Exhibit 4.6
-----------
AmeriCredit Corp.
and
___________________________________,
Warrant Agent
___________________________
WARRANT AGREEMENT
___________________________
Providing for the Issuance of ____________________ Warrants
Dated as of _______________________, 20___
WARRANT AGREEMENT
THIS WARRANT AGREEMENT is entered into as of, 20__ between AmeriCredit
Corp., a corporation incorporated under the laws of Texas (the "Company") and
_____________________, a ________ incorporated under the laws of ____________
(the "Agent").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Company proposes to issue ____ Warrants, each Warrant
entitling the registered owner thereof to purchase ________________________ of
the Company at the price and upon the terms and conditions herein set forth; and
WHEREAS, the Company is duly authorized to issue the Warrants as provided
in this Agreement; and
WHEREAS, all things necessary have been done and performed to make the
Warrants when duly authenticated by the Agent and issued as provided for in this
Agreement legally valid and binding obligations of the Company with the benefits
and subject to the terms of this Agreement.
NOW, THEREFORE, for good and valuable consideration mutually given and
received, the receipt and sufficiency thereof is hereby acknowledged, it is
hereby agreed and declared as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions. Except as otherwise expressly provided or
unless the context otherwise requires, the terms defined in this Section 1.1
shall for all purposes of this Agreement, have the meanings herein specified,
the following definitions to be equally applicable to both the singular and
plural forms of any of the terms herein defined:
The term "Agent" shall mean _____________, a _________ incorporated
under the laws of ____________ or its lawful successors from time to time
appointed in accordance with this Agreement.
The term "Agreement" shall mean this Warrant Agreement between the
Company and the Agent, as such agreement is originally executed or as it
may from time to time be supplemented, modified or amended as provided
herein.
The term "Business Day" shall mean any day which is not a Saturday or
Sunday or which in the City of New York or ____________ is neither a legal
1
holiday nor a day on which banking institutions are authorized by law or
regulation to close.
The term "Company" shall mean AmeriCredit Corp., a Texas corporation,
until a successor entity shall have become such pursuant to the applicable
provisions of this Agreement and thereafter the term "Company" shall mean
such successor entity.
The term "Event of Default" shall mean any event specified as such in
Section 6.1 hereof. An Event of Default shall "exist" if an Event of
Default shall have occurred and be continuing.
The term "Exercise Date" shall mean each date during the Exercise
Period on which the ___________________________ are purchased by a
Registered Owner through the exercise of all or a portion of its Warrants.
The term "Exercise Form" shall mean the form designated Exercise Form
attached as Annex II to each Warrant.
The term "Exercise Period" shall mean the period commencing at 9:00
A.M. (_____ time) on _____________, 20__ and ending at 4:00 P.M. (_________
time) on _____________, _____.
The term "Exercise Price" shall have the meaning accorded such term in
Section 2.1 of this Agreement.
The term "Indenture" shall mean that certain Indenture dated as of
___________, 20__ between the Company and ___________, as trustee, as such
Indenture was originally executed or as it may from time to time be
supplemented, modified or amended in accordance with the terms thereof.
The term "Notice of Intent to Exercise" shall have the meaning
accorded thereto in Section 4.1 of this Agreement. The form of Notice of
Intent to Exercise is attached as Annex I to each Warrant.
The term "Outstanding" when used with reference to the Warrants shall
mean, as of the date of determination, all Warrants theretofore
authenticated and delivered under this Agreement, except:
(a) Warrants theretofore canceled by the Agent or delivered to
the Agent for cancellation; and
(b) Warrants in exchange for or in lieu of which other Warrants
shall have been authenticated and delivered under this Agreement.
2
The term "Person" shall mean an individual, a corporation, a
partnership, a joint venture, an association, a joint stock company, a
trust, an unincorporated organization, or a government or any agency,
authority or political subdivision thereof.
The term "Register" shall mean the books for the registration and
transfer of Warrants which books are kept by the Agent pursuant to Section
3.1 hereof.
The term "Time of Expiry" means 4:00 p.m., _________ time, on
____________, 20__.
The term "Warrantholders" or "Registered Owners" means the persons
from time to time who are registered owners of the Warrants.
The term "Warrantholders' Request" means an instrument signed in one
or more counterparts by the Warrantholders entitled to purchase in the
aggregate not less than a majority of the aggregate amount of
_______________ which could be purchased pursuant to all Warrants then
Outstanding requesting the Agent to take some action or proceeding
specified therein.
The term "Warrants" means the ___________ Warrants issued hereunder
pursuant to which Warrantholders have the right to purchase
__________________ on the terms and conditions herein set forth.
The term "Written Order of the Company" and "Written Consent of the
Company" mean, respectively, a written order or consent signed in the name
of the Company by any one of its officers and may consist of one or more
instruments so executed.
