EXHIBIT 10.5
CLASS VPN LOAN AGREEMENT
Dated as of November 22, 2002
between
AMERICREDIT CANADA AUTOMOBILE
RECEIVABLES TRUST
and
TRUST
and
AMERICREDIT FINANCIAL
SERVICES OF CANADA LTD.
DAVIES ▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
TABLE OF CONTENTS
PAGE
ARTICLE 1
INTERPRETATION
1.1 Definitions............................................................................................2
1.2 Headings...............................................................................................6
1.3 Rules of Construction..................................................................................6
1.4 Paramountcy............................................................................................6
1.5 Time of the Essence....................................................................................6
1.6 Severability...........................................................................................7
1.7 Rating Agency Ratings..................................................................................7
1.8 Currency...............................................................................................7
1.9 Interest Act...........................................................................................7
1.10 Administrator..........................................................................................7
1.11 Schedules..............................................................................................7
ARTICLE 2
CLASS A LOANS
2.1 Class VPN Loans by the Lender..........................................................................7
2.2 Drawdowns of Class VPN Loans...........................................................................8
2.3 Interest...............................................................................................9
2.4 Repayment of Principal.................................................................................9
2.5 Payments..............................................................................................10
2.6 Application of the Trust Indenture....................................................................11
2.7 Deposit of Proceeds of Lender Class VPN Loans.........................................................11
ARTICLE 3
CONDITIONS PRECEDENT
3.1 Conditions Precedent to Initial Class VPN Loan........................................................11
3.2 Conditions Precedent to all Class VPN Loans...........................................................12
3.3 Waiver................................................................................................13
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
4.1 Representations and Warranties of Borrower............................................................14
4.2 Representations and Warranties of AmeriCredit.........................................................14
4.3 Survival..............................................................................................15
ARTICLE 5
INDEMNITY AND CERTAIN REMEDIAL PROVISIONS
5.1 Indemnity from Borrower...............................................................................15
5.2 Indemnity from AmeriCredit............................................................................16
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5.3 Limit on Indemnity....................................................................................16
5.4 Change in Circumstances...............................................................................16
5.5 Indemnity.............................................................................................17
5.6 No Set-Off............................................................................................17
5.7 Prospectus Rights.....................................................................................17
5.8 Survival..............................................................................................17
ARTICLE 6
COVENANTS
6.1 Affirmative Covenants of the Borrower.................................................................18
6.2 Affirmative Covenants of AmeriCredit..................................................................18
ARTICLE 7
MISCELLANEOUS PROVISIONS
7.1 Amendments, etc.......................................................................................19
7.2 Notice................................................................................................19
7.3 No Waiver: Remedies...................................................................................20
7.4 Binding Effect: Assignability, etc....................................................................20
7.5 Entire Agreement......................................................................................21
7.6 Governing Law.........................................................................................21
7.7 No Proceedings........................................................................................21
7.8 Costs, Expenses and Taxes.............................................................................21
7.9 Limitation of Liability of the Lender Trustee/Securitization Agent....................................21
7.10 Limitation of Liability of the Borrower Trustee.......................................................22
7.11 Severability..........................................................................................22
7.12 Further Assurances....................................................................................23
7.13 Execution in Counterparts.............................................................................23
7.14 Confidentiality.......................................................................................23
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CLASS VPN LOAN AGREEMENT
MEMORANDUM OF AGREEMENT made as of November 22, 2002,
BETWEEN:
CIBC MELLON TRUST COMPANY,
a trust company incorporated pursuant to the laws of Canada and
registered to carry on the business of a trust company in each of
the provinces of Canada, in its capacity as trustee of
AMERICREDIT CANADA AUTOMOBILE RECEIVABLES TRUST, a trust
established pursuant to the laws of Ontario,
(in such capacity, hereafter referred to as the "Borrower"),
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THE TRUST COMPANY OF BANK OF MONTREAL,
a trust company incorporated pursuant to the laws of Canada and
registered to carry on the business of a trust company in each of
the provinces of Canada, in its capacity as trustee of TRUST, a
trust established pursuant to the laws of Ontario,
(in such capacity, hereinafter referred to as the "Lender"),
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AMERICREDIT FINANCIAL SERVICES OF CANADA LTD.,
a corporation incorporated pursuant to the laws of the Province
of Ontario,
(hereinafter referred to as "AmeriCredit").
WHEREAS AmeriCredit, the Borrower, Bank One, NA, and CIBC Mellon Trust
Company entered into a Sale and Servicing Agreement dated as of the date hereof
(as the same may be amended from time to time as permitted under the Trust
Indenture, the "Sale and Servicing Agreement") pursuant to which AmeriCredit
agreed to sell the Purchased Assets (as such term is defined therein) to the
Borrower on a fully serviced basis;
AND WHEREAS the Borrower desires to borrow money from the Lender on
the date hereof to partially fund the payment of the Purchase Price (as such
term is defined in the
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Sale and Servicing Agreement) among other things and on certain dates hereafter
to refinance the Class A Notes issued on the date hereof;
AND WHEREAS the Lender has agreed to advance the Initial Class VPN
Loan and may advance further Class VPN Loans hereafter, all on the terms and
subject to the conditions set forth herein.
NOW THEREFORE, in consideration of the mutual agreements herein
contained, and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto hereby agree as
follows:
ARTICLE 1
INTERPRETATION
1.1 DEFINITIONS
In this Agreement, unless the context requires otherwise, the
following terms should have the following meanings:
"Accelerated Principal Payment Amount" shall have the meaning ascribed thereto
in the Sale and Servicing Agreement.
"Accumulation Amount" shall have the meaning ascribed thereto in the Sale and
Servicing Agreement.
"Additional Class VPN Loan Amounts" shall have the meaning ascribed thereto in
the Sale and Servicing Agreement.
"Additional Drawdown Date" means the Business Day preceding any Targeted Final
Payment Date in respect of Class A Notes.
"Administration Agreement" means the administration agreement made as of
September 30, 2002 between the Borrower and AmeriCredit.
"Aggregate Principal Distributable Amount" shall have the meaning ascribed
thereto in the Sale and Servicing Agreement.
"Applicable Margin" means, in respect of the Initial Class VPN Loan, 0.59% per
annum, and in respect of any other Class VPN Loan, the rate per annum agreed to
between the Borrower and the Lender in respect thereof in accordance with
Section 2.2 provided that such rate shall be not less than 0.59%.
"Applicable Law" means, at any time, with respect to any Person, property,
transaction or event, all applicable laws, statutes, regulations, treaties,
judgments and decrees and (whether or not having the force of law) all
applicable official directives, rules, consents, approvals, authorizations,
guidelines, orders and policies of any governmental bodies or persons having
authority over any of the parties hereto, in each case in effect at such time.
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"BA 1 Month Rate" shall have the meaning ascribed thereto in the Sale and
Servicing Agreement.
"Borrower's Account" means the Eligible Deposit Account maintained by the
Indenture Trustee at The ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, Account Number
▇▇▇▇▇ 0690-▇▇▇▇▇▇▇, or such other Eligible Deposit Account which is designated
in writing by 5 Business Days' advance notice to the Lender as the Borrower's
Account for the purposes hereof.
