal proceedings and with respect to which adequate reserves in
accordance with GAAP have been established by AFS Funding Trust; (ii) any Lien
which is imposed by law (such as those of mechanics, carriers and warehousemen),
if payment of the obligation secured thereby is not yet due or the validity, the
applicability or amount of which is being contested in good faith by appropriate
legal proceedings and with respect to which adequate reserves in accordance with
GAAP have been established by AFS Funding Trust; (iii) judgment Liens in
existence less than five days after the entry thereof or with respect to which
execution has been stayed, so long as the aggregate amount of all such judgment
Liens at any time does not exceed $100,000, or judgment Liens the payment of
which is covered in full (subject to a customary deductible) by insurance; and
(iv) Liens on Spread Accounts in favor of the collateral agent specified in the
Spread Account Agreement) to be created on or extend to or otherwise arise upon
or burden such property or any part thereof, any interest therein or the
proceeds thereof other than a sale, transfer, exchange, disposal, pledge,
mortgage, hypothecation or encumbrance for the benefit of FSA and/or the
Underlying Trustees permitted under or pursuant to the terms of any of the
Underlying Transaction Documents.
(s) AFS Funding Trust Business. AFS Funding will cause AFS
Funding Trust not to engage in any business or activity other than the business
described in AFSFT Trust Agreement as in effect on the date hereof.
(t) AFS Funding Trust -- Indebtedness. AFS Funding will
cause AFS Funding Trust not to incur, create, assume, suffer to exist or
otherwise become liable with respect to any Debt other than any Debt incurred,
from time to time, in connection with the issuance of any FSA Series in
accordance with the AFSFT Trust Agreement.
(u) Asset Backed Security Distributions; Shared Collateral
Distributions; Spread Account Releases. The Borrowers and ACFS will (i) pay or
cause to be paid to the Lender Collateral Agent all Asset Backed Security
Distributions with respect to Asset Backed Securities constituting Revolver
Collateral, (ii) pay or cause to be paid to the Master Collateral Agent all
Shared Collateral Distributions and (iii) cause AFS Funding Trust to pay to the
Master Collateral Agent (A) all amounts paid to it pursuant to the Spread
Account Agreement and (B) all distributions in respect of the AFSFT Class A
Certificate. The Borrowers will, and will cause
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AFS Funding Trust to, hold all amounts received by any of them (x) in respect of
the Asset Backed Securities, the Shared Collateral and the Residual Certificates
or (y) pursuant to the Spread Account Agreement in trust for the Lenders and
promptly pay such amounts to the Lender Collateral Agent or the Master
Collateral Agent, as the case may be, when received. The Lender Collateral Agent
shall deposit all amounts received by it in respect of the Revolver Collateral
into the Collateral Account for distribution pursuant to Section 6 of the
Security Agreement. The Master Collateral Agent shall deposit all amounts
received by it in respect of the Shared Collateral into the "Collateral Account"
established pursuant to the Master Collateral and Intercreditor Agreement.
(v) Ratings Reaffirmations. On each Ratings Reaffirmation
Date, the Borrowers will obtain from S & P written reaffirmations that the Notes
have at least the Requisite Rating and to distribute copies thereof to the
Administrative Agent and the Agents.
(w) Uncertificated Asset Backed Securities. If any Asset
Backed Securities (whether now owned or hereafter acquired) are, with the
consent of the Required Lenders, uncertificated securities, the Borrowers will
promptly notify the Lender Collateral Agent, the Agents and the Administrative
Agent thereof, and promptly take all actions required to perfect the first
priority security interest of the Lender Collateral Agent therein under
applicable law (including, in any event, Article 8 of the New York UCC, if
applicable).
(x) Interest Reserve Account Deposits. The Borrowers will
deposit, with respect to any Eligible Security which bears a floating rate of
interest, on or before the date such Eligible Security is included in the
determination of the Revolving Borrowing Base hereunder, an amount (the
"Interest Reserve Deposit Amount") equal to the sum, with respect to each month
the Maximum Advance Percentage for such Eligible Security will be greater than
zero, of the product (such product for such month, the "Interest Reserve
Requirement" for such Eligible Security) of (a) the product of the original face
amount of such Eligible Security and the Maximum Advance Percentage for such
month and such Eligible Security and (b) the positive difference, if any, of (I)
(x) if such Eligible Security is rated BBB by S & P and Baa2 by Moody's, 2.25%
or (y) otherwise, 3.50% over (II) the spread over LIBOR reflected in such
Eligible Security's coupon rate and (c) the number of days in such month divided
by 360.
(y) FSA Series. Upon the issuance of any FSA Series, the
Borrowers will deliver, or cause AFS Funding Trust to deliver, to the Master
Collateral Agent an irrevocable letter of direction from AFS Funding and AFS
Funding Trust to the trustee party to the related supplement to the Spread
Account Agreement instructing such trustee to pay all amounts otherwise payable
to AFS Funding or AFS Funding Trust to the Master Collateral Agent, which letter
shall have been acknowledged and agreed to by such trustee.
(z) AFS Funding Trust -- Modification of Series Transaction
Documents. AFS Funding will cause AFS Funding Trust not to amend or otherwise
modify, without the consent of the Administrative Agent (which consent shall
only be given by the Administrative Agent at the direction of the Required
Lenders at their sole discretion), any of the Series Transaction Documents
relating to any FSA Series, any Designated Series or any Series relating to
Shared Collateral to which it is a party which (i) if the Notes are not rated at
least "BBB-" by S & P or if there exists any Borrowing Base Deficiency, impairs
or adversely affects the value of
- 42 -
the Revolver Collateral or the Shared Collateral, (ii) permits the creation of
any Lien ranking prior to or on a parity with the Lien of the Security Agreement
with respect to any of the Revolver Collateral or the Lien of the Master
Collateral and Intercreditor Agreement with respect to any of the Shared
Collateral, other than as permitted by the Transaction Documents, (iii)
terminates the Lien of the Lender Collateral Agent on the Revolver Collateral or
the Lien of the Master Collateral Agent on the Shared Collateral or deprives the
Lenders of the security afforded by the Lien of the Security Agreement or the
Lien of the Master Collateral and Intercreditor Agreement, (iv) if the Notes are
not rated at least "BBB-" by S & P or if there exists any Borrowing Base
Deficiency, increases the amount of payments with respect to or accelerates the
scheduled maturity of any FSA Series, or (v) cross-collateralizes any Designated
Series with any Series which is not a Designated Series or amends the Spread
Account Agreement to provide that amounts released from the spread accounts are
payable to any person other than AFS Funding Trust, provided that the foregoing
shall not prohibit AFS Funding Trust from amending any of the Series Transaction
Documents relating to an FSA Series to delete or otherwise reduce or make less
likely to occur the events that constitute trigger events and events of default
under the agreements pursuant to which FSA has insured the FSA Series.
SECTION 5.02 Negative Covenants. Until this Agreement shall
have terminated in accordance with its terms, all outstanding Advances
(including principal, interest and fees) and all other amounts owed to the
Lenders under the Transaction Documents have been repaid to the Lenders and this
Agreement shall have been terminated neither Borrower will directly or
indirectly:
(a) Liens. Create, assume, or suffer to exist any Lien on
any Revolver Collateral or Shared Collateral whether now owned or hereafter
acquired by it; provided, however, that such restriction shall not apply to: (i)
any Liens in favor of the Lender Collateral Agent pursuant to the Security
Agreement and Liens in favor of the Master Collateral Agent pursuant to the
Master Collateral and Intercreditor Agreement; (ii) any Lien for taxes,
assessments or other governmental charges or levies not yet subject to penalties
for non-payment or the validity, applicability or amount of which is being
contested in good faith by appropriate legal proceedings and with respect to
which adequate reserves in accordance with GAAP have been established by it;
(iii) any Lien which is imposed by law (such as those of mechanics, carriers and
warehousemen), if payment of the obligation secured thereby is not yet due or
the validity, the applicability or amount of which is being contested in good
faith by appropriate legal proceedings and with respect to which adequate
reserves in accordance with GAAP have been established by it; and (iv) judgment
Liens in existence less than five days after the entry thereof or with respect
to which execution has been stayed, so long as the aggregate amount of all such
judgment Liens at any time does not exceed $100,000, or judgment Liens the
payment of which is covered in full (subject to a customary deductible) by
insurance.
(b) Limitations on Margin Stock. Use any of the net proceeds
from the Borrowings, directly or indirectly, for the purpose of buying or
carrying any Margin Stock.
(c) Stock, Merger, Consolidation, Etc. Merge or consolidate
with or into, or sell, convey, transfer, exchange, lease or otherwise dispose of
(whether in one transaction or in a
- 43 -
series of transactions) all or substantially all of its assets (whether now
owned or hereafter acquired) to, acquire all or substantially all of the assets
of, any Person or division of any Person; or sell, convey, transfer, exchange,
lease or otherwise dispose of any of its assets; provided however, the foregoing
shall not limit the ability of the Borrowers to sell, convey or transfer, from
time to time, pools of receivables to other Persons in connection with the
issuance of any Series.
(d) Change in Name. Make any change to its jurisdiction of
organization or name or use any trade names, fictitious names, assumed names or
"doing business as" names or any change to its jurisdiction of organization.
(e) Modifications of Series Transaction Documents. Amend or
otherwise modify, without the consent of the Administrative Agent (which consent
shall be given by the Administrative Agent at the direction of the Required
Lenders and which consent shall not unreasonably be withheld) any of the Series
Transaction Documents relating to any FSA Series or any Designated Series or any
Series with respect to Shared Collateral to which it is a party which (i)
impairs or adversely affects the value of the Revolver Collateral or Shared
Collateral, including, without limitation, any amendment or modification which
cross-collateralizes any Designated Series with any Series which is not a
Designated Series or which amends the Spread Account Agreement to provide that
amounts released from the spread accounts are payable to any person other than
AFS Funding Trust, (ii) permits the creation of any Lien ranking prior to or on
a parity with the Lien of the Security Agreement with respect to any of the
Revolver Collateral, other than as permitted by the Transaction Documents, (iii)
permits the creation of any Lien ranking prior to or on a parity with the Lien
of the Master Collateral and Intercreditor Agreement with respect to any of the
Shared Collateral, other than as permitted by the Transaction Documents, (iv)
terminates the Lien of the Lender Collateral Agent or the Master Collateral
Agent on the Revolver Collateral or the Shared Collateral, respectively, or
deprives the Lenders of the security afforded by the Liens of the Security
Agreement and the Master Collateral and Intercreditor Agreement, (v) increases
the amount of payments with respect to or accelerates the scheduled maturity
date of any FSA Series, or (vi) reduces the amount or delays the timing of
amounts due under the Asset Backed Securities owned by the Borrowers or amends
any voting rights with respect thereto, provided that the foregoing shall not
prohibit the Borrowers from amending any of the Series Transaction Documents
relating to an FSA Series to delete or otherwise reduce or make less likely to
occur the events that constitute trigger events and events of default under the
agreements pursuant to which FSA has insured the FSA Series.
(f) Protection of Collateral. Sell, transfer, exchange or
otherwise dispose of, or pledge, mortgage, hypothecate or otherwise encumber (or
permit such to occur or suffer such to exist), any part of the Revolver
Collateral, except as expressly permitted by the Security Agreement, or any part
of the Shared Collateral, except as expressly permitted by the Master Collateral
and Intercreditor Agreement; permit the validity or effectiveness of the
Security Agreement or the Master Collateral and Intercreditor Agreement or any
grant under either such agreement to be impaired; permit the Lien of the
Security Agreement or the Lien of the Master Collateral and Intercreditor
Agreement to be amended, hypothecated, subordinated, terminated or discharged;
permit any Person to be released from any covenants or obligations with respect
to the Security Agreement or the Master Collateral and Intercreditor Agreement,
except as may be expressly permitted hereby or thereby; permit any Lien (other
than the Lien of the Security
- 44 -
Agreement or the collateral agent specified in the Spread Account Agreement for
the benefit of the insurer of the Designated Series and the related secured
parties) to be created on or extend to or otherwise arise upon or burden the
Revolver Collateral or any part thereof, any interest therein or the proceeds
thereof; take any action that would permit the lien of the Security Agreement
not to constitute a valid security interest in the Revolver Collateral and prior
to all Liens other than the Permitted Liens; permit any Lien (other than the
Lien of the Master Collateral and Intercreditor Agreement) to be created on or
extend to or otherwise arise upon or burden the Shared Collateral or any part
thereof, any interest therein or the proceeds thereof; take any action that
would permit the lien of the Master Collateral and Intercreditor Agreement not
to constitute a valid security interest in the Shared Collateral and prior to
all Liens other than the Permitted Liens; claim any credit on, or make any
deduction from, the principal or interest payable in respect of the Advances or
the Notes (other than amounts withheld in accordance with the Code) or assert
any claim against any present or future Lender or the Administrative Agent, by
reason of the payment of any taxes levied or assessed upon any part of the
Revolver Collateral or the Shared Collateral.
(g) Other Business. Engage in any business or activity other
than the business described in its certificate of incorporation as in effect on
the date hereof.
(h) Indebtedness. Incur, create, assume, suffer to exist or
otherwise become liable with respect to any Debt other than (i) hereunder, and
(ii) and any Debt secured by Liens in favor of the Master Collateral Agent
pursuant to the Master Collateral and Intercreditor Agreement.
(i) Appointment of Trustee. If FSA is not the Controlling
Person with respect to a Designated Series, to the extent AFS Funding has
control over the appointment of the trustee of such Designated Series (initial
and any successor trustee), if such trustee is to be a Person other than Bank
One, N.A., appoint such trustee until AFS Funding has received the prior written
consent of the Administrative Agent.
(j) FSA Series. Not enter into, or permit AFS Funding Trust
to enter into, a transaction creating an FSA Series unless, upon issuance, such
FSA Series is a "Designated FSA Series" under the Master Collateral and
Intercreditor Agreement.
ARTICLE V-A
CONTINGENT OBLIGOR COVENANTS
SECTION 5A.01 Covenant of Each Contingent Obligor. Until this
Agreement shall have been terminated in accordance with its terms, all
outstanding Advances (including principal, interest and fees) have been repaid
to the Lenders and all Commitments of the Lenders shall have been terminated,
each Contingent Obligor will do or cause to be done all things necessary on its
part to preserve and keep in full force and effect its existence and good
standing as a corporation under the laws of its jurisdiction of incorporation.
SECTION 5A.02 Covenants of ACFS. Until this Agreement shall have been
terminated in accordance with its terms, all outstanding Advances (including
principal, interest and fees) have been repaid to the Lenders and all
Commitments of the Lenders shall have been
- 45 -
terminated, ACFS will:
(a) Continuing Performance as Servicer. So long as ACFS is
qualified to act as Servicer and it is the Servicer under any Designated Series,
ACFS shall not resign as Servicer with respect to such Designated Series without
the prior written consent of the Supermajority Lenders. If FSA is not the
Controlling Party, to the extent ACFS is no longer the Servicer for any
Designated Series and ACFS has control over the appointment of a successor
servicer with respect to such Designated Series under the related Series
Transaction Documents, ACFS shall consult with the Administrative Agent prior to
the appointment of any successor servicer.
(b) Modification of Series Transaction Documents. Not amend
or otherwise modify, without the consent of the Administrative Agent (which
consent shall only be given by the Administrative Agent at the direction of the
Required Lenders at their sole discretion), any of the Series Transaction
Documents relating to any FSA Series, any Designated Series or any Series
relating to Shared Collateral to which it is a party which (i) if the Notes are
not rated at least "BBB-" by S & P or if there exists any Borrowing Base
Deficiency, impairs or adversely affects the value of the Revolver Collateral or
the Shared Collateral, (ii) permits the creation of any Lien ranking prior to or
on a parity with the Lien of the Security Agreement with respect to any of the
Revolver Collateral or the Lien of the Master Collateral and Intercreditor
Agreement with respect to any of the Shared Collateral, other than as permitted
by the Transaction Documents, (iii) terminates the Lien of the Lender Collateral
Agent on the Revolver Collateral or the Lien of the Master Collateral Agent on
the Shared Collateral or deprives the Lenders of the security afforded by the
Lien of the Security Agreement or the Lien of the Master Collateral and
Intercreditor Agreement, (iv) if the Notes are not rated at least "BBB-" by
S & P or if there exists any Borrowing Base Deficiency, increases the amount of
payments with respect to or accelerates the scheduled maturity of any FSA
Series, or (v) cross-collateralizes any Designated Series with any Series which
is not a Designated Series or amends the Spread Account Agreement to provide
that amounts released from the spread accounts are payable to any person other
than AFS Funding Trust, provided that the foregoing shall not prohibit ACFS from
amending any of the Series Transaction Documents relating to an FSA Series to
delete or otherwise reduce or make less likely to occur the events that
constitute trigger events and events of default under the agreements pursuant to
which FSA has insured the FSA Series.
(c) Appointment of Trustee. If FSA is not the Controlling
Party, to the extent ACFS has control over the appointment of the trustee of any
Designated Series (initial and any successor trustee), if such trustee is to be
a Person other than Bank One, N.A., ACFS shall not appoint such trustee until
ACFS has received the prior written consent of the Administrative Agent.
(d) Optional Repurchase. ACFS shall not exercise, nor permit
any Affiliate to exercise, any right (as a servicer under any Designated Series)
of optional repurchase or reconveyance of the pool of receivables held by the
trust which issued the Designated Series without the consent of the
Administrative Agent which consent shall not unreasonably be withheld, if as a
result of such repurchase or reconveyance, there will be any amounts owing to
the Lenders with respect to such Designated Series under this Agreement or other
Transaction Documents.
- 46 -
(e) Notice of Seller or Servicer Repurchase. ACFS shall
provide immediate written notice to the Administrative Agent and each Agent of
any mandatory purchase by the seller or servicer or reconveyance to the seller
or servicer of the pool of receivables held by the trust which issued any
Designated Series. In addition, ACFS, in its capacity as servicer for a
Designated Series or any Series relating to Shared Collateral, shall, upon
becoming aware of any event which would require the seller or servicer of the
pool of receivables to purchase such receivables, give immediate notice of such
event to the other parties to the relevant Series Transaction Documents and the
Administrative Agent and take all other actions necessary for the seller or
servicer to repurchase such receivables.
(f) Nomination of Lock-box Bank. Subject to FSA's rights as
Controlling Party under the Underlying Transaction Documents to direct the
Servicer, ACFS, as servicer for a Designated Series, shall not terminate any
lock-box relating thereto, and, in the event of resignation of a lock-box bank
relating to any Designated Series, ACFS, in its capacity as servicer for such
Designated Series, shall not nominate a new lock-box bank, in either case
without the prior written consent of the Administrative Agent, which consent
shall not unreasonably be withheld.
(g) FSA Series. ACFS shall not enter into, or permit AFS
Funding Trust to enter into, a transaction creating an FSA Series unless, upon
issuance, such FSA Series is a "Designated FSA Series" under the Master
Collateral and Intercreditor Agreement. ACFS shall not enter into any
transaction creating a Series which is cross-collateralized with any FSA Series
unless such cross-collateralization is pursuant to the Spread Account Agreement.
(h) Administrator of AFS Funding Trust. As "administrator"
of AFS Funding Trust under that certain Administration Agreement, dated as of
August 15, 2002, as amended, between AFS Funding Trust and ACFS, ACFS shall
cause AFS Funding Trust to be in compliance with the requirements of Xxxxxxx
0.00(x), (x), (x), (x), (x), (x), (x), xxx (x).
