Exhibit 10.34
EXECUTION COPY
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SECURITY AND FUNDING AGREEMENT
by and among
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AMERICREDIT ONE TRUST, as Borrower,
BANK ONE, NA (MAIN OFFICE CHICAGO),
as Administrative Agent on behalf
of the Secured Parties,
BANK ONE, NA (MAIN OFFICE COLUMBUS),
as Collateral Agent and Securities Intermediary
and
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THE SEVERAL SECURED PARTIES
PARTY HERETO FROM TIME TO TIME
Dated as of May 31, 2001
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TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS
Section 1.1 Defined Terms ............................................. 2
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ARTICLE II
THE COLLATERAL
Section 2.1 Grant of Security Interest by the Borrower ................ 2
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Section 2.2 No Transfer of Duties ..................................... 4
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Section 2.3 Termination and Release of Rights ......................... 4
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ARTICLE III
THE ADMINISTRATIVE AGENT AND THE COLLATERAL AGENT
Section 3.1 Appointment and Powers .................................... 5
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Section 3.2 Performance of Duties ..................................... 6
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Section 3.3 Limitation on Liability ................................... 6
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Section 3.4 Indemnification ........................................... 7
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Section 3.5 Compensation and Reimbursement ............................ 7
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Section 3.6 Waiver of Setoffs ......................................... 7
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Section 3.7 Control by the Required APA Banks ......................... 7
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Section 3.8 Successor Administrative Agent ............................ 8
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ARTICLE IV
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE BORROWER
Section 4.1 Representations and Warranties of the Borrower ............ 9
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Section 4.2 Covenants of the Borrower ................................. 12
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ARTICLE V
REQUIRED APA BANKS; INTERCREDITOR PROVISIONS
Section 5.1 Authority of Required APA Banks ........................... 17
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Section 5.2 Rights of Secured Parties ................................. 18
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Section 5.3 Degree of Care ............................................ 18
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ARTICLE VI
TERMINATION EVENTS; REMEDIES
Section 6.1 Termination Events; Remedies .............................. 19
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Section 6.2 Restoration of Rights and Remedies ........................ 22
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Section 6.3 No Remedy Exclusive ....................................... 22
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ARTICLE VII
FUNDINGS; THE VFN
Section 7.1 Loans to Borrower; Funding Procedures; the VFN ............ 22
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Section 7.2 Sharing of Payments, Etc .................................. 34
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Section 7.3 Right of Setoff ........................................... 34
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Section 7.4 Interest .................................................. 35
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Section 7.5 Payments Generally ........................................ 36
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Section 7.6 Broken Funding ............................................ 36
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Section 7.7 Conversion and Continuation of Outstanding Advances ....... 37
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Section 7.8 Illegality ................................................ 37
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Section 7.9 Inability to Determine Eurodollar Rate .................... 38
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Section 7.10 Fees ...................................................... 39
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ARTICLE VIII
INDEMNIFICATION
Section 8.1 Indemnity ................................................. 39
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Section 8.2 Indemnity for Reserves and Expenses ....................... 41
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Section 8.3 Indemnity for Taxes ....................................... 43
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Section 8.4 Other Costs, Expenses and Related Matters ................. 45
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ARTICLE IX
MISCELLANEOUS
Section 9.1 Further Assurances ........................................ 46
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Section 9.2 Waiver .................................................... 46
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Section 9.3 Amendments; Waivers ....................................... 46
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Section 9.4 Severability .............................................. 47
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Section 9.5 Nonpetition Covenant ...................................... 47
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Section 9.6 Notices ................................................... 48
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Section 9.7 Term of this Agreement .................................... 48
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Section 9.8 Assignments; Third-Party Rights ........................... 48
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Section 9.9 Consent of Required APA Banks ............................. 48
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Section 9.10 Limitation of Liability ................................... 49
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Section 9.11 Counterparts .............................................. 49
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Section 9.12 Headings .................................................. 49
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Page
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Section 9.13 No Recourse Against Certain Parties ....................... 49
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Section 9.14 Respective Rights of the Borrower and the Secured Parties
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in the Collateral ...................................................... 50
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Section 9.15 Consents to Jurisdiction .................................. 50
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Section 9.16 Trial by Jury Waived ...................................... 51
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Section 9.17 Liabilities and Rights of Administrative Agent ............ 51
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Section 9.18 CP Lender Generally ....................................... 52
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Section 9.19 Governing Law ............................................. 54
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Section 9.21 Confidentiality ........................................... 54
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Section 9.20 No Recourse ............................................... 53
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Section 9.21 Confidentiality ........................................... 54
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SECURITY AND FUNDING AGREEMENT
SECURITY AND FUNDING AGREEMENT, dated as of May 31, 2001 (this
"Agreement"), by and among AMERICREDIT ONE TRUST, a Delaware business trust (the
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"Borrower"), BANK ONE, NA (MAIN OFFICE CHICAGO), a national banking association
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("Bank One Chicago"), as administrative agent on behalf of the Secured Parties
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(together with its successors and assigns in such capacity, "Administrative
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Agent"), BANK ONE, NA (COLUMBUS) ("Bank One Columbus"), as collateral agent
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hereunder (together with its successors and assigns in such capacity, the
"Collateral Agent"), and as securities intermediary hereunder (together with its
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successors and assigns in such capacity, the "Securities Intermediary") and THE
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SEVERAL SECURED PARTIES PARTY HERETO FROM TIME TO TIME.
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, pursuant to the Sale and Servicing Agreement, dated as of the date
hereof (the "Sale and Servicing Agreement"), among the Sellers, the Servicer,
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the Backup Servicer, the Borrower, the Collateral Agent and the Administrative
Agent, the Sellers intend to sell to the Borrower from time to time all of their
rights, title and interests in and to certain receivables, securities and the
other property specified therein; and
WHEREAS, the Borrower desires to obtain financing for the purchase of such
receivables and securities; and
WHEREAS, it is a condition, among others, to the Borrower's obtaining
advances hereunder that the Borrower grant to the Administrative Agent on behalf
of the Secured Parties a first priority security interest in all of the
Borrower's right, title and interest in and to the Receivables, the Asset Backed
Securities and the other property specified herein;
NOW THEREFORE, for good and valuable consideration, the adequacy, receipt
and sufficiency of which are hereby acknowledged, the parties hereto hereby
agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Defined Terms. Capitalized terms defined in Annex A to the Sale
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and Servicing Agreement, unless otherwise defined herein, shall have such
defined meanings when used herein.
ARTICLE II
THE COLLATERAL
Section 2.1 Grant of Security Interest by the Borrower.
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(a) The Borrower hereby grants to the Administrative Agent, on behalf of
and for the benefit of the Secured Parties to secure the payment and performance
of the respective Secured Obligations, a security interest in all of the
Borrower's right, title and interest, whether now owned or hereafter acquired
and wherever located, in, to and under all accounts, contract rights, general
intangibles, chattel paper, instruments, documents, money, cash, deposit
accounts, certificates of deposit, goods, letters of credit, advices of credit,
securities, investment property, financial assets, security entitlements or
instruments consisting of, arising from or relating to any of the following
property: (i) the Receivables; (ii) the Other Conveyed Property related thereto;
(iii) the Asset Backed Securities (including, in the case of Asset Backed
Securities in certificated form, each certificate evidencing the Asset Backed
Securities); (iv) the rights and benefits of the Borrower under (x) the Sale and
Servicing Agreement, (y) each Receivables Sale Agreement and ABS Sale Agreement
entered into between the relevant Seller and the Borrower pursuant to the Sale
and Servicing Agreement, including, but not limited to, the right to cause the
relevant Seller to repurchase Receivables or Asset Backed Securities, as the
case may be, from the Borrower under certain circumstances, and (z) the ABS
Documents relating to the Asset Backed Securities; (v) all amounts required to
be deposited, or delivered to the Administrative Agent for deposit, from time to
time to the Collection Account; (vi) the Pledged Accounts and all funds on
deposit from time to time in Pledged Accounts and all property credited thereto,
and in all investments and proceeds thereof (including all income thereon);
(vii) all funds on deposit from time to time in the Lockbox Account and all
property credited thereto and all rights and benefits of the Borrower under the
Lockbox Agreement; (viii) all amounts owing to
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the Borrower and all other rights of the Borrower under any Hedge Contract; and
(ix) all present and future claims, demands, causes and choses in action in
respect of any or all of the foregoing and all payments on or under and all
proceeds of every kind and nature whatsoever in respect of any and all of the
foregoing, including all proceeds of the conversion, voluntary or involuntary,
into cash or other liquid property, all cash proceeds, accounts, accounts
receivables, notes, drafts, acceptances, chattel paper, checks, deposit
accounts, insurance proceeds, condemnation awards, rights to payment of any and
every kind and other forms of obligations and receivables, investment property,
financial assets, security entitlements or instruments and other property which
at any time constitute all or part of or are included in the proceeds of any of
the foregoing (collectively, the "Collateral").
The Administrative Agent, for the benefit of the Secured Parties,
acknowledges such grant of a security interest.
(b) The Borrower hereby assigns to the Administrative Agent for the benefit
of the Secured Parties all of its rights under the Sale and Servicing Agreement
(but not its obligations).
(c) In order to effect the provisions and purposes of this Agreement,
including for the purpose of perfecting the security interests granted
hereunder, the Borrower represents and warrants that it has, on or prior to the
date of this Agreement, executed and filed or caused to be filed appropriate
UCC-1 financing statements in Delaware and has taken all other action necessary
to ensure that the Administrative Agent, as agent for the Secured Parties, has a
first priority perfected security interest in all of the Collateral that can be
perfected by the filing of a financing statement. Furthermore, on and as of each
Receivables Sale Date or ABS Sale Date, as applicable, the Borrower hereby
represents and warrants that the Borrower and the relevant Seller have taken all
other steps necessary under all applicable law in order to cause to exist in
favor of the Administrative Agent, on behalf of the Secured Parties, a valid,
subsisting and enforceable first priority perfected security interest in the
Borrower's first priority perfected security interest in each Asset Backed
Security and in the Financed Vehicle securing each Receivable pledged hereunder
on such date (and the proceeds of such Financed Vehicle) (provided, however,
that, prior to (X) the occurrence of a Servicer Termination Event, a Potential
Servicer Termination Event, a Termination Event or a Potential Termination Event
and the request by the Administrative Agent or, (Y) at any time, the request by
the Required APA Banks, for the recordation of the Borrower's and/or the
Administrative Agent's lien on such Financed Vehicle's certificate of title, no
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such recordation shall be required), and such security interest is and shall be
prior to all other liens upon and security interests in such Financed Vehicle
that now exist or may hereafter arise or be created.
Section 2.2 No Transfer of Duties. The security interests granted hereby
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are granted as security only and shall not (i) transfer or in any way affect or
modify, or relieve the Borrower from, any obligation to perform or satisfy any
term, covenant, condition or agreement to be performed or satisfied by the
Borrower under or in connection with this Agreement or any other Basic Agreement
to which it is a party or (ii) impose any obligation on any of the Secured
Parties or the Administrative Agent to perform or observe any such term,
covenant, condition or agreement or impose any liability on any of the Secured
Parties for any act or omission on its part relative thereto or for any breach
of any representation or warranty on its part contained therein or made in
connection therewith except, in each case, to the extent specifically provided
herein and in the other Basic Agreements.
Section 2.3 Termination and Release of Rights.
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(a) On each VFN Prepayment Date, the Administrative Agent shall, at the
expense of the Borrower: execute such instruments of release with respect to the
Prepayment Related Collateral, in recordable form if necessary, in favor of the
Borrower as the Borrower may reasonably request; deliver any Prepayment Related
Collateral in its possession to the Borrower; and otherwise take such actions,
and/or cause or permit the Servicer to take such actions, at the Borrower's
expense, as are necessary and appropriate to release the lien of this Agreement
and release and deliver to the Borrower the Prepayment Related Collateral.
(b) On the Termination Date, except as otherwise provided herein, the
rights, remedies, powers, duties, authority and obligations conferred upon each
Secured Party pursuant to this Agreement shall terminate and be of no further
force and effect and all rights, remedies, powers, duties, authority and
obligations of each Secured Party with respect to the Collateral shall be
automatically released. On the Termination Date, each Secured Party agrees, at
the expense of the Borrower, to execute such instruments of release, in
recordable form if necessary, in favor of the Borrower as the Borrower may
reasonably request, to deliver any Collateral in its possession to the Borrower,
and otherwise to take such actions, and/or cause or permit the Servicer to take
such actions, as are necessary and appropriate to release the lien of this
Agreement and release and deliver to the Borrower the Collateral.
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(c) To the extent, if any, otherwise required of the Borrower by the terms
of any Basic Agreement and permitted by the terms hereof and thereof, the
Administrative Agent may, and otherwise upon the prior written instructions of a
respective Authorized Officer of each APA Bank that is a member of the Required
APA Banks, the Administrative Agent shall, at the expense of the Borrower, take
(in each case) such steps as may be necessary, or as the Borrower, in a manner
consistent with the Basic Agreements, may reasonably request, to release the
interests of the Secured Parties in any items of the Collateral, including but
not limited to redelivering and reassigning to the Borrower any releases
necessary to permit the Borrower to transfer its interest in such items of the
Collateral in accordance with the terms of the Basic Agreements.
(d) No more than four times per month, the Administrative Agent shall, at
the Borrower's request and at the expense of the Borrower: (i) execute such
instruments of release with respect to Receivables that are not part of the
Receivables Pool Balance, in recordable form if necessary in favor of the
Borrower as the Borrower may request; deliver any related Collateral in its
possession to the Borrower; and otherwise take such actions, and/or cause the
Servicer to take such action, at the Borrower's expense, as are necessary or
appropriate to release the lien of this Agreement and release and deliver to the
Borrower the related Collateral; and (ii) take such actions, and/or cause the
Servicer to take such action, at the Borrower's expense, as are necessary or
appropriate to release the lien of this Agreement on any Asset-Backed Securities
in which the Secured Parties have no interest hereunder.
ARTICLE III
THE ADMINISTRATIVE AGENT AND THE COLLATERAL AGENT
Section 3.1 Appointment and Powers.
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(a) The Secured Parties hereby appoint Bank One Chicago as the
Administrative Agent, and Bank One Chicago has accepted such appointment and has
agreed to act as Administrative Agent for the Secured Parties and to perform the
other duties of the Administrative Agent in accordance with the provisions of
this Agreement and the other Basic Agreements.
(b) The parties hereto hereby acknowledge the appointment of Bank One
Columbus as Collateral Agent and as Securities Intermediary pursuant to the
terms of the Collateral Agent Agreement.
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Section 3.2 Performance of Duties. The Administrative Agent shall have no
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duties or responsibilities except those expressly set forth in this Agreement
and the other Basic Agreements to which the Administrative Agent is a party or
as directed by the Required APA Banks in accordance with this Agreement. The
Administrative Agent shall not be required to take any discretionary actions
hereunder except at the written direction and with the indemnification of the
Required APA Banks.