"Business Day" means any day (other than a Saturday, Sunday or public holiday)
on which schedule ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇ (▇▇▇▇▇▇) are open for
business in Toronto, Ontario, Montreal, Quebec and Fort Worth, Texas.;
"Capitalized Interest Account" shall have the meaning ascribed thereto in the
Sale and Servicing Agreement.
"Closing Date" shall have the meaning ascribed thereto in the Sale and Servicing
Agreement.
"Class A Notes" shall have the meaning ascribed thereto in the Sale and
Servicing Agreement.
"Class VPN Loan" means a loan advanced by the Lender to the Borrower pursuant to
this Agreement.
"Class VPN Swap" shall have the meaning ascribed thereto in the Series
Supplement.
"DBRS" shall have the meaning ascribed thereto in the Sale and Servicing
Agreement.
"Determination Date" shall have the meaning ascribed thereto in the Sale and
Servicing Agreement.
"Eligible Deposit Account" shall have the meaning ascribed thereto in the Sale
and Servicing Agreement.
"Facility" has the meaning ascribed thereto in Section 2.1.
"Final Scheduled Payment Date" means the December, 2009 Monthly Payment Date.
"Governmental Authority" shall have the meaning ascribed thereto in the Trust
Indenture.
"Guarantee" means the guarantee dated as of the date hereof by the Guarantor in
favour of the Lender in respect of AmeriCredit's obligations hereunder.
"Guarantor" means AmeriCredit Corp.
"including" means including without limitation, and "includes" means includes
without limitation.
"Initial Class VPN Loan" means the Class VPN Loan advanced on the Closing Date.
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"Initial Receivables" shall have the meaning ascribed thereto in the Sale and
Servicing Agreement.
"Interest Period" means, in respect of a Class VPN Loan, initially the period
from and including the Closing Date, in the case of the Initial Class VPN Loan,
or otherwise the relevant Additional Drawdown Date, to but excluding the next
following Monthly Payment Date, and thereafter, the period from and including
each Monthly Payment Date to but excluding the next following Monthly Payment
Date.
"Lender's Account" means the Lender's account maintained at National Bank of
Canada, Main Montreal Branch, Transit #00011-006, Account number ▇▇-▇▇▇-▇▇, or
such other account which is designated in writing by notice to the Borrower as
the Lender's Account for the purposes hereof.
"Loan Rate" means in respect of a Class VPN Loan, (i) prior to the VPN Swap
Termination Date, the BA 1 Month Rate plus the related Applicable Margin, and
(ii) on or after the VPN Swap Termination Date, 4.43% per annum.
"Loan Request" means a loan request in the form of Schedule A.
"Maximum Principal Amount" shall have the meaning ascribed thereto in Section
2.1.
"Monthly Payment Date" shall have the meaning ascribed thereto in the Sale and
Servicing Agreement.
"Non-Sequential Amortization Period" shall have the meaning ascribed thereto in
the Sale and Servicing Agreement.
"Noteholders' Interest Distributable Amount" shall have the meaning ascribed
thereto in the Sale and Servicing Agreement.
"Noteholders' Principal Distributable Amount" shall have the meaning ascribed
thereto in the Sale and Servicing Agreement.
"Offered Notes" shall have the meaning ascribed thereto in the Series
Supplement.
"Outstanding Amount" shall have the meaning ascribed thereto in the Trust
Indenture.
"Person" means an individual, partnership, corporation, joint stock company,
trust (including a business trust), unincorporated association, joint venture,
limited liability company or other entity, or a governmental authority.
"Pool Balance" shall have the meaning ascribed thereto in the Sale and Servicing
Agreement.
"Pre-Funding Account" shall have the meaning ascribed thereto in the Sale and
Servicing Agreement.
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"Program Agreements" means the "Basic Documents", as such term is defined in the
Series Supplement, including for greater certainty, this Agreement, the Trust
Indenture, the Sale and Servicing Agreement, the Class VPN Swap and the
Guarantee.
"Prospectus" shall have the meaning ascribed thereto in Section 3.2(i).
"Rating Agency" shall have the meaning ascribed thereto in the Sale and
Servicing Agreement.
"Receivable File" shall have the meaning ascribed thereto in the Sale and
Servicing Agreement.
"Sale and Servicing Agreement" shall have the meaning ascribed thereto in the
recitals.
"Sales Taxes" means all federal, provincial and other sales, goods and services,
value added, use or other transfer taxes, and all other similar or like taxes
whatsoever, including any goods and services tax payable under the Excise Tax
Act (Canada) and other tax payable under an Act Respecting Quebec Sales Tax
(Quebec), any retail sales tax imposed by any province in Canada and any
harmonized sales tax replacing such retail sales tax in any such province.
"Securitization Agent" means initially Coventree Capital Group Inc. as agent of
the Lender, and its successors and assigns.
"Sequential Basis" means, with respect to any repayment of principal on Class
VPN Loans, that such repayment shall be applied first to reduce the principal
amount outstanding of the Initial Class VPN Loan until it has been reduced to
nil, and thereafter to reduce the principal amount of each remaining Class VPN
Loan (in the order such Class VPN Loans were advanced) until each such Class VPN
Loan has been reduced to nil such that no principal repayment will be applied to
any class VPN Loan until all principal amounts owing in respect of Class VPN
Loans advanced prior to such Class VPN Loan have been fully repaid.
"Series Supplement" means the supplemental indenture dated as of the Closing
Date between BNY Trust Company of Canada, as indenture trustee, and the
Borrower, as the same may be amended, modified, supplemented, restated or
replaced from time to time as permitted therein and in the Trust Indenture.
"Servicer Certificate" shall have the meaning ascribed thereto in the Sale and
Servicing Agreement.
"Targeted Final Payment Date" shall have the meaning ascribed thereto in the
Sale and Servicing Agreement.
"Taxes" means all taxes, charges, fees, levies, imposts, withholdings,
assessments, Sales Taxes or similar charges in the nature of a tax which are
payable and any interest, fines and penalties (including any liabilities for
failure to collect, remit or withhold any amounts required by Applicable Law),
imposed by any governmental authority (including federal, state, provincial,
territorial, municipal and foreign governmental authorities), and whether
disputed or not.
"Trust Indenture" means the trust indenture made as of September 30, 2002
between BNY Trust Company of Canada, as indenture trustee, and the Borrower, as
supplemented by the Series
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Supplement and as the same may be amended, modified, supplemented, restated or
replaced from time to time as permitted therein.
"VPN Swap Termination Date" means any Early Termination Date under (and as
defined in) the Class VPN Swap or the date on which the Class VPN Swap
terminates in accordance with its terms.
1.2 HEADINGS
The division of this Agreement into Articles, Sections and Subsections
and the insertion of an index and headings are for convenience of reference only
and shall not affect the construction or interpretation of this Agreement. The
terms "this Agreement", "hereof", "hereunder" and similar expressions refer to
this Agreement and not to any particular Article, Section, Subsection or other
portion of this Agreement and include any agreement supplemental to this
Agreement. Unless something in the subject matter or context is inconsistent
therewith, references to Articles, Sections and Subsections are to Articles,
Sections and Subsections of this Agreement.