ARTICLE II
ISSUANCE OF WARRANTS
SECTION 2.1. Issuance And Terms Of Warrants. The issuance of Warrants
entitling the Registered Owners thereof to purchase up to an aggregate of not
more than ____________________________ in principal amount of the
__________________ is hereby authorized. The Warrants shall be delivered by the
Company to the Agent to be authenticated by the Agent and delivered in
accordance with the Written Order of the Company. The Warrants shall be dated
________, 20__ and shall be issuable in fully registered form and in
denominations that permit the purchase upon exercise of ________________
principal amount of ________________ and any integral multiples thereof.
The Warrants shall be exercisable on any Business Day during the Exercise
Period. Each Warrant in the denomination of [U.S. $/Specified Currency] shall
entitle the Registered Owner thereof to exercise such Warrant in accordance with
and pursuant to the terms thereof for the purchase of a _______________________.
3
SECTION 2.2. Form of Warrants. The Warrants shall be in substantially the
form set out in this Exhibit A hereto, with such additional provisions,
omissions, variations or substitutions as are not inconsistent with the
provisions of this Agreement. The Warrants may have such letters, numbers or
other marks of identification and such legends or endorsements placed thereon as
may, consistent herewith, be determined by the officer executing such Warrants
as evidenced by such officer's execution thereof.
SECTION 2.3. Mutilated, Lost, Destroyed or Stolen Warrants. If (i) any
mutilated Warrant is surrendered to the Agent, or the Company and the Agent
receive evidence to their satisfaction of the destruction, loss or theft of any
Warrant and (ii) there is delivered to the Company and the Agent such security
or indemnity as may be required by them to save each of them harmless, then, in
the absence of notice to the Company or the Agent that such Warrant has been
acquired by a bona fide purchaser, the Company shall execute and upon its
request the Agent shall authenticate and deliver, in exchange for or in lieu of
any such mutilated, destroyed, lost or stolen Warrant, a new Warrant of the same
principal amount, bearing a number not contemporaneously Outstanding.
Upon the issuance of any new Warrant under this Section 2.3, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses connected therewith.
Every new Warrant issued pursuant to this Section 2.3 in lieu of any
destroyed, lost or stolen Warrant shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Warrant shall be at any time enforceable by anyone, and shall be entitled
to all the security and benefits of this Agreement equally and ratably with all
other Outstanding Warrants.
The provisions of this Section 2.3 are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Warrants.
SECTION 2.4. Warrantholder Not a Registered Owner of the _________________.
The ownership of a Warrant shall not constitute the Registered Owner thereof an
owner of any of the __________________ nor entitle the Registered Owner to any
right or interest in respect thereof except upon the exercise and surrender of
its Warrants and the payment of the purchase price of the __________________ in
accordance with and pursuant to the terms herein provided.
SECTION 2.5. Warrants to Rank Pari Passu. All Warrants shall rank pari
passu with each other.
SECTION 2.6. Execution of Warrants. The Warrants shall be signed in the
name and on behalf of the Company by one of its officers. The signature of the
officer executing the Warrants may be manual or facsimile. In case any officer
of the Company who shall have signed any of the Warrants (manually or in
facsimile) shall cease to be such officer before the Warrants so signed shall
have been authenticated and delivered by the Agent, such Warrants nevertheless
4
may be authenticated and delivered as though the Person who signed such Warrants
had not ceased to be such officer of the Company. Also, any Warrant may be
signed on behalf of the Company by such Persons as on the actual date of
execution of such Warrant shall be the proper officers of the Company, although
at the date of the execution of this Agreement any such Person was not such
officer.
Only such of the Warrants as shall bear thereon a certificate of
authentication in substantially the form set forth in Section 2.2 hereof,
executed by the Agent, shall be entitled to the benefits of this Agreement or be
valid or obligatory for any purpose.
SECTION 2.7. Purchase of Warrants by the Company. The Company may purchase
in the market, by private contracts or otherwise all or any portion of the
Warrants on such terms as the Company may determine.
ARTICLE III
EXCHANGE OF WARRANTS; REGISTRATION OF
TRANSFER OF WARRANTS; NOTICE TO WARRANTHOLDERS
SECTION 3.1. Register. The Agent, as agent of the Company, shall maintain,
at its principal office in ____________, ____, the Register in which, subject to
such reasonable regulations as it and the Company may prescribe, it shall
provide for the registration of the Warrants and the transfer of Warrants as in
this Agreement provided. The Register shall be in written form or in any other
form capable of being converted into written form within a reasonable time. The
Registered Owners of the Warrants shall present directly to the Agent all
requests for (a) registration of transfer of Warrants, (b) exchange of Warrants
for new Warrants in authorized denominations and (c) replacement of Warrants in
the case of mutilation, destruction, loss or theft.
Upon the Company's request, the Agent shall furnish the Company with a list
of names and addresses of the Registered Owners showing the number of such
Warrants held by each Registered Owner.