Section 3.3 Limitation on Liability. Neither the Administrative Agent nor
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its directors, officers or employees shall be liable for any action taken or
omitted to be taken by it or them hereunder, or in connection herewith, except
that the Administrative Agent shall be liable for its gross negligence, bad
faith or willful misconduct; nor shall the Administrative Agent be responsible
for the validity, effectiveness, value, sufficiency or enforceability against
any Seller, the Servicer or the Borrower of this Agreement or any of the
Collateral (or any part thereof). Notwithstanding any term or provision of this
Agreement, the Administrative Agent shall incur no liability to any Seller, the
Servicer, the Borrower or the Secured Parties for any action taken or omitted by
the Administrative Agent in connection with the Collateral, except for the gross
negligence, bad faith or willful misconduct on the part of the Administrative
Agent, and shall incur no liability to any Seller, the Servicer, the Borrower or
the Secured Parties except for gross negligence, bad faith or willful misconduct
in carrying out its duties. Subject to Section 3.4, the Administrative Agent
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shall be protected and shall incur no liability to any such party in relying
upon the genuineness of any notice, demand, certificate, signature, instrument
or other document reasonably believed by the Administrative Agent to be genuine
and to have been duly executed by the appropriate signatory, and (absent actual
knowledge to the contrary) the Administrative Agent shall not be required to
make any independent investigation with respect thereto. The Administrative
Agent shall at all times be free independently to establish to its reasonable
satisfaction, but shall have no duty to independently verify, the existence or
nonexistence of facts that are a condition to the exercise or enforcement of any
right or remedy hereunder or under any of the other Basic Agreements. The
Administrative Agent may consult with counsel, and shall not be liable for any
action taken or omitted to be taken by it hereunder in good faith and in
accordance with the advice of such counsel. The Administrative Agent shall be
under no obligation to exercise any of the remedial rights or powers vested in
it by this Agreement or to follow any direction from the Required APA Banks or
any Secured Party, unless it shall have received reasonable
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security or indemnity satisfactory to the Administrative Agent against the
costs, expenses and liabilities which might be incurred by it.
Section 3.4 Indemnification. The Borrower shall indemnify the
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Administrative Agent, its directors, officers, employees and agents for, and
hold the Administrative Agent, its directors, officers, employees and agents
harmless against, any loss, liability or expense (including the costs and
expenses of defending against any claim of liability and reasonable attorneys
fees and expenses) arising out of or connection with the Administrative Agent's
acting as Administrative Agent hereunder, except such loss, liability or expense
as shall result from the gross negligence, bad faith or willful misconduct of
the Administrative Agent or its officers or agents. The obligation of the
Borrower under this Section 3.4 shall survive the termination of this Agreement
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and the resignation or removal of the Administrative Agent.
Section 3.5 Compensation and Reimbursement. The Borrower agrees for the
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benefit of the Secured Parties and as part of the Secured Obligations (a) to pay
to the Administrative Agent, from time to time, reasonable compensation for all
services rendered by it hereunder as set forth in the Fee Letter (which compen-
sation shall not be limited by any provision of law in regard to the
compensation of a collateral trustee); and (b) to reimburse the Administrative
Agent upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Administrative Agent in accordance with any provision
of, or carrying out its duties and obligations under, this Agreement (including
the reasonable compensation and fees and the expenses and disbursements of its
agents, any independent certified public accountants and independent counsel),
except any expense, disbursement or advances as may be attributable to gross
negligence, bad faith or willful misconduct on the part of the Administrative
Agent.
Section 3.6 Waiver of Setoffs. The Administrative Agent hereby expressly
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waives any and all rights of setoff that the Administrative Agent may otherwise
at any time have under applicable law with respect to any Pledged Account and
agrees that amounts in the Pledged Accounts shall at all times be held and
applied solely in accordance with the provisions hereof and of the other Basic
Agreements.
Section 3.7 Control by the Required APA Banks. To the extent the
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Administrative Agent is entitled to consent to or withhold its consent to any
waiver or amendment of this Agreement or the other Basic Agreements in
accordance with the terms hereof or thereof or otherwise take or omit to take
action upon
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the occurrence of a Servicer Termination Event, a Potential Servicer Termination
Event, Termination Event or Potential Termination Event, the Administrative
Agent shall (a) give prompt notice to the Secured Parties of any such waiver,
amendment, Servicer Termination Event, Potential Servicer Termination Event,
Termination Event or Potential Termination Event of which it is aware and (b)
take such action with respect to such waiver, amendment, Servicer Termination
Event, Potential Servicer Termination Event, Termination Event or Potential
Termination Event as shall be directed by all of the Secured Parties (unless the
direction of the Required APA Banks is expressly required with respect to a
particular provision)
Section 3.8 Successor Administrative Agent. The Administrative Agent may,
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upon 15 days' notice to the Sellers, and the Administrative Agent will, at the
direction of the Required APA Banks, resign as Administrative Agent; provided,
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in either case, that such resignation shall not become effective until a
successor Administrative Agent has been appointed hereunder in accordance with
the next sentence. If the Administrative Agent shall resign as Administrative
Agent under this Agreement, then the Secured Parties shall appoint from among
the APA Banks a successor agent, whereupon such successor agent shall succeed to
the rights, powers and duties of the Administrative Agent, and the term
"Administrative Agent" shall mean such successor agent, effective upon its
acceptance of such appointment and its delivery of a duly executed counterpart
of this Agreement and an acknowledgment of such appointment to the APA Banks,
and the former Administrative Agent's rights, powers and duties as
Administrative Agent shall be terminated, without any other or further act or
deed on the part of such former Administrative Agent or any of the parties to
this Agreement. After the retiring Administrative Agent's resignation hereunder
as Administrative Agent, the provisions of this Article III shall inure to its
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benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement.
The resigning Administrative Agent shall be entitled to compensation
accrued up to the date of resignation. The resigning Administrative Agent shall
be liable (under the terms hereof) for its actions or inaction prior to the
effective date of resignation.
ARTICLE IV
REPRESENTATIONS, WARRANTIES AND COVENANTS
OF THE BORROWER
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Section 4.1 Representations and Warranties of the Borrower. The
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Borrower represents and warrants to the Administrative Agent and the Secured
Parties as of the date hereof, the Effective Date and each Funding Date that:
(a) Organization and Good Standing. The Borrower has been duly
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organized and is validly existing as a business trust under the laws of the
State of Delaware, with power and authority to own its properties and to conduct
its business as such properties are currently owned and such business is
currently conducted. The Borrower had at all relevant times and now has, power,
authority and legal right to acquire and own the Conveyed Property, Conveyed
Securities and the Other Conveyed Property, and to grant to the Administrative
Agent a security interest in the Collateral and to enter into and perform its
obligations under this Agreement.
(b) Due Qualification; Power and Authority; No Violation. The Borrower
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is duly qualified to do business as a foreign entity in good standing, and has
obtained all necessary licenses and approvals, in all jurisdictions in which the
ownership or lease of its property or the conduct of its business requires such
qualification. The Borrower has the power and authority to execute and deliver
this Agreement and the other Basic Agreements to which it is a party and to
carry out its terms and their terms, respectively; the Borrower has full power
and authority to grant to the Administrative Agent, for the benefit of the
Secured Parties, a perfected first priority security interest in the Collateral
and has duly authorized such grant by all necessary trust action; and the
execution, delivery and performance of this Agreement and the other Basic
Agreements to which it is a party have been duly authorized by the Borrower by
all necessary corporate action. The Trustee is duly authorized to execute for
and on behalf of the Borrower this Agreement and the other Basic Agreements to
which the Borrower is a party. The execution, delivery and performance by the
Borrower of this Agreement and the other Basic Agreements to which it is a party
require no action by or in respect of, or filing with, any governmental body,
agency or official, and do not contravene, or constitute a default under, any
provision of applicable law or regulation or of the Trust Agreement or of any
agreement, judgment, injunction, order, decree or other instrument binding upon
the Borrower or result in the creation or imposition of any Lien on assets of
the Borrower (other than the Lien of this Agreement), or require the consent or
approval of, or the filing of any notice or other documentation with, any
governmental authority or other Person. The Borrower has not entered into any
other Agreements other than the Basic Agreements and agreements necessary for
the transactions contemplated thereby.
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(c) Binding Effect. Each of this Agreement and the other Basic
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Agreements to which it is a party constitutes the legal, valid and binding
obligation of the Borrower, enforceable against the Borrower in accordance with
its terms, subject to applicable bankruptcy, insolvency, moratorium or other
similar laws affecting the rights of creditors.
(d) Accuracy of Information. All information heretofore furnished by
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the Borrower to the Secured Parties for purposes of, or in connection with, this
Agreement or any transaction contemplated hereby is, and all such information
hereafter furnished by the Borrower to the Secured Parties will be, true and
accurate in every material respect, on the date such information is stated or
certified.
(e) Tax Status. All tax returns (Federal, state and local) required to
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be filed with respect to the Borrower have been filed, and there has been paid
or adequate provision made for the payment of all taxes, assessments and other
governmental charges in respect of the Borrower.
(f) Action, Suits. There are no actions, suits or proceedings pending
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or threatened against or affecting the Borrower or its properties, in or before
any court, arbitrator or other body, which may have a material adverse effect on
the Borrower's ability to perform its obligations hereunder or under the other
Basic Agreements.
(g) Use of Proceeds. The proceeds of any Funding will be used by the
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Borrower to acquire the Receivables, the Asset Backed Securities and Other
Conveyed Property related to the Receivables and Asset-Backed Securities from
the Sellers pursuant to the Sale and Servicing Agreement.
(h) Place of Business. The chief place of business and chief executive
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office of the Borrower are located at the Corporate Trust Office.
(i) Merger and Consolidation. The Borrower has not changed its name,
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merged with or into or been consolidated with any other entity or been the
subject of any proceeding under Xxxxx 00, Xxxxxx Xxxxxx Code (Bankruptcy).
(j) Solvency. The Borrower is not insolvent and will not be rendered
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insolvent immediately following the consummation on the Effective Date and on
any Funding Date of the transactions contemplated by this Agreement and the
other
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Basic Agreements, including (but not limited to) the pledge by the Borrower
to the Administrative Agent of the Collateral in accordance with this
Agreement.
(k) No Termination Event. After giving effect to each Funding, no
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Potential Termination Event or Termination Event exists.
(l) Compliance. The Borrower has complied in all material respects
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with all Requirements of Law in respect of the conduct of its business and
ownership of its property.
(m) Not an Investment Company. The Borrower is not an "investment
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company" within the meaning of the Investment Company Act of 1940, as
amended, or is exempt from all provisions of such Act.
(n) ERISA. The Borrower is in compliance in all material respects with
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ERISA, and no lien in favor of the Pension Benefit Guaranty Corporation on
any of the Receivables or Other Conveyed Property shall exist.
(o) Ownership of the Borrower. One hundred percent (100%) of the
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outstanding beneficial interest in the Borrower is and will be directly
owned (both beneficially and of record) by two holders and such holders
shall not include any Person other than the Primary Seller and the
Secondary Seller. All certificates evidencing such beneficial interests are
and will be validly issued, and there are no options, warrants or other
rights to acquire such certificates of the Borrower.
(p) No Material Adverse Change. Since March 31, 2001, and in the case
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of the Borrower, as of the date of its formation, there has been no
material adverse change in the business, assets, operations, prospects or
conditions (financial or otherwise) of the Borrower, the Sellers, or the
Servicer, either individually or taken as a whole.
(q) Characteristics of Receivables and Asset Backed Securities. Each
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of the statements listed on Schedules B and C of the Sale and Servicing
Agreement is true and correct.
Any document, instrument, certificate or notice delivered to any
Secured Party by, or on behalf of, the Borrower or its Affiliates hereunder
or under the other Basic Agreements shall be deemed a representation and
warranty of the contents thereof by the Borrower.
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The representations and warranties set forth in this Section 4.1 shall
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survive the pledge and assignment of the Collateral to the Administrative
Agent for the benefit of the Secured Parties. Upon discovery by the
Borrower or any Secured Party of a breach of any of the foregoing
representations and warranties, the party discovering such breach shall
give prompt written notice to the others.
Section 4.2 Covenants of the Borrower. The Borrower hereby covenants
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with the Secured Parties that, for so long as this Agreement shall be in
effect:
(a) Preservation of Collateral. Subject to the rights, powers and
--------------------------
authorities granted to the Administrative Agent and the Secured Parties in
this Agreement, the Borrower shall take such action as is necessary and
proper with respect to the Collateral in order to preserve and maintain
such Collateral and to cause (subject to the rights of the Secured Parties)
the Administrative Agent to perform its obligations with respect to such
Collateral as provided herein. The Borrower will do, execute, acknowledge
and deliver, or cause to be done, executed, acknowledged and delivered,
such instruments of transfer or take such other steps or actions as may be
necessary, or required by the Required APA Banks, to perfect the security
interests granted hereunder in the Collateral, to ensure that such security
interests rank prior to all other Liens and to preserve the priority of
such security interests and the validity and enforceability thereof. Upon
any delivery or substitution of Collateral, the Borrower shall be obligated
to execute such documents and perform such actions as are necessary to
create in the Administrative Agent for the benefit of the Secured Parties a
valid first Lien on, and valid and perfected first priority security
interest in, the Collateral so delivered and to deliver such Collateral to
the Administrative Agent, free and clear of any other Lien, together with
satisfactory assurances thereof, and to pay any reasonable costs incurred
by any of the Secured Parties (including their respective agents) or
otherwise in connection with such delivery. The Borrower will not take any
action to cause the Collateral or any portion thereof to be an instrument
(as such term is defined in the Relevant UCC).
(b) Notices. In the event that the Borrower acquires knowledge of the
-------
occurrence and continuance of any Termination Event or Potential
Termination Event under any of the Basic Agreements, the Borrower shall
immediately give notice thereof to the Administrative Agent. The
Administrative Agent shall immediately forward such notices to the Secured
Parties.
12
(c) Waiver of Stay or Extension Laws; Marshaling of Assets. To the
------------------------------------------------------
fullest extent permitted by applicable law, the Borrower will not at any
time insist upon, plead, or in any manner whatsoever claim or take the
benefit or advantage of, any appraisement, valuation, stay, extension or
redemption law wherever enacted, now or at any time hereafter in force, in
order to prevent or hinder the enforcement of this Agreement or any
absolute sale of the Collateral or any part thereof, or the possession
thereof by any purchaser at any sale under Article VI of this Agreement;
----------
and the Borrower, to the fullest extent permitted by applicable law, for
itself and all who may claim under it, hereby waives the benefit of all
such laws, and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Administrative Agent, but will
suffer and permit the execution of every such power as though no such law
had been enacted.
(d) Noninterference, Etc. The Borrower shall not (i) except to the
--------------------
extent expressly permitted or contemplated by Section 5.2 of the Sale and
-----------
Servicing Agreement, waive or alter, or permit to be waived or altered any
of its rights under the Collateral (or any agreement or instrument relating
thereto) without the prior written consent of the Administrative Agent
(acting at the direction of the Required APA Banks); or (ii) fail to pay
any tax, assessment, charge or fee levied or assessed against the
Collateral, or to defend any action, if such failure to pay or defend may
adversely affect the priority or enforceability of the Borrower's right,
title or interest in and to the Collateral or the Administrative Agent's
lien on, and security interest in, the Collateral for the benefit of the
Secured Parties; or (iii) take any action, or fail to take any action, if
such action or failure to take action will interfere with the enforcement
of any rights under the Basic Agreements.
(e) Change in Name, Structure, etc. The Borrower shall not change its
------------------------------
name, identity or corporate structure unless it shall have given the
Administrative Agent at least 30 days' prior written notice thereof, shall
have effected any necessary or appropriate filings of financing statements
or amendments thereto, and shall have delivered to the Administrative Agent
an Opinion of Counsel either (a) stating that, in the opinion of such
counsel, such action has been taken with respect to the execution and
filing of any amendments to previously recorded financing statements and
continuation statements and other actions as are necessary to perfect,
maintain and protect the lien and security interest of the Administrative
Agent (and the priority thereof), on behalf of the Secured Parties, with
respect to such Collateral and reciting the details of such action, or (b)
stating that, in the opinion of such counsel, no such action is necessary
to maintain such perfected lien and security interest.