1.3 RULES OF CONSTRUCTION
Unless the context otherwise requires,
(a) words importing the singular number only shall include the plural and
vice versa, words importing the masculine gender shall include the
feminine and neuter genders and vice versa and words importing
individuals shall include individuals, partnerships, trusts,
associations and other unincorporated organizations, corporations,
joint ventures or a government or agency thereof and vice versa;
(b) the word "or" may be conjunctive or disjunctive, as the context may
require;
(c) reference in this Agreement to any agreement, indenture or other
instrument in writing means such agreement, indenture or other
instrument in writing as amended, modified or supplemented from time
to time; and
(d) unless otherwise indicated, reference to any statute shall be deemed
to be a reference to such statute as amended, re-enacted or replaced
from time to time.
1.4 PARAMOUNTCY
In the event of any conflict between this Agreement and the terms of
any other agreement, the terms of this Agreement shall prevail.
1.5 TIME OF THE ESSENCE
Time shall be the essence of this Agreement.
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1.6 SEVERABILITY
Each of the provisions of this Agreement is declared to be separate
and distinct. If one or more of the provisions of this Agreement shall be
invalid, illegal or unenforceable in any respect under any applicable law, the
validity, legality or enforceability of the remaining provisions of this
Agreement shall not be affected or impaired by the invalidity, illegality or
unenforceability.
1.7 RATING AGENCY RATINGS
If any rating agency is substituted for another rating agency, the
specific ratings herein shall be the ratings of such substituted rating agency
equivalent to the ratings of such original rating agency, mutatis mutandis.
1.8 CURRENCY
All amounts expressed in this Agreement in terms of money refer to the
Canadian Dollar, and all payments to be made under this Agreement shall be made
in such currency.
1.9 INTEREST ACT
For purposes of the Interest Act (Canada), whenever interest is
calculated on a basis of a period other than a calendar year, each rate of
interest determined pursuant to such calculation expressed as an annual rate is
equivalent to such rate so determined multiplied by the number of days in the
calendar year with respect to which the same is to be ascertained and divided by
the number of days in such period.
1.10 ADMINISTRATOR
The Borrower may exercise its rights and perform its obligations
hereunder through AmeriCredit as its agent as provided in the Administration
Agreement, provided, however, that notwithstanding the terms of the
Administration Agreement, the Lender shall be entitled to treat AmeriCredit as
the Borrower's agent for all purposes hereunder unless and until the Borrower
shall give the Lender written notice to the contrary.
1.11 SCHEDULES
The following schedules are attached to and form part of this
Agreement:
Schedule A - Form of Loan Request
ARTICLE 2
CLASS A LOANS
2.1 CLASS VPN LOANS BY THE LENDER
Subject to and upon the terms and conditions herein set forth, the
Lender hereby agrees to establish a facility (the "Facility") in the aggregate
maximum principal amount of $200
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million (the "Maximum Principal Amount"). Subject to Article 3, the Facility may
be drawn down in up to 3 tranches commencing with the initial Class VPN Loan on
the Closing Date and subsequent Class VPN Loans on each Additional Drawdown
Date. No Class VPN Loan shall exceed, (a) in the case of the Initial Class VPN
Loan, $65 million, and (b) in the case of any other Class VPN Loan, the excess,
if any, of (i) the Outstanding Amount of the Class of Class A Notes having its
Targeted Final Payment Date immediately following the applicable Additional
Drawdown Date over (ii) the Total Noteholders' Principal Payment Amount for that
Targeted Final Payment Date calculated before giving effect to the Class VPN
Loan Proceeds to be received by the Borrower from the Lender pursuant to this
Agreement on the applicable Additional Drawdown Date. In addition, the aggregate
of all Class VPN Loans outstanding at any time shall not exceed the Maximum
Principal Amount. The Borrower may only use the proceeds of a Class VPN Loan (x)
if advanced on the Closing Date, to partially fund the purchase of the Initial
Receivables and to provide amounts to be deposited to the Pre-Funding Account
and the Capitalized Interest Account, and (y) if advanced on any Additional
Drawdown Date, to repay principal on the Class A Notes due and payable on the
immediately following Targeted Final Payment Date.
2.2 DRAWDOWNS OF CLASS VPN LOANS
(a) The Initial Class VPN Loan in the principal amount of $65 million
shall be drawn down in full on the Closing Date subject to the
delivery by the Borrower to the Lender of a Loan Request on the
Closing Date and the satisfaction of the conditions precedent set out
in Article 3.
(b) If the Borrower is permitted to request or obtain additional Class VPN
Loans pursuant to the provisions of Section 2.8 of the Sale and
Servicing Agreement, the Borrower shall request that an additional
Class VPN Loan be advanced on each Additional Drawdown Date by
delivering a Loan Request to the Lender not less than 35 days or more
than 45 days prior to such Additional Drawdown Date. The amount of the
additional Class VPN Loan requested in a Loan Request shall be the
amount the Borrower anticipates will be the amount required to make
the Total Noteholders' Principal Payment Amount for the Targeted Final
Payment Date following the relevant Additional Drawdown Date
sufficient to repay the Outstanding Amount of the Class A Notes to be
repaid on that Targeted Final Payment Date.
(c) If the Lender receives a Loan Request for additional Class VPN Loans,
the Lender may, in its sole discretion, within 2 Business Days of such
receipt, propose an Applicable Margin in respect of such additional
Class VPN Loan by delivering written notice to the Borrower. The
Borrower may, within 2 Business Days of receipt of such proposal,
either accept such proposed Applicable Margin or counter-propose an
alternative Applicable Margin in respect of such additional Class VPN
Loan by delivering written notice to the Lender. If the Borrower
elects to accept such proposed Applicable Margin or fails to respond
to the Lender's proposal within 2 Business Days, then, subject to the
satisfaction of the conditions precedent specified in Article 3, the
Lender shall be obligated to make such Class VPN Loan on the relevant
Additional Drawdown Date and the
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Applicable Margin shall be such proposed Applicable Margin. If the
Borrower elects to counter-propose an alternative Applicable Margin,
the Lender may, within 2 Business Days of receipt of such
counter-proposal, accept or reject such counter-proposal by delivering
written notice to the Borrower. In the event the counter-proposed
alternative Applicable Margin is accepted by the Lender as specified
above, then, subject to the satisfaction of the conditions precedent
specified in Article 3, the Lender shall be obligated to make such
Class VPN Loan on the relevant Additional Drawdown Date and the
Applicable Margin shall be such counter-proposed alternative
Applicable Margin. In the event that the Lender fails to deliver a
proposal within 2 Business Days of receipt of a Loan Request or the
Lender rejects or fails to accept a counter-proposal from the Borrower
within 2 Business Days of the receipt thereof as contemplated above,
the Lender shall be under no obligation to advance the relevant
additional Class VPN Loan.