SECTION 3.2. Exchange of Warrants. Warrants entitling the Registered Owner
to purchase any specified amount of __________________ may, upon compliance with
the reasonable requirements of the Agent, be exchanged for Warrants entitling
the Registered Owner thereof to purchase an equal aggregate principal amount of
__________________.
Warrants may be exchanged only at the principal office of the Agent in
_______________, ___ or at any other place that is designated by the Company.
Any Warrants tendered for exchange shall be surrendered to the Agent and
canceled. The Company shall execute all Warrants necessary to carry out
exchanges as aforesaid and such Warrants shall be authenticated by the Agent.
5
SECTION 3.3. Charges for Exchange. For each Warrant exchanged or
transferred, the Agent, except as otherwise herein provided, shall, if required
by the Company, charge a reasonable sum for each new Warrant issued; and payment
of such charges and reimbursement of the Agent or the Company for any taxes or
governmental or other charges required to be paid shall be made by the party
requesting such exchange, as a condition precedent thereto.
SECTION 3.4. Registration of Transfer; Restrictions on Transfers. No
transfer of a Warrant shall be valid unless made at the principal offices of the
Agent in the ____________, __________ or at any other place that is designated
by the Company as an office for registration of transfer by the Registered Owner
or such Registered Owner's executors, administrators or other legal
representatives or attorney duly appointed by an instrument in writing in form
and execution satisfactory to the Agent and upon compliance with such reasonable
requirements as the Agent and the Company may prescribe. Any Warrants tendered
for registration of transfer shall be surrendered to the Agent.
SECTION 3.5. Notice to Warrantholders. Unless herein otherwise expressly
provided, any notice to be given hereunder to Warrantholders shall be deemed to
be validly given if such notice is mailed to the last addresses of the
Warrantholders appearing on the Register. Any notice so given shall be deemed to
have been given on the day on which it has been mailed. In determining under any
provision hereof the date when notice of any meeting or other event must be
given, the date of giving notice shall be included and the date of the meeting
or other event shall be excluded.
ARTICLE IV
EXERCISE OF WARRANTS
SECTION 4.1. Method of Exercise of Warrants. The Registered Owner of any
Warrant may exercise the right thereby to purchase __________________ by
surrendering to the Agent on any Business Day during the Exercise Period at the
principal office of the Agent ___________, ___________, or at any other place or
places that may be designated by the Company:
(a) at least 3 Business Days prior to the exercise of its Warrants, a
completed and executed Notice of Intent to Exercise in the form thereof set
forth in Annex I to each Warrant (a "Notice of Intent to Exercise");
(b) on the Exercise Date, a duly completed and executed Exercise Form
in the form thereof set forth in Annex II to each Warrant;
(c) on the Exercise Date, its Warrant or Warrants which it is
exercising; and
(d) on the Exercise Date, the Exercise Price in funds immediately
available to the Company.
6
The items described in the foregoing clauses (a) and (b) shall be deemed
received when an actual copy or a facsimile thereof is received by the Agent.
Each Warrant shall be deemed to be surrendered only upon personal delivery
thereof to or, if sent by mail or other means of transmission, upon receipt
thereof by, the Agent at the office specified in this Section 4.1. Each Warrant
shall be deemed exercised as of the first Business Day on which all of the
foregoing conditions are satisfied with respect to such Warrant. The first day
on which the Warrants may be exercised is ________________, ____________, ___.
The Company acknowledges that the Registered Owners of the Warrants are not
required under any circumstances to take any other actions in order to exercise
their Warrants.
SECTION 4.2. Effect of Exercise of Warrants. Upon surrender and payment of
the Exercise Price by the Registered Owner of any Warrant in accordance with
Section 4.1, the __________________ so purchased shall be deemed to have been
issued and the person or persons to whom such __________________ are to be
issued shall be deemed to have become the Registered Owner or owners of such
__________________ on the [Exercise Date].
After the due exercise of a Warrant as aforesaid, the Company shall
forthwith cause to be delivered to the person to whom the __________________ so
purchased are to be issued at the address specified in such form or, if so
specified in such purchase form, cause to be delivered to such person at the
office where such Warrant was surrendered, a ______________ or
__________________ in the form or forms and in the denominations requested and
for the appropriate principal amount of __________________ not exceeding the
principal amount which the Warrantholder is entitled to purchase pursuant to the
Warrant surrendered.
SECTION 4.3. Partial Exercise of Warrants. Subject to the issuance of
__________________ in authorized denominations only, the Registered Owner of any
Warrant may purchase _________________] in an amount less than that which such
Registered Owner is entitled to purchase pursuant to the surrendered Warrant. In
the event of any purchase of an amount of __________________ less than the
amount which can be purchased pursuant to a Warrant, the Registered Owner
thereof upon exercise thereof prior to the Time of Expiry shall, in addition, be
entitled to receive forthwith a new Warrant in respect of the balance of the
principal amount of __________________ which such Registered Owner was entitled
to purchase pursuant to the surrendered Warrant and which were not then
exercised. The Company shall not be responsible for any taxes which may be
payable in connection with the issuance of such new Warrant.