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01 Events of Default. Each of the following events
shall constitute an "Event of Default" hereunder:
(a) the Borrowers shall fail to pay any principal of any
Advance within one (1) Business Day after the same becomes due and payable, or
shall fail to pay any interest, fees or other amount payable hereunder within
one (1) Business Day after the same becomes due and payable or any Contingent
Obligor shall fail to pay any amount payable by it hereunder within two (2)
Business Days after the same becomes due and payable; or
(b) any representation or warranty by any Borrower or
Contingent Obligor herein or in any other Transaction Document to which such
Borrower or Contingent Obligor is a party shall prove to have been incorrect in
any material respect when made or deemed made; or
(c) (i) ACFS shall fail to deliver any Revolver Servicer's
Certificate or MCA Servicer's Certificate when required pursuant to Section
5.01(a)(vii) and such failure continues
- 47 -
unremedied on the Business Day preceding the related Distribution Date, (ii)
ACFS or any Borrower fails in any material respect to perform or observe any
term, covenant or agreement contained in Section 5.01(o), 5.01(r), or 5.01(w),
or (iii) ACFS or any Borrower fails in any material respect to perform or
observe any term, covenant or agreement contained in Section 5.01(u), 5.02(a),
5.02(f) (other than as described in Section 6.01(i)) or 5.02(h) if the failure
to perform or observe such term, covenant or agreement shall remain unremedied
for ten (10) Business Days (determined in the case of a Lien described in clause
(iv) of Section 5.02(a), after giving effect to the five Business Day cure
period provided in such Section); or
(d) any Borrower or any Contingent Obligor shall fail in any
material respect to perform or observe any term, covenant or agreement contained
in this Agreement or any of the other Transaction Documents (other than as
described in Section 6.01(a), 6.01(b) or 6.01(c) above) to be performed or
observed by it if the failure to perform or observe such other term, covenant or
agreement shall remain unremedied for thirty (30) days after written notice
thereof shall have been given to such Borrower or the Contingent Obligor, as
applicable, by the Administrative Agent or any Agent; or
(e) any Borrower, any Contingent Obligor or any entity which
may have Debt secured under the Master Collateral and Intercreditor Agreement
shall fail to pay any principal of or premium or interest on any Debt
(including, without limitation, obligations under Debt secured in whole or in
part by the Shared Collateral under the Master Collateral and Intercreditor
Agreement, but other than its obligations under this Agreement or the Notes)
having a principal sum of $50,000 or more, with respect to such Borrower or any
such entity or $10,000,000 or more, with respect to any Contingent Obligor, when
the same becomes due and payable (whether by scheduled maturity, required
prepayment, acceleration, demand or otherwise) and such failure shall continue
after the applicable grace period, if any, specified in the agreement or
instrument relating to such Debt; or any other default under any agreement or
instrument relating to any such Debt (including, without limitation, obligations
under Debt secured in whole or in part by the Shared Collateral under the Master
Collateral and Intercreditor Agreement) of such Borrower, any Contingent Obligor
or any entity which may have Debt secured under the Master Collateral and
Intercreditor Agreement or any other event, shall occur and shall continue after
the applicable grace period, if any, specified in such agreement or instrument
if the effect of such default or event is to accelerate, or to permit the
acceleration of, the maturity of such Debt; or any such Debt (including, without
limitation, obligations under Debt secured in whole or in part by the Shared
Collateral under the Master Collateral and Intercreditor Agreement) shall be
declared to be due and payable or required to be prepaid (other than by a
regularly scheduled required prepayment), redeemed, purchased or defeased, or an
offer to prepay, redeem, purchase or defease such Debt shall be required to be
made, in each case, prior to the stated maturity thereof; or
(f) any Insolvency Event shall occur with respect to any
Borrower, AFS Funding Trust, or any of the Contingent Obligors; or
(g) there shall remain undischarged for more than ten days
any final judgment or execution action against AFS Funding Trust, any Borrower,
any Contingent Obligor, any entity created in connection with another Designated
Series or any entity which may have Debt secured under the Master Collateral and
Intercreditor Agreement that, together with other
- 48 -
outstanding final judgments and execution actions against AFS Funding Trust,
such Borrower, such Contingent Obligor or such entity, as the case may be,
exceeds $50,000 in the aggregate with respect to AFS Funding Trust or any
Borrower or any such entity or $10,000,000 in the aggregate with respect to any
Contingent Obligor; or
(h) the Pension Benefit Guaranty Corporation or the Internal
Revenue Service shall have filed notice of one or more Liens against AFS Funding
Trust, any Borrower or any Contingent Obligor or any of their respective
properties or assets and such Liens shall remain undischarged for more than 30
Business Days after the date of such notice; or
(i) (i) the Security Agreement (or any Lien purported to be
created thereunder) shall, for any reason, cease to be in full force and effect
or be declared to be null and void, or the Lender Collateral Agent for any
reason shall not or shall cease to hold a valid and perfected first priority
Lien in all Revolver Collateral in favor of the Lenders and the Administrative
Agent, or the validity or enforceability of the Security Agreement (or any Lien
purported to be created thereunder) shall be contested by any Borrower, or any
Borrower shall deny that it has any or further liability or obligation
thereunder (or with respect thereto); or (ii) the Master Collateral and
Intercreditor Agreement (or any Lien purported to be created thereunder) shall,
for any reason, cease to be in full force and effect or be declared to be null
and void, or the Master Collateral Agent for any reason shall not or shall cease
to hold a valid and perfected first priority Lien in all Shared Collateral or
the validity or enforceability of the Master Collateral and Intercreditor
Agreement (or any Lien purported to be created thereunder) shall be contested by
any Borrower, or any Borrower shall deny that it has any or further liability or
obligation thereunder (or with respect thereto); or
(j) the Contingent Obligors and their Affiliates shall not
own or shall cease for any reason to own 100% of the issued and outstanding
capital stock of the Borrowers or AFS Funding shall not own or shall cease for
any reason to own 100% of the beneficial interests in AFS Funding Trust; or
(k) any representation or warranty made by any Contingent
Obligor or the servicer in any of the Series Transaction Documents relating to
any Designated Series or any information delivered to the Lenders with respect
to any Designated Series shall prove to have been incorrect in any material
respect when made or when delivered, which continues to be incorrect for a
period of ten (10) Business Days after written notice thereof shall have been
given to the Borrowers by the Administrative Agent or any Agent; or
(l) any Transaction Document shall, for any reason (except
in accordance with its terms), cease to be in full force and effect, or cease to
be the legally valid, binding and enforceable obligations of the parties
thereto, or any party to any Transaction Document shall, directly or indirectly,
contest in any manner such effectiveness, validity, binding nature or
enforceability; or
(m) the aggregate outstanding principal amount of the Notes
on any day shall exceed the Revolver Borrowing Base on such day (a "Revolver
Borrowing Base Deficiency") and such condition continues unremedied for, if such
condition first arises on a Payment Date,
- 49 -
one Business Day or otherwise, five Business Days or a Senior Borrowing Base
Deficiency shall have occurred and be continuing; or
(n) the Notes do not have at least the Requisite Rating from
S & P and such situation shall remain unremedied for thirty (30) Business Days;
or
(o) a Change of Control shall occur with respect to ACC; or
(p) the ratio of the Securitization Assets of ACC to the
Tangible Net Worth of ACC shall exceed 2.5 to 1; or
(q) the ratio of Adjusted EBITDA of ACC for the two most
recently ended fiscal quarters of ACC to the Interest Expense of ACC for such
two quarters shall be less than 1.2 to 1; or
(r) the Tangible Net Worth of ACC shall be less than the sum
of (a) $1,000,000,000 and (b) 75% of the cumulative positive net income (without
deduction for negative net income) of ACC for each fiscal quarter since March
31, 2002, as reported in each annual report on Form 10-K and periodic report on
Form 10-Q filed by ACC with the Securities and Exchange Commission and (c) 75%
of the net proceeds of any equity issued by ACC since March 31, 2002; or
(s) on any Distribution Date, the Cumulative Net Loss Ratio
for any Receivables Pool with a pool factor greater than 25% exceeds the amount
set forth opposite the number of months since such Receivables Pool was
securitized on Schedule II hereto; or
(t) on the last day of any fiscal quarter, the ratio of the
Adjusted Equity of ACC to the outstanding principal amount of all receivables
(whether or not thereafter sold or disposed of) which are serviced by ACFS or
any of its Affiliates at such time is less than 6.5%; or
(u) the aggregate principal amount of all Receivables
supporting outstanding Designated Series with respect to which an event of
default, servicer default, amortization event, early termination event or
insurance agreement event of default or other similar event or a Required Spread
Account Increase has occurred and is continuing exceeds the product of (i) 10%
and (ii) the aggregate principal amount of all Receivables supporting
outstanding Designated Series.
SECTION 6.02 Remedies.
(a) Upon the occurrence of any Event of Default or at any
time thereafter during the continuance thereof, (i) if such event is an Event of
Default specified in clause (f) of Section 6.01, the Commitments shall
immediately and automatically terminate and the Borrowings, all accrued and
unpaid interest thereon and all other amounts owing hereunder and under the
Notes shall immediately become due and payable, and the Administrative Agent
may, and upon the direction of the Required Lenders shall, exercise any and all
remedies and other rights provided herein or in the Transaction Documents,
including its rights with respect to the Revolver Collateral and the Shared
Collateral and (ii) if such event is any other Event of Default,
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any or all of the following actions may be taken: (A) with the consent of the
Required Lenders, the Administrative Agent may, and upon the direction of the
Required Lenders shall, by notice to the Borrowers, declare the Commitments to
be terminated forthwith, whereupon the Commitments shall immediately terminate,
and (B) with the consent of the Required Lenders, the Administrative Agent may,
and upon the direction of the Required Lenders shall, by notice of default to
the Borrowers, declare the Borrowings, all accrued and unpaid interest thereon,
and all other amounts owing hereunder to be forthwith due and payable, whereupon
the same shall immediately become due and payable, and the Administrative Agent
may, and upon the direction of the Required Lenders shall, exercise any and all
remedies and other rights provided herein or in the Transaction Documents,
including its rights with respect to the Revolver Collateral and the Shared
Collateral. Except as otherwise provided in this Section, presentment, demand,
protest and all other notices of any kind are hereby expressly waived. Each
Borrower and each Contingent Obligor hereby further expressly waives and
covenants not to assert any appraisement, valuation, stay, extension, redemption
or similar laws, now or at any time hereafter in force which might delay,
prevent or otherwise impede the performance or enforcement of any Transaction
Document.
(b) In the event that the Commitments shall have been
terminated or the Borrowings shall have been declared due and payable pursuant
to the provisions of this Section, any funds received by the Administrative
Agent and the Lenders from or on behalf of any Borrower shall be applied by the
Administrative Agent and the Lenders in liquidation of the Borrowings and the
obligations of the Borrowers hereunder and under the Notes in the manner and
order set forth in the Security Agreement.
ARTICLE VI-A
EVENTS OF EARLY TERMINATION
SECTION 6A.01 Events of Early Termination. An "Event of Early
Termination" shall occur hereunder if each of the following is true:
(a) no Event of Default shall have occurred and be
continuing; and
(b) the aggregate principal amount of all Receivables
supporting outstanding Designated Series with respect to which an event of
default, servicer default, amortization event, early termination event or
insurance agreement event of default or other similar event or a Required Spread
Account Increase has occurred and is continuing exceeds the product of (i) 5%
and (ii) the aggregate principal amount of all Receivables supporting
outstanding Designated Series.
SECTION 6A.02 Consequences. Upon the occurrence of any Event of Early
Termination or at any time thereafter during the continuance thereof, the
Required Lenders may declare that the Commitments shall immediately be
terminated and the Borrowers shall not be permitted to borrow and the Lenders
shall not be required to make any new Advances to the Borrowers hereunder.
- 51 -
ARTICLE VII
THE AGENT
SECTION 7.01 Appointment.
(a) Each Lender and each Agent hereby irrevocably designates
and appoints the Administrative Agent as agent of such Lender or Agent under
this Agreement, and each such Lender and Agent irrevocably authorizes the
Administrative Agent, as the agent for such Lender or Agent, to take such action
on its behalf under the provisions of this Agreement and the other Related
Documents and to exercise such powers and perform such duties hereunder and
thereunder as are expressly delegated to the Administrative Agent by the terms
of this Agreement and the other Transaction Documents, together with such other
powers as are reasonably incidental thereto, and Deutsche Bank Trust Company
Americas hereby accepts such appointment. Each Lender in each Lender Group
hereby irrevocably designates and appoints the Agent for such Lender Group as
the agent of such Lender under this Agreement, and each such Lender irrevocably
authorizes such Agent, as the agent for such Lender, to take such action on its
behalf under the provisions of the Transaction Documents and to exercise such
powers and perform such duties thereunder as are expressly delegated to such
Agent by the terms of the Transaction Documents, together with such other powers
as are reasonably incidental thereto. Notwithstanding any provision to the
contrary elsewhere in this Agreement, neither the Administrative Agent nor any
Agent (the Administrative Agent and each Agent being referred to in this Article
as a "Note Agent") shall have any duties or responsibilities, except those
expressly set forth herein, or any fiduciary relationship with any Lender, and
no implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or otherwise exist against any
Note Agent.
(b) Each Lender, each Agent and the Administrative Agent
hereby appoints Deutsche Bank Trust Company Americas as Lender Collateral Agent
under the Security Agreement and Deutsche Bank Trust Company Americas hereby
accepts such appointment, subject, in each case, to the terms and conditions set
forth in the Security Agreement.
(c) Each Lender hereby authorizes the appointment of
Deutsche Bank Trust Company Americas as Master Collateral Agent under the Master
Collateral and Intercreditor Agreement, subject to the terms and conditions set
forth therein.
SECTION 7.02 Delegation of Duties. Each Note Agent may
execute any of its duties hereunder or under any of the Transaction Documents by
or through agents or attorneys-in-fact and shall be entitled to advice of
counsel concerning all matters pertaining to such duties. No Note Agent shall be
responsible for the negligence or misconduct of any agents or attorneys-in-fact
selected by it with reasonable care.
SECTION 7.03 Exculpatory Provisions. No Note Agent nor any of
its officers, directors, employees, agents, attorneys-in-fact or Affiliates
shall be (a) liable to any of the Lenders for any action lawfully taken or
omitted to be taken by it or such Person under or in connection with any of the
other Transaction Documents (except for its or such Person's own gross
negligence or willful misconduct) or (b) responsible in any manner to any of the
Lenders for any recitals, statements, representations or warranties made by any
Borrower, AFS Funding
- 52 -
Trust, any Contingent Obligor, the Master Collateral Agent or the Lender
Collateral Agent or any officer thereof contained in any of the other
Transaction Documents or in any certificate, report, statement or other document
referred to or provided for in, or received by such Note Agent under or in
connection with, any of the other Transaction Documents or for the value,
validity, effectiveness, genuineness, enforceability or sufficiency of this
Agreement or any of the other Transaction Documents or for any failure of any
Borrower, AFS Funding Trust, any Contingent Obligor, the Master Collateral Agent
or the Lender Collateral Agent to perform its obligations thereunder. No Note
Agent shall be under any obligation to any Lender to ascertain or to inquire as
to the observance or performance of any of the agreements contained in, or
conditions of, any of the other Transaction Documents, or to inspect the
properties, books or records of any Borrower, AFS Funding Trust, any Contingent
Obligor, any trustee for any Designated Series, the Master Collateral Agent or
the Lender Collateral Agent.
SECTION 7.04 Reliance by Agents. Each Note Agent shall be
entitled to rely, and shall be fully protected in relying, upon any writing,
resolution, notice, consent, certificate, affidavit, letter, cablegram,
telegram, telecopy, telex or teletype message, written statement, order or other
document or conversation believed by it to be genuine and correct and to have
been signed, sent or made by the proper Person or Persons and upon advice and
statements of legal counsel (including counsel to such Note Agent), independent
accountants and other experts selected by such Note Agent. Each Note Agent shall
be fully justified in failing or refusing to take any action under any of the
Transaction Documents unless it shall first receive such advice or concurrence
of the Required Lenders as it deems appropriate or it shall first be indemnified
to its satisfaction (i) in the case of the Administrative Agent, by the
Committed Lenders or (ii) in the case of an Agent, by the Committed Lenders in
its Lender Group, against any and all liability and expense which may be
incurred by it by reason of taking or continuing to take any such action. The
Administrative Agent shall in all cases be fully protected in acting, or in
refraining from acting, under any of the Transaction Documents in accordance
with a request of the Required Lenders (or their Agents), and such request and
any action taken or failure to act pursuant thereto shall be binding upon all
present and future Lenders. Each Agent shall in all cases be fully protected in
acting, or in refraining from acting, under any of the Related Documents in
accordance with a request of (i) Lenders in its Lender Group having Percentage
Interests aggregating greater than 50% of the aggregate Percentage Interests of
all Lenders in such Lender Group, and (ii) Committed Lenders in its Lender Group
having Commitments aggregating greater than 50% of the aggregate Commitments of
all Committed Lenders in such Lender Group, and such request and any action
taken or failure to act pursuant thereto shall be binding upon all present and
future Lenders in such Lender Group.
SECTION 7.05 Notices. No Note Agent shall be deemed to have
knowledge or notice of the occurrence of any breach of this Agreement or the
occurrence of any Default, Event of Default or Event of Early Termination unless
such Note Agent has received notice from the Borrowers, the Lender Collateral
Agent, the Master Collateral Agent, any Note Agent or any Lender referring to
this Agreement, describing such event. In the event that a Note Agent receives
such a notice, such Note Agent promptly shall give notice thereof to the other
Note Agents and the Lenders. The Administrative Agent shall take such action
with respect to such event as shall be reasonably directed by the Required
Lenders, and each Agent shall take such action with respect to such event as
shall be reasonably directed by (i) Lenders in its Lender Group having
Percentage Interests aggregating greater than 50% of the aggregate Percentage
- 53 -
Interests of all Owners in such Lender Group, and (ii) Committed Lenders in its
Lender Group having Commitments aggregating greater than 50% of the aggregate
Commitments of all Committed Lenders in such Lender Group; provided that unless
and until such Note Agent shall have received such directions, such Note Agent
may (but shall not be obligated to) take such action, or refrain from taking
such action, with respect to such event as it shall deem advisable in the best
interests of the Lenders or of the Lenders in its Lender Group, as applicable.
SECTION 7.06 Non-Reliance on Agents and Other Lenders. Each
Lender expressly acknowledges that neither any Note Agent nor any of its
officers, directors, employees, agents, attorneys-in-fact or Affiliates has made
any representations or warranties to it and that no act by any Note Agent
hereafter taken, including any review of the affairs of any Borrower, any
Contingent Obligor, any trustee for any Designated Series, the Master Collateral
Agent or the Lender Collateral Agent shall be deemed to constitute any
representation or warranty by such Note Agent to any Lender. Each Lender
represents to the Administrative Agent and the Agent for its Lender Group that
it has, independently and without reliance upon any Note Agent or any other
Lender, and based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the value and
creditworthiness of the Revolver Collateral, the Shared Collateral, the
business, operations, property, financial and other condition and
creditworthiness of each Borrower, AFS Funding Trust, each Contingent Obligor,
trustee of each Designated Series, the Master Collateral Agent or the Lender
Collateral Agent and made its own decision to enter into this Agreement and its
Commitment and make Advances hereunder. Each Lender also represents that it
will, independently and without reliance upon any Note Agent or any other
Lender, and based on such documents and information as it shall deem appropriate
at the time, continue to make its own analysis, appraisals and decisions in
taking or not taking action under any of the Transaction Documents, and to make
such investigation as it deems necessary to inform itself as to the value and
creditworthiness of the Revolver Collateral, the Shared Collateral, the
business, operations, property, financial and other condition and
creditworthiness of each Borrower, AFS Funding Trust, each Contingent Obligor,
trustee of each Designated Series, the Master Collateral Agent or the Lender
Collateral Agent. Except for notices, reports and other documents received by
the Administrative Agent under Section 5.01(a) or 5.01(b) hereof, the
Administrative Agent shall not have any duty or responsibility to provide any
Agent or any Lender with any credit or other information concerning the
business, operations, property, condition (financial or otherwise), prospects or
creditworthiness of any Borrower, AFS Funding Trust, any Contingent Obligor, any
trustee of any Designated Series, the Master Collateral Agent or the Lender
Collateral Agent which may come into the possession of the Administrative Agent
or any of its officers, directors, employees, agents, attorneys-in-fact or
Affiliates.
SECTION 7.07 Indemnification. The Committed Lenders severally
and not jointly agree to indemnify the Administrative Agent and the Lender
Collateral Agent in their respective capacities as such (without limiting the
obligation (if any) of the Borrowers to reimburse the Administrative Agent or
the Lender Collateral Agent for any such amounts), ratably according to their
respective Lending Percentages (or, if the Commitments have been terminated,
Percentage Interests), from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind whatsoever which may at any time (including at any
time following the payment of the obligations under this Agreement) be imposed
on, incurred by or asserted against the
- 54 -
Administrative Agent or the Lender Collateral Agent, as the case may be, in any
way relating to or arising out of this Agreement, the Security Agreement or any
documents contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or any action taken or omitted by the
Administrative Agent or the Lender Collateral Agent, as the case may be, under
or in connection with any of the foregoing; provided that no Lender shall be
liable for the payment of any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of the Administrative Agent or the Lender Collateral Agent, as the case may be,
resulting from its own gross negligence or willful misconduct. The Committed
Lenders in each Lender Group agree to indemnify the Agent for such Lender Group
in its capacity as such (without limiting the obligation (if any) of the
Borrowers to reimburse such Agent for any such amounts), ratably according to
their respective Lending Percentages (or, if the Commitments have been
terminated, Percentage Interests), from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind whatsoever which may at any time
(including at any time following the payment of the obligations under this
Agreement) be imposed on, incurred by or asserted against such Agent in any way
relating to or arising out of this Agreement, the Security Agreement or any
documents contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or any action taken or omitted by such Agent
under or in connection with any of the foregoing; provided that no Lender shall
be liable for the payment of any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any Agent resulting from its own gross negligence or willful
misconduct. The agreements in this Section shall survive the termination of this
Agreement.
SECTION 7.08 Agent in its Individual Capacity. Each Note
Agent and its Affiliates may make loans to, accept deposits from and generally
engage in any kind of business with any Borrower, AFS Funding Trust, any
Contingent Obligor, any trustee of any Designated Series, the Master Collateral
Agent or the Lender Collateral Agent as though such Note Agent were not an agent
hereunder. Each Lender acknowledges that each Note Agent may act (i) as
administrator and agent for one or more Conduit Lenders and in such capacity
acts and may continue to act on behalf of each such Conduit Lender in connection
with its business, and (ii) as the agent for certain financial institutions
under the liquidity and credit enhancement agreements relating to this Agreement
to which any such Conduit Lender is party and in various other capacities
relating to the business of any such Conduit Lender under various agreements. A
Note Agent in its capacity as such shall not, by virtue of its acting in any
such other capacities, be deemed to have duties or responsibilities hereunder or
be held to a standard of care in connection with the performance of its duties
as Note Agent other than as expressly provided in this Agreement. Each Note
Agent may act as such without regard to and without additional duties or
liabilities arising from its role as such administrator or agent or arising from
its acting in any such other capacity.