13
(f) Relocation of the Borrower. The Borrower shall not change its
--------------------------
chief executive office unless it gives the Administrative Agent at least 30
days' prior written notice thereof. If the Borrower relocates its chief
executive office or principal place of business from the Corporate Trust
Office, the Borrower shall effect whatever appropriate recordations and
filings are necessary and shall provide an Opinion of Counsel to the
Administrative Agent, on behalf of the Required APA Banks, to the effect
that, upon the recording of any necessary assignments or amendments to
previously-recorded assignments and filing of any necessary amendments to
the previously filed financing or continuation statements or upon the
filing of one or more specified new financing statements, and the taking of
such other actions as may be specified in such opinion, the security
interests in the Collateral shall remain, after such relocation, valid and
perfected.
(g) Limitations on Activities. The Borrower shall not, without the
-------------------------
prior written consent of the Administrative Agent (acting at the direction
of the Secured Parties):
(i) engage in any business or activity other than those set
forth in Section 2.3 of the Trust Agreement;
-----------
(ii) incur any indebtedness, assume or guaranty any indebtedness
of any other entity, other than any indebtedness to either Seller
thereof incurred in connection with the acquisition of Receivables,
Asset Backed Securities and Other Conveyed Property, which
indebtedness shall be subordinated as set forth in the related
Receivables Sale Agreement or ABS Sale Agreement, as applicable, or
engage in any transactions with any Affiliates, except as contemplated
under this Agreement and the other Basic Agreements (provided that
--------
this clause shall not be deemed to prohibit the sale of Receivables or
Asset Backed Securities on arm's-length terms, to an Affiliate of the
Borrower in connection with an Optional Prepayment pursuant to this
Agreement; provided further that no such sales shall be permitted to
-------- -------
be made to AFS unless such sale is in connection with a public
asset-backed transaction);
(iii) institute proceedings to be adjudicated bankrupt or
insolvent, or consent to the institution of bankruptcy or insolvency
proceedings against it, or file a petition seeking or consent to
reorganization or relief under any applicable federal or state law
relating to
14
bankruptcy, or consent to the appointment of a receiver, liquidator,
assignee, trustee, sequestrator (or other similar official) of the
trust or a substantial part of its property, or make any assignment
for the benefit of creditors, or admit in writing its inability to pay
its debts generally as they become due, or take any action in
furtherance of any such action;
(iv) fail to (A) to the extent the Borrower's office is located
in the offices of either Seller or any Affiliate of either Seller, pay
fair market rent for its executive office space located in the offices
of either Seller or any Affiliate of either Seller, (B) maintain the
Borrower's books, financial statements, accounting records and other
corporate documents and records separate from those of the Sellers or
any other entity, (C) not commingle the Borrower's assets with those
of the Sellers or any other entity, (D) act solely in its name and
through its own authorized officers and agents, (E) make investments
directly or by brokers engaged and paid by the Borrower or its agents
(provided that if any such agent is an Affiliate of the Borrower, it
--------
shall be compensated at a fair market rate for its services), (F)
separately manage the Borrower's liabilities from those of the Sellers
or any Affiliates of the Sellers and pay its own liabilities,
including all administrative expenses, from its own separate assets,
and (G) pay from the Borrower's own assets all obligations and
indebtedness of any kind incurred by the Borrower;
(v) amend, alter, change or repeal the Trust Agreement as in
effect on the date hereof;
(vi) make any distribution to its equity holders, if: (A) any
Termination Event or Potential Termination Event has then occurred and
remains continuing or would result from such payment or other
distribution; or (B), after giving effect thereto, the Borrower's net
worth, determined in accordance with GAAP (but exclusive of funds on
deposit in the Receivables Reserve Account and the ABS Reserve
Account, and exclusive of the value of the Hedge Contract(s)), would
be less than the greater of (x) five percent (5%) of the VFN Balance
and (y) five percent (5%) of the largest VFN Balance that had at any
time during the Facility Term been outstanding; or (C) such
distribution is Receivables and such distribution is not in con-
15
nection with a public-asset backed transaction; or (D) such
distribution is of Receivables that are included in the Receivables
Pool Balance or Asset Backed Securities in which the Secured Parties
have a security interest hereunder; and
(vii) merge with or into or be consolidated with any other
entity.
(h) Financial Reporting. The Borrower will maintain for itself a
-------------------
system of accounting established and administered in accordance with GAAP,
and will furnish to the Administrative Agent for the benefit of the Secured
Parties:
(i) Quarterly Reporting. Within forty-five (45) days after the
-------------------
close of the first three quarterly periods of each of the Borrower's
fiscal years, for AmeriCredit, consolidated unaudited balance sheets
(which shall include those of the Borrower and the Servicer) as at the
close of such period and consolidated related statements of operations
and cash flows for the period from the beginning of such fiscal year
to the end of such quarter, all certified by an Authorized Officer of
AmeriCredit.
(ii) Annual Reporting. Within ninety (90) days after the close
----------------
of the final quarterly period of each of the Borrower's fiscal years,
for AmeriCredit, consolidated audited balance sheets reported on by
the Independent Accountants (which shall include those of the Borrower
and the Servicer) as at the close of each such fiscal year and
consolidated related statements of operations and cash flows reported
on by the Independent Accountants for the period from the beginning of
such fiscal year to the end of such fiscal year, all certified by an
Authorized Officer of AmeriCredit.
(iii) Compliance Certificate. Together with the financial
----------------------
statements required hereunder, a compliance certificate signed by an
Authorized Officer of the Trustee stating that (x) the attached
financial statements have been prepared in accordance with GAAP and
accurately reflect the financial condition of the Borrower and (y) to
the best of such Person's knowledge, no Termination Event, Potential
Termination Event, Servicer Termination Event or Potential Servicer
Termination Event exists, or if any Termination Event,
16
Potential Termination Event, Potential Servicer Termination Event or
Servicer Termination Event exists, stating the nature and status
thereof.
(i) Separateness. The Borrower shall take all reasonable steps
------------
(including, without limitation, all steps that the Administrative Agent may
from time to time reasonably request) to maintain the Borrower's identity
as a separate legal entity from AFS or any of its Affiliates and to make it
manifest to third parties that the Borrower is an entity with assets and
liabilities distinct from those of AFS and each other Affiliate thereof.
Without limiting the generality of the foregoing, the Borrower shall (1)
maintain appropriate books and records, (2) cause its financial statements
to be prepared in accordance with GAAP in a manner that indicates the
separate existence of the Borrower and its assets and liabilities, (3) pay
all its liabilities when due, (4) not assume the liabilities of either
Seller or any Affiliate of either Seller, (5) not guarantee the liabilities
of either Seller or any Affiliate of either Seller and (6) comply with (and
cause the Sellers and the Servicer to comply with) all assumptions upon
which counsel to the Borrower is relying in rendering its true sale and
nonconsolidation opinions with respect to the Borrower and the Sellers.
(j) Access to Records. The Borrower shall (but in any event, prior to
-----------------
a Termination Event, Potential Termination Event, Servicer Termination
Event or Potential Servicer Termination Event on no more than four
occasions per year), permit only the Secured Parties and their respective
duly authorized representatives, attorneys or auditors to inspect the books
and records maintained by the Borrower pursuant hereto at such times as any
such Secured Party may reasonably request.
ARTICLE V
REQUIRED APA BANKS; INTERCREDITOR PROVISIONS
Section 5.1 Authority of Required APA Banks. The Borrower hereby
-------------------------------
irrevocably appoints the Administrative Agent for the benefit of the
Secured Parties its true and lawful attorney, with full power of
substitution, in the name of the Borrower, the Secured Parties or
otherwise, but at the expense of the Borrower, to the extent permitted by
law to exercise in its sole and absolute discretion, at any time and from
time to time while any Termination Event has occurred and is continuing,
any or all of the rights and powers with respect to all or any of the
Collateral as are specified or referred to in Article VI hereof.
----------
17
Section 5.2 Rights of Secured Parties. Each Secured Party that from
-------------------------
time to time is not a part of the Required APA Banks expressly agrees that
it shall not assert any right that it may otherwise have, as a Secured
Party with respect to the Collateral, to direct the maintenance, sale or
other disposition of the Collateral or any portion thereof, notwithstanding
the occurrence and continuation of any Termination Event or any non-
performance by the Borrower of any obligation owed to such Secured Party
hereunder or under any other Basic Agreement, and each party hereto agrees
that the Required APA Banks (or the Administrative Agent, as directed by
the Required APA Banks) shall be the only Persons entitled to assert and
exercise such rights.
Section 5.3 Degree of Care. Notwithstanding any term or provision of
--------------
this Agreement, no Secured Party (including any Secured Party that is a
member of the Required APA Banks) shall incur any liability to AmeriCredit,
the Sellers, the Servicer or the Borrower for any action taken or omitted
by the Administrative Agent or any Secured Party (including any Secured
Party that is a member of the Required APA Banks) in connection with the
Collateral and, further, shall incur no liability to the Administrative
Agent or any other Secured Party (including any Secured Party that is a
member of the Required APA Banks); provided, however, that the foregoing
-----------------
shall not be deemed to relieve any Secured Party of liability for its own
gross negligence, bad faith or willful misconduct. Each Secured Party
(including any Secured Party that is a member of the Required APA Banks)
shall be protected and shall incur no liability to any such party in
relying upon the accuracy, acting in reliance upon the contents and
assuming the genuineness of any notice, demand, certificate, signature,
instrument or other document believed by such Secured Party to be genuine
and to have been duly executed by the appropriate signatory, and (absent
manifest error or actual knowledge to the contrary), no such Secured Party
shall be required to make any independent investigation with respect
thereto. Each Secured Party shall, at all times, be free independently to
establish to its reasonable satisfaction the existence or nonexistence, as
the case may be, of any fact the existence or nonexistence of which shall
be a condition to the exercise or enforcement of any right or remedy under
this Agreement or any of the other Basic Agreements.
ARTICLE VI
TERMINATION EVENTS; REMEDIES
18
Section 6.1 Termination Events; Remedies. (a) If a Termination Event
----------------------------
has occurred and is continuing, then, and in any such event, (A) if such
Termination Event is one, only with respect to the Borrower, specified in
clause (v) of the definition of Termination Event, the commitments of the
APA Banks to the Borrower shall automatically terminate and the VFN Balance
(together with accrued and unpaid interest thereon and all fees and other
obligations of the Borrower accrued under and in connection with the Basic
Agreements) shall automatically become due and payable, without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower, and (B) in the case of any other Termination
Event, the Administrative Agent shall, at the direction of the Required APA
Banks, by notice to the Borrower, take either or both of the following
actions, at the same or different times: (i) declare the commitments of the
APA Banks to the Borrower to be terminated, and thereupon the obligations
of the APA Banks to make Fundings to the Borrower shall terminate
immediately, and (ii) declare the VFN Balance (together with accrued and
unpaid interest thereon and all fees and other obligations of the Borrower
accrued under and in connection with the Basic Agreements) to be due and
payable, and thereupon such amounts shall be immediately due and payable,
without presentment, demand, protest or other notice of any kind, all of
which are hereby waived by the Borrower. In any of such events, the
Administrative Agent shall, at the direction of the Required APA Banks,
take whatever action at law or in equity as may appear necessary or
desirable in the judgment of the Required APA Banks to collect and satisfy
all Secured Obligations (including, but not limited to, foreclosure upon
the Collateral and sale or securitization of the Collateral and all other
rights available to secured parties under applicable law) or to enforce
performance and observance of any obligation, agreement or covenant under
any of the Basic Agreements. In addition to all other rights and remedies
granted to the Administrative Agent for the benefit of the Secured Parties
by this Agreement, the other Basic Agreements, the Relevant UCC and other
applicable law, rules, or regulations, the Administrative Agent may with
the consent of the Required APA Banks, and shall upon the request of the
Required APA Banks, upon the occurrence and during the continuance of any
such Termination Event, exercise any one or more of the following rights
and remedies: (i) foreclose upon or otherwise enforce the security
interests in any or all Collateral in any manner permitted by applicable
law, rules, or regulations or in this Agreement; (ii) notify any or all
Obligors to make payments with respect to Receivables directly to the
Administrative Agent for the benefit of the Secured Parties; (iii) sell or
otherwise dispose of any or all Collateral at one or more public or private
sales, for cash or credit or future delivery, on such terms and in such
manner as the Required APA Banks may determine; (iv) require the Borrower
to assemble the Collateral and make
19
it available to the Administrative Agent at a place to be designated by the
Administrative Agent; (v) enter onto any property where any Collateral is
located and take possession thereof with or without judicial process; and
(vi) enforce any rights of the Borrower under any Receivable or other
agreement to the extent the Required APA Banks deem appropriate.
In furtherance of the Administrative Agent's rights hereunder, the
Borrower hereby grants to the Administrative Agent for the benefit of the
Secured Parties an irrevocable, non-exclusive license (exercisable without
royalty or other payment by the Administrative Agent) to use, license or
sublicense any patent, trademark, tradename, copyright or other
intellectual property in which the Borrower now or hereafter has any right,
title or interest, together with the right of access to all media in which
any of the foregoing may be recorded or stored. Notwithstanding the
foregoing, the Administrative Agent shall not be entitled to take any
action and the Required APA Banks shall not be entitled to give any
direction with respect to the Collateral, except to the extent provided
herein and in the Sale and Servicing Agreement or the other Basic
Agreements.
(b) In the event of any sale, collection, conversion or other
disposition into cash of the Collateral, or any part thereof, after
deducting any actual costs and expenses incurred in connection with any
such disposition, the Administrative Agent shall deposit the proceeds
thereof into the Collection Account for distribution on the next succeeding
Distribution Date in accordance with the priorities set forth in
Section 6.8 of the Sale and Servicing Agreement. The Borrower hereby agrees
-----------
that ten (10) days' notice of any intended sale or disposition of any
Collateral is reasonable.
(c) The Administrative Agent on behalf of the Secured Parties shall be
entitled to obtain from the Borrower all records and documentation in the
possession of the Borrower pertaining to any Collateral. Upon consummation
of any sale pursuant to this Section 6.1, the Required APA Banks or the
-----------
Administrative Agent acting on behalf of and at the direction of the
Required APA Banks, shall have the right to assign, transfer, indorse and
deliver to the purchaser or purchasers thereof, free and clear of any Lien,
the Collateral, or any portion thereof or any interest therein, so sold.
Each purchaser at any such sale shall hold the property purchased by it
absolutely free and clear from any claim or right on the part of the
Secured Parties or the Borrower; and the Borrower hereby irrevocably waives
all rights of redemption, stay, marshaling of assets or appraisal that it
now has or may at any time in the future have under applicable law or
statute now existing or hereafter enacted.
20
(d) In addition to the remedies granted in this Agreement and the
other Basic Agreements, if a Termination Event has occurred and is
continuing, the Administrative Agent shall, at the direction of the
Required APA Banks, take whatever action at law or in equity as may appear
necessary or desirable in the judgment of the Required APA Banks to collect
the amounts then due and thereafter to become due under this Agreement and
any of the other Basic Agreements (including but not limited to, all rights
available to secured parties under applicable law) or to enforce
performance and observance of any obligation, agreement or covenant under
any of the Basic Agreements, including the exercise of the following powers
with respect to the Collateral: (i) to demand, xxx for, collect, receive
and give acquittance for any and all monies due or to become due upon or by
virtue thereof, (ii) to settle, compromise, compound, prosecute or defend
any action or proceeding with respect thereto, (iii) to sell, securitize,
transfer, assign or otherwise deal with the same or the proceeds thereof as
fully and effectively as if the Administrative Agent were the absolute
owner thereof, and (iv) to extend the time of payment of any or all thereof
and to make any allowance or other adjustment with respect thereto. All
proceeds of any portion of the Collateral liquidated pursuant to this
Section 6.1 shall be applied as set forth in subsection (b) above.