SECTION 4.4. Expiration of Warrants. After the Time of Expiry, all rights
under any Warrant in respect of which the right of purchase herein and therein
provided for shall not theretofore have been exercised pursuant to Section 4.1
shall cease and terminate and such Warrant shall become void and of no effect
and all rights of the Registered Owner thereof under this Warrant Agreement
shall cease and terminate as of such termination; provided that such Registered
Owner's rights under this Warrant Agreement with respect to actions occurring
prior to such termination shall remain in full force. After the Time of Expiry,
each Registered Owner of any Warrants shall return any unexercised Warrants to
the Agent for cancellation in accordance with Section 4.5 of this Agreement.
7
SECTION 4.5. Cancellation of Surrendered Warrants. All Warrants
surrendered to the Agent pursuant to Sections 2.3, 3.2, 3.4 or 4.1 shall
forthwith be canceled by the Agent. All Warrants canceled or required to be
canceled under this or any other provision of this Agreement may be destroyed by
or under the direction of the Agent and the Agent shall furnish the Company with
a destruction certificate identifying the Warrants so destroyed and the
principal amount of __________________ which could have been purchased pursuant
to each.
SECTION 4.6. Accounting and Recording. The Agent shall forthwith account
and remit to the Company with respect to Warrants exercised and immediately
forward to the Company (or into an account or accounts of the Company with the
bank or trust company designated by the Company for that purpose) all monies
received by the Agent on the purchase of __________________ through the exercise
of Warrants. All such monies, and any __________________ or other instruments,
from time to time received by the Agent shall be received in trust for, and
shall be segregated and kept apart by the Agent in trust for, the Company.
The Agent shall record the particulars of the Warrants exercised which
shall include the names and addresses of the persons who become Registered
Owners of __________________ on exercise, the Exercise Date, the Exercise Price
and the number of __________________ reserved for that purpose by the Company.
The Agent shall provide such particulars in writing to the Company.
ARTICLE V
COVENANTS
SECTION 5.1. Issuance of __________________. The Company covenants that so
long as any Warrants remain Outstanding it will cause the __________________
from time to time paid for pursuant to the Warrants in the manner herein
provided to be duly issued and delivered in accordance with the Warrants and the
terms hereof.
SECTION 5.2. Corporate Existence of the Company; Consolidation, Merger,
Sale or Transfer. The Company covenants that so long as any of the Warrants are
Outstanding, it will maintain its existence, will not dissolve, sell or
otherwise dispose of all or substantially all of its assets and will not
consolidate with or merge into another entity or permit one or more other
entities to consolidate with or merge into it; provided that the Company may,
without violating the covenants in this Section 5.2 contained, consolidate with
or merge into another entity or permit one or more other entities to consolidate
with or merge into it, or sell or otherwise transfer to another entity all or
substantially all of its assets as an entirety and thereafter dissolve, if the
surviving, resulting or transferee entity, as the case may be, (i) shall be
formed and existing under the laws of one of the States of the United States of
America, (ii) assumes, if such entity is not the Company, all of the obligations
of the Company hereunder and (iii) is not, after such transaction, otherwise in
default under any provisions hereof.
8
SECTION 5.3. Maintenance of Offices or Agencies for Transfer, Registration,
Exchange of Warrants. So long as any of the Warrants shall remain Outstanding,
the Company covenants that it will maintain an office or agency in _________,
where the Warrants may be presented for registration, exchange and transfer as
in this Agreement provided, and where notices and demands to or upon the Company
in respect of the Warrants or of this Agreement may be served, and where the
Warrants may be presented for exchange for __________________ as provided
herein.
SECTION 5.4. Appointment to Fill a Vacancy in the Office of Agent. The
Company, whenever necessary to void or fill a vacancy in the office of Agent,
covenants that it will appoint, in the manner provided in Section 9.4 hereof, an
Agent, so that there shall at all times be a Agent with respect to the
Outstanding Warrants.
ARTICLE VI
EVENTS OF DEFAULT; REMEDIES
SECTION 6.1. Events of Default. The term "Event of Default" whenever used
herein with respect to any Warrant shall mean any one of the following events:
(a) Failure by the Company to deliver the __________________ in
exchange for the Warrants in accordance with the provisions of this
Agreement, or
(b) failure on the part of the Company to observe or perform in any
material respect any of the covenants or agreements on its part in the
Warrants or in this Agreement specifically contained for the benefit of the
Warrantholder, for a period of ___ days after there has been given, by
registered or certified mail, to the Company by the Agent, or to the
Company and the Agent by the Registered Owner a written notice specifying
such failure and stating that such is a "Notice of Default" hereunder.