SECTION 7.09 Successor Agent. The Administrative Agent may
resign as Administrative Agent upon ten days' notice to the Lenders, the Agents,
the Lender Collateral Agent and the Borrowers, with such resignation becoming
effective upon a successor agent succeeding to the rights, powers and duties of
the Administrative Agent pursuant to this Section 7.09. If the Administrative
Agent shall resign as Administrative Agent under this Agreement, then the
Required Lenders shall appoint from among the Committed Lenders a successor
agent
- 55 -
for the Lenders with the written consent of the Borrowers which shall not be
unreasonably withheld. If an Agent shall resign as Agent under this Agreement,
then (i) Lenders in its Lender Group having Percentage Interests aggregating
greater than 50% of the aggregate Percentage Interests of all Lenders in such
Lender Group, and (ii) Committed Lenders in its Lender Group having Commitments
aggregating greater than 50% of the aggregate Commitments of all Committed
Lenders in such Lender Group shall appoint from among the Committed Lenders in
such Lender Group a successor agent for such Lender Group. Any successor
administrative agent or agent shall succeed to the rights, powers and duties of
resigning Note Agent, and the term "Administrative Agent" or "Agent", as
applicable, shall mean such successor administrative agent or agent effective
upon its appointment, and the former Note Agent's rights, powers and duties as
Note Agent shall be terminated, without any other or further act or deed on the
part of such former Note Agent or any of the parties to this Agreement. After
the retiring Note Agent's resignation as Note Agent, the provisions of this
Article VII shall inure to its benefit as to any actions taken or omitted to be
taken by it while it was Note Agent under this Agreement. In the event that a
successor agent is not appointed in accordance with this Section 7.09, the
Administrative Agent may petition a court of competent jurisdiction to appoint a
successor.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01 Amendments, Etc. With the written consent of the
Required Lenders, the Administrative Agent, the Lender Collateral Agent, the
Contingent Obligors and the Borrowers may, from time to time, enter into written
amendments, supplements or modifications of this Agreement and/or the Security
Agreement and/or the Master Collateral and Intercreditor Agreement and, with the
consent of the Required Lenders, the Administrative Agent on behalf of the
Lenders may execute and deliver to any such parties a written instrument waiving
or a consent to a departure from, on such terms and conditions as the
Administrative Agent may specify in such instrument, any of the requirements of
this Agreement or the Security Agreement or any Event of Early Termination,
Default or Event of Default and its consequences; provided, however, that:
(a) no such amendment, supplement, modification, waiver or
consent shall, increase the Commitment Amount of any Lender without its consent
or, without the consent of all Lenders, (i) extend the Stated Maturity Date or,
except pursuant to the provisions of Section 2.09, Commitment Expiration Date,
(ii) decrease the rate, or extend the time of payment, of interest on, or
change, forgive or extend the time of payment of the principal amount of, or
change the pro rata allocation of payments under, any Note, (iii) reduce the
rate of, or extend the date of payment for, any fee payable to Lenders
hereunder, (iv) release all or any part of the Revolver Collateral or the Shared
Collateral except to the extent that the sale or disposition of such collateral
is permitted under the terms of any Transaction Document, (v) change the
provisions of Section 5.01(c), or Sections 8.01 or 8.08, (vi) change the
definitions of "Maximum Advance Percentage", "Borrowing Base", "Eligible
Security", "Interest Period", "Required Lenders", "Revolver Borrowing Base",
"Senior Borrowing Base", "Supermajority Lenders" (vii) extend the date or
decrease the amount of any mandatory prepayment of the Borrowings pursuant to
Section 2.04, (viii) change the sharing provisions among the Lenders, or (ix)
change the several nature of the obligations of the Lenders;
- 56 -
(b) without the written consent of the Administrative Agent,
the Agents or the Lender Collateral Agent, as the case may be, no such
amendment, supplement, modification or waiver shall amend, modify or waive any
provision of Article VII or otherwise change any of the rights or obligations of
the Administrative Agent, the Agents or the Lender Collateral Agent, as the case
may be, hereunder or under any Transaction Documents or reduce the rate of, or
extend the date of payment for, any fee payable to the Administrative Agent, the
Agents or the Lender Collateral Agent hereunder; and
(c) the consent of each affected Conduit Lender shall be
required for any change to the provisions of Section 8.07 or 8.17.
Any Lender may specify that any such written consent executed by
it shall be effective only with respect to a portion of the Percentage Interests
and the Commitment Amounts, as the case may be, held by it (in which case it
shall specify, by dollar amount, the aggregate amount of Percentage Interests
and Commitment Amounts with respect to which such consent shall be effective)
and in the event of any such specifications, such Lender shall be deemed to have
executed such written consent only with respect to the portion of the Percentage
Interests and the Commitment Amounts so specified. Any such amendment,
supplement modification or waiver shall apply equally to each of the Lenders and
shall be binding upon the parties to the applicable Transaction Document, the
Lenders, the Administrative Agent, the Agents, the Lender Collateral Agent, the
Contingent Obligors and all future holders of the Notes. In the case of any
waiver, the parties to the applicable Transaction Document, the Lenders, the
Agents and the Administrative Agent shall be restored to their former position
and rights hereunder and under the outstanding Notes and other Lender Documents
to the extent provided for in such waiver, and any Default or Event of Default
waived shall not extend to any subsequent or other Default or Event of Default,
or impair any right consequent thereon. The Transaction Documents may not be
amended orally or by any course of conduct.
SECTION 8.02 Notices, Etc. The Contingent Obligors hereby
appoint ACC to act as agent for the Contingent Obligors with respect to the
receiving and giving of any notices or any other written instruction hereunder.
The Administrative Agent is hereby entitled to rely on any communication given
or transmitted by ACC as if such communication were given or transmitted by each
and every Contingent Obligor. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
telecopy, telegraph or telex), and, unless otherwise expressly provided herein,
shall be deemed to have been duly given or made when delivered by hand, or, in
the case of mail or telecopy notice, when received, or, in the case of
telegraphic notice, when delivered to the telegraph company, or, in the case of
telex notice, when sent, answer back received, addressed as follows or, with
respect to a Lender or Agent other than an initial Lender or Agent, as set forth
in its respective Assignment and Assumption or Joinder Supplement, or to such
other address as may be hereafter notified by the respective parties hereto:
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The Borrowers AFS Funding Corp.
000 Xxxxxx Xxxx, Xxxxx 000
Xxxx, Xxxxxx 00000
Attention: Chief Financial Officer
Telephone:
Telefax: 000-000-0000
AFS SenSub Corp.
000 Xxxxxx Xxxx, Xxxxx 000
Xxxx, Xxxxxx 00000
Attention: Chief Financial Officer
Telephone:
Telefax: 000-000-0000
with a copy to:
AmeriCredit Corp.
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000
Attention: Treasurer
Telephone: 000-000-0000
Telefax: 000-000-0000
ACC as agent AmeriCredit Corp.
for the Contingent 000 Xxxxxx Xxxxxx, Xxxxx 0000
Obligors Xxxx Xxxxx, Xxxxx 00000
Attention: Treasurer
Telephone: 000-000-0000
Telefax: 000-000-0000
Administrative Deutsche Bank Trust Company Americas
Agent 0000 Xxxx Xx. Xxxxxx Xxxxx
Xxxxx Xxx, Xxxxxxxxxx 00000
Attention:
Telephone: (000) 000-0000
Telefax: (000) 000-0000
Lender Collateral Deutsche Bank Trust Company Americas
Agent 0000 Xxxx Xx. Xxxxxx Xxxxx
Xxxxx Xxx, Xxxxxxxxxx 00000
Attention: Trust Administration - AmeriCredit
Telephone: (000) 000-0000
Telefax: (000) 000-0000
SECTION 8.03 No Waiver; Remedies. No failure on the part of
any Lender, any Agent or the Administrative Agent to exercise, and no delay in
exercising, any right
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hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any such right preclude any other or further exercise thereof or the
exercise of any other right. The remedies herein provided are cumulative and not
exclusive of any remedies provided by law.
SECTION 8.04 Costs, Expenses and Indemnification. The
Borrowers agree to pay (on a joint and several basis) all costs and expenses of
the Administrative Agent and each Agent in connection with the preparation,
execution, delivery, modification and amendment of this Agreement, the other
Transaction Documents and the other documents to be delivered hereunder and
thereunder, including the reasonable fees and out-of-pocket expenses of counsel
for the Administrative Agent and each Agent with respect thereto and with
respect to advising such agents as to their respective rights and
responsibilities under this Agreement and such other Transaction Documents. The
Borrowers further agree to pay (on a joint and several basis) all costs and
expenses, if any (including reasonable counsel fees and expenses), of the
Administrative Agent, each Agent and each Lender in connection with the
enforcement of this Agreement, the other Transaction Documents and the other
documents to be delivered hereunder and thereunder, including reasonable counsel
fees and expenses in connection with the enforcement of rights under this
Section 8.04 and all costs and expenses (including reasonable counsel fees and
expenses) in connection with the negotiation of any restructuring or "work-out"
(whether or not consummated) of the obligations of the Borrowers hereunder or
under any Transaction Document. The Borrowers further agree to indemnify (on a
joint and several basis) each Lender, each Agent and the Administrative Agent
and each of their respective affiliates, control persons, officers, directors,
employees and agents (each an "Indemnified Party"), from and against any and all
claims, damages, losses, liabilities and expenses (including reasonable fees and
disbursements of counsel) for which any of them may become liable or which may
be incurred by or asserted against any of them in connection with the
investigation of, preparation for or defense of any pending or threatened claim
or any action or proceeding arising out of, related to or in connection with the
transactions described herein whether or not any Indemnified Party or the
Borrowers is a party thereto, including any transaction in which any proceeds of
any Borrowing are or are proposed to be applied; provided, however, that neither
Borrower shall be liable for any portion of such claims, damages, losses,
liabilities or expenses resulting from an Indemnified Party's gross negligence
or willful misconduct. The provisions of this Section 8.04 shall survive the
termination of this Agreement.
SECTION 8.05 Binding Effect; Termination. This Agreement
shall become effective upon the Effective Date and shall thereafter be binding
upon and inure to the benefit of each of the parties hereto and each of their
respective successors and assigns, except that none of the Borrowers or the
Contingent Obligors shall have the right to assign its rights hereunder or any
interest herein without the prior written consent of all Lenders, the Agents and
the Administrative Agent. This Agreement shall terminate on the date following
the Commitment Expiration Date for all Lenders on which all Advances and other
obligations hereunder shall have been indefeasibly paid in full.
SECTION 8.06 Assignments and Participation.
(a) Each Lender may, but only in accordance with applicable
law, at any time grant participations in all or part of its Commitment or its
Advances, including the payments due to it under this Agreement and its Note
(each, a "Participation"), to any Lender or to any other
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bank, commercial paper conduit or other institution (each, a "Participant").
Each Lender hereby acknowledges and agrees that (A) any such Participation will
not alter or affect such Lender's direct obligations hereunder, and (B) neither
Borrower shall have any obligation to have any communication or relationship
with any Participant. No Participant shall be entitled to sell, transfer,
assign, participate, subparticipate, pledge, hypothecate or otherwise dispose of
(each, a "Transfer") all or any portion of its Participation, without the prior
written consent of the Agent for its Lender Group (which consents shall not be
unreasonably withheld), nor shall any such Transfer be permitted or made except
in accordance with Section 8.06(b). The Borrowers shall be obligated to
indemnify (on a joint and several basis) a Participant for all amounts owing to
it under Sections 2.10, 2.11, 2.13, and 8.04 as if such Participant were a
Lender hereunder; provided in the case of Section 2.11 that such Participant has
complied with the provisions of Section 2.11(c) as if it were a Lender. Each
Lender shall give the Administrative Agent, the Agent for its Lender Group and
the Borrowers notice of the consummation of any sale by it of a Participation.
(b) Each Lender may in accordance with applicable law and
this Section 8.06(b), sell or assign (each, an "Assignment"), to any Person
(each, an "Assignee") which is a Permitted Transferee, all or any part of its
Commitment or Advances and its rights and obligations under this Agreement and
its Note and other Transaction Documents pursuant to an agreement substantially
in the form attached hereto as Exhibit D hereto (an "Assignment and
Assumption"), executed by such Assignee and the Lender and delivered to the
Administrative Agent for its acceptance accompanied by a processing and
recording fee payable to the Administrative Agent for its own account of $3,500;
provided that in the case of an assignment of less than all of a Lender's
Commitment Amount or Maximum Conduit Amount, as applicable, to an Assignee which
is not a Lender or Support Party, the portion thereof retained by the assignor
Lender and the portion assigned to the Assignee each shall be not less than
$10,000,000 without the consent of the Borrowers.
From and after the effective date determined pursuant to such
Assignment and Assumption, (x) the Assignee thereunder shall be a party hereto
and, to the extent provided in such Assignment and Assumption, have the rights
and obligations of a Lender hereunder as set forth therein and (y) the
transferor Lender shall, to the extent provided in such Assignment and
Assumption, be released from its Commitment (if any) and other obligations under
this Agreement; provided, however, that after giving effect to each such
Assignment, the obligations released by any such Lender shall not exceed the
obligations assumed by an Assignee or Assignees. Such Assignment and Assumption
shall be deemed to amend this Agreement to the extent, and only to the extent,
necessary to reflect the addition of such Assignee and the resulting adjustment
of Lending Percentages, Liquidity Percentages and Percentage Interests arising
from the Assignment. Upon its receipt and acceptance of a duly executed
Assignment and Assumption, the Administrative Agent shall on the effective date
determined pursuant thereto give written notice of such acceptance to the
Borrowers, the Agents and the Lender Collateral Agent. The Borrowers agree upon
written request of the related Agent and at the Borrowers' expense to execute
and deliver (i) to such Assignee or such Agent a Note, dated the effective date
of such Assignment and Assumption, in an aggregate principal amount equal to the
Advances assigned to, and the Commitment Amount or Maximum Conduit Amount, as
applicable, assumed by, such Assignee, and (ii) to such assignor (so long as
such assignor has not assigned its entire interest) or its Agent, a Note, dated
the effective date of such Assignment
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and Assumption, in an aggregate principal amount equal to the balance of such
assignor Lender's Advances and Commitment Amount, if any, and each assignor
Lender shall cancel and return to the Borrowers its existing Note.
(c) The Administrative Agent shall maintain at its address
referred to in Section 8.02 a copy of each Assignment and Assumption and Joinder
Supplement delivered to and accepted by it and a register for the recordation of
the names and addresses of the Lenders and the Commitment Amount or Maximum
Conduit Amount, as applicable, and principal amount of the Advances owing to,
each Lender from time to time (the "Register"). The entries in the Register
shall be conclusive and binding for all purposes, absent manifest error, and the
Borrowers, the Administrative Agent, the Agents and the Lenders may treat each
Person whose name is recorded in the Register as a Lender hereunder for all
purposes of this Agreement. The Register shall be available for inspection by
the Borrowers, any Agent or any Lender at any reasonable time and from time to
time upon reasonable prior notice.
(d) Each Lender may pledge its Advances or any portion
thereof or interest therein to any Federal Reserve Bank as collateral in
accordance with applicable law without the consent of the relevant Agent or the
Borrowers.
(e) Any Lender shall have the option to change its
Applicable Lending Office provided that prior to such change in office such
Lender shall have complied with the provisions of Section 2.11(c), and provided
further that such Lender shall not be entitled to any amounts otherwise payable
under Section 2.10, 2.11 or 2.13 resulting solely from such change in office
unless such change in office was mandated by applicable law or by such Lender's
compliance with the provisions of this Agreement.
(f) Each Affected Party shall be entitled to receive
additional payments pursuant to Sections 2.10, 2.11 and 2.13 hereof as though it
were a Lender and such Section applied to its Support Advances, its commitment
to provide Support Advances or to accept an assignment of an Advance or its
obligation under an insurance policy, surety, bond or similar instrument. Each
Affected Party claiming increased amounts described in Section 2.10 shall
furnish, through its related Conduit Lender, to the Administrative Agent the
certificate described in Section 2.10(d) and shall be bound by the provisions of
Section 2.10(c).
(g) In connection with any Assignment or Participation or
proposed Assignment or Participation by a Lender, such Lender shall be entitled
to distribute to any proposed Assignee or Participant any information furnished
to such Lender pursuant to Section 5.01 or otherwise pursuant to this Agreement
or in connection herewith, subject to the provisions of Section 8.18.
(h) Each Lender represents and warrants to the Borrowers
that it is a "Qualified Purchaser" as defined in Section 2(a)(51) of, and
pursuant to Rule 3c-7 under, the Investment Company Act of 1940, as amended.
SECTION 8.07 No Proceedings. (a) The Administrative Agent,
the Lender Collateral Agent and each Lender hereby agrees (which agreement
shall, pursuant to the terms of this Agreement, be binding upon its successors
and assigns) that it shall not, for any reason:
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(i) institute proceedings for either Borrower to be
adjudicated a bankrupt or insolvent;
(ii) consent to, join in or cooperate with the institution of
bankruptcy or insolvency proceedings against either Borrower;
(iii) file a petition with respect to either Borrower seeking
or consenting to reorganization or relief under any applicable Federal
or state law relating to bankruptcy;
(iv) consent to the appointment of a receiver, liquidator,
assignee, trustee, sequestrator (or other similar official) of either
Borrower or a substantial part of the property; or
(v) cause or permit either Borrower to make any assignment
for the benefit of its creditors, or admit in writing its inability to
pay its debts generally as they become due, or declare or effect a
moratorium on its debt or take any action in furtherance of any such
action.
(b) The Borrowers, the Contingent Obligors, the
Administrative Agent, the Lender Collateral Agent and each Lender hereby agrees
(which agreement shall, pursuant to the terms of this Agreement, be binding upon
its successors and assigns) that it shall not institute against, or join any
other Person in instituting against, any Conduit Lender any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceeding, or other
proceeding under any federal or state bankruptcy or similar law, for one year
and a day after the latest maturing commercial paper note or other obligation
(whether or not issued to fund or maintain Advances) issued by such Conduit
Lender is paid. The provisions of this Section 8.07 shall survive the
termination of this Agreement.
SECTION 8.08 Submission to Jurisdiction; Waivers. EACH OF THE
PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY:
(A) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT TO WHICH IT IS A PARTY, OR
FOR RECOGNITION AND ENFORCEMENT OF ANY JUDGMENT IN RESPECT
THEREOF, TO THE NON-EXCLUSIVE GENERAL JURISDICTION OF THE COURTS
OF THE STATE OF NEW YORK AND THE UNITED STATES OF AMERICA FOR
THE SOUTHERN DISTRICT OF NEW YORK, AND APPELLATE COURTS FROM ANY
THEREOF;
(B) CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT
IN SUCH COURTS AND WAIVES ANY OBJECTION THAT IT MAY NOW OR
HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN
ANY SUCH COURT OR
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THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT
COURT AND AGREES NOT TO PLEAD OR CLAIM THE SAME;
(C) AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR
PROCEEDING MAY BE EFFECTED BY MAILING A COPY THEREOF BY
REGISTERED OR CERTIFIED MAIL (OR ANY SUBSTANTIALLY SIMILAR FORM
OF MAIL), POSTAGE PREPAID, TO SUCH PARTY AT ITS ADDRESS SET
FORTH IN SECTION 8.02 OR AT SUCH OTHER ADDRESS OF WHICH THE
ADMINISTRATIVE AGENT SHALL HAVE BEEN NOTIFIED PURSUANT THERETO;
AND
(D) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT
SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL
LIMIT THE RIGHT TO XXX IN ANY OTHER JURISDICTION.
SECTION 8.09 WAIVERS OF JURY TRIAL. EACH OF THE PARTIES
HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE EXTENT PERMITTED BY
APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO TRIAL BY JURY IN ANY LEGAL ACTION OR
PROCEEDING RELATING DIRECTLY OR INDIRECTLY TO THIS AGREEMENT OR ANY OTHER
DOCUMENT OR INSTRUMENT RELATED HERETO AND FOR ANY COUNTERCLAIM THEREIN.
SECTION 8.10 GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK, WITHOUT
GIVING EFFECT TO ITS CONFLICT OF LAW PROVISIONS (OTHER THAN SECTIONS 5-1401 AND
5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW).
SECTION 8.11 Execution in 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 taken together shall constitute one and the same
agreement.
SECTION 8.12 Headings. The headings contained in this
Agreement are for convenience of reference only and shall not affect the
construction or interpretation of any provision of this Agreement.
SECTION 8.13 Severability. Any provisions of this Agreement
which are prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions
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hereof, and any such prohibition or unenforceability in any jurisdiction shall
not invalidate or render unenforceable such provisions in any other
jurisdiction.
SECTION 8.14 Integration. All exhibits, schedules and
appendices to this Agreement shall be deemed to be part of this Agreement.