-----------
(e) The Administrative Agent and the Required APA Banks, as the case
may be, may exercise the powers and rights granted by this Section 6.1,
-----------
without notice or demand to the Borrower except as provided in (a) above.
(f) In addition to other remedies granted in this Agreement and the
other Basic Agreements, if a Termination Event has occurred and is
continuing, the Borrower, at the direction of the Administrative Agent
(acting at the direction of the Required APA Banks) or the Required APA
Banks, shall at its own expense (or shall cause the Servicer at its own
expense pursuant to Section 5.5 of the Sale and Servicing Agreement)
promptly take all additional steps, if any, as are necessary to create and
maintain perfection of the security interest in the Financed Vehicle
related to each Receivable (and the proceeds of such Financed Vehicle) on
behalf of the Borrower and to create and maintain perfection of the
security interest in the Borrower's security interest in the Financed
Vehicle related to each Receivable (and the proceeds of such Financed
Vehicle) on behalf of the Administrative Agent, for the benefit of the
Secured Parties, including, if required by applicable law, having a
notation of the Borrower's and/or the Administrative Agent's respective
security interests recorded on such Financed Vehicle's certificate of
title.
21
Section 6.2 Restoration of Rights and Remedies. If the Administrative
----------------------------------
Agent has instituted any proceeding to enforce any right or remedy under
this Agreement, and such proceeding has been discontinued or abandoned for
any reason, or has been determined adversely to the Administrative Agent,
then and in every such case the Borrower, the Secured Parties shall,
subject to any determination in such proceeding, be restored severally and
respectively to their former positions hereunder, and thereafter all rights
and remedies of the Secured Parties shall continue as though no such
proceeding had been instituted.
Section 6.3 No Remedy Exclusive. No right or remedy herein conferred
-------------------
upon or reserved to the Administrative Agent, the Required APA Banks or any
of the other Secured Parties is intended to be exclusive of any other right
or remedy, and every right or remedy shall, to the extent permitted by law,
be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law, in equity or otherwise and
each and every right, power and remedy whether specifically herein given or
otherwise existing may be exercised by the Required APA Banks, and the
exercise of or the beginning of the exercise of any right or power or
remedy shall not be construed to be a waiver of the right to exercise at
the same time or thereafter any other right, power or remedy.
ARTICLE VII
FUNDINGS; THE VFN
Section 7.1 Loans to Borrower; Funding Procedures; the VFN.
----------------------------------------------
(a) Funding Generally. Upon the terms and subject to the conditions
-----------------
set forth herein, prior to the Commitment Expiry Date, and provided that no
--------
Termination Event or Potential Termination Event shall have occurred and be
continuing, the CP Lender may, in its sole discretion, and, in the event
that the CP Lender declines to make any advance, the APA Banks shall
(subject to the terms and conditions specified herein), collectively make
an advance, under the terms and conditions hereof (any such advance, a
"Funding" and the first such advance, the "Initial Funding") to the
------- ---------------
Borrower from time to time on or after the Effective Date. Each Funding by
an APA Bank shall be made on a pro rata basis based on such APA Bank's
Commitment as a percentage of the Aggregate Commitment.
22
To request Fundings hereunder, the Borrower shall notify the
Administrative Agent of such request by telephone (a) in the case of a
Eurodollar Funding, not later than 11:00 A.M. (New York time) three (3)
Business Days before the date of the proposed Funding, (b) in the case of
an ABR Funding, not later than 12:30 P.M. (New York time) on the proposed
date of such Funding and (c) in the case of a CP Funding, (i) with respect
to any Funding of $50,000,000 or less, not later than 6:00 P.M. (New York
time) one (1) Business Day prior to the proposed date of such Funding and
(ii) for all other amounts, not later than 12:30 P.M. (New York time) one
(1) Business Day before the date of the proposed Funding. Each day on which
a Funding is made hereunder shall be a Business Day. Each such telephonic
request for a Funding shall be irrevocable and shall be confirmed promptly
by hand delivery or telecopy to the Administrative Agent of a written
funding request (each, a "Funding Request") in a form approved by the
---------------
Administrative Agent and signed by the Borrower. Each such telephonic and
written Funding Request shall specify the following information in
compliance with Section 7.1(b):
--------------
(i) the requested Advance Amount (calculated in accordance with
the definition thereof, and which shall be at least $1,000,000 or
integral multiples of $100,000 in excess thereof);
(ii) the date of such Funding, which shall be a Business Day;
(iii) whether such Funding is to be a CP Funding, an ABR Funding
or a Eurodollar Funding;
(iv) in the case of a Eurodollar Funding, the Eurodollar Funding
Period to be applicable thereto, which shall be a period contemplated
by the definition of the term "Eurodollar Funding Period"; and
(v) the location and number of the Borrower's account to which
funds are to be disbursed, which shall comply with the requirements of
Section 7.1(f).
--------------
If no election as to the type of Funding is specified, then the requested
Funding shall be at the discretion of the Administrative Agent (with the
consent of the CP Lender). Promptly following receipt of a Funding Request
in accordance with this Section 7.1(a), the Administrative Agent shall
--------------
promptly advise each Secured Party of the
23
details thereof and of the amount of such Secured Party's loan to be made as
part of the requested Funding (if any). Notwithstanding anything to the contrary
in this Section 7.1(a), the Borrower shall be permitted to request up to two (2)
--------------
Fundings per calendar week, and up to nine (9) Fundings per calendar month.
(b) Conditions to Funding. No Secured Party shall have any obligation to
---------------------
advance any funds to the Borrower in connection with any Funding unless, on the
date of such Funding, (i) after giving effect to such Funding, the Aggregate Net
Investment would not exceed the Maximum Facility Limit; (ii) with respect to
each Secured Party, after giving effect to such Funding, the related Net
Investment of such Secured Party would not exceed the related Commitment; (iii)
each APA Bank's pro rata share of such Funding, would not exceed the amount of
--- ----
its unused Commitment; (iv) the Borrower has provided a Funding Request to the
Administrative Agent, which Funding Request shall include the calculations
necessary to satisfy the requirement set forth in clauses (i), (ii) and (iii)
above and shall also include a certification by an authorized officer of the
Trustee on behalf of the Borrower that, to the best of such officer's knowledge,
no event has occurred since the most recent Funding that would have a material
and adverse effect on the Receivables, AmeriCredit, the Sellers, the Servicer or
the Borrower; (v) the Borrower shall have deposited in the ABS Reserve Account,
or shall have given irrevocable instructions to the Administrative Agent to
withhold from the proceeds of such Funding and to deposit in the ABS Reserve
Account, an amount equal to the ABS Reserve Account Shortfall, if any; (vi) the
Borrower shall have deposited in the Receivables Reserve Account, or shall have
given irrevocable instructions to the Administrative Agent to withhold from the
proceeds of such Funding and to deposit in the Receivables Reserve Account, an
amount equal to the Receivables Reserve Account Shortfall, if any; (vii) the VFN
is rated at least "A2" by Xxxxx'x and the VFN is rated at least "A" by S&P;
(viii) one or more binding and enforceable Hedge Contracts in an aggregate
notional amount equal to the Aggregate Net Investment (including any Aggregate
Net Investment to be made in connection with such Funding) are in full force and
effect in accordance with the terms of the Sale and Servicing Agreement; (ix)
each representation and warranty of the Borrower herein shall be true and
correct with respect to the Borrower and each Receivable as of the date of such
Funding; (x) a Potential Termination Event or a Termination Event, shall not
have occurred and be continuing; (xi) if the Funding is to be made by the CP
Lender through the issuance of Commercial Paper, the CP Lender has advised the
Administrative Agent that, in its sole discretion, it has elected to make such
Funding; (xii) in connection with the initial Funding following the Effective
Date, the conditions precedent set forth in Section 7.1(h) hereof and Section
--------------
3.2 of the Sale and Servicing Agreement
24
shall be satisfied and (xiii) after giving effect to such Funding, no Pool
Limitation would be exceeded.
Notwithstanding anything to the contrary set forth in this Agreement, no
APA Bank shall have any obligation to advance funds to the Borrower on any
Funding Date if, on such day, any Termination Event or Potential Termination
Event shall have occurred and be continuing. The Administrative Agent shall
notify each Secured Party of the receipt and content of any Funding Request by
no later than 2:30 P.M. (New York time) on the date on which such Funding
Request was received by the Administrative Agent; if such notification is
provided to the Secured Parties after 2:30 P.M. (New York time) on such date,
then the Funding Request shall be deemed to be received on the following
Business Day.
The APA Banks' several obligations to provide the Borrower with funds
pursuant to this Article VII shall terminate on the Commitment Expiry Date.
-----------
Notwithstanding anything contained in this Section 7.1 or elsewhere in this
-----------
Agreement to the contrary, no APA Bank shall be obligated to provide the
Borrower with aggregate funds in connection with a Funding Request in an amount
that would exceed such APA Bank's unused Commitment then in effect, and the
failure of any APA Bank to make its pro rata share of the Funding available to
--- ----
the Borrower (subject to the terms and conditions set forth herein) shall not
relieve any other APA Bank of its obligations hereunder. The obligations of the
APA Banks hereunder to provide Fundings shall be several and not joint.
(c) Receivables Advance Percentage. With respect to any Funding Date, the
------------------------------
advance percentage with respect to Receivables (the "Receivables Advance
-------------------
Percentage") shall be 89%, subject in the case of Receivables to downward
----------
adjustment on such Funding Date as described below:
(1) if a "Trigger Event" (such term meaning, for purposes of this
Section 7.1(c), a "Trigger Event" as defined in (i) any public asset-backed
--------------
transaction, which transaction has been outstanding for twenty-four months
or less from the date hereof or (ii) if applicable, any comparable "spread
capture event" in any automobile receivables transaction conducted by any
Securitization Vehicle the "pool factor" of which is equal to or greater
than 25%, whether or not defined in such transaction as a "Trigger Event"
and whether or not such transaction is a public transaction) occurs which
continues unremedied for two (2) monthly reporting periods and is waived by
25
the party or parties entitled to exercise such waiver under the related
transaction documentation, then the Receivables Advance Percentage in
effect at the opening of business on such Funding Date shall be reduced by
2%; provided that if the Receivables Advance Percentage has been reduced as
a result of the application of this clause (1), the Receivables Advance
Percentage shall remain at such reduced percentage until such time as the
related Trigger Event has been cured for a period of three (3) consecutive
months;
(2) if a Trigger Event occurs, and is not waived by the Person or
Persons entitled to exercise such waiver within the twenty-four month
period referred to in (1) above for any particular asset-backed transaction
(whether or not such transaction is a public transaction) (and such Trigger
Event shall be deemed unwaived if there is no Person or Persons entitled to
so waive), then the Receivables Advance Percentage in effect at the opening
of business on such Funding Date shall be reduced by 6% (without
duplication of any reduction pursuant to clause (1) above); provided that
--------
if the Receivables Advance Percentage has been reduced as a result of the
application of this clause (2), the Receivables Advance Percentage shall
remain at such reduced percentage until such time as the related Trigger
Event has been cured for a period of three (3) consecutive months and
(3) if there is an Excess Spread Deficiency (calculated as of the
close of business two (2) Business Days prior to such Funding Date), then
the Receivables Advance Percentage shall be reduced by the product of (i)
the amount of such Excess Spread Deficiency (stated as a percentage)
multiplied by (ii) 2.0; provided that if the Receivables Advance Percentage
------------- --------
has been reduced as a result of the application of this clause (3), the
Receivables Advance Percentage shall remain at such reduced percentage
until such time as the Excess Spread Deficiency has been cured.
(d) ABS Advance Percentage. With respect to any Funding Date, the advance
----------------------
percentage with respect to Asset-Backed Securities (the "ABS Advance
-----------
Percentage") shall be (i) 99% with respect to Asset-Backed Securities that are
----------
VPTNs (or fundings under VPRNs), and (ii) with respect to Asset-Backed
Securities consisting of money market tranches, 100%.
26
(e) Funding Request Irrevocable. The notice of any proposed Funding shall
---------------------------
be irrevocable and binding on the Borrower, and the Borrower shall indemnify the
Secured Parties against any loss or expense incurred by the Secured Parties as
provided in Section 7.6 hereof.
-----------
(f) Disbursement of Funds. No later than 3:00 P.M. (New York City time) on
---------------------
the date on which a Funding is to be made, each Secured Party will make
available to the Borrower, in immediately available funds, the amount of the
Funding required to be made by it on such day by remitting the required amount
thereof to an account of the Borrower as designated in the related Funding
Request.
(g) The VFN.
-------
(i) The Borrower's obligation to pay the principal of, and interest
on, all amounts advanced by the Secured Parties pursuant to any Funding
shall be evidenced by a single note of the Borrower (as amended,
supplemented or otherwise modified and in effect from time to time, the
"VFN") which shall (1) be dated the date hereof; (2) be in the stated
---
principal amount equal to the Maximum Facility Limit (as reflected from
time to time on the grid attached thereto); (3) bear interest as provided
therein; (4) be payable to the order of the Administrative Agent for the
account of the Secured Parties (in proportion to the pro rata shares of the
Secured Parties based upon their respective Net Investments) and mature on
the Distribution Date occurring in the calendar month seventy-eight (78)
months following the Commitment Expiry Date (unless otherwise accelerated
pursuant to the terms of the Basic Agreements); (5) be entitled to the
benefits of this Agreement and the other Basic Agreements; and (6) be
substantially in the form of Exhibit A to this Agreement, with blanks
appropriately completed in conformity herewith. The Administrative Agent
shall, and is hereby authorized to, make a notation on the schedule
attached to the VFN of the date and the amount of each Funding and the date
and amount of the payment of principal thereon, and prior to any transfer
of the VFN, the Administrative Agent, on behalf of the Secured Parties,
shall indorse the outstanding principal amount of the VFN on the schedule
attached thereto. The entries made by the Administrative Agent pursuant to
the preceding sentence shall be prima facie evidence of the existence and
----- -----
amounts of the
27
obligations recorded therein; provided, however, that failure to make such
-------- -------
notation shall not adversely affect the rights of the Secured Parties with
respect to the payment obligations of the Borrower hereunder and under the
VFN.
(ii) The Borrower shall have the option to prepay all or a
portion of the VFN Balance on any Business Day selected by the Borrower
(each, an "Optional Prepayment"), subject to the following terms and
-------------------
conditions:
1. The Borrower shall have given the Administrative Agent at least two
(2) Business Days' prior written notice of its intent to effect an Optional
Prepayment;
2. Unless such Optional Prepayment is to be effected on a Distribution
Date (in which case the relevant calculations with respect to such Optional
Prepayment shall be reflected on the applicable Servicer's Determination
Date Certificate), the Borrower shall cause the Servicer to deliver to the
Administrative Agent, the Backup Servicer and the Rating Agencies a
Servicer's VFN Prepayment Date Certificate substantially in the form of
Exhibit B-2 to the Sale and Servicing Agreement, together with evidence to
the Administrative Agent, the Backup Servicer and the Rating Agencies
(which evidence may consist solely of the Servicer's VFN Prepayment Date
Certificate) that the Borrower shall have sufficient funds on the
contemplated VFN Prepayment Date to effect the Optional Prepayment in
accordance with this Agreement. Any such Servicer's VFN Prepayment Date
Certificate and related evidence shall be delivered to the Administrative
Agent no later than 1:00 P.M. (New York time), in draft form at least two
(2) Business Days prior to the contemplated VFN Prepayment Date and in
final form at least one Business Day prior to the contemplated VFN
Prepayment Date. In effecting an Optional Prepayment, the Borrower may (i)
use the proceeds of sales of the Receivables and/or Asset Backed Securities
(which sales must be made in arm's-length transactions to Persons other
than AFS unless such sale is in connection with a public asset-backed
transaction), and (ii) give effect to Collections on deposit in the
Collection Account at such time to the extent consistent with the
requirements of paragraph
28
4 below (as evidenced by the Servicer's VFN Prepayment Date Certificate).