SECTION 6.2. Suits by Warrantholders. All or any of the rights conferred
upon the Registered Owner of any Warrant by the terms of such Warrant and/or
this Agreement may be enforced by the Registered Owner of such Warrants by
appropriate legal proceedings but without prejudice to the right which is hereby
conferred upon the Agent to proceed in its own name to enforce each and all of
the provisions herein contained for the benefit of the Registered Owners of the
Warrants from time to time Outstanding.
SECTION 6.3. Remedies Not Waived; Enforcement Expense. No delay or failure
on the part of the Registered Owners of Warrants or the Agent to exercise any
right shall operate as a waiver of such right or otherwise prejudice such
Registered Owner's or Agent's, as the case may be, rights, powers and remedies.
The Company agrees to pay all costs, expenses and fees, including all reasonable
attorneys' fees, which may be incurred by a Registered Owner in enforcing or
attempting to enforce its rights thereunder and hereunder following the
occurrence
9
and during the continuance of any Event of Default hereunder, whether the same
shall be enforced by suit or otherwise.
SECTION 6.4. Incorporators, Stockholders, Officers and Directors of Company
are Exempt from Individual Liability. No recourse under or upon any obligation,
covenant or agreement of this Agreement, or of any Warrant, or for any claim
based thereon or otherwise in respect thereof, shall be had against any
incorporator, stockholder, officer or director, as such, past, present or
future, of the Company, either directly or though the Company, whether by virtue
of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise; it being expressly understood that this
Agreement and the Warrants issued hereunder are solely corporate obligations,
and that no personal liability whatever shall attach to, or is or shall be
incurred by, the incorporators, stockholders, officers or directors, as such, of
the Company because of the creation of the indebtedness hereby authorized, or
under or by reason of the obligations, covenants or agreements contained in this
Agreement or in any of the Warrants or implied therefrom; and that any and all
such personal liability of every name and nature, either at common law or in
equity or by constitution or statute, of, and any and all such rights and claims
against, every such incorporator, stockholder, officer or director, as such,
because of the creation of the obligations hereby authorized, or under or by
reason of the obligations, covenants or agreements contained in this Agreement
or in any of the Warrants or implied therefrom are hereby expressly waived and
released as a condition of, and as a consideration for, the execution of this
Agreement and the issuance of such Warrants.
ARTICLE VII
CONCERNING THE AGENT
SECTION 7.1. Appointment of Agent. The Company hereby appoints, at present
having its principal office in [__________ at _____________, ________,
__________] as the Agent in respect of the Warrants, upon the terms and subject
to the conditions set forth in this Agreement.
SECTION 7.2. Acceptance of Appointment By Agent; Limitations of Duties of
Agent. The Agent accepts its obligations set forth herein and in the Warrants
upon the terms and conditions hereof and thereof, including the following, to
all of which the Company agrees and to all of which the rights hereunder of the
Registered Owners from time to time of the Warrants shall be subject:
(a) The Agent shall be entitled to the compensation agreed upon with
the Company for all services rendered by it, and the Company agrees
promptly to pay such compensation and to reimburse the Agent for its
reasonable out-of-pocket expenses (including, without limitation, the
reasonable compensation of its counsel) incurred by it in connection with
the services rendered by it hereunder. The Company also agrees to indemnify
the Agent for, and to hold it harmless against, any loss, liability or
expense incurred without negligence or bad faith on its part, arising out
of or in connection with its acting as such Agent hereunder, including the
costs and expenses of defending against any claim of liability.
10
(b) In acting under this Agreement and in connection with the
Warrants, the Agent is acting solely as the agent of the Company and does
not assume any obligations or relationship of agency or trust for or with
any of the Registered Owners of the Warrants.
(c) The Agent may consult with one or more counsel (who may also be
counsel to the Company), and, in the absence of bad faith, the written
opinion of such counsel shall be full and complete authorization and
protection in respect of any action taken, omitted or suffered by it
hereunder in the good faith reliance thereon.
(d) The Agent shall be protected and shall incur no liability for or
in respect of any action taken, omitted or suffered by it in the good faith
reliance upon any Warrant, notice, direction, consent, certificate,
affidavit, statement or other paper or document signed by the Company
reasonably believed by the Agent to be genuine and to have been signed by
the proper persons.
(e) The Agent and its officers, directors and employees may become the
owner of, or acquire any interest in, any Warrants, with the same rights
that it or they would have if it were not the Agent hereunder, may engage
or be interested in any financial or other transaction with the Company and
may act on, or as depository, trustee or agent for, any committee or body
of Registered Owners of the Warrants or holders of other obligations of the
Company as freely as if it were not the Agent hereunder.
(f) The recitals contained herein and in the Warrants (except in the
Agent's certificates of authentication) shall be taken as the statements of
the Company, and the Agent assumes no responsibility for their correctness.
The Agent makes no representation as to the validity or sufficiency of this
Agreement or the Warrants, provided that the Agent shall not be relieved of
its duty to authenticate Warrants as authorized by this Agreement. The
Agent shall not be accountable for the use or application by the Company of
the proceeds of the Warrants.