Except in the case of Committed Lenders and their related Conduit Lenders with
respect to certain Support Facilities, this Agreement, together with provisions
of the Transaction Documents referred to herein, embodies the entire agreement
and understanding among the parties hereto with respect to the subject matter
hereof and supersedes all prior agreements and understandings among such parties
with respect to the subject matter hereof.
SECTION 8.15 Right of Set-Off. In addition to any rights and
remedies of the Lenders provided by law, upon the occurrence of an Event of
Default and the acceleration of the obligations owing hereunder and under the
Notes, or at any time upon the occurrence and during the continuance of an Event
of Default under Section 6.01(a), and only under such circumstances, each Lender
shall have the right, without prior notice to either Borrower, any such notice
being expressly waived by each Borrower to the extent not prohibited by
applicable law, to set-off and apply against any indebtedness, whether matured
or unmatured, of such Borrower to such Lender, any amount owing from such Lender
to such Borrower, at, or at any time after, the happening of any of the
above-mentioned events. To the extent not prohibited by applicable law, the
aforesaid right of set-off may be exercised by such Lender against either
Borrower or against any trustee in bankruptcy, custodian, debtor in possession,
assignee for the benefit of creditors, receiver, or execution, judgment or
attachment creditor of such Borrower, or against anyone else claiming through or
against such Borrower or such trustee in bankruptcy, custodian, debtor in
possession, assignee for the benefit of creditors, receiver or execution,
judgment or attachment creditor, notwithstanding the fact that such right of
set-off shall not have been exercised by such Lender prior to the making, filing
or issuance, or service upon such Lender of, or of notice of, any such petition,
assignment for the benefit of creditors, appointment or application for the
appointment of a receiver, or issuance of execution, subpoena, order or warrant.
Each Lender agrees promptly to notify the related Borrower and the
Administrative Agent after any such set-off and application made by such Lender,
provided that the failure to give such notice shall not affect the validity of
such set-off and application.
SECTION 8.16 Limitation of Liability. No claim may be made by
any Borrower, any Contingent Obligor, any Lender, any Agent, the Lender
Collateral Agent or other Person against the Administrative Agent, any Agent,
the Lender Collateral Agent, any Lender, or any directors, officers, employees
or agents of any of them for any special, indirect, consequential or punitive
damages in respect of any claim for breach of contract or any other theory of
liability arising out of or related to the transactions contemplated hereby or
by any Transaction Document, or any act, omission or event occurring in
connection therewith, and each Borrower, each Contingent Obligor, the Lender
Collateral Agent, each Agent and each Lender hereby waives, releases and agrees
(on behalf of itself and any Person claiming by or through it) not to xxx upon
any claim for any such damages, whether or not accrued and whether or not known
or suspected to exist in its favor.
SECTION 8.17 No Recourse Against Certain Persons. No recourse
under or with respect to any obligation, covenant or agreement (including any
obligation or agreement
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to pay fees or any other amount) of any Borrower, any Contingent Obligor, any
Lender, any Agent, the Lender Collateral Agent or the Administrative Agent
contained in this Agreement or any other agreement, instrument or document
entered into by it pursuant hereto or in connection herewith shall be had
(unless expressly assumed by such party) against any incorporator, affiliate,
stockholder, partner, officer, employee or director of any Borrower, any
Contingent Obligor, any Agent, any Lender, the Lender Collateral Agent or the
Administrative Agent, as such, by the enforcement of any assessment, by any
legal or equitable proceeding, by virtue of any statute or otherwise; it being
expressly agreed and understood that the agreements of each party 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 partnership or corporate obligations of such party, and that no
personal liability whatsoever shall attach to or be incurred by any
incorporator, stockholder, partner, affiliate, officer, employee or director of
such party, as such, or any of them, under or by reason of any of the
obligations, covenants or agreements of any Borrower, any Contingent Obligor,
any Lender, any Agent, the Lender Collateral Agent or the Administrative Agent
contained in this Agreement or in any other such instrument, document or
agreement, or which are implied therefrom, and that any and all personal
liability of every such incorporator, stockholder, partner, affiliate, officer,
employee or director of any Borrower, any Contingent Obligor, any Lender, any
Agent, the Lender Collateral Agent or the Administrative Agent for breaches by
any Borrower, any Contingent Obligor, any Lender, any Agent, the Lender
Collateral Agent or the Administrative Agent of any such obligations, covenants
or agreements, which liability may arise either at common law or at equity, by
statute or constitution, or otherwise, is hereby expressly waived as a condition
of and in consideration for the execution of this Agreement. The provisions of
this Section 8.17 shall survive the termination of this Agreement.
SECTION 8.18 Treatment of Certain Information. Each Lender,
each Agent, the Lender Collateral Agent and the Administrative Agent agrees (on
behalf of itself and each of its affiliates, directors, officers, employees and
representatives) to use reasonable precautions to keep confidential, in
accordance with its customary procedures for handling confidential information
of the same nature, all non-public information supplied by any Borrower or any
Contingent Obligor pursuant to this Agreement which (a) is identified by such
supplying party as being confidential at the time the same is delivered to such
Lender, such Agent, Lender Collateral Agent or the Administrative Agent, or (b)
constitutes any financial statement, financial projections or forecasts, budget,
compliance certificate, audit report, management letter or accountants'
certification delivered hereunder; provided, however, that nothing herein shall
limit the disclosure of any such information (i) to the extent required by
statute, rule, regulation or judicial process, (ii) on a confidential basis, to
counsel for any of the Lenders, the Agents, the Lender Collateral Agent or the
Administrative Agent, (iii) to bank examiners, internal and external auditors or
accountants, and any analogous counterpart thereof acting in any such capacity,
(iv) to the Administrative Agent, the Lender Collateral Agent, an Agent or a
Lender, (v) in connection with any litigation to which any one or more of the
Lenders, the Agents, the Lender Collateral Agent or the Administrative Agent is
a party, (vi) to any assignee or participant (or prospective assignee or
participant) so long as such assignee or participant (or prospective assignee or
participant) agrees to keep such information confidential on substantially the
same basis as set forth in this Section (which agreement may be in the form
attached as Exhibit E to this Agreement), (vii) to affiliates of the
Administrative Agent, the
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Lender Collateral Agent, an Agent or a Lender, (viii) in the case of a Conduit
Lender, to its administrator or other Person providing similar services to it or
(ix) to the extent it becomes publicly available (other than pursuant to a
violation of the provisions of this Section 8.18).
SECTION 8.19 Certain Payments. Notwithstanding provisions to
the contrary contained in this Agreement, the Notes or the Security Agreement,
the obligations of any Borrower or any Contingent Obligor to make payments of
interest or other amounts which constitute interest to a Lender hereunder or
under any Note shall not be required to the extent that receipt of such payment
by such Lender would be contrary to the provisions of law applicable to such
Lender limiting the maximum rate of interest that may be charged or collection
by such Lender. Without limiting the generality of the foregoing, all
calculations of the rate of interest contracted for, charged or received by a
Lender under this Agreement and the Notes which are made for the purposes of
determining whether such rate of interest exceeds the maximum rate of interest
permitted by applicable law for such Lender shall be made, to the extent
permitted by applicable law, by amortizing, prorating, allocating and spreading
in equal parts during the period of the full stated term of this Agreement, all
interest at any time contracted for, charged or received by such Lender in
connection with the indebtedness evidenced by this Agreement or such Lender's
Note, and then to the extent that any such excess remains, all such excess shall
be automatically credited against and in reduction of the principal balance owed
to such Lender, and any portion of said excess which exceeds the principal
balance owed to such Lender shall be paid by such Lender to the Borrowers
(subject to the provisions of Sections 8.07 and 8.17 and, in the case of a
Conduit Lender, to the condition that such Lender has excess funds available to
it for the purpose of making such payment), it being the intent of parties
hereto that under no circumstances shall the Borrowers be required to pay any
interest in excess of the highest rate permissible under applicable law.
SECTION 8.20 Unenforceability of Guaranteed Obligations
Against Borrowers. If for any reason any Borrower has no legal existence or is
under no legal obligation to discharge any of the Guaranteed Obligations, or if
any of the Guaranteed Obligations have become irrecoverable from any Borrower by
operation of law or for any other reason, the guaranty and the primary payment
obligation provided under Article II-A shall nevertheless be binding on each
Contingent Obligor to the same extent as if such Contingent Obligor at all times
had been the principal obligor on all such Guaranteed Obligations. In the event
that acceleration of the time for payment of the Guaranteed Obligations is
stayed upon the insolvency, bankruptcy or reorganization of any Borrower, or for
any other reason, all such amounts otherwise subject to acceleration under the
terms of any agreement evidencing, securing or otherwise executed in connection
with any Guaranteed Obligation (including this Agreement) shall be immediately
due and payable by the Contingent Obligors.
SECTION 8.21 Waiver of Subrogation. Until the termination
hereof and the payment and performance in full of all Guaranteed Obligations and
payment in full of the principal of, and interest on, the Advances, no
Contingent Obligor shall exercise any rights against any Borrower arising as a
result of payment by any Contingent Obligor under the Article II-A, by way of
subrogation or otherwise, and will not prove any claim in competition with the
Administrative Agent, the Lender Collateral Agent, the Agents or the Lenders in
respect of any payment hereunder in bankruptcy or insolvency proceedings of any
nature; no Contingent Obligor will claim any set-off or counterclaim against any
Borrower in respect of any liability of
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any Contingent Obligor to such Borrower; each Contingent Obligor waives any
benefit of and any right to participate in any collateral which may be held by
the Administrative Agent, the Lender Collateral Agent, the Master Collateral
Agent, the Agents or the Lenders; and notwithstanding any other provision to the
contrary contained herein, each Contingent Obligor hereby irrevocably waives any
and all rights it may have at any time (whether arising directly or indirectly,
by operation of law or by contract) to assert any claim against any Borrower on
account of payments made under Article II-A, including, without limitation, any
and all rights of or claim for subrogation, contribution, reimbursement,
exoneration and indemnity.
SECTION 8.22 Subordination. The payment of any amounts due
with respect to any Debt of any Borrower now or hereafter held by any Contingent
Obligor is hereby subordinated to the prior payment in full of the Guaranteed
Obligations and payment in full of the principal of, and interest on, the
Advances, provided that so long as no default in the payment or performance of
the Guaranteed Obligations has occurred and is continuing and no Default or
Event of Default with respect to payment of the principal of, and interest on,
the Advances has occurred and is continuing, or no demand for payment of any of
the Guaranteed Obligations has been made that remains unsatisfied, such Borrower
may make, and the Contingent Obligors may demand and accept, any payments of
principal of and interest on such subordinated Debt in the amounts, at the rates
and on the dates agreed by such Borrower and any Contingent Obligor, and, if
applicable, as specified in such instruments, securities or other writings as
shall evidence such subordinated Debt. Each Contingent Obligor agrees that after
the occurrence of any default in the payment or performance of the Guaranteed
Obligations or a Default or Event of Default with respect to payment of the
principal of, and interest on, the Advances, such Contingent Obligor will not
demand, xxx for or otherwise attempt to collect any such Debt of any Borrower to
such Contingent Obligor until the Guaranteed Obligations and the principal of,
and interest on, the Advances shall have been paid in full. If, notwithstanding
the foregoing sentence, any Contingent Obligor shall collect, enforce or receive
any amounts in respect of such Debt, such amounts shall be collected, enforced
and received by such Contingent Obligor as trustee for the Lenders and be paid
over to the Administrative Agent (for the benefit of the Lenders) on account of
the Guaranteed Obligations without affecting in any manner the liability of such
Contingent Obligor under Article II-A.
SECTION 8.23 Waivers by Contingent Obligors. Each Contingent
Obligor agrees that the Guaranteed Obligations will be paid and performed
strictly in accordance with their respective terms regardless of any law,
regulation or order now or hereafter in effect in any jurisdiction affecting any
of such terms or the rights of the Administrative Agent, the Lender Collateral
Agent, the Agents or the Lenders with respect thereto. Each Contingent Obligor
waives presentment, demand, protest, notice of acceptance, notice of Guaranteed
Obligations incurred and all other notices of any kind, all defenses which may
be available by virtue of any valuation, stay, moratorium law or other similar
law now or hereafter in effect, any right to require the marshaling of assets of
any Borrower, and all suretyship defenses generally. Without limiting the
generality of the foregoing, each Contingent Obligor agrees to the provisions of
any instrument evidencing, securing or otherwise executed in connection with any
of the Borrowings or Advances hereunder and agrees that the Guaranteed
Obligations shall not be released or discharged, in whole or in part, or
otherwise affected by (i) the failure of the Administrative Agent, the Lender
Collateral Agent, the Master Collateral Agent, any Agent or any of the Lenders
to assert any claim or demand or to enforce any right or remedy against any
Borrower;
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(ii) any extensions or renewals of any of the Borrowings or Advances hereunder;
(iii) any rescissions, waivers, amendments or modifications of any of the terms
or provisions of any agreement evidencing, securing or otherwise executed in
connection with the Borrowings, including, without limitation, the Transaction
Documents; (iv) the substitution or release of any entity primarily or
secondarily liable for any obligation of any Borrower under this Agreement or
the other Transaction Documents; (v) the adequacy of any rights the Agents, the
Lenders, the Lender Collateral Agent, the Master Collateral Agent or the
Administrative Agent may have against any collateral or other means of obtaining
repayment of the Guaranteed Obligations; (vi) the impairment of any collateral
securing the Guaranteed Obligations, including without limitation the failure to
perfect or preserve any rights the Administrative Agent, the Lender Collateral
Agent, the Master Collateral Agent, the Agents or the Lenders might have in such
collateral or the substitution, exchange, surrender, release, loss or
destruction of any such collateral; or (vii) any other act or omission which
might in any manner or to any extent vary the risk of any Contingent Obligor or
otherwise operate as a release or discharge of any Contingent Obligor, all of
which may be done without notice to any Contingent Obligor.
SECTION 8.24 Non-Recourse. All obligations of, and claims
against, any Borrower arising under or in connection with this Agreement and the
Transaction Documents and each other agreement, instrument, document or
certificate executed and delivered or issued by such Borrower in connection
herewith or therewith are payable only to the extent that funds are available
therefore pursuant to Section 6 of the Master Collateral and Intercreditor
Agreement and Section 6 of the Security Agreement. No recourse shall be had for
payment of any amount of principal or interest or for payment of any fee or
other obligation or claim arising out of or relating to this Agreement or the
Transaction Documents or any other agreement, instrument, document or
certificate executed and delivered or issued by any Borrower in connection
herewith or therewith against such Borrower except to the extent provided in the
Security Agreement and the Master Collateral and Intercreditor Agreement.
SECTION 8.25 Limited Liability of Lender Collateral Agent. It
is expressly understood and agreed by the parties hereto that (a) this Agreement
is executed and delivered by Deutsche Bank Trust Company Americas, not
individually or personally but solely as Lender Collateral Agent, in the
exercise of the powers and authority conferred and vested in it, (b) the
representations, undertakings and agreements herein made on the part of the
Lender Collateral Agent are made and intended not as personal representations,
undertakings and agreements by Deutsche Bank Trust Company Americas, but are
made and intended for the purpose of binding only the Lender Collateral Agent,
and (c) under no circumstances shall Deutsche Bank Trust Company Americas be
personally liable for the payment of any indebtedness or expenses of the Lender
Collateral Agent or be liable for the breach or failure of any obligation,
representation, warranty or covenant made or undertaken by the Lender Collateral
Agent under this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
AFS FUNDING CORP.
By:
----------------------------
Name:
Title:
AFS SENSUB CORP.
By:
----------------------------
Name:
Title:
AMERICREDIT CORP.
By:
----------------------------
Name:
Title:
AMERICREDIT FINANCIAL SERVICES, INC.
By:
----------------------------
Name:
Title:
DEUTSCHE BANK TRUST COMPANY AMERICAS,
not in its individual capacity but
solely as Administrative Agent
By:
----------------------------
Name:
Title:
By:
----------------------------
Name:
Title:
- 69 -
DEUTSCHE BANK TRUST COMPANY AMERICAS,
not in its individual capacity but
solely as Lender Collateral Agent
By:
----------------------------
Name:
Title:
By:
----------------------------
Name:
Title:
- 70 -
TAHOE LENDER GROUP
DEUTSCHE BANK AG, NEW YORK BRANCH,
as Agent
By:
------------------------------------
Name:
Title:
By:
------------------------------------
Name:
Title:
Address for Notices:
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Structured Finance
Department/Securitization
Facsimile No.: (000) 000-0000
Type of Lender: TAHOE FUNDING CORP.
Conduit Lender
Maximum Conduit By:
Amount: $ ------------------------------------
Name:
Title:
Address for Notices and Investing
Office:
x/x Xxxxxxxx Xxxx XX, Xxx Xxxx Branch
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Structured Finance
Department/Securitization
Facsimile No.: (000) 000-0000
- 71 -
Type of Lender: DEUTSCHE BANK AG, NEW YORK BRANCH,
Committed Lender
Commitment: $ By:
------------------------------------
Name:
Title:
By:
------------------------------------
Name:
Title:
Address for Notices and Investing
Office:
Deutsche Bank AG
New York Branch
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Structured Finance
Department/Securitization
Facsimile No.: (000) 000-0000
- 72 -
SCHEDULE I
APPLICABLE LENDING OFFICES
Name of Base Rate Eurodollar Rate
Lender Lending Office Lending Office
- 73 -
SCHEDULE II
CUMULATIVE NET LOSS RATIO TRIGGERS
SEASONING CUMULATIVE NET
IN MONTHS LOSS RATIO
--------- --------------
1 2.54%
2 2.54%
3 2.54%
4 4.24%
5 4.24%
6 4.24%
7 6.01%
8 6.01%
9 6.01%
10 7.86%
11 7.86%
12 7.86%
13 9.65%
14 9.65%
15 9.65%
16 10.53%
17 10.53%
18 10.53%
19 11.64%
20 11.64%
21 11.64%
22 12.50%
23 12.50%
24 12.50%
25 13.14%
26 13.14%
27 13.14%
28 13.61%
29 13.61%
30 13.61%
31 13.93%
32 13.93%
33 13.93%
34 14.14%
35 14.14%
36 14.14%
37 14.27%
38 14.27%
- 74 -
39 14.27%
40 14.34%
41 14.34%
42 14.34%
43 14.37%
44 14.37%
45 14.37%
46 14.38%
47 14.38%
48 14.38%
- 75 -
SCHEDULE III
APPROVED COUNTERPARTIES
Bank of America
Bank One, NA
Barclays Bank PLC
Credit Suisse First Boston International
Deutsche Bank AG
JPMorgan Chase Bank
Xxxxxxx Xxxxx
Xxxxx Fargo
Xxxxxx Brothers
- 76 -
SCHEDULE IV
CERTAIN INFORMATION REGARDING DESIGNATED SERIES
- 77 -
EXHIBIT A
FORM OF NOTE
$[amount] New York, New York
[date]
On the Facility Maturity Date (as defined in the Credit Agreement
hereinafter referred to) the undersigned, AFS FUNDING CORP, a Nevada
corporation, and AFS SENSUB CORP., a Nevada corporation (collectively, the
"Borrowers"), jointly and severally, FOR VALUE RECEIVED, promise to pay to the
order of [[name of Agent], as Agent (the "Agent")][[name of Lender] (the
"Lender")], the principal sum of [amount in words] United States Dollars (U.S.
$[amount in numbers]) or, if less, the aggregate unpaid principal amount of all
Advances made to the Borrowers by [the Lenders in the Lender Group][the Lender]
pursuant to the Credit Agreement.
The Borrowers also promise to pay interest on the unpaid principal
amount hereof from time to time outstanding from the date hereof until paid in
full, at the rates per annum specified in the Credit Agreement. Said interest
shall be payable to the [Agent][Lender] on such dates and at such places as are
specified in the Credit Agreement.
If any payment on this Note shall be specified to be made upon a day
which is not a Business Day (as defined in the Credit Agreement), it shall be
made on the next succeeding Business Day (or, if earlier, on the Facility
Maturity Date), and such extension of time shall in such case be included in
computing interest, if any, in connection with such payment.
Payments of both principal and interest are to be made in lawful money
of the United States of America and in immediately available funds.
This Note evidences indebtedness incurred under, and is subject to the
terms and provisions of and is entitled to the benefits of that certain Credit
Agreement, dated as of August 15, 2002 (as it may be amended from time to time,
the "Credit Agreement"), among the Borrowers, the Contingent Obligors, certain
financial institutions and commercial paper conduits from time to time parties
thereto, as Lenders, the Agents parties thereto, and Deutsche Bank Trust Company
Americas, as Lender Collateral Agent and Administrative Agent. Reference is
hereby made to the Credit Agreement for a statement of its terms and provisions.
The Credit Agreement, among other things, contains provisions with respect to
the acceleration of the maturity of this Note upon the happening of certain
stated events, and for mandatory and optional prepayments of the principal of
this Note prior to maturity, all upon the terms and conditions specified
therein.