3. In connection with any such Optional Prepayment that does not
constitute a prepayment in full of the outstanding VFN Balance, then,
following receipt by the Administrative Agent of the amounts referred to in
paragraph 5 below, there shall be released from the Lien of this Agreement
(subject to the requirements of paragraph 4 below): (i) a portion of the
Receivables constituting a part of the Receivables Pool Balance selected by
the Borrower in accordance with the eligibility criteria established for
the related asset-backed transaction and additionally selected in
accordance with the earliest origination date of all Receivables consistent
with criteria determined by the Servicer and reasonably satisfactory to the
Administrative Agent; provided, however, that the Borrower shall not have
-------- -------
used any adverse selection procedures with respect to the Receivables; and
(ii) such other Receivables not then constituting part of the Receivables
Pool Balance or Asset Backed Securities in which the Secured Parties then
have no interest, excluding, however, any Receivable or Asset Backed
Securities subject to a Repurchase Obligation ("Other Designated
----------------
Receivables" or "Other Designated Asset Backed Securities," as applicable)
----------- ----------------------------------------
as the Borrower intends to sell or distribute in accordance with the terms
hereof and as are designated by the Borrower and specified in the
Servicer's VFN Prepayment Date Certificate (such Receivables and/or Asset
Backed Securities and such Other Designated Receivables or Other Designated
Asset Backed Securities, together, in each case, with the related Other
Conveyed Property, being collectively referred to as the "Prepayment
----------
Related Collateral").
------------------
4. After giving effect to the Optional Prepayment and the release of
Prepayment Related Collateral from the Lien of this Agreement on any VFN
Prepayment Date, (x) the remaining VFN Balance minus Adjusted Collections,
-----
plus the amount of accrued and unpaid interest or discount, as applicable,
----
on all outstanding Fundings, together with all accrued and unpaid fees and
other costs and expenses due and owing to the Secured Parties, shall be
less than or equal to the amount resulting when the effective Receivables
Advance Percentage is multiplied by the remaining Receivables Pool Balance,
(y) none of the Receivables Pool Limitations shall be ex-
29
ceeded and (z) a Termination Event or Potential Termination Event shall not
have resulted;
For purposes of the foregoing, "Adjusted Collections" means the
--------------------
product of (i) the effective Receivables Advance Percentage, and (ii) the
amount of Collections on deposit in the Collection Account as of the close
of business on the Business Day preceding the date of the Servicer's VFN
Prepayment Date Certificate (which Collections shall be available for
distribution in accordance with Article VI of the Sale and Servicing
Agreement).
5. On the related VFN Prepayment Date, the Administrative Agent shall
have received, for the benefit of the Secured Parties, in immediately
available funds, an amount equal to the sum of (i) the portion of the VFN
Balance to be prepaid plus (ii) an amount equal to all unpaid CP Costs
----
(including CP Costs not yet accrued) to the extent reasonably determined by
the Administrative Agent to be attributable to that portion of the
Aggregate Net Investment to be prepaid plus (iii) an aggregate amount equal
----
to the sum of all other amounts due and owing to the Administrative Agent
and the Secured Parties under this Agreement and the other Basic Agreements
(including, without limitation, pursuant to Section 7.6 hereof), to the
-----------
extent accrued to such date and to accrue thereafter, as reasonably
determined by the Administrative Agent to be attributable to that portion
of the Aggregate Net Investment to be prepaid.
6. In connection with the Optional Prepayment of any Funding made to
the Borrower with the proceeds of Commercial Paper, the Borrower shall, on
the related Interest Payment Date, pay to the CP Lender all CP Costs in
connection therewith.
The Borrower hereby agrees to pay the reasonable legal fees and
expenses of the Administrative Agent and the Secured Parties in connection
with any Optional Prepayment (including, but not limited to, expenses
incurred in connection with the release of the Lien of the Administrative
Agent over the Receivables, related Other Conveyed Property in connection
with such Optional Prepayment) not to exceed $25,000 annually.
30
(iii) Although the VFN shall be dated the date hereof, CP Costs in
respect thereof shall be payable in the manner specified therein and in the
other Basic Agreements only for the periods during which amounts are
outstanding thereunder. In addition, although the stated principal amount
of the VFN shall be equal to the Maximum Facility Limit, the VFN shall be
enforceable with respect to the Borrower's obligation to pay the principal
thereof only to the extent of the unpaid principal amount outstanding
thereunder at the time such enforcement shall be sought. Principal on the
VFN shall be payable by the Borrower in the manner and on the dates
specified in the VFN and in the other Basic Agreements.
(h) Conditions Precedent. The obligations of the Secured Parties under
--------------------
this Agreement on any Funding Date are subject to the accuracy of the
representations and warranties on the part of the Borrower made herein and
in the other Basic Agreements as of such Funding Date. This Agreement shall
become effective on the first day on which all of the following conditions
precedent have been satisfied (the "Effective Date"):
--------------
(i) The Administrative Agent shall have received such opinions of
counsel to the Sellers, the Servicer and the Borrower, in form and
substance acceptable to the Administrative Agent, addressing such
matters as the Administrative Agent, on behalf of the Secured Parties,
shall request.
(ii) The Administrative Agent shall have received a certificate
of the Borrower, dated the date hereof, stating that (1) its
representations and warranties made herein and in the other Basic
Agreements are true and correct as of the date hereof, and (2) the
Borrower has complied with all agreements and satisfied all conditions
to be satisfied on its part pursuant to this Agreement and the other
Basic Agreements on or prior to the date hereof.
(iii) All conditions precedent to the authentication and delivery
of the VFN under this Agreement shall have been satisfied.
(iv) Each party to a Basic Agreement shall have performed and
complied with all agreements and conditions contained in such Basic
Agreement and all other documents delivered in con-
31
nection herewith or therewith which are required to be performed or
complied with by such party.
(v) This Agreement, the other Basic Agreements (other than the
Hedge Contracts, the Receivables Sale Agreements and the ABS Sale
Agreements which will be delivered in connection with the sale of
Receivables or Asset Backed Securities, as applicable), the Fee
Letter, and all agreements, certificates, instruments and other
documents required to be delivered in connection herewith and
therewith shall have been duly authorized, executed and delivered by
the respective parties thereto, shall be in full force and effect and
shall be in form and substance satisfactory to the Administrative
Agent and the Secured Parties.
(vi) The Administrative Agent shall have received the following,
in each case in form and substance satisfactory to it:
(1) copy of the Trust Agreement, certified by the Secretary
or an Assistant Secretary of the Trustee as of the date hereof,
duly authorizing the execution, delivery and performance by the
Borrower of the documents executed by on behalf of the Borrower
in connection with the transactions contemplated by this
Agreement and the other Basic Agreements to which it is a party;
and attesting to the names and true signatures of the person or
persons executing and delivering each such document;
(2) a copy of the resolutions of the Board of Directors of
each Seller (or if either Seller is not a corporation, then
comparable documents) and the Servicer, certified by the
Secretary or an Assistant Secretary of such Sellers and the
Servicer as of the date hereof, duly authorizing the execution,
delivery and performance by the Sellers and the Servicer of each
of the Basic Agreements to which each of them is a party and any
other documents executed by or on behalf of the Sellers and the
Servicer in connection with the transactions contemplated
thereby; and an incumbency certificate of each Seller and the
Servicer as to the person or persons executing and delivering
each such document; and
32
(3) such other documents and evidence with respect to the
Borrower, the Sellers, the Servicer and the Back-Up Servicer as
the Administrative Agent may reasonably request in order to
establish the trust or corporate existence and good standing of
each thereof, the proper taking of all appropriate corporate or
other proceedings in connection with the transactions
contemplated by this Agreement and the other Basic Agreements and
the compliance with the conditions set forth herein and therein.
(vii) No fact or condition shall exist under applicable law or
applicable regulations thereunder or interpretations thereof by any
regulatory authority which, in the reasonable opinion of the
Administrative Agent, would make it unlawful to issue the VFN or for
the Borrower or any of the other parties thereto to perform their
respective obligations under this Agreement and the other Basic
Agreements.
(viii) The Sellers and the Borrower shall have filed any
financing statements or amendments thereto, wherever necessary or
advisable in the judgment of the Administrative Agent, in order to
perfect the transfer and assignment of the Receivables to the Borrower
and the grant of the security interest therein to the Administrative
Agent and shall have delivered file-stamped copies of such financing
statements or other evidence of the filing thereof to the
Administrative Agent.
(ix) All taxes and fees due in connection with the filing of the
financing statements referred to in clause (viii) of this Section
-------
7.1(h) shall have been paid in full or duly provided for.
------
(x) No action or proceeding shall have been instituted nor shall
any governmental action be threatened before any court or governmental
agency nor shall any order, judgment or decree have been issued or
proposed to be issued by any court or governmental agency to set
aside, restrain, enjoin or prevent the performance of this Agreement
or any of the other Basic Agreements or the transactions contemplated
hereby or thereby.
33
Section 7.2 Sharing of Payments, Etc. If any Secured Party (for purposes of
------------------------
this Section 7.2 only, being a "Recipient") shall obtain any payment (whether
----------- ---------
voluntary, involuntary, through the exercise of any right of setoff, or
otherwise) on account of any interest in the VFN owned by it in excess of its
ratable share (based on the proportion of its Net Investment to the Aggregate
Net Investment) of payments on account of any interest in the VFN obtained by
such Secured Parties entitled thereto, such Recipient shall forthwith purchase
from such Secured Parties entitled to a share of such amount participations in
the percentage interests owned by such Persons as shall be necessary to cause
such Recipient to share the excess payment ratably with each such other Person
entitled thereto; provided, however, that if all or any portion of such excess
-------- -------
payment is thereafter recovered from such Recipient, such purchase from each
such other Person shall be rescinded and each such other Person shall repay to
the Recipient the purchase price paid by such Recipient for such participation
to the extent of such recovery, together with an amount equal to such other
Person's ratable share (according to the proportion of (a) the amount of such
other Person's required payment to (b) the total amount so recovered from the
Recipient) of any interest or other amount paid or payable by the Recipient in
respect of the total amount so recovered.
Section 7.3 Right of Setoff. Without in any way limiting the provisions of
---------------
Section 7.2, each of the Secured Parties is hereby authorized (in addition to
-----------
any other rights it may have) at any time after the occurrence of a Termination
Event or during the continuance of a Potential Termination Event to setoff,
appropriate and apply (without presentment, demand, protest or other notice
which are hereby expressly waived) any deposits and any other indebtedness held
or owing by such Secured Party to, or for the account of, the Borrower against
the amount owing by the Borrower hereunder to such Person (even if contingent or
unmatured).
Section 7.4 Interest. (a) Borrower shall pay CP Costs with respect to any
--------
Funding (or portion thereof) funded by the CP Lender through the issuance of
Commercial Paper for each day that such Funding is outstanding. CP Costs will
accrue each day on a pro rata basis, based upon the percentage share the amount
of such Funding represents in relation to all assets held by the CP Lender and
funded with Pooled Commercial Paper.
(b) At the option of the Borrower, any Funding (or portion thereof)
made by the CP Lender other than through the issuance of Commercial Paper
or by an APA Bank to the Borrower pursuant to Section 7.1 hereof shall bear
-----------
interest at
34
either (i) if available from such APA Bank to the Borrower on the related
Funding Date, the related Eurodollar Rate for such APA Bank or (ii) in all
other cases the Alternate Base Rate.
(c) If any principal of, or interest on, any portion of any Funding or
any fee or other amount payable by the Borrower hereunder is not paid when
due, whether at stated maturity, upon acceleration or otherwise, such
overdue amount shall bear interest, after as well as before judgment, at a
rate per annum equal to the applicable Alternate Base Rate plus 2% (the
----
"Default Rate").
------------
(d) Accrued Interest on each Funding shall be payable in arrears on
each Interest Payment Date for such Funding and upon the Commitment Expiry
Date and, if applicable, upon each Interest Payment Date following the
Commitment Expiry Date; provided that (i) interest accrued pursuant to
--------
paragraph (c) of this Section 7.4 shall be payable on demand, (ii) in the
-----------
event of any repayment of any Funding or prepayment of any Funding (other
than with respect to a CP Funding), accrued interest on the principal
amount repaid or prepaid shall be payable on the date of such repayment or
prepayment and (iii) in the event of any conversion of any ABR Funding or
Eurodollar Funding pursuant to Section 7.7, accrued interest on such ABR
-----------
Funding or Eurodollar Funding shall be payable on the Distribution Date
occurring immediately after such conversion.
(e) All interest on Fundings hereunder shall be computed on the basis
of a year of 360 days, except that interest computed when an Alternate Base
Rate is based on the Prime Rate shall be computed on the basis of a year of
365 days (or 366 days in a leap year), and in each case shall be payable
for the actual number of days elapsed (including the first day but
excluding the last day). The applicable CP Costs, Alternate Base Rate or
Eurodollar Rate shall be determined by the Administrative Agent, and such
determination shall be conclusive absent manifest error.
(f) If a Termination Event (other than a Termination Event described
in clause (p) of the definition thereof) has occurred and is continuing,
then interest thereafter accruing on all Fundings then existing or
thereafter made shall accrue at the Alternate Base Rate plus 2.00%.
Section 7.5 Payments Generally. All payments by the Borrower hereunder
------------------
shall be at the times, and in the manner, specified in Section 6.8 of the Sale
-----------
and Servicing Agreement. Notwithstanding any provision of this Agreement or the
other Basic Agreements to the contrary, all amounts due and owing to the
35
Administrative Agent and the other Secured Parties by the Borrower hereunder and
under the other Basic Agreements (if not due on an earlier date in accordance
with the terms hereof or the other Basic Agreements) will be due and payable on
the Distribution Date occurring in the month seventy-eight (78) months following
the Commitment Expiry Date.
Section 7.6 Broken Funding. In the event of (i) the payment of any
--------------
principal of any Eurodollar Funding other than on the last day of a Eurodollar
Funding Period applicable thereto (including as a result of a Termination Event,
Potential Termination Event or Optional Prepayment), (ii) the conversion of any
Eurodollar Funding other than on the applicable Interest Payment Date or (iii)
any failure to borrow, convert, continue or prepay any Eurodollar Funding on the
date specified in any notice delivered pursuant hereto, then, in any such event,
the Borrower shall compensate the APA Banks, for the loss, cost and expense
attributable to such event. Such loss, cost or expense to any APA Bank shall be
deemed to include an amount determined by such APA Bank to be the excess, if
any, of (1) the amount of interest which would have accrued on the principal
amount of such Eurodollar Funding had such event not occurred, at the Eurodollar
Rate that would have been applicable to such Eurodollar Funding, for the period
from the date of such event to the Interest Payment Date therefor (or, in the
case of a failure to borrow, convert or continue, for the period that would have
been the related Eurodollar Funding Period), over (2) the amount of interest
which would accrue on such principal amount for such period at the interest rate
which such APA Bank would bid were it to bid, at the commencement of such
period, for dollar deposits of a comparable amount and period from other banks
in the interbank eurodollar market. A certificate of any APA Bank setting forth
any amount or amounts that such APA Bank is entitled to receive pursuant to this
Section 7.6 shall be delivered to the Borrower and shall be conclusive absent
-----------
manifest error. The Borrower shall pay each such APA Bank the amount shown as
due on any such certificate on the next succeeding Distribution Date after
receipt thereof.