(d) If and only if the Lender (i) rejects or fails to accept any
counter-proposal delivered by the Borrower or (ii) fails to deliver a
proposal following receipt of a Loan Request, in each case in
accordance with Section 2.2(c), the Borrower may enter into an
agreement with any other Person for the provision of loans to the
Borrower for the purpose of refinancing Class A Notes provided,
however, that in the case of clause (i) only, the terms of any such
loan in respect of pricing shall be no more favourable to any such
Person than the terms proposed in the relevant Loan Request and this
Agreement on the basis of an Applicable Margin as set out in the
Borrower's counter-proposal.
(e) Each of the Lender and the Borrower shall use it's respective best
efforts to satisfy the conditions precedent set out in Section 3.2 in
respect of a Class VPN Loan over which it has control.
(f) The Borrower shall notify the Lender in writing on the Determination
Date prior to each Additional Drawdown Date of the actual amount of
the Class VPN Loan to be advanced.
2.3 INTEREST
Interest shall accrue on each Class VPN Loan at the Loan Rate from day
to day during each Interest Period on the basis of a year of 365 days, and shall
be payable on each Monthly Payment Date in accordance with Section 2.5. Interest
shall continue to be payable to the Lender before and after default and
judgment, and interest shall accrue on overdue payments of interest or any other
amounts from day to day at the same rate and shall be immediately due and
payable. All interest shall be paid by the Borrower free and clear of, and
without deduction for, any Taxes of any kind whatsoever.
2.4 REPAYMENT OF PRINCIPAL
The Borrower shall repay the Class VPN Loans by paying to the Lender
the amounts allocated toward the repayment of principal pursuant to Section 2.5.
Notwithstanding
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the foregoing, the Class VPN Loans, including all principal and accrued interest
thereunder, shall become due and payable on the earlier of (!) the Final
Scheduled Payment Date and (ii) the occurrence of a Related Event of Default (as
such term defined in the Trust Indenture) in respect of the Class VPN Loans or
the Class A Notes.
2.5 PAYMENTS
(a) On or before 12:00 p.m. on each Determination Date preceding a Monthly
Payment Date, the Borrower (or AmeriCredit on its behalf) shall (i)
calculate the Noteholders' Interest Distributable Amount, if any, for
the Class VPN Loans and that Monthly Payment Date and the Outstanding
Amount, if any, for the Class VPN Loans and that Monthly Payment Date
and (ii) provide the Lender with written notice thereof in the
Servicer Certificate for that Determination Date.
(b) On each Monthly Payment Date for the Class VPN Loans, the Borrower
shall pay to the Lender, in accordance with the terms of the Sale and
Servicing Agreement and the Series Supplement, the sum of (i) the
Noteholders' Interest Distributable Amounts for the Class VPN Loans
and that Monthly Payment Date, (ii) the Noteholders' Principal
Distributable Amount for the Class VPN Loans and that Monthly Payment
Date, and (iii) the Additional Class VPN Loan Amounts for the Class
VPN Loans and that Monthly Payment Date.
(c) On each Monthly Payment Date for the Class VPN Loans except during a
Non-Sequential Amortization Period, the Lender shall, to the extent
available, apply monies received from the Borrower in respect of each
Class VPN Loan as follows:
(i) first, in or towards payment of interest accrued in respect of
the Class VPN Loans;
(ii) second, on a Sequential Basis in or towards repayment of the
principal amount of the Class VPN Loans; and
(iii) third, in or towards satisfaction of any other amount then due
and payable by the Borrower hereunder.
(d) On each Monthly Payment Date during a Non-Sequential Amortization
Period the Lender shall, to the extent available, apply monies
received from the Borrower on a pro-rata basis in respect of each
Class VPN Loan as follows:
(i) first, in or towards payment of interest accrued in respect of
the Class VPN Loans;
(ii) second, in or towards repayment of principal amount of the
Class VPN Loans; and
(iii) third, in or towards satisfaction of any other amount then due
and payable by the Borrower hereunder.
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(e) All payments required to be made to the Lender hereunder shall be paid
in immediately available funds to the Lender's Account no later than
10:00 a.m. on the day such payments are due.
(f) Notwithstanding the calculations described in Section 2.5(a), the
Lender's accounts maintained in connection with the Class VPN Loans
and this Agreement shall, in the absence of manifest error, constitute
irrebutable evidence of the amounts owing to the Lender hereunder.
2.6 APPLICATION OF THE TRUST INDENTURE
The Borrower hereby notifies the Lender that (a) the indebtedness and
liability of the Borrower to the Lender under this Agreement is secured by the
Trust Indenture charging all of the Related Collateral (as such term is defined
therein) in favour of the Indenture Trustee for the benefit of, inter alia, the
Lender, (b) the priority of the entitlement of the Lender to such Related
Collateral in respect of amounts required to be paid by the Borrower pursuant to
the terms of this Agreement is subject to the application of monies specified in
the Trust Indenture in respect of the Related Collateral and (c) the remedies of
the Lender under this Agreement are, to the extent applicable, subject to and
limited by the application of Section 9.1 of the Trust Indenture to the Lender
as a Specified Creditor.
2.7 DEPOSIT OF PROCEEDS OF LENDER CLASS VPN LOANS
The Lender shall deposit the proceeds of each Class VPN Loan to the
Borrower's Account on the Closing Date or the Additional Drawdown Date, as
applicable.
ARTICLE 3
CONDITIONS PRECEDENT
3.1 CONDITIONS PRECEDENT TO INITIAL CLASS VPN LOAN
Prior to the Initial Class VPN Loan being advanced on the Closing
Date, the following shall have occurred or the Borrower shall have delivered the
following to the Lender, in form and substance satisfactory to the Lender, as
the case may be:
(a) the conditions set forth in Section 2.5 of the Sale and Servicing
Agreement and Section 2.2 of the Trust Indenture have been satisfied
(and not waived);
(b) evidence that each of AmeriCredit and the Guarantor is duly
incorporated and that each of the Borrower, AmeriCredit and the
Guarantor is existing pursuant to the laws of the jurisdictions of
their respective establishment or incorporation and evidence
satisfactory to the Lender and its counsel that each of the Borrower
and AmeriCredit is duly qualified, licensed or registered in each of
the provinces of Canada to carry on their respective present
businesses and operations, except where the failure to be so
qualified, licensed or registered in any such province has and will
have no material adverse effect its ability to perform its respective
obligations under the Program Agreements;
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(c) evidence that the execution, delivery and performance of each Program
Agreement to be delivered by either the Borrower, AmeriCredit or the
Guarantor are within the powers of each of the Borrower, AmeriCredit
or the Guarantor, as applicable, and resolutions of the board of
directors of AmeriCredit and the Guarantor approving and authorizing
the execution, delivery and performance of each such Program Agreement
and the other documents to be delivered by it thereunder;
(d) incumbency certificates for each of the officers of each of the
Borrower, AmeriCredit and the Guarantor executing the Program
Agreements and the other documents to be delivered by either the
Borrower, AmeriCredit or the Guarantor thereunder, in each case
showing their names, offices and specimen signatures on which
certificates the Lender shall be entitled to conclusively rely until
such time as the Lender receives a replacement certificate meeting the
requirements of this Section 3.1(d);
(e) executed copies of the Program Agreements and the other agreements and
instruments called for thereunder; and
(f) an opinion of counsel to the Borrower, AmeriCredit and the Guarantor
dated as of the Closing Date in a form acceptable to the Lender and
DBRS as to the Borrower's, AmeriCredit's or the Guarantor's existence
and organization, due authorization, execution and delivery of the
Program Agreements to which they are parties, that they constitute
legal, valid and binding obligations of the Borrower, AmeriCredit and
the Guarantor, enforceable in accordance with their respective terms,
that the Sale and Servicing Agreement effects a "true sale" of the
assets described therein, and that the Program Agreements do not
contravene the terms of any applicable laws or any contractual
restriction binding on or affecting either the Borrower, AmeriCredit
or the Guarantor, the constating documents, by-laws or trust documents
(as applicable) of the Borrower, AmeriCredit or the Guarantor or any
resolution of the directors or shareholders of either the Borrower or
the Guarantor.