(g) The Agent shall be obligated to perform such duties and only such
duties as are herein and in the Warrants specifically set forth and no
implied duties or obligations shall be read into this Agreement or the
Warrants against the Agent.
(h) No provision of this Agreement shall be construed to relieve the
Agent from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct or that of its officers or
employees.
(i) The Agent shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed with the Company.
11
SECTION 7.3. Agent Required. The Company agrees that, until all Warrants
(i) shall have been delivered to the Agent for cancellation or (ii) have become
null and void because of the passage of the Expiry Date, there shall at all
times be a Agent hereunder which shall be a corporation doing business in the
United States and which alone or with its affiliates has a combined capital and
surplus of at least $[___,000,000].
SECTION 7.4. Resignation and Removal of Agent; Appointment of Successor.
The Agent may at any time resign by giving written notice (in accordance with
Section 10.1 hereof) to the Company of such intention on its part, specifying
the date on which its desired resignation shall become effective; provided,
however, that such date shall never be less than [90] days after the receipt of
such notice by the Company unless the Company agrees to accept less notice.
Upon receipt of such notice of resignation, the Company shall promptly act to
appoint a successor Agent. The Agent may be removed at any time by the Company
by delivering written notice thereof specifying such removal and the date when
it is intended to become effective. Any resignation or removal of the Agent
shall take effect upon the date of the appointment by the Company as hereinafter
provided of a successor and the acceptance of such appointment by such
successor.
In case at any time the Agent shall resign, or shall be removed, or shall
become incapable of acting or shall be adjudged as bankrupt or insolvent, or if
a receiver of its or of its property shall be appointed, or if any public
officer shall take charge or control of its or of its property or affairs, for
the purpose of rehabilitation, conservation or liquidation, a successor agent,
eligible as aforesaid, shall be appointed by the Company.
Upon the appointment as aforesaid of a successor agent and acceptance by it
of such appointment, the Agent so superseded shall cease to be the Agent
hereunder. If no successor Agent shall have been so appointed by the Company and
shall have accepted appointment as hereinafter provided, then the Registered
Owners of a majority in aggregate principal amount of the Outstanding Warrants,
on such Holders' behalf and on behalf of all others similarly situated may
petition any court of competent jurisdiction for the appointment of a successor
Agent.
Any successor Agent appointed hereunder shall execute, acknowledge and
deliver to its predecessor and to the Company an instrument accepting such
appointment hereunder, and thereupon such successor Agent, without any further
act deed or conveyance, shall become vested with all the authority, rights,
powers, immunities, duties and obligations of such predecessor with like effect
as if originally named as such Agent hereunder, and such predecessor, upon
payment of its charges and disbursements then unpaid, shall simultaneously
therewith become obligated to transfer, deliver and pay over, and such successor
Agent shall be entitled to receive, all moneys, __________________ or other
property on deposit with or held by such predecessor, as such Agent hereunder.
The Company or, at the discretion of the Company, the successor Agent, will
give prompt written notice by U.S. Mail to each Registered Owner of the Warrants
at such owner's address as it appears on the Register of the appointment of a
successor Agent. Failure to give such notice or any defect therein shall not
affect the appoint of a successor Agent.
12
SECTION 7.5. Merger, Conversion, Consolidation or Succession to Business of
Agent. Any corporation into which the Agent may be merged or converted, or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Agent shall be a party, or any
corporation succeeding to all or substantially all the assets and business of
the Agent, shall be the successor to the Agent hereunder, provided such
corporation shall be otherwise eligible under this Article VII, without the
execution or filing of any document or any further act on the part of any of the
parties hereto.
In case any Warrants shall have been authenticated, but not delivered, by
the Agent then in office, any successor by merger, conversion or consolidation
to such authenticating Agent may adopt such authentication and deliver the
Warrants so authenticated with the same effect as if such successor Agent had
itself authenticated such Warrants.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1. Notices. All notices or demands hereunder upon the Company or
the Agent may be electronically communicated or hand delivered or sent by
overnight courier, addressed to any party hereto as provided in this Section
10.1.
All communications intended for the Company shall be sent to:
AmeriCredit Corp.
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000
Attention:
All communications intended for the Agent shall be sent to:
Agent-Name
Attention:
or at any other address of which either of the foregoing shall have notified the
other in any manner prescribed in this Section 8.01.
For all purposes of this Agreement, a notice or communication will be
deemed effective:
(a) if delivered by hand or sent by overnight courier, on the day it
is delivered unless (i) that day is not a day on which commercial banks are
open for business (a "Local Business Day") in the city specified in the
address for notice provided by the recipient or (ii) if delivered after the
close of business on a Local Business Day, then on the next succeeding
Local Business Day or
13
(b) if sent by facsimile transmission, on the date transmitted,
provided that oral or written confirmation of receipt is obtained by the
sender unless the date of transmission and confirmation is not a Local
Business Day, in which case, on the next succeeding Local Business Day.