Section 7.7 Conversion and Continuation of Outstanding Advances Made by the
---------------------------------------------------------------
APA Banks. Prior to the occurrence of a Termination Event or a Potential
---------
Termination Event, (a) each ABR Funding hereunder may, at the option of the
Borrower, be converted to a Eurodollar Funding, (b) each Eurodollar Funding
hereunder may, at the option of the Borrower, be continued as a Eurodollar
Funding or converted to an ABR Funding. If a Termination Event or Potential
Termination Event has occurred and is continuing, then, for so long as any such
Termination Event or Potential Termination Event is continuing, (i) no
outstanding Funding may
36
be converted to, or continued as, a Eurodollar Funding, (ii) unless repaid, each
Eurodollar Funding shall be converted to an ABR Funding on the next succeeding
Interest Payment Date related thereto. For any such conversion or continuation,
the Borrower shall give the Administrative Agent irrevocable notice (each, a
"Conversion/Continuation Notice") of such request not later than 12:30 P.M. (New
------------------------------
York time) (i) in the case of a conversion of an ABR Funding into a Eurodollar
Funding or a continuation of a Eurodollar Funding as a Eurodollar Funding three
(3) Business Days before the date of such conversion or continuation, as
applicable, and (ii) following the occurrence and continuation of a Termination
Event or a Potential Termination Event, in the case of a conversion of a
Eurodollar Funding into an ABR Funding or a continuation of an ABR Funding as an
ABR Funding, on the Business Day of such conversion (with a copy to the
Administrative Agent). If a Conversion/Continuation Notice has not been timely
delivered with respect to any Eurodollar Funding or ABR Funding, such Funding
shall be automatically continued as, or converted to, an ABR Funding. Each
Conversion/Continuation Notice shall specify (a) the requested date (which shall
be a Business Day) of such conversion or continuation, (b) the aggregate amount
and rate option applicable to the Funding which is to be converted or continued
and (c) the amount and rate option(s) of Funding(s) into which such Funding is
to be converted or continued.
Section 7.8 Illegality. (a) Notwithstanding any other provision herein, if,
----------
after the Effective Date, the adoption of any Law or bank regulatory guideline
or any amendment or change in the interpretation of any existing or future Law
or bank regulatory guideline by any Official Body charged with the
administration, interpretation or application thereof, or the compliance with
any directive of any Official Body (in the case of any bank regulatory
guideline, whether or not having the force of Law), shall make it unlawful for
any APA Bank to acquire or maintain a Eurodollar Funding as contemplated by this
Agreement, (i) such APA Bank shall promptly, after becoming aware thereof,
notify the Administrative Agent and the Borrower thereof, (ii) the commitment of
such APA Bank hereunder to make a portion of a Eurodollar Funding, continue any
portion of a Eurodollar Funding as such and convert an ABR Funding to a
Eurodollar Funding shall forthwith be cancelled, and such cancellation shall
remain in effect so long as the circumstance described above exists, and (iii)
such APA Bank's portion of any Eurodollar Funding then outstanding shall be
converted automatically to an ABR Funding on the last day of the related
Eurodollar Funding Period, or within such earlier period as required by law.
37
If any such conversion of a portion of a Eurodollar Funding occurs on a day
which is not the last day of the related Eurodollar Funding Period, the Borrower
shall pay to such APA Bank such amounts, if any, as may be required to
compensate such APA Bank pursuant to Section 7.6 hereof. If circumstances
-----------
subsequently change so that it is no longer unlawful for an affected APA Bank to
acquire or to maintain a portion of a Eurodollar Funding as contemplated
hereunder, such APA Bank will, as soon as reasonably practicable after such APA
Bank knows of such change in circumstances, notify the Borrower, and the
Administrative Agent (with a copy to the Administrative Agent), and upon receipt
of such notice, the obligations of such APA Bank to acquire or maintain its
acquisition of portions of Eurodollar Fundings or to convert its portion of an
ABR Funding into portions of Eurodollar Fundings shall be reinstated.
(b) Each APA Bank agrees that, upon the occurrence of any event giving rise
to the operation of Section 7.8(a) with respect to such APA Bank, it will, if
--------------
requested by the Borrower and to the extent permitted by law or by the relevant
Official Body, endeavor in good faith to change the office at which it books its
portions of Eurodollar Fundings hereunder if such change would make it lawful
for such APA Bank to continue to acquire or to maintain its acquisition of
portions of Eurodollar Fundings hereunder; provided that such change may be made
--------
in such manner that such APA Bank, in its sole determination, suffers no
unreimbursed cost or expense or any other disadvantage whatsoever.
Section 7.9 Inability to Determine Eurodollar Rate. If, prior to the first
--------------------------------------
day of any Eurodollar Period:
(i) the Administrative Agent shall have determined (which
determination in the absence of manifest error shall be conclusive and
binding upon the Borrower) that, by reason of circumstances affecting the
relevant market, adequate and reasonable means do not exist for
ascertaining the Eurodollar Rate for such Eurodollar Funding Period; or
(ii) the Administrative Agent shall have received notice from one or
more of the APA Banks that the Eurodollar Rate determined or to be
determined for such Eurodollar Funding Period will not adequately and
fairly reflect the cost to such APA Banks (as conclusively certified by
such APA Banks) of purchasing or main-
38
taining their affected portions of Eurodollar Fundings during such
Eurodollar Funding Period;
then, in either such event, the Administrative Agent shall give telecopy or
telephonic notice thereof (confirmed in writing) to the Borrower and the other
APA Banks as soon as practicable thereafter. Until such notice has been
withdrawn by the Administrative Agent, no further Eurodollar Fundings shall be
made with respect to such APA Bank. The Administrative Agent agrees to withdraw
any such notice as soon as reasonably practicable after it is notified of a
change in circumstances which makes such notice inapplicable.
Section 7.10 Fees. The Borrower hereby agrees to pay to the Administrative
----
Agent, for the account of the Administrative Agent and the other Secured
Parties, the fees specified in the Fee Letter. Such payments shall be made to
the Administrative Agent on the dates and in the manner specified in the Fee
Letter.
ARTICLE VIII
INDEMNIFICATION
Section 8.1 Indemnity. Without limiting any other rights which the Secured
---------
Parties may have hereunder or under applicable law, the Borrower agrees to
indemnify the Secured Parties, the Administrative Agent and the Securities
Intermediary and any of their permitted assigns and their respective agents,
officers, directors and employees (collectively, "Indemnified Parties") from and
-------------------
against any and all damages, losses, claims, liabilities, costs and expenses,
including reasonable attorneys' fees (which such attorneys may be employees of
the Secured Parties, the Administrative Agent and the Securities Intermediary)
and disbursements (all of the foregoing being collectively referred to as
"Indemnified Amounts") awarded against or incurred by any of them arising out of
-------------------
or as a result of this Agreement and the other Basic Agreements, excluding,
however, (i) Indemnified Amounts to the extent resulting from gross negligence
or willful misconduct on the part of an Indemnified Party or (ii) recourse
(except as otherwise specifically provided in this Agreement and the other Basic
Agreements) for uncollectible Receivables, Asset Backed Securities and Other
Conveyed Property. Such Indemnified Amounts shall be paid in accordance with the
terms of the other Basic Agreements. Without limiting the generality of the
foregoing, the Borrower shall indemnify each Indemnified Party for Indemnified
Amounts relating to or resulting from:
39
(a) reliance on any representation or warranty made by the Borrower (or any
officers of the Borrower) under or in connection with this Agreement or any of
the other Basic Agreements, any Funding Request or any other information or
report delivered by the Borrower pursuant hereto or thereto, which shall have
been false or incorrect in any material respect when made or deemed made;
(b) the failure by the Borrower to comply with any applicable law, rule or
regulation with respect to the Collateral, or the nonconformity of the
Collateral with any such applicable law, rule or regulation;
(c) the failure to vest and maintain vested in the Administrative Agent on
behalf of the Secured Parties a first priority perfected security interest in
the Collateral (including, without limitation, all Financed Vehicles securing
Receivables), free and clear of any Lien (other than the Lien of this
Agreement);
(d) the failure to file, or any delay in filing, financing statements,
continuation statements, or other similar instruments or documents under the
Relevant UCC or other applicable laws with respect to all or any part of the
Collateral or the failure to note the lien of the Borrower and/or the
Administrative Agent, on behalf of the Secured Parties, on the certificate of
title to any Financed Vehicle securing a Receivable, which failure has an
adverse effect on the validity, perfected status or priority of the security
interest granted to the Administrative Agent on behalf of the Secured Parties
under this Agreement;
(e) any valid dispute, claim, offset or defense (other than discharge in
bankruptcy of the related Obligor) of the Obligor to the payment of any
Receivable (including, without limitation, a defense based on such Receivable
not being legal, valid and binding obligation of such Obligor enforceable
against it in accordance with its terms), or any other claim resulting from the
sale of a Financed Vehicle or services related to such Receivable or the
furnishing or failure to furnish such Financed Vehicle or services;
(f) any failure of the Borrower to perform its duties, covenants or
obligations in accordance with the provisions of this Agreement;
(g) any product liability claim or personal injury or property damage suit
or other similar or related claim or action of whatever sort arising out of or
in connection with the related Financed Vehicle or related merchandise or
services which are the subject of any Receivable; or
40
(h) the co-mingling of Collections with any other funds;
provided, however, that if the CP Lender enters into agreements for the
-------- -------
purchase of interests in receivables from one or more Other Transferors, the CP
Lender shall allocate such Indemnified Amounts which are in connection with its
activities to the Borrower and each Other Transferor; and provided further that
-------- -------
if such Indemnified Amounts are attributable to the Borrower and not
attributable to any Other Transferor, the Borrower shall be solely liable for
such Indemnified Amounts or, if such Indemnified Amounts are attributable to
Other Transferors and not attributable to the Borrower, such Other Transferors
shall be solely liable for such Indemnified Amounts.
Section 8.2 Indemnity for Reserves and Expenses. (a) If after the date
-----------------------------------
hereof, the adoption of any Law or bank regulatory guideline or any amendment or
change in the interpretation of any existing or future Law or bank regulatory
guideline by any Official Body charged with the administration, interpretation
or application thereof, or the compliance with any directive of any Official
Body (in the case of any bank regulatory guideline, whether or not having the
force of Law):
(1) shall impose, modify or deem applicable any reserve, special
deposit or similar requirement (including, without limitation, any such
requirement imposed by the Board of Governors of the Federal Reserve
System) against assets of, deposits with or for the account of, or credit
extended by, any Indemnified Party or shall impose on any Indemnified Party
or on the United States market for certificates of deposit or the London
interbank market any other condition affecting this Agreement, the other
Basic Agreements, any Asset Purchase Agreement, any liquidity agreement
between the CP Lender and one or more financial institutions relating to
this Agreement, the Collateral or payments of amounts due hereunder or
thereunder or its obligation to advance funds under any agreement or
otherwise in respect of this Agreement, the other Basic Agreements, any
Asset Purchase Agreement, any liquidity agreement between the CP Lender and
one or more financial institutions relating to this Agreement, or the
Collateral; or
(2) imposes upon any Indemnified Party any other expense (including,
without limitation, reasonable attorneys'
41
fees and expenses, and expenses of litigation or preparation therefor in
contesting any of the foregoing) with respect to this Agreement, the other
Basic Agreements, any Asset Purchase Agreement, any liquidity agreement
between the CP Lender and one or more financial institutions relating to
this Agreement, the Collateral or payments of amounts due hereunder or
thereunder or its obligation to advance funds under any agreement or
otherwise in respect of this Agreement, the other Basic Agreements, any
Asset Purchase Agreement, any liquidity agreement between the CP Lender and
one or more financial institutions relating to this Agreement, or the
Collateral;
and the result of any of the foregoing is to increase the cost to such
Indemnified Party with respect to this Agreement, the other Basic Agreements,
any Asset Purchase Agreement, any liquidity agreement between the CP Lender and
one or more financial institutions relating to this Agreement, the Collateral
and the obligations hereunder and thereunder, by an amount reasonably deemed by
such Indemnified Party to be material, then, on the next succeeding Distribution
Date after demand by the Administrative Agent, the Borrower shall pay to the
Administrative Agent, for the benefit of such Indemnified Party, such additional
amount or amounts as will compensate such Indemnified Party for such increased
cost; provided that no such amount shall be payable with respect to any period
--------
commencing more than two hundred seventy (270) days prior to the date the
Administrative Agent first notifies the Borrower of its intention to demand
compensation therefor under this Section 8.2(a); provided further that if such
-------------- -------- -------
change in Law, rule or regulation giving rise to such increased costs or
reductions is retroactive, then such 270-day period shall be extended to include
the period of retroactive effect thereof.
(b) If any Indemnified Party shall have determined that after the date
hereof, the adoption of any applicable Law or bank regulatory guideline
regarding capital adequacy, or any change therein, or any change in the
interpretation thereof by any Official Body, or any directive regarding capital
adequacy (in the case of any bank regulatory guideline, whether or not having
the force of law) of any such Official Body, has or would have the effect of
reducing the rate of return on capital of such Indemnified Party (or its parent)
as a consequence of such Indemnified Party's obligations hereunder or under any
of the Basic Agreements, any Asset Purchase Agreement, any liquidity agreement
between the CP Lender and one or more financial institutions relating to this
Agreement, or with respect hereto or thereto to a level below that which such
Indemnified Party (or its parent) could have achieved but for such adoption,
change, request or directive (taking into consider-
42
ation its policies with respect to capital adequacy) by an amount reasonably
deemed by such Indemnified Party to be material, then from time to time, within
ten (10) days after demand by the Administrative Agent, the Borrower shall pay
to the Administrative Agent, for the benefit of such Indemnified Party, such
additional amount or amounts as will compensate such Indemnified Party (or its
parent) for such reduction; provided that no such amount shall be payable with
--------
respect to any period commencing two hundred seventy (270) days prior to the
date the Administrative Agent first notifies the Borrower of its intention to
demand compensation under this Section 8.2(b); provided further that if such
-------------- -------- -------
change in Law, rule or regulation giving rise to such increased costs or
reductions is retroactive, then such 270-day period shall be extended to include
the period of retroactive effect thereof.
(c) The Administrative Agent and the Securities Intermediary will promptly
notify the Borrower of any event of which it has knowledge, occurring after the
date hereof, which will entitle an Indemnified Party to compensation pursuant to
this Article VIII. A notice by the Administrative Agent claiming compensation
------------
for the benefit of an Indemnified Party under this Article VIII and setting
------------
forth the additional amount or amounts to be paid to it hereunder shall be
conclusive in the absence of manifest error. In determining such amount, the
Administrative Agent or the Securities Intermediary may use any reasonable
averaging and attributing methods.