3.2 CONDITIONS PRECEDENT TO ALL CLASS VPN LOANS
Prior to any Class VPN Loan being advanced on the Closing Date or any
Additional Drawdown Date, the following shall have occurred, or the Borrower
shall have delivered to the Lender the following in each case in form and
substance satisfactory to the Lender, as the case may be:
(a) the conditions set forth in Section 2.8(d) of the Sale and Servicing
Agreement have been satisfied (and not waived);
(b) on the Closing Date or Additional Drawdown Date, as the case may be,
the following statements will be true, and the Borrower will be deemed
to have certified that:
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(i) the representations and warranties contained in Article 4 are
true and correct in all material respects on and as of such
date;
(ii) the Borrower is in all material respects in compliance with all
of its covenants and obligations under this Agreement; and
(iii) no Event of Default or Related Event of Default (as such terms
are defined in the Trust Indenture) has occurred and is
continuing;
(c) the VPN Swap Termination Date has not occurred, no event has occurred
which with the giving of notice or the passage of time or both could
result in the termination or early termination of the Class VPN Swap
and no rating downgrade as described in Section 15 of the Class VPN
Swap has occurred;
(d) DBRS shall have confirmed that the rating assigned to the commercial
paper debt obligations of the Lender will not be reduced or withdrawn
as a result of the Class VPN Loan being advanced hereunder;
(e) the Lender shall have determined, in its sole discretion that the
state of the Canadian financial markets is such that it has the
ability to issue extendible commercial paper to fund such Class VPN
Loans at rates and on such other terms as make the advance thereof
profitable for the Lender;
(f) after giving effect to the advance of any Class VPN Loan, and the
application of all payments to be made on such date, the sum of the
outstanding principal amounts of the Offered Notes and all Class VPN
Loans would not exceed the Pool Balance;
(g) all documents, instruments and agreements required by the terms hereof
to be delivered to the Lender and such other approvals, opinions,
financial statements, portfolio reports, disclosure statements, public
filings or other documents of any kind as the Lender may reasonably
request (except to the extent the Borrower is prohibited by law from
disclosing such other documents to the Lender); and
(h) the "expected ratings" of the Offered Notes as described in the Short
Form Prospectus of the Borrower dated November 18, 2002 pertaining to
the Offered Notes (together with the documents incorporated by
reference therein, the "Prospectus") have been issued by the
applicable Rating Agencies and such ratings continue in effect and
have not been reduced, withdrawn or qualified.
3.3 WAIVER
The conditions set forth in Sections 3.1 and 3.2 are inserted for the
sole benefit of the Lender and may be waived by the Lender in whole or in part,
with or without terms or conditions.
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ARTICLE 4
REPRESENTATIONS AND WARRANTIES
4.1 REPRESENTATIONS AND WARRANTIES OF BORROWER
The Borrower represents and warrants to and in favour of the Lender as
of the Closing Date and as of each Additional Drawdown Date, and acknowledges
that the Lender is relying on such representations and warranties in
consummating the transactions contemplated hereby, as follows:
(a) each representation and warranty contained in Section 6.1 of the Trust
Indenture is true and correct and the "Programme Agreements", as such
term is defined in the Trust Indenture , include the Program
Agreements; and
(b) the Prospectus constitutes full, true and plain disclosure of all
material facts relating to the Offered Notes as required by the
securities legislation of each of the provinces of Canada and the
Prospectus does not contain a misrepresentation (as defined in the
Securities Act (Ontario) with respect to the Offered Notes.
4.2 REPRESENTATIONS AND WARRANTIES OF AMERICREDIT
AmeriCredit represents and warrants to and in favour of the Lender as
of the Closing Date and as of each Additional Drawdown Date, and acknowledges
that the Lender is relying on such representations and warranties in
consummating the transactions contemplated hereby, as follows:
(a) AmeriCredit is duly organized and validly existing as a corporation in
good standing under the laws of the Province of Ontario, with the
corporate power and authority to own its properties and to conduct its
business as such properties are currently owned and such business is
presently conducted, and had at all relevant times, and has, the
corporate power, authority and legal right to acquire and own the
Receivables;
(b) AmeriCredit is duly qualified to do business as a foreign or
extra-provincial corporation in good standing, and has obtained all
necessary licenses and approvals, in all jurisdictions in which the
ownership or lease of property or the conduct of its business shall
require such qualifications;
(c) AmeriCredit has the power and capacity to execute and deliver the
Program Agreements to which it is a party and to carry out their
terms; the execution, delivery and performance of such Program
Agreements has been duly authorized by AmeriCredit by all necessary
corporate action; and such Program Agreements has been duly executed
and delivered by AmeriCredit;
(d) the Program Agreements to which it is a party constitute legal, valid
and binding obligations of AmeriCredit enforceable against it in
accordance with their terms;
- 15 -
(e) the consummation of the transactions contemplated by the Program
Agreements and the fulfilment of the terms hereof do not conflict
with, result in any breach of any of the terms and provisions of, or
constitute (with or without notice or lapse of time) a default under,
the note of incorporation or by-laws of AmeriCredit or any indenture,
agreement or other instrument to which AmeriCredit is a party or by
which it shall be bound; or result in the creation or imposition of
any Lien upon any of its properties pursuant to the terms of any such
indenture, agreement or other instrument (other than pursuant to the
Program Agreements); or violate any law or, to the best of
AmeriCredit's knowledge, any order, rule or regulation applicable to
AmeriCredit of any court or of any federal or provincial regulatory
body, administrative agency or other governmental instrumentality
having jurisdiction over AmeriCredit or its properties;
(f) there are no proceedings or investigations pending or, to the best of
AmeriCredit's knowledge, threatened, before any court, regulatory
body, administrative agency or other governmental instrumentality
having jurisdiction over AmeriCredit or its properties: (i) asserting
the invalidity of the Program Agreements, (ii) seeking to prevent the
consummation of any of the transactions contemplated by the Program
Agreements, or (iii) seeking any determination or ruling that could
reasonably be expected to materially and adversely affect the
performance by AmeriCredit of its obligations under, or the validity
or enforceability of, the Program Agreements to which it is a party;
(g) the representations and warranties contained in Section 3.1, 4.6, 6.1
and 7.1 of the Sale and Servicing Agreement are true and correct; and
(h) the Prospectus constitutes full, true and plain disclosure of all
material facts relating to the Offered Notes as required by the
securities legislation of each of the provinces of Canada and the
Prospectus does not contain a misrepresentation (as defined in the
Securities Act (Ontario) with respect to the Offered Notes.