This Note is entitled to the benefits of (i) a Revolver Security and
Collateral Agent Agreement, dated as of August 15, 2002, as it may be amended
from time to time, among the Borrowers, the Administrative Agent, the Lender
Collateral Agent and AmeriCredit Financial Services, Inc. and (ii) a Master
Collateral and Intercreditor Agreement, dated as of August 15,
2002, as it may be amended from time to time, among the Borrowers, AmeriCredit
Financial Services, Inc., the Facility Representatives (as defined therein) from
time to time party thereto, the Master Collateral Agent, the Lender Collateral
Agent and the Administrative Agent,
All parties hereto, whether as makers, endorsers, or otherwise,
severally waive presentment for payment, demand, protest and notice of dishonor.
THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW
OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ITS CONFLICT OF LAW
PROVISIONS (OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL
OBLIGATIONS LAW).
AFS FUNDING CORP.
By:
-------------------------------------
Authorized Signatory
AFS SENSUB CORP.
By:
-------------------------------------
Authorized Signatory
- A-2 -
EXHIBIT B
FORM OF NOTICE OF BORROWING
[date]
To: Deutsche Bank Trust Company Americas,
as Administrative Agent for the Lenders party
to the Credit Agreement referred to below
0000 Xxxx Xx. Xxxxxx Xxxxx
Xxxxx Xxx, Xxxxxxxxxx 00000
Re: Borrowing under the Credit Agreement, dated as of August 15,
2002 (as it may be amended from time to time, the "Credit
Agreement"; terms used herein and not otherwise defined herein
shall have the respective meanings given thereto in the Credit
Agreement), among the Borrowers, the Contingent Obligors,
certain financial institutions and commercial paper conduits
from time to time parties thereto, as Lenders, the Agents
parties thereto, and Deutsche Bank Trust Company Americas, as
Lender Collateral Agent and Administrative Agent
Ladies and Gentlemen:
The undersigned, AFS Funding Corp., a Nevada corporation, and AFS SenSub
Corp., a Nevada corporation (collectively, the "Borrowers"), pursuant to the
Credit Agreement, hereby request a Borrowing from the Lenders under the Credit
Agreement with the particulars described below:
1. This is a Notice of Borrowing delivered pursuant to Section 2.02(a)
of the Credit Agreement.
2. The date on which the Borrowing requested hereby (the "Subject
Borrowing") is to be made is ________________ (the "Borrowing Date"), which is a
Business Day permitted as a Borrowing Date pursuant to Section 2.02 (a) and 2.02
(b) of the Credit Agreement.
3. The aggregate amount of the Subject Borrowing is
$____________________./1/
4. The Advance in respect of the Subject Borrowing shall be a [Base Rate
Advance/Eurodollar Rate Advance].
5. The Interest Period with respect to such Eurodollar Rate Advance is
_________/2/.
----------
/1/ The amount of the Borrowing must be at least $10,000,000.
/2/ Use if any Advance is a Eurodollar Rate Advance.
- B-1 -
The undersigned each hereby certifies that the Interest Reserve Account
Deposit for the [Identify Eligible Security], calculated in accordance with
Section 5.01(x) of the Credit Agreement is $_____________.
The undersigned each hereby further certifies that no Event of Default
or Event of Early Termination (or event which with the lapse of time would
constitute such an Event of Default or Event of Early Termination) has occurred
and is continuing or would result from the Subject Borrowing.
The undersigned each hereby further certifies that each of the
conditions set forth in Section 3.02 of the Credit Agreement to the Lenders'
obligations to make the Subject Borrowing has been satisfied.
Very truly yours,
AFS FUNDING CORP.
By:
---------------------------------
Authorized Signatory
AFS SENSUB CORP.
By:
---------------------------------
Authorized Signatory
- B-2 -
EXHIBIT C
FORM OF NOTICE OF CONVERSION/CONTINUATION
[Date]
To: Deutsche Bank Trust Company Americas,
as Administrative Agent for the Lenders party
to the Credit Agreement referred to below
0000 Xxxx Xx. Xxxxxx Xxxxx
Xxxxx Xxx, Xxxxxxxxxx 00000
Re: Borrowing under the Credit Agreement, dated as of August 15,
2002 (as it may be amended from time to time, the "Credit
Agreement"; terms used herein and not otherwise defined herein
shall have the respective meanings given thereto in the Credit
Agreement), among the Borrowers, the Contingent Obligors,
certain financial institutions and commercial paper conduits
from time to time parties thereto, as Lenders, the Agents
parties thereto, and Deutsche Bank Trust Company Americas, as
Lender Collateral Agent and Administrative Agent
Ladies and Gentlemen:
The undersigned, AFS FUNDING CORP. and AFS SENSUB CORP., refer to the
Credit Agreement, and hereby give you notice, irrevocably, pursuant to Section
2.07(b) of the Credit Agreement that the undersigned hereby elects to [insert
one or more of the following]:
/3/ convert $____________ in aggregate principal amount of Advances
which constitute Base Rate Advances, to Advances which constitute
Eurodollar Rate Advances on ______________ (which is a Business Day).
/4/ convert $____________ in aggregate principal amount of Advances
which constitute Eurodollar Rate Advances with a current Interest Period
ending __________, to Advances which constitute Base Rate Advances on
__________________ (which is a Business Day).
/5/ continue as Advances which constitute Eurodollar Rate Advances
$____________ in aggregate principal amount of Advances which constitute
Eurodollar Rate Advances with a current Interest Period ending
_____________
----------
/3/ Use if converting Base Rate Advances to Eurodollar Rate
Advances.
/4/ Use if converting Eurodollar Rate Advances to Base Rate
Advances.
/5/ Use if continuing Eurodollar Rate Advances as Eurodollar Rate
Advances.
- C-1 -
on ___________ (which is a Business Day).
The undersigned each hereby certifies that each of the conditions set
forth in Sections 2.07(a) and 3.02 of the Credit Agreement to the Lenders'
obligations to convert or continue make the Subject Borrowing has been
satisfied.
The undersigned each hereby further certifies that no Event of Default
or Event of Early Termination (or event which with the lapse of time would
constitute such an Event of Default or Event of Early Termination) has occurred
and is continuing or would result from the proposed Conversion/Continuation.
Very truly yours,
AFS FUNDING CORP.
By:
---------------------------------
Authorized Signatory
AFS SENSUB CORP.
By:
---------------------------------
Authorized Signatory
- C-2 -
EXHIBIT D
FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
Dated _________
Reference is made to the Credit Agreement, dated as of August 15, 2002
(as it may be amended from time to time, the "Credit Agreement"), among the
Borrowers, the Contingent Obligors, certain financial institutions and
commercial paper conduits from time to time parties thereto, as Lenders, the
Agents parties thereto, and Deutsche Bank Trust Company Americas, as Lender
Collateral Agent and Administrative Agent. Capitalized terms used herein and not
otherwise defined shall have the meanings given them in the Credit Agreement.
______________ (the "Assignor") and ______________ (the "Assignee")
agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, and the
Assignee hereby purchases and assumes from the Assignor, that interest in and to
all of the Assignor's rights and obligations under the Credit Agreement as of
the date hereof which represents the percentage of the Assignor's Commitment
Amount/Maximum Conduit Amount or Maximum Advance Amount, as applicable, and of
the Advances owing to the Assignor as specified in Section 1 of Schedule 1.
After giving effect to such sale and assignment, the Assignee's Commitment
Amount or Maximum Advance Amount, as applicable, and the amount of the Advances
owing to the Assignee will be as set forth in Section 2 of Schedule 1.
2. The Assignor (i) represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim; (ii) makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the Credit Agreement
or the execution, legality, validity, enforceability, genuineness, sufficiency
or value of the Credit Agreement or any other instrument or document furnished
pursuant thereto; and (iii) makes no representation or warranty and assumes no
responsibility with respect to (A) the financial condition of the Borrowers or
the performance or observance by the Borrowers of any of their obligations under
the Credit Agreement or any other instrument or document furnished pursuant
thereto or (B) the Revolver Collateral or the Shared Collateral.
3. The Assignee (i) confirms that it has received a copy of the Credit
Agreement, together with copies of such financial statements and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment and Assumption; (ii) agrees
that it will, independently and without reliance upon the Administrative Agent,
the Assignor or any other Lender and based on such documents and information as
it shall deem appropriate at the time, continue to make its own credit decisions
in taking or not taking action under the Credit Agreement; (iii) appoints and
authorizes the Administrative Agent to take such action as agent on its behalf
and to exercise such powers under the Credit Agreement as are delegated to the
Administrative Agent by the terms thereof,
together with such powers as are reasonably incidental thereto; (iv) agrees that
it will perform in accordance with their terms all of the obligations which by
the terms of the Credit Agreement are required to be performed by it as a
Lender; [and] (v) confirms that it is a Permitted Transferee [and (vi) attaches
the forms, certificates or statements required by Section 2.11(c) of the Credit
Agreement]6.
4. Following the execution of this Assignment and Assumption by the
Assignor and the Assignee, it will be delivered to the Administrative Agent for
acceptance and recording by the Administrative Agent. The effective date of this
Assignment and Assumption (the "Transfer Effective Date") shall be the date of
acceptance thereof by the Administrative Agent, unless a later date is specified
in Section 3 of Schedule 1.
5. Upon such acceptance and recording by the Administrative Agent, as of
the Transfer Effective Date, (i) the Assignee shall be a party to the Credit
Agreement and, to the extent provided in this Assignment and Assumption, have
the rights and obligations of a Lender thereunder and (ii) the Assignor shall,
to the extent provided in this Assignment and Assumption, relinquish its rights
and be released from its obligations under the Credit Agreement.
6. Upon such acceptance and recording by the Administrative Agent, from
and after the Transfer Effective Date, the Administrative Agent shall make all
payments under the Credit Agreement in respect of the interest assigned hereby
(including all payments of principal, interest and commitment fee with respect
thereto) to the Assignee. The Assignor and Assignee shall make all appropriate
adjustments in payments under the Credit Agreement for periods prior to the
Transfer Effective Date directly between themselves.
7. THIS ASSIGNMENT AND ASSUMPTION SHALL BE CONSTRUED IN ACCORDANCE WITH
AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ITS
CONFLICT OF LAW PROVISIONS (OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW
YORK GENERAL OBLIGATIONS LAW).
[8. The [Assignor/Assignee] hereby agrees (which agreement shall be
binding upon its successors and assigns) that it shall not institute against, or
join any other Person in instituting against, the [Assignee/Assignor] any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding,
or other proceeding under any federal or state bankruptcy or similar law, for
one year and a day after the latest maturing commercial paper note or other
obligation (whether or not issued to fund or maintain Advances) issued by the
[Assignee/Assignor] is paid. The provisions of this Section 8 shall survive the
termination of the Credit Agreement.]7
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Assumption to be executed by their respective officers thereunto duly
authorized, as of the date first above written, such execution being made on
Schedule 1 hereto.
----------
/6/ To be included if the Assignee was not created or organized
under the laws of the United States or a political subdivision thereof.
/7/ To be included for the benefit of each party to this Assignment
and Assumption which is a Conduit Lender.
- 2 -
SCHEDULE 1
to
Assignment and Assumption Agreement
dated ______________
Section 1.
Section 2.
Section 3.
Transfer Date: _________________, ____
[NAME OF ASSIGNOR]
By:
-------------------------------------
Title:
[NAME OF ASSIGNEE]
By:
-------------------------------------
Title:
Applicable Lending Offices
Eurodollar Advances:
[Address]
Base Rate Advances:
[Address]
- D-1 -
Address for notices
[Address]
Accepted this ____ day of _____________.
DEUTSCHE BANK TRUST COMPANY AMERICAS,
not in its individual capacity but solely
as Administrative Agent
By:
-----------------------------
Title:
Consented to, this ____ day of _____________
AFS FUNDING CORP.
By:
-----------------------------
Title:
AFS SENSUB CORP.
By:
-----------------------------
Title:
- D-2 -
EXHIBIT E
FORM OF CONFIDENTIALITY AGREEMENT
FORM OF CONFIDENTIALITY AGREEMENT
[date]
[Insert Name and
Address of Prospective
Assignee or Participant]
Re: Credit Agreement, dated as of August 15, 2002 (as it may be
amended from time to time, the "Credit Agreement"; terms used
herein and not otherwise defined herein shall have the
respective meanings given thereto in the Credit Agreement),
among the Borrowers, the Contingent Obligors, certain
financial institutions and commercial paper conduits from time
to time parties thereto, as Lenders, the Agents parties
thereto, and Deutsche Bank Trust Company Americas, as Lender
Collateral Agent and Administrative Agent
Dear _________________:
As a Lender party to the above-referenced Credit Agreement, we have
agreed with AFS Funding Corp. ("AFS Funding") and AFS SenSub Corp. ("AFS
SenSub") pursuant to Section 8.18 of the Credit Agreement to use reasonable
precautions to keep confidential, except as otherwise provided herein and
therein, non-public information provided either by AFS Funding or AFS SenSub at
the time the same is delivered to us pursuant to the Credit Agreement.
As provided in said Section 8.18, we are permitted to provide you, as a
prospective assignee or participant, with certain of such non-public information
subject to the execution and delivery by you, prior to receiving such non-public
information, of a confidentiality agreement. Such information will not be made
available to you until your execution and return of this Confidentiality
Agreement.
Accordingly, in consideration of the foregoing, you agree (on behalf of
yourself and each of your affiliates, directors, officers, employees and
representatives) that you will use reasonable precautions to keep confidential,
in accordance with its customary procedures for handling confidential
information of the same nature, such non-public information; provided, however,
that nothing herein shall limit the disclosure of any such information (i) to
the extent required by statute, rule, regulation or judicial process, (ii) on a
confidential basis, to your counsel or to counsel for any of the Lenders, the
Agents, the Lender Collateral Agent or the Administrative Agent, (iii) to bank
examiners, auditors or accountants, and any analogous counterpart thereof
- E-1 -
acting in any such capacity, (iv) to the Administrative Agent, an Agent, the
Lender Collateral Agent or a Lender, (v) in connection with any litigation to
which you, any one or more of the Lenders, the Agents, the Lender Collateral
Agent or the Administrative Agent is a party, (vi) to your affiliates or the
affiliates of the Administrative Agent, an Agent, the Lender Collateral Agent or
a Lender, (vii) if you are proposed to be a Conduit Lender, to your
administrator or other Person providing similar services to you or (viii) to the
extent it becomes publicly available (other than pursuant to a violation of the
provisions of this Confidentiality Agreement).
Please indicate your agreement to the foregoing by signing at the place
provided below the enclosed copy of this Confidentiality Agreement.
Very truly yours,
[Insert Name of Lender]
By:
-------------------------------------
Title:
The foregoing is agreed to as of the date of this letter
[Insert name of prospective
Assignee or Participant]
By:
-----------------------------
Title:
- E-2 -
EXHIBIT F
FORM OF JOINDER SUPPLEMENT
JOINDER SUPPLEMENT (the "Supplement"), dated as of the date set forth in
Item 1 of Schedule I hereto, among AFS Funding Corp. and AFS SenSub Corp. (the
"Borrowers"), the Lender set forth in Item 2 of Schedule I hereto (the "Joining
Lender"), _____________, as Agent, and Deutsche Bank Trust Company Americas, as
Administrative Agent for the Lenders under, and as defined in, the Credit
Agreement described below (in such capacity, the "Administrative Agent").
W I T N E S S E T H:
WHEREAS, this Supplement is being executed and delivered under the
Credit Agreement, dated as of August 15, 2002 (as it may be amended from time to
time, the "Credit Agreement"; terms used herein and not otherwise defined herein
shall have the respective meanings given thereto in the Credit Agreement), among
the Borrowers, the Contingent Obligors, certain financial institutions and
commercial paper conduits from time to time parties thereto, as Lenders, the
Agents parties thereto, and Deutsche Bank Trust Company Americas, as Lender
Collateral Agent, and Administrative Agent; and
WHEREAS, the party set forth in Item 2 of Schedule I hereto wishes to
become a Lender party to the Credit Agreement;
NOW, THEREFORE, the parties hereto hereby agree as follows:
(a) Upon receipt by the Administrative Agent of an executed
counterpart of this Supplement, to which is attached a fully completed Schedule
I and Schedule II, which has been executed by the Joining Lender, the
Administrative Agent, and the Borrowers, the Administrative Agent will transmit
to the Borrowers and the Joining Lender a Joinder Effective Notice,
substantially in the form of Schedule III to this Supplement (a "Joinder
Effective Notice"). Such Joinder Effective Notice shall be executed by the
Administrative Agent and shall set forth, inter alia, the date on which the
joinder effected by this Supplement shall become effective (the "Joinder
Effective Date"). From and after the Joinder Effective Date, the party set forth
in Item 2 of Schedule I hereto shall be a Lender party to the Credit Agreement
for all purposes thereof.
(b) Each of the parties to this Supplement agrees and acknowledges
that at any time and from time to time upon the written request of any other
party, it will execute and deliver such further documents and do such further
acts and things as such other party may reasonably request in order to effect
the purposes of this Supplement.
(c) By executing and delivering this Supplement, the Joining Lender
confirms to and agrees with the Administrative Agent, the Agents and the Lenders
as follows: (i) neither the Lender Collateral Agent nor the Administrative Agent
nor any Agent nor any Lender makes any representation or warranty or assumes any
responsibility with respect to (A) any statements,
- F-1 -
warranties or representations made in or in connection with the Credit Agreement
or the execution, legality, validity, enforceability, genuineness, sufficiency
or value of the Credit Agreement or any other instrument or document furnished
pursuant thereto, or the financial condition of the Borrowers, or the
performance or observance by the Borrowers of any of their respective
obligations under the Credit Agreement or any other instrument or document
furnished pursuant hereto or (B) the Revolver Collateral or the Shared
Collateral; (ii) the Joining Lender confirms that it has received copies of such
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Supplement; (iii) the Joining Lender
will, independently and without reliance upon the Administrative Agent, the
Lender Collateral Agent, any Agent or any other Lender and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under the Credit
Agreement; (iv) the Joining Lender appoints and authorizes each of the
Administrative Agent and the Lender Collateral Agent to take such action as
agent on its behalf and to exercise such powers under the Credit Agreement and
the Transaction Documents as are delegated to the Administrative Agent and the
Lender Collateral Agent respectively, by the terms thereof, together with such
powers as are reasonably incidental thereto, all in accordance with the Credit
Agreement and the Transaction Documents; and (vi) the Joining Lender agrees (for
the benefit of the parties hereto, the Agents, the Lender Collateral Agent and
the Lenders) that it will perform in accordance with their terms all of the
obligations which by the terms of the Credit Agreement are required to be
performed by it as a Lender.
(d) Schedule II hereto sets forth administrative information with
respect to the Joining Lender.
(e) THIS SUPPLEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAW OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ITS
CONFLICT OF LAW PROVISIONS (OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW
YORK GENERAL OBLIGATIONS LAW).
IN WITNESS WHEREOF, the parties hereto have caused this Supplement to be
executed by their respective duly authorized officers on Schedule I hereto as of
the date set forth in Item 1 of Schedule I hereto.
- F-2 -
SCHEDULE I TO
JOINDER SUPPLEMENT
COMPLETION OF INFORMATION AND
SIGNATURES FOR JOINDER SUPPLEMENT
Re: Credit Agreement, dated as of August 15, 2002 (as it may be
amended from time to time, the "Credit Agreement"), among the
Borrowers, the Contingent Obligors, certain financial
institutions and commercial paper conduits from time to time
parties thereto, as Lenders, the Agents parties thereto, and
Deutsche Bank Trust Company Americas, as Lender Collateral
Agent and Administrative Agent
Item 1: Date of Joinder Supplement: _________________________
Item 2: Joining Lender:
Item 3: Signatures of Parties to Agreement:
[NAME OF JOINING LENDERS]
By:
-------------------------------------
Name:
Title:
By:
-------------------------------------
Name:
Title:
By:
-------------------------------------
Name:
Title:
AFS FUNDING CORP.
By:
-------------------------------------
Name:
Title:
- F-3 -
AFS SENSUB CORP.
By:
-------------------------------------
Name:
Title:
DEUTSCHE BANK TRUST COMPANY AMERICAS,
not in its individual capacity, but
solely as Administrative Agent
By:
-------------------------------------
Name:
Title:
- F-4 -
SCHEDULE II TO
JOINDER SUPPLEMENT
LIST OF INVESTING OFFICES, ADDRESS
FOR NOTICES AND WIRE INSTRUCTIONS
Address for Notices:
Investing Office: Same as above
Wire Instructions: To be provided to the Administrative Agent
- 5 -
SCHEDULE III TO
JOINDER SUPPLEMENT
FORM OF
JOINDER EFFECTIVE NOTICE
To: [Name and address of the Borrowers
and Joining Lender]
The undersigned, as Administrative Agent under the Credit Agreement,
dated as of August 15, 2002 (as it may be amended from time to time, the "Credit
Agreement"), among the Borrowers, the Contingent Obligors, certain financial
institutions and commercial paper conduits from time to time parties thereto, as
Lenders, the Agents parties thereto, and Deutsche Bank Trust Company Americas,
as Lender Collateral Agent and Administrative Agent, acknowledges receipt of
five executed counterparts of a completed Joinder Supplement. [Note: attach
copies of Schedules I and II from such Agreement.] Terms defined in such
Supplement are used herein as therein defined.
Pursuant to such Supplement, you are advised that the Joinder Effective
Date for [Name of Joining Lender] will be ____________.