Section 8.3 Indemnity for Taxes. (a) All payments made by the Borrower
-------------------
under this Agreement and any other Basic Agreement shall be made free and clear
of, and without deduction or withholding for or on account of, any present or
future income, stamp or other taxes, levies, imposts, duties, charges, fees,
deductions or withholdings, now or hereafter imposed, levied, collected,
withheld or assessed by any Official Body, excluding (i) taxes imposed on the
---------
net income of the Administrative Agent, the Securities Intermediary or any other
Indemnified Party, however denominated, and (ii) franchise taxes imposed on any
of them in lieu of income taxes, in each case imposed: (1) by the United States
or any political subdivision or taxing authority thereof or therein; (2) by any
jurisdiction under the laws of which the Administrative Agent, the Securities
Intermediary or such Indemnified Party or lending office is organized or in
which its lending office is located, managed or controlled or in which its
principal office is located or any political subdivision or taxing authority
thereof or therein; or (3) by reason of any connection between the jurisdiction
imposing such tax and the Administrative Agent, the Securities Intermediary,
such Indemnified Party or such lending office other than a connection arising
solely from this Agreement or any other Basic Agreement or any transaction
43
hereunder or thereunder (all such non-excluded taxes, levies, imposts, duties,
charges, fees, deductions or withholdings, collectively or individually,
"Taxes"). If any such Taxes are required to be withheld from any amounts payable
-----
to the Administrative Agent, the Securities Intermediary or any Indemnified
Party hereunder, the amounts so payable to the Administrative Agent, the
Securities Intermediary or such Indemnified Party shall be increased to the
extent necessary to yield to such Person (after payment of all Taxes) all
amounts payable hereunder at the rates or in the amounts specified in this
Agreement and the other Basic Agreements. The Borrower shall indemnify the
Administrative Agent, the Securities Intermediary or any such Indemnified Party
for the full amount of any such Taxes on the Distribution Date immediately
succeeding the date of written demand therefor by such Person.
(b) Each Indemnified Party that is not incorporated under the laws of the
United States of America or a state thereof or the District of Columbia shall:
(i) deliver to the Borrower and to the Administrative Agent (A) two
duly completed copies of IRS Form W-8BEN or Form W-8ECI, or successor
applicable form, as the case may be, and (B) if applicable, an IRS Form W-8
or W-9, or successor applicable form, as the case may be;
(ii) deliver to the Borrower and to the Administrative Agent two (2)
further copies of any such form or certification on or before the date that
any such form or certification expires or becomes obsolete and after the
occurrence of any event requiring a change in the most recent form
previously delivered by it to the Borrower; and
(iii) obtain such extensions of time for filing and complete such
forms or certifications as may reasonably be requested by the Borrower or
the Administrative Agent;
unless, in any such case, an event (including, without limitation, any change in
treaty, law or regulation) has occurred prior to the date on which any such
delivery would otherwise be required which renders all such forms inapplicable
or which would prevent such Indemnified Party from duly completing and
delivering any such form with respect to it, and such Indemnified Party so
advises the Borrower and the Administrative Agent. Each such Indemnified Party
so organized shall certify (i) in the case of an IRS Form W-8BEN or IRS Form
W-8ECI, that it is entitled to receive payments under the this Agreement and the
other Basic Agreements without deduc-
44
tion or withholding of any United States federal income taxes and (ii) in the
case of an IRS Form W-8 or IRS Form W-9, that it is entitled to an exemption
from United States backup withholding tax. Each Person that becomes a party to
this Agreement as an APA Bank, shall, prior to the effectiveness of such
assignment, participation or addition, as applicable, be required to provide all
of the forms and statements required pursuant to this Section 8.3.
-----------
Section 8.4 Other Costs, Expenses and Related Matters. The Borrower agrees,
-----------------------------------------
upon receipt of a written invoice, to pay or cause to be paid, and to save the
Secured Parties, the Administrative Agent, and the Securities Intermediary
harmless against liability for the payment of, all reasonable out-of-pocket
expenses (including, without limitation, all reasonable attorneys', accountants'
and other third parties' fees and expenses, and any filing fees and expenses
incurred by officers or employees of the Secured Parties, the Administrative
Agent, or the Securities Intermediary) incurred by or on behalf of any Secured
Party, the Administrative Agent or the Securities Intermediary (i) in connection
with the negotiation, execution, delivery and preparation of this Agreement and
the other Basic Agreements and any documents or instruments delivered pursuant
hereto or thereto and the transactions contemplated hereby and thereby and (ii)
from time to time (a) relating to any amendments, waivers or consents under this
Agreement and the other Basic Agreements, (b) arising in connection with the
Administrative Agent's, the Securities Intermediary, the Secured Parties' or
their respective agents' enforcement or preservation of rights (including,
without limitation, the perfection and protection of the Administrative Agent's
first priority security interest in the Collateral), or (c) arising in
connection with any audit, dispute, disagreement, litigation or preparation for
litigation involving this Agreement.
ARTICLE IX
MISCELLANEOUS
Section 9.1 Further Assurances. Each party hereto shall take such action
------------------
and deliver such instruments to any other party hereto, in addition to the
actions and instruments specifically provided for herein, as may be reasonably
requested or required to effectuate the purpose or provisions of this Agreement
or to confirm or perfect any transaction described or contemplated herein.
Section 9.2 Waiver. Any waiver by any party of any provision of this
------
Agreement or any right, remedy or option hereunder shall only prevent and estop
45
such party from thereafter enforcing such provision, right, remedy or option if
such waiver is given in writing and only as to the specific instance and for the
specific purpose for which such waiver was given. The failure or refusal of any
party hereto to insist in any one or more instances, or in a course of dealing,
upon the strict performance of any of the terms or provisions of this Agreement
by any party hereto or the partial exercise of any right, remedy or option
hereunder shall not be construed as a waiver or relinquishment of any such term
or provision, but the same shall continue in full force and effect.
Section 9.3 Amendments; Waivers. (a) Subject to the next succeeding
-------------------
provisos and Section 9.3(b), no amendment, waiver, supplement, modification or
--------------
discharge of any provision of this Agreement shall be effective unless the
Rating Agency Condition shall have been satisfied and such waiver or
modification shall be in writing and signed by the Borrower and the
Administrative Agent, for itself and on behalf of the Required APA Banks, and
then such amendment, waiver, supplement, modification or discharge shall be
effective only in the specific instance and for the specific purpose for which
given; provided that no such action that (i) increases or decreases the
--------
Commitment of any APA Bank hereunder, (ii) reduces amounts payable hereunder to
the Administrative Agent or any other Secured Party, (iii) modifies in any way
the payment of interest and/or discount, fees, indemnities and other amounts to
any Secured Party hereunder (or to the Administrative Agent on its behalf),
including any defined terms necessary to calculate any such amounts, (iv)
extends the Commitment Expiry Date or maturity of any amount due hereunder or
affects the ability of the CP Lender to assign its interests to the APA Banks
under the Asset Purchase Agreement, (v) amends, modifies or waives any
definition used herein which relates to or refers to a specific Secured Party,
(vi) increases the Commitment of any APA Bank, or (vii) modifies the provisions
of Section 7.1 or this Section 9.3 or the definition of "Required APA Banks" or
----------- -----------
any other provision hereof specifying the number or percentage of APA Banks
required to waive, amend or modify any rights hereunder or make any
determination or grant any consent hereunder; shall in any case be effective
without the prior written consent of such Person(s) affected thereby; provided
--------
further that no such action that affects the rights, duties or obligations of
-------
the Administrative Agent shall be effective without the prior written consent of
the Person(s) affected thereby. In the case of any waiver, each of the parties
hereto shall be restored to its former position and rights hereunder, and any
Termination Event or Servicer Termination Event waived shall be deemed to be
cured and not continuing; but no such waiver shall extend to any subsequent or
other Termination Event or Servicer Termination Event, or impair any right
consequent thereon.
46
(b) It is the intent of the parties hereto that the Borrower have the right
to amend this Agreement solely to add an additional lender or additional
lenders, subject to the approval of the Administrative Agent, which shall not be
unreasonably withheld or delayed.
Section 9.4 Severability. In the event that any provision of this Agreement
------------
or the application thereof to any party hereto or to any circumstance or in any
jurisdiction governing this Agreement shall, to any extent, be invalid or
unenforceable under any applicable statute, regulation or rule of law, then such
provision shall be deemed inoperative to the extent that it is invalid or
unenforceable and the remainder of this Agreement, and the application of any
such invalid or unenforceable provision to the parties, jurisdictions or
circumstances other than to whom or to which it is held invalid or
unenforceable, shall not be affected thereby nor shall the same affect the
validity or enforceability of any other provision of this Agreement. The parties
hereto further agree that the holding by any court of competent jurisdiction
that any remedy pursued by the Administrative Agent or any of the other Secured
Parties hereunder is unavailable or unenforceable shall not affect in any way
the ability of the Administrative Agent or any of the other Secured Parties to
pursue any other remedy available to it or them (subject, however, to any
provisions of this Agreement that expressly limit the exercise of such
remedies).
Section 9.5 Nonpetition Covenant. Notwithstanding any prior termination of
--------------------
this Agreement, each of the parties hereto agrees that it shall not, prior to
one year and one day after the Termination Date, institute against, or join with
any other Person in instituting against, the Borrower any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceeding or other
similar proceeding under the laws of any jurisdiction. The parties agree that
damages will be an inadequate remedy for breach of this covenant and that this
covenant may be specifically enforced.
Section 9.6 Notices. All notices, demands, certificates, requests and
-------
communications hereunder ("notices") shall be in writing and shall be effective
(a) upon receipt when sent through the U.S. mails, registered or certified mail,
return receipt requested, postage prepaid, with such receipt to be effective the
date of delivery indicated on the return receipt, or (b) one Business Day after
delivery to an overnight courier, or (c) on the date personally delivered to an
Authorized Officer of the party to which sent, or (d) on the date transmitted by
legible telecopier transmission with a confirmation of receipt, in all cases
addressed to the recipient at its
47
address set forth in Annex A to the Sale and Servicing Agreement. A copy of each
notice given hereunder to any party hereto shall also be given to (without
duplication) the Borrower and the Administrative Agent. Each party hereto may,
by notice given in accordance herewith to each of the other parties hereto,
designate any further or different address to which subsequent notices shall be
sent.
Section 9.7 Term of this Agreement. This Agreement shall continue in effect
----------------------
until the Termination Date. On such Termination Date, this Agreement shall
terminate, all obligations of the parties hereunder shall cease and terminate
and the Collateral, if any, held hereunder and not to be used or applied in
discharge of any obligations of the Borrower in respect of the Secured
Obligations or otherwise under this Agreement or any of the other Basic
Agreements, shall be released to and in favor of the Borrower; provided that the
--------
provisions of Sections 3.4, 3.5, 7.6, 9.5, and 9.13 and Article VIII shall
-------- --- --- --- --- ---- ------------
survive any termination of this Agreement and the release of any Collateral upon
such termination.
Section 9.8 Assignments; Third-Party Rights. This Agreement shall be a
-------------------------------
continuing obligation of the parties hereto and shall (i) be binding upon the
parties and their respective successors and assigns, and (ii) inure to the
benefit of and be enforceable by each Secured Party and the Administrative Agent
for the benefit of the Secured Parties, and by their respective successors,
transferees and assigns. The Borrower may not assign this Agreement, or delegate
any of its duties hereunder, without the prior written consent of all of the
Secured Parties.
Section 9.9 Consent of Required APA Banks. In the event that the consent of
-----------------------------
the Required APA Banks is required under the terms hereof or under the terms of
any Basic Agreement, it is understood and agreed that, except as otherwise
provided expressly herein, the determination whether to grant or withhold such
consent shall be made solely by each Secured Party in its sole and absolute
discretion.
Section 9.10 Limitation of Liability. The Administrative Agent shall not
-----------------------
have any obligations under this Agreement or any other Basic Agreement other
than those specifically set forth herein or therein, and no implied obligations
of the Administrative Agent shall be read into this Agreement or any other Basic
Agreement. Without limiting any other provision hereof, the parties further
expressly acknowledge and agree that in no event shall Bank One Chicago be
liable under or in connection with this Agreement for indirect, special or
consequential losses or damages of any kind, including lost profits, even if
advised of the possibil-
48
ity thereof and regardless of the form of action by which such losses or damages
may be claimed.
Section 9.11 Counterparts. This Agreement may be executed in two or more
------------
counterparts by the parties hereto, and each such counterpart shall be
considered an original and all such counterparts shall constitute one and the
same instrument.
Section 9.12 Headings. The headings of Sections and paragraphs and the
--------
Table of Contents contained in this Agreement are provided for convenience only.
They form no part of this Agreement and shall not affect its construction or
interpretation.
Section 9.13 No Recourse Against Certain Parties. No recourse under or with
-----------------------------------
respect to any obligation, covenant or agreement (including, without limitation,
any obligation or agreement to pay fees or any other amount) of the Borrower
contained in this Agreement or any other agreement, instrument or document
entered into by it pursuant hereto or in connection herewith shall be had
against any incorporator, Affiliate, stockholder, officer, employee, director or
agent of the Borrower solely by virtue of its acting in such capacity, by the
enforcement of any assessment, by any legal or equitable proceeding, by virtue
of any statute or otherwise; it being expressly agreed and understood that the
agreements of the Borrower contained in this Agreement and all of the other
agreements, instruments and documents entered into by it pursuant thereto or in
connection herewith are, in each case, solely the corporate obligations of the
Borrower, and that no personal liability whatsoever shall attach to or be
incurred by any incorporator, stockholder, Affiliate, officer, employee,
director or agent of the Borrower, or any of them, under or by reason of any of
the obligations, covenants or agreements of the Borrower contained in this
Agreement or in any other such instrument, document or agreement, or which are
implied therefrom, and that any and all personal liability of every such
incorporator, stockholder, affiliate, officer, employee, director or agent of
the Borrower for breaches by the Borrower of any such obligations, covenants or
agreements, which liability may arise either at common law or at equity, by
statute or constitution, or otherwise, is hereby expressly waived as a condition
of and in consideration for the execution of this Agreement; provided that the
--------
foregoing shall not relieve any such Person from any liability it might
otherwise have as a result of its fraudulent actions or omissions.
49
Section 9.14 Respective Rights of the Borrower and the Secured Parties in
------------------------------------------------------------
the Collateral. The Borrower hereby acknowledges and agrees that its interest in
--------------
the Collateral is subject and subordinate in all respects to its pledge of the
Collateral to the Secured Parties under this Agreement and that the
Administrative Agent holds the Collateral for the Secured Parties hereunder.
Section 9.15 Consents to Jurisdiction. Each of the parties hereto
------------------------
irrevocably submits to the jurisdiction of the United States District Court for
the Southern District of New York, any court in the State of New York located in
the city and county of New York, and any appellate court from any thereof, in
any action, suit or proceeding brought against it and related to or in
connection with this Agreement, the other Basic Agreements or the transactions
contemplated hereunder or thereunder or for recognition or enforcement of any
judgment and each of the parties hereto irrevocably and unconditionally agrees
that all claims in respect of any such suit or action or proceeding may be heard
or determined in such New York State court or, to the extent permitted by law,
in such federal court. Each of the parties hereto agrees that a final judgment
in any such action, suit or proceeding shall be conclusive and may be enforced
in other jurisdictions by suit on the judgment or in any other manner provided
by law. To the extent permitted by applicable law, each of the parties hereby
waives and agrees not to assert by way of motion, as a defense or otherwise in
any such suit, action or proceeding, any claim that it is not personally subject
to the jurisdiction of such courts, that the suit, action or proceeding is
brought in an inconvenient forum, that the venue of the suit, action or
proceeding is improper or that this Agreement or any of the other Basic
Agreements or the subject matter hereof or thereof may not be litigated in or by
such courts. The Borrower hereby irrevocably appoints and designates The
Xxxxxxxx-Xxxx Corporation System, 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxx Xxxx
00000-0000, as its true and lawful attorney and duly authorized agent for
acceptance of service of legal process. The Borrower agrees that service of such
process upon such Person shall constitute personal service of such process upon
it. Nothing contained in this Agreement shall limit or affect the rights of any
party hereto to serve process in any other manner permitted by law or to start
legal proceedings relating to any of the Basic Agreements against the Borrower
or its property in the courts of any jurisdiction.