4.3 SURVIVAL
The representations and warranties set out in this Article 4 shall
survive the execution hereof.
ARTICLE 5
INDEMNITY AND CERTAIN REMEDIAL PROVISIONS
5.1 INDEMNITY FROM BORROWER
Without prejudice to any other rights of the Lender hereunder or under
Applicable Law, the Borrower, hereby agrees to indemnify the Lender, the
Securitization Agent and their respective representatives and agents and agrees
to save them harmless from and against any and all damages, losses, claims,
liabilities, costs and expenses (including legal fees and disbursements on a
solicitor and client basis), awarded against or incurred by them arising out of
or as a result of any failure of the Borrower to perform or observe any of its
duties, covenants or obligations under the Program Agreements to which it is a
party, or the reliance by the Lender on
- 16 -
any representation, warranty or certification made by the Borrower or any
representative or agent thereof in or pursuant to any Program Agreement and/or
certificate, notice or other instrument delivered in connection therewith which
was incorrect in any material respect when made or deemed to be made or
delivered.
5.2 INDEMNITY FROM AMERICREDIT
Without prejudice to any other rights of the Lender hereunder or under
Applicable Law, AmeriCredit hereby agrees to indemnify the Lender, the
Securitization Agent and their respective representatives and agents and agrees
to save them harmless from and against any and all damages, losses, claims,
liabilities, costs and expense (including legal fees and disbursements on a
solicitor and client basis), awarded against or incurred by them arising out of
or as a result of any failure of AmeriCredit to perform or observe any of its
duties, covenants or obligations under the Program Agreements to which it is a
party, or the reliance by the Lender on any representation, warranty or
certification made by AmeriCredit or any representative or agent thereof in or
pursuant to any Program Agreement and/or certificate, notice or other instrument
delivered in connection therewith which was incorrect in any material respect
when made or deemed to be made or delivered.
5.3 LIMIT ON INDEMNITY
Notwithstanding the provisions of Section 5.1, the Borrower shall in
no case indemnify the Lender or its representatives or agents from any damages,
losses, claims, liabilities, costs and expenses caused by the gross negligence
or wilful misconduct of the Lender or any of its representatives.
5.4 CHANGE IN CIRCUMSTANCES
If either:
(i) the introduction of, or any change (including any change by way
of imposition or increase of any reserve requirements) in or in
the interpretation of, any law by any court or Governmental
Authority, in each case made after the date hereof; or
(ii) the compliance by the Lender with any changed or introduced
guideline or request made after the date hereof from any
Governmental Authority (whether or not having the force of
law),
has the effect of:
(iii) increasing the cost to the Lender of making, funding or
maintaining the Class VPN Loans hereunder, or reducing the rate
of return to the Lender in connection therewith or as a result
of reserves (including reserves against capital) to be made
therefor or requiring the payment of Taxes on or calculated
with reference to the capital of the Lender; or
(iv) reducing the amount receivable by the Lender hereunder,
- 17 -
the Lender shall deliver to the Borrower and AmeriCredit a certificate setting
forth its computation of such increased costs, amounts not received or
receivable, reduction in rate of return or required payment made or to be made,
which computation may utilize such averaging and attribution methods that the
Lender, acting reasonably, believes to be applicable. Upon receipt of such
certificate, AmeriCredit and the Borrower shall jointly and severally forthwith
pay to the Lender the amount of such increased costs, amounts not received or
receivable, or reduction in rate of return or required payment made or to be
made.
5.5 INDEMNITY
The Borrower and AmeriCredit, on a joint and several basis, shall
indemnify the Lender for all losses (including lost profits), costs, expenses,
damages and liabilities (including, any loss, cost, expense, damage or liability
sustained by the Lender in connection with the liquidation or re-employment in
whole or in part of deposits or funds borrowed or acquired by it to make any
Class VPN Loan), which the Lender may sustain or incur: (i) if for any reason a
utilization does not occur on a date specified therefor in any Loan Request due
to any action or failure to act of the Borrower or AmeriCredit, or (ii) if the
Borrower or AmeriCredit fails to give any notice required to be given by it
hereunder, in the manner and at the time specified herein. A certificate of the
Lender setting forth the amounts necessary to indemnify the Lender in respect of
such losses, costs, expenses, damages or liabilities shall be prima facie
evidence of the amounts owing under this Section 5.5.
5.6 NO SET-OFF
All payments to be made by or on behalf of the Borrower or AmeriCredit
hereunder shall be made without deduction, withholding, set-off or counterclaim.
5.7 PROSPECTUS RIGHTS
AmeriCredit hereby grants to the Lender rights of action for any
"misrepresentation" (as such term is defined in the Securities Act (Ontario))
contained in the Prospectus as against the promoter, as if the Lender were a
purchaser of Offered Notes thereunder, and the Lender shall be deemed to have
relied upon such misrepresentation if it was a misrepresentation on the Closing
Date. The rights granted above shall be equivalent in all respects to the rights
of action provided in Section 130 of the Securities Act (Ontario) and described
in the Prospectus under the heading "Statutory Rights of Withdrawal and
Rescission", including with respect to defences available to any defendant and
remedies available to the plaintiff, provided that there shall be no limitation
on the amount of damages recoverable by the Lender pursuant to the exercise of
such rights except to the extent of amounts owing to the Lender hereunder. Each
of the Borrower and AmeriCredit acknowledges and agrees that the rights granted
herein shall be in addition to and without derogation from any other right or
remedy that the Lender may have against the Borrower or AmeriCredit at law or in
equity.
5.8 SURVIVAL
The rights of the Lender under this Article 5 shall survive for a
period of 3 years following the earlier of (a) the Final Scheduled Payment Date,
and (b) the full and final repayment of all Class VPN Loans made hereunder.
- 18 -
ARTICLE 6
COVENANTS
6.1 AFFIRMATIVE COVENANTS OF THE BORROWER
The Borrower covenants and agrees in favour of the Lender that it
shall:
(a) provide the Lender with copies of all documents, information, reports
and other instruments required to be provided by (i) the Seller or the
Servicer to the Borrower or (ii) the Borrower to any Person, under the
Program Agreements (including without limitation the Servicer
Certificate on each Determination Date) to which it is a party or such
other documents or instruments as the Lender may reasonably request
from time to time (except to the extent the Borrower is prohibited by
laws from disclosing such other documents to the Lender);
(b) at any time and from time to time during regular business hours,
permit or cause to permit the Lender, its agents or representatives
upon two Business Days' prior notice to (i) examine and make copies of
the Receivable File in the possession (or under the control) of the
Borrower, and (ii) visit the offices and properties of the Borrower
for the purpose of examining the Receivable File and discussing
matters relating to the Offered Notes and the Class VPN Loans;
(c) direct and require its auditors to assist the Lender's auditors to the
extent and in such manner as is reasonably required for the Lender's
auditors to report on the status of the Class VPN Loans; and
(d) duly and punctually perform all of its obligations and pay all of its
liabilities as they may become due and payable under the Program
Agreements to which it is a party.