Very truly yours,
DEUTSCHE BANK TRUST COMPANY AMERICAS,
not in its individual capacity but
solely as Administrative Agent
By:
---------------------------
Name:
Title:
- F-6 -
EXHIBIT G
FORM OF INTEREST RATE HEDGE ASSIGNMENT ACKNOWLEDGEMENT
[Date]
[LIBOR Interest Rate Cap Counterparty]
[Address of LIBOR Interest Rate Cap Counterparty]
Attention:___________________
Re: [Name of Agreement], dated as of ___________, 200_ (as
amended, the "Interest Rate Cap Agreement"), between
[Name of Interest Rate Cap Counterparty] (the
"Counterparty") and [AFS Funding Corp./AFS SenSub Corp.]
("Company")
Ladies and Gentlemen:
Company hereby notifies you that Company has assigned to Deutsche Bank
Trust Company Americas, as Lender Collateral Agent (the "Lender Collateral
Agent"), under the Security Agreement identified below, all of its right, title
and interest in and to any interest rate hedge (each, a "Hedge") entered into
pursuant to the Interest Rate Cap Agreement, including, without limitation, (i)
all rights of Company to receive moneys due under or pursuant to the Xxxxxx,
(ii) claims of Company for damages arising out of or for breach of or default
under the Xxxxxx or the Interest Rate Cap Agreement, (iii) the right of Company
to terminate the Xxxxxx or the Interest Rate Cap Agreement, and to otherwise
exercise all remedies thereunder, and (iv) all proceeds of any and all of the
foregoing. The assignment of all right, title and interest of Company in and to
the Xxxxxx and the Interest Rate Cap Agreement shall be referred to as the
"Assigned Rights".
As used herein, "Security Agreement" shall mean that certain Revolver
Security and Collateral Agent Agreement, dated as of August 15, 2002, among the
Company, [AFS Funding Corp/AFS SenSub Corp.], AmeriCredit Financial Services,
Inc., the Lender Collateral Agent and the Administrative Agent. Capitalized
terms used herein and not otherwise defined shall have the meanings given them
in the Security Agreement.
The Counterparty hereby agrees that it shall make all payments under the
Interest Rate Cap Agreement and the Xxxxxx to the Lender Collateral Agent, as
follows: ABA#000000000, Account: LA Asset Backed, Account#00000000, Ref:
AmeriCredit Residual Fundings, Attn: CDO Administration, or as the Lender
Collateral Agent may from time to time direct. The Lender Collateral Agent shall
be entitled to exercise any and all rights and remedies of Company under the
Interest Rate Cap Agreement and the Xxxxxx to receive such payments in
accordance with the terms hereof and thereof.
- G-1 -
All payments to be made under the Interest Rate Cap Agreement and the
Xxxxxx by the Counterparty shall be made by the Counterparty irrespective of,
and without deduction for, any counterclaim, defense, recoupment or set-off
(other than netting for payments owing by Company thereunder in accordance with
the terms of the Interest Rate Cap Agreement and the Xxxxxx) and shall be final,
and the Counterparty will not seek to recover from the Lender Collateral Agent,
Company, any Lender or any other party to the Security Agreement any such
payment once made.
Notwithstanding the foregoing, (a) Company shall remain liable under the
Interest Rate Cap Agreement and each Hedge for any representations and
warranties contained in the Interest Rate Cap Agreement and to perform all of
its duties and obligations thereunder to the same extent as if this
acknowledgment had not been executed, (b) the exercise by the Lender Collateral
Agent of any of the rights hereunder shall not release Company from any of its
duties or obligations under the Interest Rate Cap Agreement or any Hedge, and
(c) none of the Lender Collateral Agent, any Lender or any other party to the
Security Agreement shall have any obligation, responsibility or liability for
any representation or warranty or otherwise under the Interest Rate Cap
Agreement or any Hedge by reason of this acknowledgment, nor shall any of them
be obligated to perform any of the obligations or duties of Company thereunder
or to take any action to collect or enforce any claim for payment thereunder.
Company shall not, without the prior written consent of the Lender
Collateral Agent, (i) sell, assign (by operation of law or otherwise), convey,
transfer, deliver or otherwise dispose of, any of the Assigned Rights, or create
or permit to exist any lien, security interest, option or other charge or
encumbrance upon or with respect to any of the Assigned Rights, except for the
assignment acknowledged hereby; (ii) cancel or terminate the Interest Rate Cap
Agreement or any Hedge or consent to or accept any cancellation or termination
thereof; (iii) amend, supplement or otherwise modify the Interest Rate Cap
Agreement or any Hedge or give any consent, waiver or approval thereunder; (iv)
waive any default under or breach of the Interest Rate Cap Agreement or any
Hedge; or (v) take any other action in connection with the Interest Rate Cap
Agreement or any Hedge which would impair the value of the interest or rights of
Company thereunder or which would impair the interests or rights of the Lender
Collateral Agent, any Lender or any other party under the Security Agreement.
No amendment or waiver of any provision hereof, and no consent provided
hereto shall in any event be effective unless the same shall be in writing and
signed by the Lender Collateral Agent, Company and the Counterparty, and then
such waiver or consent shall be effective only in the specific instance and for
the specific purpose for which given.
This letter agreement may be executed in counterparts, each of which
when executed by the parties hereto shall be deemed an original and all of which
together shall be deemed the same instrument.
This letter agreement shall be binding upon Company and the Counterparty
and their respective successors and assigns, and shall inure, together with the
rights and remedies of the
- G-2 -
Lender Collateral Agent hereunder, to the benefit of the holders of securities
issued by Company, and their respective successors, transferees and assigns.
THIS LETTER AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE
LAW OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ITS CONFLICT OF LAW
PROVISIONS (OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL
OBLIGATIONS LAW).
Very truly yours,
[NAME OF BORROWER]
By:
-------------------------------------
Name:
Title:
Acknowledged and Agreed:
[NAME OF HEDGE
COUNTERPARTY]
By
--------------------------------
Name:
Title:
Acknowledged:
DEUTSCHE BANK TRUST
COMPANY AMERICAS, not in its
individual capacity but solely as
Lender Collateral Agent
By
--------------------------------
Name:
Title:
- G-3 -
EXHIBIT H
FORM OF INTEREST RATE CAP
[to be provided by AmeriCredit]
EXHIBIT I
FORM OF AGREED UPON PROCEDURES LETTER
[to be provided by AmeriCredit]
EXHIBIT J
FORM OF REVOLVER SERVICER'S CERTIFICATE
[draft distributed by DBNY]
EXHIBIT K
FORM OF REVOLVER BORROWING BASE CERTIFICATE
[draft distributed by DBNY]
EXHIBIT L-1
FORM OF GUARANTY
[draft distributed by Xxxxx]
EXHIBIT L-2
FORM OF LIMITED GUARANTY
[draft distributed by Xxxxx]
EXHIBIT M
FORM OF COLLATERAL SUMMARY REPORT
EXHIBIT N
FORM OF MONTHLY COMPLIANCE CERTIFICATE
APPENDIX A
CERTAIN DEFINITIONS
Capitalized terms used in this Agreement shall have the
following meanings:
"ACC": The meaning specified in the Preamble.
"ACFS": The meaning specified in the Preamble.
"Accountants' Letter": The meaning specified in Section 5.01(a).
"Adjusted Available Commitment Amount": On any date with respect
to a Committed Lender and its related Conduit Lender, such Committed Lender's
Commitment Amount with respect to such Conduit Lender, minus the aggregate
outstanding principal amount of such Committed Lender's Advances with respect to
such Conduit Lender, minus the aggregate outstanding principal amount of such
Committed Lender's Support Advances to such Conduit Lender.
"Adjusted EBITDA": With respect to any Person, for any period,
the earnings of such Person and its subsidiaries, determined on a consolidated
basis in accordance with GAAP, for such period before interest, taxes,
depreciation and amortization, plus cash distributions from securitization
trusts supported by Receivables originated by such Person or its Affiliates
received by such Person and its subsidiaries during such period minus any
non-cash gains on the sale of Receivables by such Person and its subsidiaries
during such period.
"Adjusted Equity": With respect to any Person, at any time, the
Tangible Net Worth of such Person at such time, minus the Tax Adjusted
Interest-Only Receivables of such Person at such time.
"Adjusted Eurodollar Rate" shall mean, for any Interest Period,
a rate per annum (rounded upwards, if necessary, to the nearest 1/100th of 1%)
equivalent to the rate determined pursuant to the following formula:
Adjusted Eurodollar Rate = LIBOR
-----------------------------
1-LIBOR Reserve Percentage
on the first day of such Interest Period.
"Advance": An advance by a Lender to the Borrowers as part of a
Borrowing made on or prior to the Commitment Expiration Date consisting of
either all Base Rate Advances or all Eurodollar Rate Advances from each of the
Lenders, in each case pursuant to Section 2.02, and subject to Conversion or
Continuation pursuant to Section 2.07.
- 1 -
"Affected Party": With respect to any Conduit Lender, any
Support Party of such Conduit Lender or the related Agent.
"Affiliate": With respect to any Person, any Person directly or
indirectly controlling, controlled by, or under common control with, such former
Person. As used in this definition of "Affiliate," the term "control" means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of a Person, whether through ownership
of voting securities, by contract or otherwise.
"AFS Funding": The meaning specified in the preamble to this
Agreement.
"AFS Funding Trust": AFS Funding Trust, a Delaware business
trust.
"AFSFT Class A Certificate": The meaning specified in the Master
Collateral and Intercreditor Agreement.
"AFSFT Class A Certificate Collateral": The meaning specified in
the Master Collateral and Intercreditor Agreement.
"AFSFT Trust Agreement" means the Second Amended and Restated
Trust Agreement, dated as of August 15, 2002, between AFS Funding and Deutsche
Bank Trust Company Delaware as successor in interest to Bankers Trust
(Delaware), as Owner Trustee, as amended, supplemented or otherwise modified
from time to time.
"Agent" has the meaning specified in the preamble to this
Agreement.
"Agreement": This Credit Agreement, as it may be amended,
modified, restated or supplemented from time to time.
"Alternate Base Rate": For any day, the higher of (i) the base
commercial lending rate per annum announced from time to time by DBNY in New
York in effect on such day, or (ii) the interest rate per annum quoted by DBNY
at approximately 11:00 a.m., New York City time, on such day, to dealers in the
New York Federal funds market for the overnight offering of Dollars by DBNY plus
one-half of one percent (0.50%). (The Alternate Base Rate is not intended to
represent the lowest rate charged by DBNY for extensions of credit.)
"Applicable Lending Office": With respect to each Lender, the
office of such Lender specified as its lending office for the relevant Type of
Advances opposite its name on Schedule I hereto or in the Assignment and
Assumption or Joinder Supplement pursuant to which it became a Lender, or such
other office of such Lender as such Lender may from time to time specify to the
applicable Agent, the Borrowers and the Administrative Agent.
"Asset Backed Security" means an asset backed note (with a fixed
or floating interest rate) issued by a securitization trust and supported by
Receivables originated by (and not acquired through bulk purchases from another
originator), denominated in Dollars, and serviced
- 2 -
by, ACFS or one of its Affiliates relating to the retail sale or refinancing of
a Financed Vehicle. An Asset Backed Security shall not include an asset backed
security supported by or secured by other asset backed securities.
"Asset Backed Security Distributions": With respect to any Asset
Backed Security owned by either Borrower, all amounts which are distributed,
from time to time, with respect to such Asset Backed Security (including
pursuant to any guaranty, including, without limitation, any guaranty delivered
pursuant to clause (p) of the definition of "Eligible Security" or credit
enhancement thereof).
"Assignee": The meaning specified in Section 8.06(b).
"Assignment": The meaning specified in Section 8.06(b).
"Assignment and Assumption": The meaning specified in Section
8.06(b).
"Authorized Officer": (i) With respect to any non-natural Person
other than the Lender Collateral Agent or the Master Collateral Agent, any
Officer of such Person who is authorized to act for such Person with respect to
the relevant matter in question and (ii) with respect to the Lender Collateral
Agent or the Master Collateral Agent, any managing director, principal, vice
president, assistant vice president, assistant secretary, assistant treasurer,
associate or any other officer of the Lender Collateral Agent or the Master
Collateral Agent, as the case may be, customarily performing functions similar
to those performed by any of the above designated officers and also, with
respect to a particular corporate trust matter, any other officer to whom such
matter is referred because of his knowledge of and familiarity with the
particular subject.
"Bankruptcy Code": Title 11 of the United States Code (11 U.S.C.
Section 101, et seq.), as amended from time to time, or any successor statute.
"Base Rate Advance": An advance which bears interest at a rate
per annum determined on the basis of the Alternate Base Rate, as provided in
Section 2.05(a).
"Bond Coupon Rate": With respect to any Eligible Security and
any month, the rate determined on the date such Eligible Security is included in
the Revolver Borrowing Base.
"Borrowing": A borrowing consisting of simultaneous Advances
made by Lenders pursuant to the same Notice of Borrowing as described in Section
2.02, subject to Conversion or Continuation pursuant to Section 2.07.
"Borrowing Base": On any day, the lesser of (a) the Revolver
Borrowing Base and (b) the Senior Borrowing Base minus the sum of the Total
Interest Rate Risk Component and the Senior Facility Non-Revolver Aggregate
Amount.
"Borrowing Base Deficiency": A Revolver Borrowing Base
Deficiency, a Senior Borrowing Base Deficiency or a Senior Borrowing Base
Interim Deficiency.
- 3 -
"Borrowings": Collectively, each Borrowing.
"Borrowing Date": The meaning specified in Section 2.02(a).
"Business Day": Any day other than (i) a Saturday or Sunday,
(ii) any other day on which banks are authorized or required to close in the
States of New York, [North Carolina,] Texas or California and (iii) if such term
is used in connection with the Adjusted Eurodollar Rate, a day on which dealings
are not carried out in the London interbank market.
"Cash Equivalents": Mean book-entry securities, negotiable
instruments or securities represented by instruments in bearer or registered
from which evidence:
(a) direct obligations of, and obligations fully guaranteed
as to timely payment by, the United States of America;
(b) demand deposits, time deposits or certificates of
deposit of any depository institution or trust company incorporated
under the laws of the United States of America or any state thereof or
the District of Columbia (or any domestic branch of a foreign bank) and
subject to supervision and examination by federal or state banking or
depository institution authorities (including depository receipts issued
by any such institution or trust company as custodian with respect to
any obligation referred to in clause (a) above or portion of such
obligation for the benefit of the holders of such depository receipts);
provided, however, that at the time of the investment or contractual
commitment to invest therein (which shall be deemed to be made again
each time funds are reinvested following each Distribution Date), the
commercial paper or other short-term senior unsecured debt obligations
(other than such obligations the rating of which is based on the credit
of a Person other than such depository institution or trust company) of
such depository institution or trust company shall have a credit rating
from Standard & Poor's of A-1 and from Moody's of Prime-1;
(c) commercial paper and demand notes investing solely in
commercial paper having, at the time of the investment or contractual
commitment to invest therein, a rating from Standard & Poor's of A-1+
and from Moody's of Prime-1;
(d) investments in money market funds (including funds for
which the Lender Collateral Agent or the Master Collateral Agent in each
of their individual capacities or any of their respective Affiliates is
investment manager, controlling party or advisor) having a rating from
Standard & Poor's of AAA-m or AAAm-G and from Moody's of Aaa;
(e) bankers' acceptances issued by any depository
institution or trust company referred to in clause (b) above;
(f) repurchase obligations with respect to any security that
is a direct obligation of, or fully guaranteed by, the United States of
America or any agency or
- 4 -
instrumentality thereof the obligations of which are backed by the full
faith and credit of the United States of America, in either case entered
into with a depository institution or trust company (acting as
principal) referred to in clause (b) above;
(g) any other investment which would satisfy the Rating
Agency Condition and is consistent with the ratings of the Securities,
or any other investment that by its terms converts to cash within a
finite period, if the Rating Agency Condition is satisfied with respect
thereto; and
(h) cash denominated in United States dollars.
"Change of Control" means a change resulting when any Unrelated
Person or any Unrelated Persons, acting together, that would constitute a Group
together with any Affiliates or Related Persons thereof (in each case also
constituting Unrelated Persons) shall at any time either (i) Beneficially Own
more than 30% of the aggregate voting power of all classes of Voting Stock of
ACC or (ii) succeed in having sufficient of its or their nominees elected to the
Board of Directors of ACC such that such nominees when added to any existing
director remaining on the Board of Directors of ACC after such election who is
an Affiliate or Related Person of such Person or Group, shall constitute a
majority of the Board of Directors of ACC. As used herein, (a) "Beneficially
Own" shall mean "beneficially own" as defined in Rule 13d-3 of the Exchange Act,
or any successor provision thereto; provided, however, that, for purposes of
this definition, a Person shall not be deemed to Beneficially Own securities
tendered pursuant to a tender or exchange offer made by or on behalf of such
Person or any of such Person's Affiliates until such tendered securities are
accepted for purchase or exchange; (b) "Group" shall mean a "group" for purposes
of Section 13(d) of the Exchange Act; (c) "Unrelated Person" shall mean at any
time any Person other than ACC or any of its Subsidiaries, any of the
shareholders of ACC on the Effective Date and other than any trust for any
employee benefit plan of ACC or any of its Subsidiaries; (d) "Related Person" of
any Person shall mean any other Person owning (1) 5% or more of the outstanding
common stock of such Person or (2) 5% or more of the Voting Stock of such
Person; and (e) "Voting Stock" of any Person shall mean the capital stock or
other indicia of equity rights of such Person which at the time has the power to
vote for the election of one or more members of the Board of Directors (or other
governing body) of such Person.
"Code": The Internal Revenue Code of 1986, as amended.
"Collection Period" means, with respect to the first
Distribution Date, the period beginning on the close of business on August 1,
2002 and ending on the close of business on August 31, 2002. With respect to
each subsequent Distribution Date, "Collection Period" means the period
beginning on the close of business on the last day of the immediately preceding
Collection Period and ending on the close of business on the last day of the
immediately preceding calendar month. Any amount stated "as of the close of
business of the last day of a Collection Period" shall give effect to the
following calculations as determined as of the end of the day on such last day:
(i) all applications of collections and (ii) all distributions.
- 5 -
"Commitment": In respect of a Lender as to which an amount of a
"Commitment" and the identity of one or more related Conduit Lenders are set
forth beside such Lender's name on the signature pages of this Agreement or on
the signature page of the Assignment and Assumption or Joinder Supplement
pursuant to which such Lender became a Lender hereunder, such Lender's
undertaking during the Commitment Period to make Advances in respect of
Borrowings in lieu of such Conduit Lenders in accordance with Section 2.02(g),
subject to the terms and conditions hereof, in the aggregate outstanding
principal amount not exceeding the Commitment Amount of such Lender.
"Commitment Amount": As of any date with respect to a Committed
Lender, the principal amount set forth beside such Lender's name under the
heading "Commitment Amount", on the signature pages of this Agreement or on the
signature page of the Assignment and Assumption or Joinder Supplement pursuant
to which such Committed Lender became a Committed Lender hereunder, as such
Commitment Amount may be adjusted from time to time in accordance with the
provisions of Section 2.03 or 8.06.
"Commitment Expiration Date": With respect to a Committed
Lender, August 14, 2003, as such date may be extended by such Committed Lender
from time to time pursuant to Section 2.09.
"Commitment Fee": The meaning specified in the Supplemental Fee
Letter to which the Administrative Agent is a party.
"Commitment Period": The period commencing on the Effective Date
and ending on the Commitment Period Termination Date.
"Commitment Period Termination Date": the earliest of (a) the
Commitment Expiration Date, (b) the date the Commitments are terminated, or
deemed terminated, pursuant to Section 2.03, 6.02 or 6A.02 hereof and (c) the
Stated Maturity Date.
"Committed Lender": A Lender having a Commitment with respect to
one or more Conduit Lenders.
"Conduit Lender": Any Lender whose principal business consists
of issuing commercial paper, medium term notes or other securities to fund its
acquisition and maintenance of receivables, accounts, instruments, chattel
paper, general intangibles and other similar assets or interests therein and
which is designated on the signature page hereto or in the Assignment and
Assumption or Joinder Supplement by which it became a party hereto as a Conduit
Lender.
"Contingent Obligors": The meaning specified in the Preamble.
"Continue," "Continuation" and "Continued": each refers to a
continuation of Advances for additional Interest Periods pursuant to Section
2.07.
- 6 -
"Convert," "Conversion" and "Converted" each refers to a
conversion of Advances of one Type into Advances of another Type pursuant to
Section 2.07.
"Cumulative Net Losses": As of any date, for any Receivables
Pool, the aggregate cumulative amount of gross charge-offs of receivables in
such Receivables Pool as of the end of the preceding Collection Period net of
all Recoveries with respect to any such receivables as of the end of the
preceding Collection Period.
"Cumulative Net Loss Ratio": As of any date, for any Receivables
Pool, the ratio, expressed as a percentage, computed by dividing:
(a) the sum (without duplication) of (i) Cumulative Net
Losses for such Receivables Pool as of the end of the preceding
Collection Period and (ii) the product of (x) 0.50 and (y) the
aggregate principal balance of all receivables in such
Receivables Pool which are more than ninety (90) days past due
as of the end of the preceding Collection Period;
by
(b) the aggregate initial principal balance for the related
Receivables Pool.