Any notice, direction, request, demand, consent or waiver by the Company or any
Registered Owner to or upon the Agent shall be deemed to have been sufficiently
given, made or filed, for all purposes, if given, made or filed in writing with
the Agent in accordance with the provisions of this Section 10.1.
SECTION 8.2. Day Not a Business Day. If any date on which a payment is to
be made, notice given or other action taken hereunder is not a Business Day,
then such payments, notice or other action shall be made, given or taken on the
next succeeding business day in such place, and in the case of any payment, no
interest shall accrue for the delay.
SECTION 8.3. Currency. All amounts herein are expressed in [United States
Dollars/Specified Currency].
SECTION 8.4. Governing Law. This Agreement and the Warrants shall be
construed in accordance with the laws of Texas, without regard to principles of
conflicts of law.
SECTION 8.5. Limitation of Rights to Parties and Registered Owners of
Warrants. Nothing in this Agreement or in the Warrants expressed or implied is
intended or shall be construed to give to any Person other than the Company, the
Agent and the Registered Owners of the Warrants any legal or equitable right,
remedy or claim under or in respect of this Agreement or any covenant, condition
or provision herein or in the Warrants. All such covenants, conditions and
provisions are and shall be held to be for the sole and exclusive benefit of the
Company, the Agent and the Registered Owners of the Warrants.
SECTION 8.6. Separability of Invalid Provisions. In case any one or more
of the provisions contained in this Agreement or in the Warrants shall for any
reason be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other provision
of this Agreement, but this Agreement shall be construed as if such invalid or
illegal or unenforceable provision had never been contained herein.
SECTION 8.7. No Waiver of Rights. A failure or delay in exercising any
right, power or privilege in respect of this Warrant Agreement will not be
presumed to operate as a waiver, and a single or partial exercise of any right,
power or privilege will not be presumed to preclude any subsequent or further
exercise of that right, power or privilege or the exercise of any other right,
power or privilege.
SECTION 8.8. Execution in Several Counterparts. This Agreement may be
executed in any number of counterparts, each of which shall for all purposes be
deemed to be an original; but such counterparts shall together constitute but
one and the same instrument.
14
SECTION 8.9. Article and Section Headings. The headings or titles of the
several Articles and Sections hereof and any table of contents appended to
copies hereof shall be solely for convenience of reference and shall not affect
the meaning, construction or effect of this Agreement.
SECTION 8.10. Successor and Assigns. All the covenants and agreements in
this Agreement contained by or on behalf of the Company or the Agent shall bind
their respective successors and assigns, whether so expressed or not.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
AMERICREDIT CORP.
By__________________________
AGENT NAME, as Agent
By__________________________
15
EXHIBIT A
---------
FORM OF WARRANT
Number ___ _____ Warrant(s) Representing Right to Purchase Up to [U.S.
$/Specified Currency] ________ in Aggregate Principal Amount of _________.
This Warrant expires at 4:00 p.m. (_______ time) on [________, _________]
and thereafter will be void and of no value. Notice of the holder's intent to
exercise this Warrant must be given to ________________, as Agent not later than
4:00 P.M. (________ time) [____________, _____].
AMERICREDIT CORP.
THIS CERTIFIES THAT, for value received, ____________, the Registered Owner
hereof (herein sometimes called the "Warrantholder") is entitled, upon and
subject to the terms and conditions set forth herein and in the Warrant
Agreement (the "Warrant Agreement") dated as of ___________, ____, ____ between
AmeriCredit Corp. (the "Company") and ______________, as Agent, (the "Agent"),
to purchase at par plus interest accrued thereon, if any, at any time from 9:00
A.M. (___________ time) [____________, _____] to 4:00 P.M. (________ time)
[________________, _____], inclusive (each such date being referred to as an
"Exercise Date") up to ___________ in aggregate amount of _______________, by
providing written notice to the Agent of the Warrantholder's intention to
exercise its right to purchase provided for herein specifying the number of
Warrants which the Warrantholder wishes to exercise, such notice to be provided
in the notice form annexed hereto as Annex II not earlier than 9:00 A.M.
(________ time)on [_________________, ____] and not later than 4:00 P.M.
(___________ time) [____________, ___], and by surrendering to the Agent at its
principal office in _____________, ___________ on any Exercise Date, this
Warrant, with the Exercise Form on which this Warrant is exercised, the
__________________ will be delivered as described below against payment therefor
in [U.S. Federal Reserve or other United States/Specified Currency] funds
current and immediately available to the Agent at the amount designated in the
Warrant Agreement, in each case in an amount equal to the purchase price of the
__________________ so purchased pursuant to the exercise of this Warrant.
This Warrant is one of a duly authorized issue of warrants issued under the
provisions of the Warrant Agreement. Reference is hereby made for particulars of
the rights of the Warrantholders and of the Company in respect thereof and the
terms and conditions upon which the Warrants are issue and held, all to the sole
effect as if the provisions of the Warrant Agreement were herein set forth, to
all of which the Warrantholder by acceptance hereof assents. The Company will
furnish to the Warrantholder, upon written request and without charge, a copy of
the Warrant Agreement. All capitalized terms not otherwise defined herein, shall
have the meanings ascribed thereto in the Warrant Agreement.