6.2 AFFIRMATIVE COVENANTS OF AMERICREDIT
AmeriCredit covenants and agrees in favour of the Lender that it
shall:
(a) provide the Lender with copies of all documents, information, reports
and other instruments required to be provided by the Seller or the
Servicer to the Borrower under the Program Agreements to which it is a
party (including without limitation the Servicer Certificate on each
Determination Date) or such other documents or instruments as the
Lender may reasonably request from time to time (except to the extent
AmeriCredit is prohibited by law from disclosing such other documents
or instruments to the Lender);
(b) at any time and from time to time during regular business hours,
permit or cause to permit the Lender, its agents or representatives
upon two Business Days' prior notice to (i) examine and make copies of
the Receivable File in the possession (or under the control) of
AmeriCredit or any of its affiliates, and (ii) visit the offices and
properties of AmeriCredit or any of its affiliates for the purpose of
examining
- 19 -
the Receivable File and discussing matters relating to the Offered
Notes and the Class VPN Loans; and
(c) direct and require its auditors to assist the Lender's auditors to the
extent and in such manner as is reasonably required for the Lender's
auditors to report on the status of the Class VPN Loans; and
(d) duly and punctually perform all of its obligations and pay all of its
liabilities as they may become due and payable under the Program
Agreements to which it is a party.
ARTICLE 7
MISCELLANEOUS PROVISIONS
7.1 AMENDMENTS, ETC.
No amendment or waiver of any provision of this Agreement or consent
to any departure by the Borrower from any provision of this Agreement will be
effective (in whole or in part) unless in writing and signed by the Lender. Such
amendment, modification or waiver will be effective only in the specific
instance, for the specific purpose and for the specific length of time for which
it is given by the Lender. The Borrower shall inform DBRS prior to the execution
of any such amendment, modification or waiver.
7.2 NOTICE
Any notice or other communication required or permitted to be given
hereunder shall be in writing and shall be given by prepaid first-class mail, by
telecopier or other means of electronic communication or by hand-delivery as
hereinafter provided. Any such notice, if mailed by prepaid first-class mail at
any time other than during or within three Business Days prior to a general
discontinuance of postal service due to strike, lock-out or otherwise, shall be
deemed to have been received on the fourth Business Day after the post-marked
date thereof, or if sent by telecopier or other means of electronic
communication, shall be deemed to have been received on the Business Day
following the sending unless receipt of such electronic communication is
confirmed by 5:00 p.m. on the date of sending, or if delivered by hand shall be
deemed to have been received at the time it is delivered to the applicable
address noted below. Notice of change of address shall also be governed by this
Section. In the event of a general discontinuance of postal service due to
strike, lock-out or otherwise, notices or other communications shall be
delivered by hand or sent by facsimile or other means of electronic
communication and shall be deemed to have been received in accordance with this
Section. Notices and other communications shall be addressed as follows:
(a) if to the Borrower: AmeriCredit Canada Automobile Receivables Trust
c/o CISC Mellon Trust Company
▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
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Attention: President
Facsimile:
(b) if to the Lender: Trust c/o Coventree Capital Group Inc.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Facsimile: (▇▇▇)▇▇▇-▇▇▇▇
(c) if to AmeriCredit: AmeriCredit Financial Services of Canada Ltd.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇
Attention: Chief Financial Officer
Facsimile:
7.3 NO WAIVER: REMEDIES
No failure on the part of either party to exercise, and no delay in
exercising, any right hereunder will operate as a waiver thereof; nor will any
single or partial exercise of any right hereunder preclude any other or further
exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by Applicable
Law.
7.4 BINDING EFFECT: ASSIGNABILITY, ETC.
This Agreement shall be binding upon and enure to the benefit of the
Borrower, the Lender and AmeriCredit and their respective successors and assigns
provided, however, that:
(a) the Borrower shall not assign its rights or obligations under this
Agreement without the consent of the other parties;
(b) AmeriCredit shall not assign its rights or obligations under this
Agreement without the consent of the other parties except (i) to any
Affiliate of AmeriCredit which (x) becomes an assignee of AmeriCredit
pursuant to and in any manner contemplated by Section 6.3 or 7.3 of
the Sale and Servicing Agreement and (y) executes an agreement of
assumption to perform every obligation of AmeriCredit under this
Agreement and (ii) in any other case, without the consent of the other
parties; and
(c) the Lender shall be entitled to assign all or any portion of the
benefits and to transfer all or any portion of its obligations under
this Agreement and in respect of the Class VPN Loans (i) to any debt
issuing trust administered by Coventree Capital Group Inc., (ii) to
any other Person with the prior written consent of
- 21 -
AmeriCredit, such consent not to be unreasonably withheld or delayed,
and (iii) following the occurrence of an Event of Default or Related
Event of Default (as such terms are defined in the Trust Indenture) or
in the event any of the ratings described in Section 3.2(i) shall have
been reduced, downgraded, withdrawn or qualified, to any Person.
7.5 ENTIRE AGREEMENT
This Agreement contains the entire agreement between the parties
relative to the subject matter hereof and supersedes all prior and
contemporaneous agreements, term sheets, commitments, understandings,
negotiations and discussions, whether oral or written. There are no warranties,
representations or other agreements between the parties in connection with the
subject matter hereof except as specifically set forth herein.
7.6 GOVERNING LAW
This Agreement shall be governed by, and construed in accordance with,
the laws of the Province of Ontario.
7.7 NO PROCEEDINGS
The Borrower hereby agrees that it will not file, or join in the
filing of, a petition against the Lender, cooperate with or encourage, or join
in the commencement of, any bankruptcy, reorganization, arrangement, insolvency,
liquidation or other similar proceeding against the Lender so long as any
commercial paper or other debt obligation is outstanding or there shall not have
elapsed one year plus one day since the last day on which any such commercial
paper or other debt obligation will have been outstanding and the Lender hereby
agrees and acknowledges that by executing this Agreement it is subject to the
provisions of the Trust Indenture.
7.8 COSTS, EXPENSES AND TAXES
In addition to the rights of indemnification provided for in Article
5, the Borrower agrees to pay on demand (i) all other costs, expenses and Taxes
(excluding income taxes, goods and services taxes, withholding taxes or any
similar taxes) reasonably incurred by the Lender in connection with the
enforcement of this Agreement and (ii) the fees and disbursements of the
Lender's counsel in connection with the foregoing.