"DBNY": Deutsche Bank AG, New York Branch, and its successors.
"Debt": At any date with respect to any Person, without
duplication: (i) all obligations of such Person for borrowed money; (ii) all
obligations of such Person evidenced by bonds, debentures, notes or other
similar instruments; (iii) all obligations of such Person to pay the deferred
purchase price of property or services, except trade accounts payable arising in
the ordinary course of business; (iv) all obligations of such Person as lessee
under capital leases; (v) all non-contingent obligations of such Person to
reimburse or prepay any bank or other Person in respect of amounts paid under a
letter of credit, banker's acceptance or similar instrument; (vi) all Debt of
others secured by a Lien on any asset of such Person, whether or not such Debt
is assumed by such Person; and (vii) all Debt of others Guaranteed by such
Person.
"Debtor Relief Laws": The Bankruptcy Code and all other
applicable liquidation, conservatorship, bankruptcy, moratorium, rearrangement,
receivership, insolvency, reorganization, suspension of payments, readjustment
of debt, marshaling of assets or similar debtor relief laws of the United
States, any state or any foreign country from time to time in effect, affecting
the rights of creditors generally.
"Default": Any Event of Default or any occurrence that is, or
with notice or the lapse of time or both would become, an Event of Default.
"Defaulted Receivable": With respect to any date, a Receivable
with respect to which (i) all or any portion in excess of 5% of a Scheduled
Receivable Payment is more than 90 days past due, (ii) the related servicer has
repossessed the related Financed Vehicle (and any
- 7 -
applicable redemption period has expired), (iii) the Obligor has been identified
in the records of the related servicer as being the subject of a current
bankruptcy proceeding or (iv) such Receivable is in default and the related
servicer has charged-off such Receivable in accordance with its standard
policies or otherwise has determined in good faith that payments thereunder are
not likely to be resumed.
"Designated Series": a Series of which an Eligible Security is a
part or a Designated Term Series (as defined in the Master Collateral and
Intercreditor Agreement).
"Determination Date" means, with respect to any Distribution
Date, the third Business Day preceding such Distribution Date.
"Dissenting Purchaser" has the meaning specified in Section
2.09(b) of this Agreement.
"Distribution Date": The 11th day of each calendar month, or, if
such day is not a Business Day, the immediately following Business Day.
"Dollar" or "$": A dollar or other equivalent unit in such coin
or currency of the United States as at the time shall be legal tender for all
debts, public and private.
"Effective Date": The date on which the conditions specified in
Section 3.01 shall have been satisfied.
"Eligible Security" means, on any day of determination, an Asset
Backed Security (a) which is owned by any Borrower on such day and which was
initially issued not earlier than 30 days prior to its acquisition by such
Borrower, (b) which is rated "BB" or better on such day by S & P and "Ba2" or
better on such day Moody's, (c) the original certificate for which is in the
possession of the Lender Collateral Agent and is registered in the name of the
Lender Collateral Agent or accompanied by an instrument of transfer satisfactory
to the Lender Collateral Agent executed in blank, or, if uncertificated, all
action required by Section 5.01(x) has been completed to the satisfaction of the
Lender Collateral Agent, (d) which, at the date of acquisition by such Borrower,
is not in default with respect to any scheduled payment and the Series of which
it is a part is not in a "rapid", "early" or similar amortization period
triggered by a "payout", "amortization" or similar event or an "event of
default", "default" or "servicer default", (e) with respect to which the
information set forth in Notice of Borrowing most recently delivered to the
Agents and the Administrative Agent was true and correct in all material
respects, (f) which is fully paid and non-assessable and with respect to which
no provision has been waived (except to the extent permitted by this Agreement),
(g) which has not been sold, transferred, assigned or pledged by such Borrower
to any Person other than hereunder, (h) which is not subject to any Adverse
Claim or any right of rescission, setoff, counterclaim or defense and no such
claim or right has been asserted or, to the knowledge of such Borrower or ACFS,
threatened with respect thereto, (i) which is not "margin stock" within the
meaning of Regulation U of the Board of Governors of the Federal Reserve System,
(j) which is freely transferable by the registered holder thereof, (k) which has
an expected final maturity at its date of issuance of no more than, if
- 8 -
not rated at least BBB or its equivalent by both S & P and Moody's, 22 months
or, if rated at least BBB or its equivalent by both S & P and Moody's, 48
months, (l) which has a maximum average life at its date of issuance of no more
than, if not rated at least BBB or its equivalent by both S & P and Moody's, 12
months or, if rated at least BBB or its equivalent by both S & P and Moody's, 46
months, (m) the interest rate on which was set at a Market Rate on the date of
issuance, (n) with respect to which (x) the priority of payments set forth in
the related Series Transaction Documents is the same as the priority of payments
set forth in the Series Transaction Documents related to Series 2000-1, 2001-1
and 2002-1 with respect to amounts paid at a level senior to or pari passu with
the payment of interest on notes with the same rating from S & P and Moody's as
such Asset Backed Security or (y) the payment of interest thereon is implicitly
rated at least BBB- by S & P, as confirmed by S & P to the Administrative Agent,
(o) if the payment of the principal of such Asset Backed Security is
subordinated to the payment of amounts owing to any provider of a surety bond
enhancing the related Series or other provider of credit enhancement, the
related Series Transaction Documents will (i) provide a payment priority which
will allow the holder of such Asset Backed Note to receive current interest on
and after the occurrence of any surety step-up pricing, trigger event, event of
default, amortization event or any like occurrence, (ii) will provide for a
security interest in the underlying Receivables and related collateral for the
benefit of, among others, the holder of such Asset Backed Note, (iii) will not
permit such Receivables and related collateral to provide security for any other
Series or any other obligation, (iv) upon any liquidation of such Receivables
and related collateral, will provide that all securityholders receive full
payment of principal and interest unless the consent is received from each
securityholder which will not receive such full payment and (v) which either (1)
are acceptable in all other respects to the Supermajority Lenders, in their sole
discretion, or (2) contain the elements set forth in clauses (i) through (iv)
and are otherwise substantially similar to Series Transaction Documents
previously approved pursuant to clause (1), (p) with respect to which (1) ACC
shall have issued a guaranty substantially in the form of Exhibit L-1 attached
hereto which guarantees certain payments with respect to such Asset Backed
Security and (2) ACC and ACFS shall have issued a guaranty substantially in the
form of Exhibit L-2 attached hereto which guarantees the timely payment of
monthly interest on such Asset Backed Security and guarantees the payment of
principal of such Asset Backed Security according to a schedule sufficient to
cause the outstanding amount of such Asset Backed Security at any time to be
less than or equal to the product of the Maximum Advance Percentage at such time
with respect to such Asset Backed Security and the original face amount of such
Asset Backed Security, provided that the provisions of this clause (p) shall not
apply to any Asset Backed Security which is rated "BBB" or better by S & P and
"Baa2" or better by Moody's, and (q) with respect to which no underwriting or
placement fee or commission shall have been paid or be payable with respect to
such Asset Backed Security to any affiliate of any Lender.
"ERISA": The U.S. Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"ERISA Affiliate": Any Person who for purposes of Title IV of
ERISA is a member of any Borrower's controlled group, or under common control
with any Borrower,
- 9 -
within the meaning of Section 414 of the IRC, and the regulations promulgated
and rulings issued thereunder.
"Eurodollar Rate Advance": An Advance which bears interest at a
rate per annum determined on the basis of the Adjusted Eurodollar Rate, as
provided in Section 2.05(a).
"Event of Early Termination": The meaning specified in Section
6A.01.
"Event of Default": The meaning specified in Section 6.01.
"Excluded Taxes": The meaning specified in Section 2.11(a).
"Facility Maturity Date": The earliest of (a) the Stated
Maturity Date, (b) the date of the acceleration of the Advances pursuant to
Section 6.02(a), and (c) the occurrence of an Insolvency Event with respect to
any Borrower.
"Federal Funds Rate": For any day, a fluctuating interest rate
per annum equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers, as published for such day (or, if such day is not a Business Day,
for the next preceding Business Day) by the Federal Reserve Bank of New York,
or, if such rate is not so published for any day which is a Business Day, the
average of the quotations for such day for such transactions received by DBNY
from three Federal funds brokers of recognized standing selected by it.
"Fees": The Commitment Fees and the Usage Fees.
"Financed Vehicle": Any automobile, light duty truck, van,
minivan or sport utility vehicle, together with all accessories, additions and
parts constituting a part thereof and all accessions thereto.
"FSA": Financial Security Assurance Inc., a New York stock
insurance company.
"FSA Portfolio": At any particular time, the receivables in all
Series with respect to which FSA has issued an insurance policy.
"FSA Series": The meaning specified in the Master Collateral and
Intercreditor Agreement.
"FSA Spread Account": shall mean a "spread account" subject to
the Spread Account Agreement.
"GAAP": At any particular time with respect to the Borrowers,
U.S. generally accepted accounting principles as in effect at such time,
consistently applied.
- 10 -
"Governmental Authority" shall mean any nation or government,
any state or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Grant": To grant, bargain, sell, warrant, alienate, premise,
release, convey, assign, transfer, mortgage, pledge, create and grant a security
interest in and right of setoff against, deposit, set over and confirm.
"Guarantee": By any Person, any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Debt or other
obligation of any other Person and, without limiting the generality of the
foregoing, any obligation, direct or indirect, contingent or otherwise, of such
Person (i) to purchase or pay (or advance or supply funds, for the purchase or
payment of) such Debt or other obligation (whether arising by virtue of
partnership arrangements, by agreement to keep-well, to purchase assets, goods,
securities or services, to take-or-pay, or to maintain financial statement
conditions or otherwise) or (ii) entered into for the purpose of assuring in any
other manner the obligee of such Debt or other obligation of the payment thereof
or to protect such obligee against loss in respect thereof (in whole or in
part); provided, that the term "Guarantee" shall not include endorsements for
collection or deposit in the ordinary course of business. The term "Guarantee"
used as a verb has a corresponding meaning.
"Guaranteed Obligation": The meaning specified in Section 2A.01.
"Independent": When used with respect to any specified Person
other than an accountant, such a Person who (i) is in fact independent, (ii)
does not have any direct financial interest or any material indirect financial
interest in any Borrower or in any Affiliate of the Borrowers, and (iii) is not
connected with any Borrower or any Affiliate of the Borrowers as an officer,
employee, promoter, underwriter, trustee, partner, director or Person performing
similar functions. "Independent" when used with respect to any accountant means
an accountant, who may be the accountant who audits the books of the Borrowers,
who is independent with respect to the Borrowers within the meaning of the Code
of Professional Ethics of the American Institute of Certified Public
Accountants. Whenever it is herein provided that any Independent Person's
opinion or certificate shall be furnished to the Administrative Agent or the
Lenders, such opinion or certificate shall state that the signer has read this
definition and that the signer is Independent within the meaning hereof.
"Insolvency Event": With respect to a Person, such Person shall
fail generally to, or admit in writing its inability to, pay its debts as they
become due; or a proceeding shall have been instituted in a court having
jurisdiction in the premises seeking a decree or order for relief in respect of
such Person in an involuntary case under any Debtor Relief Law, or for the
appointment of a receiver, liquidator, assignee, trustee, custodian,
sequestrator, conservator or other similar official of such Person or for any
substantial part of its property, or for the winding-up or liquidation of its
affairs and, if instituted against such Person, any such proceeding shall
continue undismissed or unstayed and in effect for a period of 60 consecutive
days or any
- 11 -
of the actions sought in such proceeding shall occur; or the commencement by
such Person of a voluntary case under any Debtor Relief Law, or such Person's
consent to the entry of any order for relief in an involuntary case under any
Debtor Relief Law, or consent to the appointment of or taking possession by a
receiver, liquidator, assignee, trustee, custodian, sequestrator, conservator or
other similar official of such Person or for any substantial part of its
property, or any general assignment for the benefit of creditors; or such Person
shall have taken any corporate, partnership or similar action in furtherance of
any of the foregoing actions.
"Interest Expense": With respect to any Person, for any period,
the amount of interest expense, both expensed and capitalized, of such Person
and its subsidiaries, determined on a consolidated basis in accordance with
GAAP, for such period.
"Interest Income": With respect to any Eligible Security and any
month, the sum of (a) Monthly Bond Income for such Eligible Security and such
month and (b) Monthly Cap Income for such Eligible Security and such month.
"Interest Payment Date": (i) With respect to any Advance, each
Distribution Date, commencing the first of such days to occur after such Advance
is made, and (ii) as to all Advances, the Facility Maturity Date.
"Interest Period": (i) For each Base Rate Advance, initially the
period commencing on the date on which such Advance is made, Continued or
Converted from an Advance of a different Type, and ending on the day preceding
the next following Interest Payment Date, and thereafter the period commencing
on each Interest Payment Date and ending on the day preceding the next following
Interest Payment Date or, if earlier, the date on which such Advance is repaid
or Converted into another Type of Advance, and, (ii) for each Eurodollar Rate
Advance, initially the period commencing on the date on which such Advance is
made, Continued or Converted from an Advance of a different Type, and ending on
the day preceding the Interest Payment Date occurring one, two, three or six
months thereafter as selected by the Borrowers in its Borrowing Notice or Notice
of Conversion/Continuation, as the case may be, and thereafter the period
commencing on each Interest Payment Date and ending on the day preceding the
Interest Payment Date occurring one, two, three or six months thereafter as
selected by the Borrowers in its Notice of Conversion/Continuation; provided,
however, that (A) whenever the last day of any Interest Period would otherwise
occur on a day other than a Business Day, the last day of such Interest Period
shall be extended to occur on the next succeeding Business Day, unless, in the
case of a Eurodollar Advance, such next Business Day would fall in the next
calendar month, in which case such Interest Period shall end on the next
preceding Business Day, (B) in the case of any Interest Period for any Advance
which commences before the Facility Maturity Date and would otherwise end on a
date occurring after the Facility Maturity Date, such Interest Period shall end
on the Facility Maturity Date, (C) any Interest Period pertaining to a
Eurodollar Advance that commences on the last day of a calendar month (or a day
for which there is no numerically corresponding day in the last calendar month
of such Interest Period) shall end on the last Business Day of such last
calendar month of such
- 12 -
Interest Period, and (D) the duration of any Interest Period commencing on or
after the Facility Maturity Date shall be selected by the Administrative Agent.
"Interest Rate Cap": The meaning specified in Section 5.01(n).
"Interest Rate Expense": With respect to any Borrowing and any
month, the product of (a) the Stress Case Principal Amount of the Eligible
Security financed by such Borrowing during such month, (b) the sum of (i) the
Stress Case LIBOR for such month and (ii) 2.25% and (iii) the Usage Fee Rate as
of the date of determination and (c) 1/12.
"Interest Rate Hedge Assignment Acknowledgment": An
acknowledgment in substantially the form of Exhibit G hereto executed by a
counterparty to an interest rate cap agreement in favor of the Lender Collateral
Agent.
"Interest Rate Risk Component": With respect to a Borrowing, the
sum, calculated on or prior to the date of such Borrowing, for each month until
the Stress Case Principal Amount of the Eligible Security financed by such
Borrowing equals zero, of the positive difference, if any, between (a) the
Interest Rate Expense of such Borrowing for such month and (b) the Interest
Income for such Eligible Security for such month.
"Interest Reserve Deposit Amount": The meaning specified in
Section 5.01(x).
"Interest Reserve Requirement": The meaning specified in Section
5.01(x).
"Investment Company Act": The United States Investment Company
Act of 1940, as amended.
"IRS": The U.S. Internal Revenue Service and any successor
agency.
"Joinder Supplement": An agreement among one or more Lenders,
the Borrowers, an Agent and the Administrative Agent in the form of Exhibit F
hereto (appropriately completed).
"Lender" means each Person which is designated as a Lender
(whether a Conduit Lender or Committed Lender) on the signature pages hereto or
in the Assignment and Assumption or Joinder Supplement pursuant to which it
became a party to this Agreement.
"Lender Collateral Agent": The meaning specified in the
Preamble.
"Lender Group" shall mean each group of Lenders consisting of
(i) a Conduit Lender, and (ii) the Committed Lenders with respect to such
Conduit Lender.
"Lending Percentage": On any date the following:
(i) with respect to a Conduit Lender, such Conduit Lender's Maximum
Conduit Amount as a percentage of the Total Commitment Amount; and
- 13 -
(ii) with respect to a Committed Lender, such Committed Lender's
Commitment Amount as a percentage of the Total Commitment Amount.
"Lending Termination Date" shall mean, for each Lender, the
earliest to occur of (i) the Commitment Expiration Date for such Lender or, with
respect to a Lender which is a Conduit Lender, the first date on which
Commitment Expiration Dates for all its Committed Lenders have occurred, (ii)
the date of any termination of the Commitments, in whole, by the Borrowers
pursuant to Section 2.03 and (iii) the effective date on which the Commitments
are terminated or deemed terminated pursuant to Section 6.02 or 6A.02.
"LIBOR" shall mean, with respect to any Interest Period, the
rate per annum shown on Telerate Page 3750 as the composite offered rate for
London interbank deposits for a period equal to such Interest Period, as shown
under the heading "USD" as of 11:00 a.m., London time, two Business Days prior
to the first day of such Interest Period; provided that in the event no such
rate is shown, LIBOR shall be the rate per annum based on the rates at which
Dollar deposits for a period equal to such Interest Period are displayed on page
"LIBOR" of the Reuters Monitor Money Rates Service or such other page as may
replace the LIBOR page on that service for the purpose of displaying London
interbank offered rates of major banks as of 11:00 a.m., London time, two
Business Days prior to the first day of such Interest Period (it being
understood that if at least two such rates appear on such page, the rate will be
the arithmetic mean of such displayed rates); provided further that in the event
fewer than two such rates are displayed, or if no such rate is relevant, LIBOR
shall be a rate per annum at which deposits in Dollars are offered by the
principal office of Deutsche Bank AG in London, England to prime banks in the
London interbank market at 11:00 A.M. (London time) two Business Days before the
first day of such Interest Period for delivery on such first day and for a
period equal to such Interest Period.
"LIBOR Reserve Percentage" shall mean, with respect to any
Interest Period, a percentage (expressed as a decimal) equal to the weighted
average of the percentages in effect during such Interest Period, as prescribed
by the Board of Governors of the Federal Reserve System (or any successor
thereto) for determining the maximum reserve requirements applicable to
"Eurocurrency liabilities" pursuant to Regulation D or any other applicable
regulation of the Federal Reserve Board (or any successor thereto) which
prescribes reserve requirements applicable to "Eurocurrency liabilities" as
currently defined in Regulation D.
"Lien": With respect to any asset, any mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or
other), preference, priority, security agreement or preferential arrangement of
any kind or nature whatsoever (including any conditional sale or other title
retention agreement relating to such asset).
"Limited Amortization Amount" shall mean, for each Nonextending
Lender, with respect to any Distribution Date, the sum of the product of the
following with respect to each Asset Backed Security that was an Eligible
Security on the Commitment Expiration Date of such Nonextending Lender: (a) the
difference, if any, between the Maximum Advance Percentage
- 14 -
with respect to such Eligible Security as of the preceding Distribution Date and
the Maximum Advance Percentage with respect to such Eligible Security as of such
Distribution Date, (b) the original face amount of such Eligible Security and
(c) the Percentage Interest of such Nonextending Lender immediately prior to its
Commitment Expiration Date.
"Liquidity Percentage": With respect to a Committed Lender and
its related Conduit Lender, such Lender's Adjusted Available Commitment Amount
with respect to such Conduit Lender as a percentage of the aggregate Adjusted
Available Commitment Amounts of all of such Conduit Lender's related Committed
Lenders.
"Margin Stock": "Margin Stock" as defined under Regulation U
issued by the Board of Governors of the Federal Reserve System.
"Market Rate": With respect to any Asset Backed Security, an
interest rate for such Asset Backed Security consistent with the market therefor
and for securities similar to such Asset Backed Security as determined in good
faith by ACC and the lead underwriters or lead placement agents for such Asset
Backed Security; provided that, with respect to any Asset Backed Security rated
BB or lower by S & P or Ba2 or lower by Moody's, an interest rate thereon
representing a credit spread of less than 450 bps shall not be deemed to be a
"Market Rate" for purposes of the definition of "Eligible Security" herein
unless at least 25% of the entire original issue of such Asset Backed Security
were sold at such lower interest rate to Persons who are not Affiliates of ACC.
Prior to including any Asset Backed Security as an Eligible Security hereunder,
the Borrowers will furnish to the Administrative Agent and the Agents a
certificate certifying that the interest rate thereon is a Market Rate as herein
defined.
"Master Collateral Agent": The meaning specified in the
recitals.
"Master Collateral and Intercreditor Agreement": The Master
Collateral and Intercreditor Agreement, dated as of the date hereof, among AFS
Funding Corp., the Administrative Agent, the Lender Collateral Agent, certain
other secured parties and the Master Collateral Agent, as the same may be
amended, supplemented or otherwise modified from time to time.