The __________________ purchased pursuant to the exercise of this Warrant
will be mailed by certified mail return receipt requested to the person
specified in the Exercise Form annexed hereto at its address specified therein
or, if so specified in the Exercise Form, delivered
1
to such person or its agent at the principal office of the Agent in
______________ on the Exercise Date.
If __________________ are purchased in an aggregate amount which is less
than the total amount of _____________________ that can be purchased pursuant to
this Warrant, the Warrantholder hereof will be entitled to receive without
charge a new Warrant in respect of the balance of the amounts of
__________________ which the Registered Owner hereof was entitled to purchase
under the surrendered Warrant and which were not then purchased.
On presentation at the principal office of the Agent in ______________
subject to the provisions of the Warrant Agreement, one or more Warrants may be
exchanged for one or more Warrants entitling the Warrantholder to purchase an
equal aggregate principal amount of __________________ as may be purchased under
the Warrant or Warrants so exchanged. Nothing contained in this Warrant, the
Warrant Agreement or elsewhere shall be construed as conferring upon the
Warrantholder hereof any right or interest whatsoever as an owner of
__________________ or any other right or interest in respect thereof except as
herein and in the Warrant Agreement expressly provided.
This Warrant is registered on the books of the Company and is transferable
only in accordance with the provisions of the Warrant Agreement by surrender
thereof at the principal office of the Agent duly endorsed or accompanied by a
written instrument of transfer duly executed by the Registered Owner of this
Warrant or its attorney duly authorized in writing all in accordance with the
terms and provisions of the Warrant Agreement.
This Warrant and the Warrant Agreement are governed by and construed in
accordance with the laws of Texas, without regard to principles of conflicts of
law.
IN WITNESS WHEREOF the Company has caused this Warrant to be duly executed
as of _________________, ___.
AMERICREDIT CORP.
By:______________________
Name:____________________
Title:___________________
2
Certificate of Authentication
This is one of the Warrants described in the within-mentioned Warrant
Agreement
______________________, as Agent
By______________________________________
Authorized Officer
3
ANNEX I - NOTICE OF INTENT TO EXERCISE
TO:
The undersigned Warrantholder of _____ Warrants evidenced by Warrant
Number______ (the "Warrant") hereby notifies you pursuant to Section 4.1 of the
Warrant Agreement dated as of _______, __ (the "Warrant Agreement") between
AmeriCredit Corp. (the "Company") and [__________, the undersigned], of the
undersigned's intention to exercise _______ of such Warrants on ____________,
____) (the "Exercise Date") to purchase ________________ in aggregate amount of
the Company's __________________ from and after [___________, _____]. The
purchase price shall be a total of [U.S. $/Specified Currency] __________
representing an aggregate of _______.
The Warrant with the Exercise Form duly completed shall be delivered to the
Agent at its principal office in ________________, ________. Payment of the
purchase price of the __________________ shall be made in [U.S. Federal Reserve
or other United States/Specified Currency funds] immediately available at the
principal office of the Agent on the Exercise Date. The undersigned shall direct
such __________________ be registered and delivered in the name(s) and the
amount(s) set forth opposite the undersigned's name on Annex II to the Warrant.
DATED this _____ day of ____________, ____.
[NAME OF WARRANTHOLDER]
By__________________________
4
ANNEX II - EXERCISE FORM
TO:
The undersigned Warrantholder of ______ Warrants evidenced by the Warrant
attached hereto hereby exercises on _____________, ____ (the "Exercise Date")
Warrants to purchase an aggregate of ____________ of AmeriCredit Corp., and
agrees to transfer on the Exercise Date in [U.S. $/Specified Currency] funds
immediately available to the Agent (at [account]) such purchase price and in
accordance with the terms and conditions of the Warrant Agreement dated as of
____________, ____ (the "Warrant Agreement") between AmeriCredit Corp. and
[____________________], as Agent. The undersigned hereby irrevocably directs
that such __________________ be registered and delivered in accordance with the
directions set forth herein.
The undersigned acknowledges that all taxes or other governmental charges
payable upon the registration and delivery of such __________________ (other
than in connection with each original issue and sale of the __________________),
including any transfer taxes payable if the __________________ are to be
registered in the name of a person or persons other than the undersigned
Warrantholder, must be paid by the undersigned.
DATED this _________ day of _____________, ___.
[NAME OF WARRANTHOLDER]
By__________________________________
Please check box if __________________ are to be delivered at the offices of
_________ on the Exercise Date, failing which the __________________ will be
mailed by certified mail return receipt requested.
Unless the foregoing box is checked, the __________________ shall be delivered
to the Warrantholder at its address set forth in the Register.
5