7.9 LIMITATION OF LIABILITY OF THE LENDER TRUSTEE/SECURITIZATION AGENT
The trustee of the Lender, The Trust Company of Bank of Montreal (the
"Lender Trustee"), and the Securitization Agent and each of their respective
directors, officers, agents or employees, will not be subject to any liability
whatsoever, in tort, in contract or otherwise, in connection with the Lender's
property or activities, to the Lender's beneficiary or to any other person, for
any action taken or permitted by it to be taken, or its failure to take any
action including, the failure to compel in any way any former or acting trustee
of the Lender to redress any breach of trust in respect of the execution of the
duties of its office or in respect of the Lender's property or activities,
provided that the foregoing limitation will not apply in respect of
- 22 -
action or failure to act arising from or in connection with wilful misconduct or
gross negligence by any of them. The Lender Trustee, in doing anything or
permitting anything to be done in respect of the execution of the duties of its
office or in respect of the Lender's property or activities is, and will be
conclusively deemed to be, acting as trustee of Lender and not in any other
capacity. Except as to the extent provided in this Section 7.9, the Lender
Trustee will not be subject to any liability for any debts, liabilities,
obligations, claims, demands, judgments, costs, charges or expenses against or
with respect to the Lender, arising out of anything done or permitted by it to
be done or its failure to take any action in respect of the execution of the
duties of its office or for or in respect of the Lender's property or activities
and resort will be had solely to the Lender's property for the payment or
performance thereof. No property or assets of the Lender Trustee owned in its
personal capacity or otherwise will be subject to levy, execution or other
enforcement procedure with regard to any obligation under this Agreement.
Without limiting the generality of any of the foregoing, each of the Borrower
and AmeriCredit acknowledge and agree that the Securitization Agent acts as
agent for the Lender and has no duties or obligations to, will incur no
liability to, and does not act as agent in any capacity for, the Borrower or
AmeriCredit.
7.10 LIMITATION OF LIABILITY OF THE BORROWER TRUSTEE
CIBC Mellon Trust Company (the "Borrower Trustee"), will not be
subject to any liability whatsoever, in tort, in contract or otherwise, in
connection with the Borrower's property or activities, to the Borrower's
beneficiary or to any other person, for any action taken or permitted by it to
be taken, or its failure to take any action including, the failure to compel in
any way any former or acting trustee of the Borrower to redress any breach of
trust in respect of the execution of the duties of its office or in respect of
the Borrower's property or activities, provided that the foregoing limitation
will not apply in respect of action or failure to act arising from or in
connection with dishonesty, bad faith, wilful misconduct, gross negligence or
reckless disregard of a duty by the Borrower Trustee. The Borrower Trustee, in
doing anything or permitting anything to be done in respect of the execution of
the duties of its office or in respect of the Borrower's property or activities
is, and will be conclusively deemed to be, acting as trustee of Borrower and not
in any other capacity. Except to the extent provided in this Section 7.10, the
Borrower Trustee will not be subject to any liability for any debts,
liabilities, obligations, claims, demands, judgments, costs, charges or expenses
against or with respect to the Borrower, arising out of anything done or
permitted by it to be done or its failure to take any action in respect of the
execution of the duties of its office or for or in respect of the Borrower's
property or activities and resort will be had solely to the Borrower's property
for the payment or performance thereof. No property or assets of the Borrower
Trustee owned in its personal capacity or otherwise will be subject to levy,
execution or other enforcement procedure with regard to any obligation under
this Agreement.
7.11 SEVERABILITY
If any provision of this Agreement is determined to be invalid or
unenforceable in whole or in part, such invalidity or unenforceability shall
attach only to such provision or part thereof and the remaining part of such
provision and all other provisions hereof shall continue in full force and
effect.
- 23 -
7.12 FURTHER ASSURANCES
Each of the parties hereto upon the request of the other party or
parties hereto shall do, execute, acknowledge and deliver or cause to be done,
executed, acknowledged or delivered all such further acts, deeds, documents,
assignments, transfers, conveyances, powers of attorney and assurances as may be
reasonably necessary or desirable to effect complete consummation of the
transactions contemplated by this Agreement.
7.13 EXECUTION IN COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of
which when so executed will be deemed to be an original and all of which when
taken together will constitute one and the same agreement.
7.14 CONFIDENTIALITY
Each of the parties shall make all reasonable efforts to hold all
non-public information obtained pursuant to this Agreement and the transactions
contemplated hereby or effected in connection herewith in accordance with its
customary procedures for handling its confidential information of this nature,
provided that, notwithstanding the foregoing, the any party may make disclosure
of such non-public information (i) as requested or required by any governmental
agency or representative thereof or pursuant to legal process or when required
under applicable law, or (ii) to a Rating Agency; provided that, unless
specifically prohibited by applicable law or court order, each party hereto
shall notify the other party hereto of any request by any governmental agency or
representative thereof or other Person for disclosure of any such non-public
information prior to disclosure of such information to permit the party affected
to contest such disclosure, if possible.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers duly authorized as of the date first
written above.
CIBC MELLON TRUST COMPANY, IN ITS
CAPACITY AS TRUSTEE OF AMERICREDIT
CANADA AUTOMOBILE RECEIVABLES
TRUST, BY ITS AGENT AMERICREDIT FINANCIAL
SERVICES OF CANADA LTD.
by (signed) "▇▇▇▇ ▇▇▇▇▇▇▇▇"
--------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Authorized Signing Officer
THE TRUST COMPANY OF BANK OF
MONTREAL, in its capacity as trustee of
TRUST, as Lender, by its
securitization agent, COVENTREE
CAPITAL GROUP INC. without personal
liability
by (signed) "▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇"
--------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Principal
by (signed) "▇▇▇▇ ▇▇▇"
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Name: ▇▇▇▇ ▇▇▇
Title: Principal
AMERICREDIT FINANCIAL SERVICES
OF CANADA LTD.
by (signed) "▇▇▇▇ ▇▇▇▇▇▇▇▇"
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Senior Vice-President, Finance
by
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Name:
Title:
SCHEDULE A
LOAN REQUEST
Date: [ ]
To: TRUST
c/o Coventree Capital Group Inc.
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Dear Sirs/Mesdames:
We refer to the Class VPN Loan Agreement dated as of November ., 2002
between AmeriCredit Canada Automobile Receivables Trust, Trust and AmeriCredit
Financial Services of Canada Ltd. (as amended, the "Agreement"). Unless
otherwise defined herein, capitalized terms used herein have the meanings given
to them in the Agreement.
We hereby give notice of our request for a Class VPN Loan pursuant to
the Agreement for the purpose set out therein as follows:
(i) Estimated Amount of Class VPN Loan: $.
(ii) Date of Class VPN Loan: .
(iii) The Borrower hereby represents and warrants that the Class VPN
Loan will be used solely for the purposes set out in Section
2.7 of the Sale and Servicing Agreement.
Yours truly,
CIBC MELLON TRUST COMPANY, in its
capacity as trustee of AMERICREDIT
CANADA AUTOMOBILE RECEIVABLES TRUST
by
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Name: .
Title: .
by
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Name: .
Title: .