"Material Adverse Effect": (i) A material adverse effect on the
financial condition, operations or business of any Borrower or any Contingent
Obligor, (ii) a material adverse effect on the ability or right of any Borrower
or any Contingent Obligor to perform its obligations under this Agreement or any
other Transaction Document, (iii) any impairment of the ability or right of the
Administrative Agent or any Lender to enforce this Agreement or any Note or of
the Administrative Agent or other relevant party to enforce any other
Transaction Document, or (iv) a material adverse effect on the Revolver
Collateral or the Shared Collateral or the perfection or priority of the Lender
Collateral Agent's or Master Collateral Agent's security interest therein.
"Maximum Advance Amount": with respect to any Eligible Security
on any date, the lesser of (i) the outstanding principal amount of such Eligible
Security on such date and (ii)
- 15 -
the product of the original face amount of such Eligible Security and the
"Maximum Advance Percentage" with respect to such Eligible Security and such
date.
"Maximum Advance Percentage": with respect to any Eligible
Security on any date, (i) if such Eligible Security is rated at least BBB by
S & P and Baa2 by Moody's, the percentage set forth opposite the month in which
such date occurs in the following table ("Months" equals number of months since
issuance of such Eligible Security):
Maximum
Advance
Months Percentage
------ ----------
1 100.0%
2 100.0%
3 100.0%
4 100.0%
5 100.0%
6 100.0%
7 100.0%
8 100.0%
9 100.0%
10 100.0%
11 100.0%
12 100.0%
13 91.7%
14 83.3%
15 75.0%
16 66.7%
17 58.3%
18 50.0%
19 41.7%
20 33.3%
21 25.0%
22 16.7%
23 8.3%
24 0.0%
- 16 -
and (ii) otherwise, the percentage set forth opposite the month in which such
date occurs in the schedule of Maximum Advance Percentages calculated by the
Administrative Agent with respect to such Eligible Security on or prior to the
first date such Eligible Security is included in the calculation of the Revolver
Borrowing Base, provided, that the Maximum Advance Percentage calculated by the
Administrative Agent shall be zero on and after the 24th month since issuance of
such Eligible Security, and provided, further, that if any such Eligible
Security rated at least BBB by S & P and Baa2 by Xxxxx'x is downgraded two
notches from its rating at the time of issuance, then such percentage shall be
reduced by subtracting 25%, and provided, further, that if any such Eligible
Security other than an Eligible Security rated at least BBB by S & P and Baa2 by
Xxxxx'x is downgraded to BB- by S & P or Ba3 by Moody's, then such percentage
shall be reduced by subtracting 25%, and provided, further, that if any such
Eligible Security rated at least BBB by S & P and Baa2 by Xxxxx'x is downgraded
by more than two notches from its rating at the time of issuance, then such the
Maximum Advance Percentage with respect to such Eligible Security shall be zero,
and provided, further, that if any such Eligible Security other than an Eligible
Security rated at least BBB by S & P and Baa2 by Xxxxx'x is downgraded to B or
below by S & P or B2 or below by Moody's, then such the Maximum Advance
Percentage with respect to such Eligible Security shall be zero.
"Maximum Conduit Amount": With respect to a Conduit Lender, the
principal amount set forth beside such Lender's name under the heading "Maximum
Conduit Amount" on the signature pages of this Agreement or on the signature
page of the Assignment and Assumption or Joinder Supplement pursuant to which
such Conduit Lender became a Conduit Lender hereunder in accordance with the
provisions of Section 8.06, as such Maximum Conduit Amount may be adjusted from
time to time in accordance with the provisions of Section 2.03 or 8.06.
"MCA Servicer's Certificate": The meaning specified in the
Master Collateral and Intercreditor Agreement.
"Monthly Bond Income": With respect to any Eligible Security and
any month, the product of (a) the Bond Coupon Rate with respect to such Eligible
Security, (b) the Stress Case Principal Amount with respect to such Eligible
Security and such month and (c) 1/12.
"Monthly Cap Income": With respect to any Eligible Security and
any month, the product of (a) the positive difference, if any, between (i) the
Stress Case LIBOR with respect to such month and the Borrowing used to fund such
Eligible Security and (ii) the strike price for the related Interest Rate Cap,
(b) the notional amount of such Interest Rate Cap for such month and (c) 1/12.
"Moody's": Xxxxx'x Investors Service, Inc., and any successor
thereto.
"Nonextending Lender" shall mean, after its respective
Commitment Expiration Date, each Committed Lender which has declined to extend
such Commitment Expiration Date in accordance with Section 2.09(b).
- 17 -
"Notes": The meaning specified in Section 2.01(b).
"Notice of Borrowing": The meaning specified in Section 2.02(a).
"Notice of Conversion/Continuation": The meaning specified in
Section 2.07(b).
"NYUCC": The Uniform Commercial Code as in effect from time to
time in the State of New York.
"Obligations": The meaning specified in the Security Agreement.
"Officer": With respect to each of the Borrowers, the Chairman
of the Board of Directors, any Vice Chairman, any Director, the President, any
Vice President, the Secretary, an Assistant Secretary, the Treasurer or an
Assistant Treasurer of such Borrower.
"Officer's Certificate": With respect to any Person, a
certificate signed by an Authorized Officer of such Person.
"Opinion of Counsel": A written opinion of counsel who, except
as otherwise expressly provided in this Agreement, may be counsel to the
Borrowers, and who shall be acceptable to the Administrative Agent.
"Partial Expiration Event" has the meaning specified in Section
2.09(b).
"Participant": The meaning specified in Section 8.06(a).
"Participation": The meaning specified in Section 8.06(a).
"Percentage Interest": For a Lender on any day, (a) the
aggregate outstanding principal amount of Advances owed to such Lender as a
percentage of the aggregate outstanding principal amount of all Advances on such
day, or (b) if no Advances are outstanding on such day, (i) 0% in the case of a
Conduit Lender and (ii) in the case of a Committed Lender, (A) if there is a
Conduit Lender related to such Committed Lender, such Lender's Liquidity
Percentage times the Lending Percentage of such Lender's related Conduit Lender
or (B) otherwise, such Committed Lender's Lending Percentage.
"Permitted Lien": A Lien which is permitted by Section 5.02(a).
"Permitted Transferee" shall mean (i) each Lender, each Support
Party, each Agent (in its individual capacity), the Administrative Agent (in its
individual capacity) and, with respect to each transferring Lender, any
commercial paper conduit administered by the related Agent, (ii) each other
Person who has been consented to as a potential Transferee by the Borrowers
(which consent shall not be withheld (except for a commercially reasonable
purpose or reason) or delayed) and (iii) after the occurrence of an Event of
Default, any other Person,
- 18 -
provided, that, in any such case, such Person is a "Qualified Purchaser" as
defined in Section 2(a)(51) of, and pursuant to Rule 3c-7 under, the Investment
Company Act of 1940, as amended.
"Person": Any individual, corporation, partnership, joint
venture, association, limited liability company, joint stock company, trust
(including any beneficiary thereof) or any other entity, unincorporated
organization or government or any agency or political subdivision thereof.
"Plan": Any employee benefit plan as defined in Section 3(3) of
ERISA in respect of which the Borrowers or any ERISA Affiliate is, or within the
immediately preceding six years was, an "employer" as defined in Section 3(5) of
ERISA, and in respect of which the Borrowers or an ERISA Affiliate could have
liability under Title IV of ERISA.
"Procedures Report": The meaning specified in Section 5.01(a).
"Rating Agency": S & P.
"Ratings Reaffirmation Dates": (i) If the Senior Facility
Aggregate Amount (as defined in the Master Collateral and Intercreditor
Agreement) is less than 66-2/3% of the Senior Borrowing Base, each date a new
Senior Facility Agreement (as defined in the Master Collateral and Intercreditor
Agreement) is created and each Distribution Dates occurring in March, June,
September and December of each year, beginning September 30, 2002 and (ii)
otherwise, each of (a) each Borrowing Date, (b) each date a new Senior Facility
Agreement is created, (c) each date on which ACFS or any Affiliate thereof
exercises a clean-up call with respect to any Designated Series and (d) the
Distribution Dates occurring in March, June, September and December of each
year, beginning September 30, 2002, provided, that the Borrowers may elect to
designate any other day a Ratings Reaffirmation Date and provided, further,
that, in any case, a Distribution Date occurring in March, June, September or
December will not be a Ratings Reaffirmation Date so long as (x) a Ratings
Reaffirmation Date has occurred in the 90 days prior to such Distribution Date
and (y) on or before the 90th day after such prior Ratings Reaffirmation Date,
another Ratings Reaffirmation Date occurs or is designated by the Borrowers.
"Receivable": Any right to payment in Dollars from a Person, and
includes without limitation the right to payment of any interest or finance
charges and other obligations of such Person with respect thereto.
"Receivables Pool": With respect to any date of determination,
each receivables pool supporting an asset-backed securitization sponsored by
ACFS on and after the date two years prior to such date of determination
(excluding any Receivables held as part of any warehouse arrangement).
"Recoveries": With respect to any Defaulted Receivable, monies
collected in respect thereof (other than Scheduled Receivable Payments collected
from the related Obligor which cause such Receivable to be no longer a Defaulted
Receivable), from whatever source during any Collection Period, net of the sum
of any reasonable expenses incurred by the related
- 19 -
servicer in connection with the collection, repossession and disposition of the
related Financed Vehicle and any amounts required by law to be remitted to the
related Obligor; provided that Recoveries with respect to any Defaulted
Receivable shall in no event be less than zero.
"Regulatory Change": In the case of a Lender, any change
occurring after the date of such Lender's execution and delivery of this
Agreement or, if applicable of the Assignment and Assumption or Joinder
Supplement by which it became party to this Agreement; in the case of a
Participant, any change occurring after the date on which its Participation
became effective, or in the case of an Affected Party, any change occurring
after the date it became such an Affected Party, in:
(i) any (or the adoption after such date of any new) United
States Federal or state law or foreign law applicable to such Lender,
Participant or Affected Party; or
(ii) any (or the adoption after such date of any new)
regulation, interpretation, directive, guideline or request (whether or
not having the force of law) applicable to such Lender, Participant or
Affected Party of any court or other judicial authority or any
Governmental Authority charged with the interpretation or administration
of any law referred to in clause (i) or of any fiscal, monetary or other
authority or central bank having jurisdiction over such Lender,
Participant or Affected Party; or
[(iii) Accounting Research Bulletin No. 51 of the Financial
Accounting Standards Board].
"Required Lenders": At any time, (i) Lenders having Percentage
Interests aggregating greater than 50%, and (ii) Committed Lenders together
having Commitments aggregating greater than 50% of the Total Commitment Amount.
"Required Spread Account Increase": With respect to any
Designated Series referred to in Section 6.01(u) or 6A.01(b), an increase (by
amendment, consent or otherwise) in the required amount to be deposited in the
Spread Account for such Designated Series to an amount in excess of 20% of the
insured principal amount of such Designated Series.
"Requisite Rating": BBB- or better from S & P .
"Residual Certificates": the certificates representing the
beneficial interests in the AmeriCredit 1998-D Trust, the AmeriCredit 1999-A
Trust, the AmeriCredit 1999-B Trust, the AmeriCredit 1999-C Trust, the
AmeriCredit 1999-D Trust, the AmeriCredit 2000-A Trust, the AmeriCredit 2000-B
Trust, the AmeriCredit 2000-C Trust, the AmeriCredit 2000-D Trust, the
AmeriCredit 2001-A Trust, the AmeriCredit 2001-B Trust, the AmeriCredit 2001-C
Trust, the AmeriCredit 2001-D Trust, the AmeriCredit 2002-A Trust, and the
AmeriCredit 2002-B Trust held by AFS Funding Trust and any other certificate
held by AFS Funding Trust representing a beneficial interest in a trust
established to issue an FSA Series which is a Designated Term Series (as defined
in the Master Collateral and Intercreditor Agreement).
- 20 -
"Residual Interest": The meaning assigned in the Master
Collateral and Intercreditor Agreement.
"Revolver Borrowing Base": On any day, the sum of the Maximum
Advance Amounts for each Asset Backed Security which is an Eligible Security on
such day.
"Revolver Borrowing Base Certificate": A certificate of the
Borrowers and ACFS substantially in the form of Exhibit K attached hereto.
"Revolver Borrowing Base Deficiency": The meaning specified in
Section 6.01(m).
"Revolver Collateral": The "Collateral" specified in the
Security Agreement.
"Revolver Servicer's Certificate" means an Officers' Certificate
of ACFS delivered pursuant to Section 5.01(a)(vii), substantially in the form of
Exhibit J attached hereto.
"S & P" or "Standard & Poor's": Standard & Poor's Ratings Group,
and any successor thereto.
"Scheduled Receivable Payment": With respect to any Collection
Period for any Receivable, the amount set forth in such Receivable as required
to be paid by the Obligor in such Collection Period.
"Secured Obligations": The meaning specified in the Security
Agreement.
"Secured Party": The meaning specified in the Security
Agreement.
"Securitization Assets": With respect to any Person, the sum of
the following items of such Person and its subsidiaries, determined on a
consolidated basis in accordance with GAAP: (1) restricted cash deposits held by
securitization trusts supported by Receivables originated by such Person or its
Affiliates, (2) investments in Receivables held by securitization trusts
supported by Receivables originated by such Person or its Affiliates, and (3)
interest-only receivables issued by securitization trusts supported by
Receivables originated by such Person or its Affiliates.
"Security Agreement": The Revolver Security and Collateral Agent
Agreement, dated as of the date hereof, among the Borrowers, ACFS, the
Administrative Agent and the Lender Collateral Agent, as the same may be
amended, supplemented or otherwise modified from time to time.
"Security Interest": Each security interest and Lien Granted
pursuant to Section 2.01 of the Security Agreement and each security interest
and Lien Granted pursuant to Section 2.01 of the Master Collateral and
Intercreditor Agreement.
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"Senior Borrowing Base": The meaning specified in the Master
Collateral and Intercreditor Agreement.
"Senior Borrowing Base Certificate": The meaning specified in
the Master Collateral and Intercreditor Agreement.
"Senior Borrowing Base Deficiency": The meaning specified in the
Master Collateral and Intercreditor Agreement.
"Senior Borrowing Base Interim Deficiency": The meaning
specified in the Master Collateral and Intercreditor Agreement.
"Senior Facility Non-Revolver Aggregate Amount": The Senior
Facility Aggregate Amount (as defined in the Master Collateral and Intercreditor
Agreement) minus the Senior Facility Notional Amount with respect to this
Agreement.
"Senior Facility Notional Amount": With respect to this
Agreement, as of any date, the greater of (i) $10,000,000 and (ii) the sum of
(a) with respect to each Borrowing which has not been repaid in full as of such
date, the sum of the aggregate initial principal amount of the Advances
constituting such Borrowing and (b) the Total Interest Rate Risk Component.
"SenSub": The meaning specified in the preamble to this
Agreement.
"Series": The meaning specified in the Recitals.
"Series Transaction Documents" means, with respect to any
Series, the pooling and servicing agreement (or equivalent document by any other
name), sale and servicing agreement, indenture, insurance and indemnity
agreement, if any, notes, certificates of beneficial interest, trust agreements,
transfer agreements, contribution agreements, and, if such Series is an FSA
Series, the related supplement to the Spread Account Agreement, and if such
Series is not an FSA Series, any related credit enhancement documents.
"Shared Collateral": The meaning assigned to "Collateral" in the
Master Collateral and Intercreditor Agreement.
"Shared Collateral Distributions": With respect to any item of
Shared Collateral, the moneys which are distributed, from time to time, to the
Borrowers with respect to such item.
"Spread Account": A "spread" or similar account with respect to
any Designated Series including each FSA Spread Account.
"Spread Account Agreement": That certain Spread Account
Agreement, dated as of December 1, 1994, as amended and restated as of May 11,
1998, among AFS Funding, FSA, Lasalle National Bank, Xxxxxx Trust and Savings
Bank and Bank One, N.A., as amended, restated, modified or supplemented from
time to time.
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"Stated Maturity Date": the Distribution Date occurring in the
24th month after the month in which the Commitment Period Termination Date
occurs.
"Stress Case Principal Amount": With respect to an Eligible
Security and any month, the principal amount of such Eligible Security estimated
to be outstanding during such month as established by S & P at the time such
Eligible Security is added to the Revolver Borrowing Base.
"Stress Case LIBOR": With respect to a Borrowing and any month,
the rate established by S & P at the time of such Borrowing.
"Subsidiary": As to a Person, another Person, a majority of the
outstanding voting stock of which is owned, directly or indirectly, by such
Person or by one or more other Subsidiaries of such Person. For the purposes of
this definition, "voting stock" of a Person means shares, interests,
participations or other equivalents (however designated) of such Person's equity
having voting power for the election of directors, managers or other voting
members of the governing body of such Person.
"Supermajority Lenders": At any time, (i) Lenders having
Percentage Interests aggregating greater than 75%, and (ii) Committed Lenders
together having Commitments aggregating greater than 75% of the Total Commitment
Amount.
"Supplemental Fee Letter" shall mean each letter agreement,
designated therein as a Supplemental Fee Letter and then in effect, between the
Borrowers and an Agent or the Administrative Agent, as such letter agreement may
be amended or otherwise modified from time to time.
"Support Advances": With respect to a Committed Lender and its
related Conduit Lender, any participation held by such Committed Lender in
Advances owed to such Conduit Lender which were purchased from such Conduit
Lender pursuant to a Support Facility and any loans or other advances made by
such Committed Lender to such Conduit Lender pursuant to a Support Facility to
fund such Conduit Lender's making or maintaining its Advances hereunder (but
excluding any such loans or advances made to fund such Conduit Lender's
obligations to pay interest, fees or other similar amounts relating to the
funding of its making or maintaining its Advances hereunder).
"Support Party": Any bank or other financial institution
extending or having a commitment to extend funds to or for the account of a
Conduit Lender (including by agreement to purchase an assignment of or
participation in Advances owed to such Conduit Lender) under a Support Facility.
"Support Facility": Any liquidity or credit support agreement
with a Conduit Lender which relates to this Agreement and the Advances made by
such Conduit Lender hereunder (including any agreement to purchase an assignment
of or participation in such Advances).
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"Tangible Net Worth": With respect to any Person, the net worth
of such Person and its subsidiaries, determined on a consolidated basis in
accordance with GAAP, after subtracting therefrom the aggregate amount of the
intangible assets of such Person and its subsidiaries, including, without
limitation, goodwill, franchises, licenses, patents, trademarks, tradenames,
copyrights and service marks.
"Tax Adjusted Interest-Only Receivables": With respect to any
Person and at any time, the value of any interest-only receivables held at such
time by such Person or any of its consolidated subsidiaries which were issued by
securitization trusts supported by Receivables originated by such Person or its
Affiliates plus any related interest rate swap asset held at such time by such
Person or any of its consolidated subsidiaries minus any related interest rate
swap liability held at such time by such Person or any of its consolidated
subsidiaries, and adjusted by such Person's applicable tax rate (as reported for
its most recently completed fiscal quarter).
"Taxes": The meaning specified in Section 2.11(a).
"Termination Date" shall mean the first date on which the
Lending Termination Date for all Lenders has occurred.
"Total Commitment Amount": On any date, the sum of the
Commitment Amounts of all Committed Lenders, which amount shall initially be
$290,000,000.
"Total Interest Rate Risk Component": As of any date, the sum,
with respect to each Borrowing which has not been repaid in full as of such
date, of the Interest Rate Risk Components with respect to such Borrowings.
"Total Secured Debt": At any time, Senior Debt at the time
outstanding and the Senior Subordinated Notes then Outstanding.
"Trade Claim": Claims of trade creditors and other general
unsecured current obligations of a debtor.
"Transaction Documents": This Agreement, the Notes, the Security
Agreement, the Master Collateral and Intercreditor Agreement, the Interest Rate
Caps, the Interest Rate Hedge Assignment Acknowledgments, the AFSFT Trust
Agreement, the AFSFT Class A Certificate, the Supplemental Fee Letters, the
guarantees delivered pursuant to clause (p) of the definition of Eligible
Security, and all other notes, security agreements, instruments, documents and
other agreements (including UCC financing statements) heretofore, now or
hereafter executed and/or delivered by or on behalf of the Borrowers in
connection with any of the foregoing, in each case, as the same may be amended,
supplemented or otherwise modified.
"Transfer": The meaning specified in Section 8.06(a).
"Type": With reference to an Advance, whether such Advance
constitutes a Base Rate Advance or a Eurodollar Rate Advance.
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"Underlying Transactions": The meaning specified in the Master
Collateral and Intercreditor Agreement.
"Underlying Transactions Documents": the agreements, contracts,
documents, amendments, consents, instruments, certificates and other papers
executed in connection with each Underlying Transaction.
"Underlying Trust": The meaning specified in the Master
Collateral and Intercreditor Agreement.
"Underlying Trustees": in the singular, either of [insert] or
[insert], and in the plural, both of them, in their capacities as trustees,
trust collateral agents or collateral agents, in the Underlying Transactions and
any other trustee designated with respect to the Underlying Transactions.
"Uniform Commercial Code": The Uniform Commercial Code as in
effect in each relevant jurisdiction.
"United States" and "U.S.": The United States of America.
"Usage Fees": The meaning specified in the Supplemental Fee
Letter to which the Administrative Agent is a party.
"Usage Fee Rate": The meaning specified in the Supplemental Fee
Letter to which the Administrative Agent is a party.
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