Section 9.16 Trial by Jury Waived. Each of the parties hereto waives, to
--------------------
the fullest extent permitted by law, any right it may have to a trial by jury in
respect of any litigation arising directly or indirectly out of, under or in
connection with this Agreement, any of the other Basic Agreements or any of the
transactions contemplated hereunder or thereunder. Each of the parties hereto
(a) certifies that no
50
representative, agent or attorney of any other party has represented, expressly
or otherwise, that such other party would not, in the event of litigation, seek
to enforce the foregoing waiver and (b) acknowledges that it has been induced to
enter into this Agreement and the other Basic Agreements to which it is a party,
by among other things, this waiver.
Section 9.17 Liabilities and Rights of Administrative Agent. (a)
----------------------------------------------
Notwithstanding any provision of this Agreement or any other Basic Agreement:
(i) the Administrative Agent shall have no obligations under this Agreement or
any other Basic Agreement other than those specifically set forth herein and
therein, and no implied obligations of the Administrative Agent shall be read
into this Agreement or any other Basic Agreement; and (ii) in no event shall the
Administrative Agent be liable under or in connection with this Agreement or any
other Basic Agreement for indirect, special, or consequential losses or damages
of any kind, including lost profits, even if advised of the possibility thereof
and regardless of the form of action by which such losses or damages may be
claimed. Neither shall the Administrative Agent nor any of its directors,
officers, agents or employees be liable for any action taken or omitted to be
taken in good faith by it or them under or in connection with this Agreement or
any other Basic Agreement, except for its or their own gross negligence or
willful misconduct. Without limiting the foregoing, the Administrative Agent (a)
may consult with legal counsel, independent public accountants and other experts
selected by it and shall not be liable for any action taken or omitted to be
taken in good faith by it in accordance with the advice of such counsel,
accountants or experts, (b) shall not be responsible to the Secured Parties, the
Sellers, the Servicer or the Borrower for any statements, warranties or
representations made in or in connection with this Agreement or the other Basic
Agreements (except for its own), (c) shall not be responsible to the Secured
Parties, the Sellers, the Servicer or the Borrower for the due execution,
legality, validity, enforceability, genuineness, sufficiency or value of this
Agreement or the other Basic Agreements (except with respect to itself), (d)
shall incur no liability under or in respect of any of the Commercial Paper or
other obligations of the CP Lender under this Agreement or the other Basic
Agreements and (e) shall incur no liability under or in respect of this
Agreement or the other Basic Agreements by acting upon any notice (including
notice by telephone), consent, certificate or other instrument or writing (which
may be by facsimile) believed by it to be genuine and signed or sent by the
proper party or parties. Notwithstanding anything else herein or in the other
Basic Agreements, it is agreed that where the Administrative Agent may be
required under this Agreement or the other Basic Agreements to give notice of
any event or condition or to take any action as a result of the occurrence of
any event or the existence of any condition, the
51
Administrative Agent agrees to give such notice or take such action only to the
extent that it has actual knowledge of the occurrence of such event or the
existence of such condition, and shall incur no liability for any failure to
give such notice or take such action in the absence of such knowledge.
(b) The Administrative Agent hereby represents and warrants to the Sellers
and the Servicer that it is duly authorized to act on behalf of the CP Lender
and the APA Banks.
(c) The Administrative Agent hereby confirms that the APA Banks have
executed and delivered the Asset Purchase Agreement and, by such execution and
delivery, have assumed all of the rights and obligations of the APA Banks
hereunder and under the other Basic Agreements. Upon effectiveness of this
Agreement and, with respect to each APA Bank, upon effectiveness of the Asset
Purchase Agreement, each APA Bank shall have all of the rights and benefits of
an "APA Bank" hereunder and under the other Basic Agreements, and each APA Bank
shall assume, and be bound by and liable for, all of the duties and obligations
of an "APA Bank" hereunder and thereunder to the extent specified herein and
therein, in each case as if such rights, benefits, duties, and obligations were
set forth in their entirety in the Asset Purchase Agreement.
(d) All actions taken by any Secured Party hereunder or under any Basic
Agreement shall be taken by the Administrative Agent on behalf of such Secured
Party.
Section 9.18 CP Lender Generally. (a) Each of the parties hereto hereby
-------------------
agrees that it will not institute against, or join with any other Person in
instituting against, the CP Lender any bankruptcy, insolvency, reorganization or
similar proceeding so long as any Commercial Paper or other notes issued by such
Purchaser shall be outstanding or there shall not have elapsed one year plus one
day since the last day on which any the CP Lender's Commercial Paper or other
notes shall have been outstanding.
(b) Notwithstanding anything to the contrary contained herein, the
obligations of the CP Lender under this Agreement are solely the corporate
obligations of the CP Lender and (i) in the case of obligations of the CP Lender
other than Commercial Paper, shall be payable at such time as funds are actually
received by, or are available to, the CP Lender, in excess of funds necessary to
pay in full all of its outstanding Commercial Paper and, to the extent funds are
not available to pay such
52
obligations, the claims relating thereto shall not constitute a claim against
the CP Lender, but shall continue to accrue. Each party hereto agrees that the
payment of any claim (as defined in Xxxxxxx 000 xx Xxxxx 00, Xxxxxx Xxxxxx Code
(Bankruptcy)) of any such party against the CP Lender, shall be subordinated to
the payment in full of all of such Lender's outstanding Commercial Paper.
No recourse under any obligation, covenant or agreement of the CP Lender
contained in this Agreement shall be had against any incorporator, stockholder,
officer, director, member, manager, employee or agent of the CP Lender or any of
its Affiliates (solely by virtue of such capacity) by the enforcement of any
assessment or by any legal or equitable proceeding, by virtue of any statute or
otherwise; it being expressly agreed and understood that this Agreement is
solely a corporate obligation of the CP Lender, and that no personal liability
whatever shall attach to or be incurred by any incorporator, stockholder,
officer, director, member, manager, employee or agent of the CP Lender or any of
its Affiliates (solely by virtue of such capacity) or any of them under or by
reason of any of the obligations, covenants or agreements of the CP Lender
contained in this Agreement, or implied therefrom, and that any and all personal
liability for breaches by the CP Lender of any of such obligations, covenants or
agreements, either at common law or at equity, or by statute, rule or
regulation, of every such incorporator, stockholder, officer, director, member,
manager, employee or agent is hereby expressly waived as a condition of and in
consideration for the execution of this Agreement; provided that the foregoing
--------
shall not relieve any such Person from any liability it might otherwise have as
a result of their willful misconduct or of fraudulent actions taken or
fraudulent omissions made by them.
(c) Each of the parties hereto hereby waives any right to setoff which it
may have or to it may be entitled against the CP Lender or its assets.
Section 9.19 Governing Law. This Agreement shall be governed by and
-------------
construed, and the obligations, rights and remedies of the parties hereunder
shall be determined, in accordance with the laws of the State of New York.
Section 9.20 No Recourse. It is expressly understood and agreed by the
-----------
parties hereto that (a) this Agreement is executed and delivered by Bankers
Trust (Delaware), not individually or personally but solely as trustee of the
Borrower, in the exercise of the powers and authority conferred and vested in
it, (b) each of the representations, undertakings and
53
agreements herein made on the part of the Borrower is made and intended not as
personal representations, undertakings and agreements by Bankers Trust
(Delaware) but is made and intended for the purpose of binding only the
Borrower, (c) nothing herein contained shall be construed as creating any
liability on Bankers Trust (Delaware), individually or personally, to perform
any covenant either expressed or implied contained herein, all such liability,
if any, being expressly waived by the parties hereto and by any Person claiming
by, through or under the parties hereto and (d) under no circumstances shall
Bankers Trust (Delaware) be personally liable for the payment of any
indebtedness or expenses of the Borrower or be liable for the breach or failure
of any obligation, representation, warranty or covenant made or undertaken by
the Borrower under this Agreement or any other related documents.
Section 9.21 Confidentiality. The Borrower shall maintain and shall cause
---------------
each of its employees and officers to maintain the confidentiality of this
Agreement and the other confidential or proprietary information with respect to
the Administrative Agent, the Securities Intermediary and each other Secured
Party and their respective businesses obtained by it or them in connection with
the structuring, negotiating and execution of the transactions contemplated
herein, except that the Borrower and its officers and employees may disclose
such information to the Borrower's external accountants and attorneys and as
required by any applicable law (including the Securities Act of 1933 and the
Securities Exchange Act of 1934) or order of any judicial or administrative
proceeding.
(a) Anything herein to the contrary notwithstanding, the Borrower hereby
consents to the disclosure of any nonpublic information with respect to it (i)
to the Administrative Agent, the Securities Intermediary or any other Secured
Party by each other, (ii) by the Administrative Agent, the Securities
Intermediary or any other Secured Party to any prospective or actual assignee or
participant of any of them and (iii) by the Administrative Agent to any rating
agency, Commercial Paper dealer or provider of a surety, guaranty or credit or
liquidity enhancement to the CP Lender or any entity organized for the purpose
of purchasing, or making loans secured by, financial assets for which Bank One
Chicago acts as the administrative agent and to any officers, directors,
employees, outside accountants and attorneys of any of the foregoing. In
addition, the Administrative Agent, the Securities Intermediary and any other
Secured Party may disclose any such nonpublic information pursuant to any law,
rule, regulation, direction, request or order of any judicial, administrative or
regulatory authority or proceedings (whether or not having the force or effect
of law).
54
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date set forth on the first page hereof.
AMERICREDIT ONE TRUST, as Borrower
By: Bankers Trust (Delaware), solely
in its capacity as Trustee
By:____________________________
Name:
Title:
BANK ONE, NA (MAIN OFFICE
CHICAGO), as Administrative Agent on
behalf of the Secured Parties
By:____________________________
Name: Xxxxx X. Xxxxxxx
Title: Authorized Signatory
FALCON ASSET SECURITIZATION
CORPORATION, as a Secured Party
By:____________________________
Name: Xxxxx X. Xxxxxxx
Title: Authorized Signatory
BANK ONE, NA (MAIN OFFICE
COLUMBUS), as Collateral Agent and
as Securities Intermediary
By:____________________________
Name: Xxxx X. Xxxxxxxx
Title: Authorized Signer
EXHIBIT A
FORM OF
VARIABLE FUNDING NOTE
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"). ANY RESALE OF TRANSFER OF THIS NOTE WITHOUT
REGISTRATION THEREOF UNDER THE ACT MAY ONLY BE MADE IN A TRANSACTION
EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND (A) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D OF THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT") OR (B) TO A PERSON WHO THE
TRANSFEROR REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER
WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT THAT IS AWARE
THAT THE RESALE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE
144A.
May 31, 2001
Reference is hereby made to that certain Security and Funding
Agreement, dated as of May 31, 2001 (as amended, supplemented or otherwise
modified and in effect from time to time, the "Security and Funding Agreement")
------------------------------
by and among AmeriCredit One Trust, a Delaware business trust, as borrower (the
"Borrower"), Bank One, NA (Main Office Chicago), a national banking association,
--------
as administrative agent (in such capacity, the "Administrative Agent"), Bank
--------------------
One, NA (Main Office Columbus), a national banking association, as securities
intermediary (in such capacity, the "Securities Intermediary"), and the lenders
-----------------------
and financial institutions party thereto from time to time (collectively, the
"Secured Parties"). Capitalized terms used herein and not otherwise defined
---------------
herein shall have the meanings assigned to such terms in, or incorporated by
reference into, the Security and Funding Agreement.
FOR VALUE RECEIVED, the Borrower hereby promises to pay to the order of the
Administrative Agent, for the account of and for the benefit of the
A-1
Secured Parties at the principal office of the Administrative Agent at 1Bank Xxx
Xxxxx, Xxxxxxx, XX 00000, Attention: Asset-Backed Finance, a principal sum equal
to _____________ MILLION DOLLARS ($____________), in lawful money of the United
States of America and in immediately available funds.
The date and amount of each Funding extended by the Secured Parties to the
Borrower under the Security and Funding Agreement, and each payment of principal
thereof, shall be recorded by the Administrative Agent, for the account of the
applicable Secured Parties, on its books and, prior to any transfer of this Note
(or, at the discretion of the Secured Parties, at any other time), indorsed by
the Administrative Agent, on behalf of the Secured Parties, on the schedule
attached hereto or on any continuation thereof. Although the stated principal
amount of this Note is as stated above, this Note shall be enforceable only with
respect to the Borrower's obligation to pay the principal hereof to the extent
of the unpaid principal amount of the Fundings outstanding under the Security
and Funding Agreement at the time such enforcement shall be sought.
CP Costs in respect of the outstanding principal amount of this Note shall
accrue pursuant to the Security and Funding Agreement and shall be payable to
the Administrative Agent for the benefit of the Secured Parties on the dates and
in the manner provided for in the Sale and Servicing Agreement and the Security
and Funding Agreement. CP Costs due and payable hereunder shall be payable in
accordance with the priorities set forth in Section 6.8 of the Sale and
Servicing Agreement.
Principal in an amount equal to the Targeted Monthly Principal Payment, if
any, will be due and payable on each Distribution Date in accordance with the
priorities set forth in Section 6.8 of the Sale and Servicing Agreement. Unless
otherwise due and payable on an earlier date in accordance with the terms of the
Basic Agreements, the entire outstanding principal amount of this Note and
accrued interest thereon will be due and payable on the Distribution Date
occurring in the calendar month seventy-eight (78) months following the
Commitment Expiry Date.
Following the occurrence of a Termination Event, the Administrative Agent
may, with the consent of the Required APA Banks, or shall, at the direction of
the Required APA Banks, declare all amounts due hereunder to be immediately due
and payable and exercise all remedies available to it pursuant to the Basic
Agreements and applicable law; provided that, upon the occurrence of an
--------
Insolvency Event with respect to the Borrower, all such amounts immediately
shall become due and
A-2
owing automatically without the need for presentment, demand, protest or other
notice of any kind, all of which are hereby waived by the Borrower.
The Borrower's obligation to make payments hereunder shall be a limited
recourse obligation of the Borrower, payable solely from the Collateral, and no
recourse shall be had hereunder to the Borrower for payment hereunder except to
the extent of the Collateral. This Note does not purport to summarize the
Security and Funding Agreement or the other Basic Agreements, and reference is
hereby made to such agreements for information with respect to the interests,
rights, benefits, obligations, proceeds and duties evidenced hereby.
The Borrower shall pay all costs of collection of any amount due hereunder
when incurred including, without limitation, reasonable attorney's fees and
expenses, and including all costs and expenses actually incurred in connection
with the pursuit by the Administrative Agent, on behalf of and at the direction
of the Secured Parties, of any of their rights or remedies referred to herein or
in the Security and Funding Agreement, or the protection of, or realization
upon, Collateral, and all such costs shall be payable in accordance with the
terms of the Security and Funding Agreement.
The Borrower hereby waives presentment, notice of dishonor, protest and
other notice or formality with respect to this Note.
This Note shall be governed by, and construed in accordance with, the laws
of the State of New York.
A-3
IN WITNESS WHEREOF, the undersigned has executed and delivered this
Variable Funding Note as of the date and year first above written.
AMERICREDIT ONE TRUST
By: Bankers Trust (Delaware), solely in
its capacity as Trustee
By: _______________________
Name:
Title:
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